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 WORKING CONSTITUTION 
 
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 THE UNITED KINGDOM 
 
 AND ITS OUTGROWTHS
 
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 THE WORKING 
 
 CONSTITUTION 
 
 OF THE 
 
 UNITED KINGDOM 
 
 AND ITS OUTGROWTHS 
 
 BY 
 
 LEONARD COURTNEY 
 
 LONDON 
 
 J. M. DENT AND COMPANY 
 1901
 
 Edinburgh : T. and A. CONSTAL, (late) Printer* to Her Majesty
 
 PREFACE 
 
 MANY shortcomings will doubtless be discovered in this 
 little book and some errors. I hope the latter are not 
 numerous. If I have an opportunity, I shall gladly correct 
 any that are pointed out. I have already to acknowledge 
 the assistance of several friends in the performance of a 
 work attended with some special difficulties. Mr. Roby, 
 late M.P. for Eccles, and Mr. H. Hobhouse, M.P. for East 
 Somerset, have most kindly read the proofs and have given 
 me most useful hints and corrections. The sections on 
 'India, 1 the 'Isle of Man, 1 and Scottish Institutions have 
 been severally submitted to three friends of the highest 
 authority on these subjects respectively whom I do not 
 name because I would not have them counted responsible 
 for what is written, but to whom I am most grateful for 
 help which has safeguarded me from some serious errors. 
 
 Lastly, I have to acknowledge the assistance of my 
 secretary, Mr. George Unwin, of Lincoln College, Oxford, 
 without whose aid my task would not have been performed. 
 Every word has been written by him at my dictation, and 
 he has been unwearied in the verification of authorities, 
 in the examination of details not at the command of my 
 memory, and in suggestions for the amendment of what 
 was faulty and the elucidation of what was obscure. The 
 side-notes are mainly due to him, and the Index at the 
 end of the volume is entirely his work.
 
 NOTE 
 
 THE frontispiece is taken from an etching by Romaine de 
 Hooge, nephew of the better-known Peter. It represents 
 William the Third in the House of Lords on February if, 
 1688-89, five days after he had accepted the Crown, when, as 
 Macaulay wrote, ' the Commons were called in and he (the 
 King) with many gracious expressions reminded his hearers 
 of the perilous situation of the country, and exhorted them 
 to take such steps as might prevent unnecessary delay in the 
 transaction of public business. His speech was received by 
 the gentlemen who crowded the bar with the deep hum with 
 which our ancestors were wont to indicate approbation.' The 
 King is on the Throne. Immediately at the foot of the 
 picture are the backs of the peers on his left (what we now 
 call the Opposition) side, and facing us are a large number 
 of peers on the right (Ministerial) side. Occupying a small 
 space at the bar is the Speaker with apparently the Black 
 Rod, the Sergeant, and behind them sundry members. In 
 the centre of the House is the Lord Chancellor on the wool- 
 sack facing the King ; behind him the chiefs of the Common 
 Law Courts, Clerk of Parliament, etc., and the Masters in 
 Chancery (?) on their knees. Other officials are standing 
 about in attendance.
 
 CONTENTS 
 PART I 
 
 PARLIAMENT 
 
 CHAP. PAGE 
 
 i. The Nation and the House of Commons, ... 3 
 
 n. The Sanction of the Authority of the House of Commons, 21 
 
 in. How the Authority of the House of Commons may be 
 
 contested, 35 
 
 iv. The Growth of the Authority of the House of Commons,, 40 
 
 v. Constitution of the House of Commons down to the 
 
 Union with Scotland, ....... 51 
 
 vi. Scots Constitution down to 1707, ..... 59 
 
 vii. The House of Commons, 1707-1801, .... 66 
 
 vni. The Government and Parliament of Ireland down to the 
 
 Union, ......... 70 
 
 ix. Union with Ireland : Catholic Emancipation : Reforms 
 
 of 1832, 1867, 1884, .75 
 
 x. Privileges of the House of Commons, .... 87 
 
 xi. The House of Lords : Past and Present, ... 94 
 xii. The Crown : Privy Council : Cabinet, . . . .109 
 
 xiii. Army : Navy : Civil Service. 120 
 
 xiv. Royal Commissions, etc., 134
 
 viii THE WORKING CONSTITUTION 
 
 CHAP. PAGE 
 
 xv. The Parties, 137 
 
 xvi. General Election, 143 
 
 xvn. Course of Business in Parliament, 157 
 
 xvni. Private Bill Legislation, 178 
 
 xix. Parliamentary Commissions, 184 
 
 PART II 
 
 INSTITUTIONS SUBORDINATE TO PARLIAMENT 
 
 i. England : Judicial System, Church, Local Organisation, 
 
 Land Laws, 193 
 
 ii. Scotland : Church, Law, Local Organisation, . . 220 
 
 in. Ireland : Law and Police, Religion, Education, Local 
 
 Organisation, ........ 240 
 
 PART III 
 
 PARLIAMENT IN RELATION TO THE EMPIRE AND 
 TO FOREIGN POWERS 
 
 i. Ancient Crown Possessions : (1) Channel Islands, (2) Isle 
 
 of Man, 259 
 
 ii. Crown Colonies, ... .... 2C8 
 
 in. Self-governing Colonies, .... 283 
 
 iv. India, . .290 
 
 v. Foreign Relations, 308 
 
 vi. Future Growth of the Constitution, . . . .310 
 
 INDEX, 323
 
 PART I 
 PARLIAMENT
 
 THE NATION AND 
 THE HOUSE OF COMMONS 
 
 THE Constitution of the United Kingdom has been rightly Our Con- 
 described as that of a republic veiled in monarchical forms, stitution is a 
 and containing in its organisation large survivals of aristo- growing ^ 
 cratic privilege. It has no fixed and definite shape, originally organism, 
 settled by some supreme authority especially charged with 
 that solemn duty, and subsequently maintained as thus first 
 settled until revised with equal solemnity by the same or an 
 equal authority. Its special and almost unique characteristic 
 is that it is subject to constant and continuous growth and 
 change. It is a living organism, absorbing new facts and 
 transforming itself. Its changes are sometimes considerable 
 and even violent ; and then for long periods the movement 
 is almost imperceptible, although it is quickly realised when 
 we compare the outcome presented at different points of 
 time. The Constitution of to-day is different from what it 
 was fifty years since ; and fifty years hence it will certainly 
 be different from what it is to-day. It is the province of 
 the historical student to trace the successive stages, through 
 which the almost unchecked authority of the King became 
 transformed into the almost unchecked authority of the 
 national will ; but the purpose of these pages will rather be 
 to examine the situation as it now exists, including in such 
 examination some attempt to detect the forces which are
 
 4 THE WORKING CONSTITUTION 
 
 operative towards the production of the further changes 
 which we know will in due course be developed. 
 
 The Supre- The fundamental fact of our Constitution is the absolutely 
 Parliament unc l ua ^fi e d supremacy of Parliament. In it is embodied the 
 supreme will of the State ; and though that will may declare 
 itself in a different and even contradictory fashion from 
 time to time, yet at any moment its expression is final and 
 conclusive. The laws of the United Kingdom are made by 
 Parliament, and the administration of public affairs, whether 
 national or local, is everywhere subordinate to the authority 
 of Parliament. The mode of subordination may and does 
 vary. The formalities regulating the exercise of its authority 
 have, in some cases, been made so difficult by the will of 
 Parliament itself, that this authority, supreme though it be, 
 cannot be used except on the rarest occasions; and the 
 subordinate powers, thus protected from hasty interference, 
 are sometimes spoken of as independent. But even the 
 highest of them do their work subject to parliamentary 
 control. Parliament, it must be repeated, is supreme, and 
 Parliament consists of the Crown, the House of Lords, and 
 the House of Commons. Parliament expresses its will in 
 the conduct of a Ministry which it supports and maintains, 
 and in legislative Acts agreed upon by the Houses of Lords 
 and Commons, and approved by the Crown ; but it is now 
 nearly t\vo hundred years since the Crown withheld its 
 approval of a legislative Act agreed upon by the two Houses, 
 and this approval has now for a long time been a formality 
 that could not bp withheld. The influence of the Crown, as 
 must be explained hereafter, is now exercised in a different 
 fashion, and the possibility of the Crown refusing to assent 
 to what has been agreed upon by both Houses may truly be 
 described as inconceivable. The two Houses may, however, 
 differ between themselves ; and the question arises how such 
 differences are in fact settled. An agreement may be estab-
 
 PARAMOUNTCY OF COMMONS 5 
 
 lished by one of the two giving way to the other. The 
 
 House of Lords consists of some five hundred and eighty HOW unity of 
 
 noblemen, to whom additions are constantly made, whose determina- 
 
 legislative privileges descend exclusively through males, 
 
 except in a few cases in which they pass through females 
 
 to mafe descendants. The House of Commons, on the 
 
 other hand, consists of six hundred and seventy gentlemen, 
 
 elected by constituencies into which the kingdom is divided, 
 
 for a period of seven years ; but it may be dissolved, and 
 
 a General Election ordered before the expiration of that 
 
 period. It is obvious that the balance of judgment in the 
 
 House of Lords may be altered by an addition of new 
 
 members to its body or by a change or submission of 
 
 opinion among existing members ; whilst the balance of 
 
 judgment in the House of Commons may be confirmed or 
 
 altered as the result of a General Election. It is through a 
 
 General Election that the authoritative means of settling 
 
 a difference between the two Houses is now found. If the 
 
 result of the Election is a House of Commons the majority 
 
 of whose members support the line taken by the House of 
 
 Lords, the difference disappears and the Lords have their 
 
 way. If, on the other hand, the majority of the new House 
 
 are of the same opinion as the previous majority, and the 
 
 question in dispute has held a foremost place during the 
 
 Election, it is now recognised to be the duty of the House of 
 
 Lords to give way. Other methods of solving the difficulty 
 
 of a difference between the two Houses may exist, and might 
 
 be called into operation should necessity arise ; but the one 
 
 clear method of solution upon which all are at present 
 
 agreed is that which has been stated. 
 
 This conclusion is founded upon the principle that the The ultimate 
 will of the nation finds its most absolute expression in the ^General* 
 judgment of the House of Commons elected for the pur- Election. 
 pose of ascertaining its will upon some definite issue ; and
 
 6 THE WORKING CONSTITUTION 
 
 this principle is in fact now admitted by all parties as 
 beyond controversy. No one ever questions the guidance 
 of a General Election. The force which it expresses is 
 a constant subject of appeal as the ultimate power of the 
 State. Whilst the period of a House of Commons is 
 running, and even when it is approaching its term, it is 
 most customary to hear the advocate of a proposed law 
 declare his confident belief that 'the proposal has the 
 support of the country, 1 or ' that the great majority of the 
 nation is in its favour,' or ' that the constituencies through- 
 out the kingdom will approve of it,' and to find an opponent 
 of the measure in question appealing in the same phrases 
 and with equal confidence to the judgment of the nation 
 as against it. Such language is not confined to debates 
 in the House of Commons. It is in complete harmony with 
 the opinions expressed in the current literature of the day. 
 It embodies with great exactness the underlying thought of 
 the mass of the people : first, that the country must be ruled 
 in accordance with the will of the nation ; next, that that 
 will is most faithfully expressed in the result of any General 
 Election ; and thirdly, that the House of Commons as the 
 embodiment of that will has a claim to predominance, at 
 least until circumstances change so as to qualify its title as 
 a faithful reflex of the national judgment. 
 
 The Ministry The principle thus recognised, that a House of Commons 
 must possess issuing from a General Election is the most authoritative 
 ence of the expression of the will of the nation, involves as an inevit- 
 Commons, able consequence the further principle that the administra- 
 tion of public affairs and the guidance of legislation should 
 be entrusted to persons approved by a majority of the 
 House. The work of the State is discharged by a very 
 large number of men, who practically continue in office 
 during good behaviour, and have a permanency of duties ; 
 but the heads of the several departments, who are respon-
 
 PARAMOUNTCY OF COMMONS 7 
 
 sible to Parliament for the conduct of them, are Ministers 
 whose tenure of office must depend upon their command 
 of the confidence of the House of Commons. These high 
 functionaries, styled Ministers of the Crown, are nominally 
 appointed by the Crown, but they must, as a whole, possess 
 the confidence of the Commons. If the result of a General 
 Election is that a majority of the new House is in disagree- 
 ment with the policy of the existing Ministry, a change 
 of Ministers necessarily follows. This was formerly secured 
 by an address on the part of the new House to the Crown 
 praying for a change, and the old Ministers continued to 
 hold office until action of this kind was taken. If there 
 is any uncertainty as to the composition of the new House, 
 or if the majority, though definite, is not large, the existing 
 Ministers may and do still wait for a formal adverse vote ; 
 but on four occasions, when the will of the nation appeared 
 to be decisively expressed against the Ministers of the Crown, 
 these resigned their functions immediately the results of 
 the Election were known, without meeting Parliament. In 
 1868, when the question of the disestablishment and dis- 
 endowment of the Irish Church was the issue submitted to 
 the constituencies, Mr. Disraeli and his colleagues, who 
 had opposed the proposal, resigned office as soon as the 
 last election was declared. In 1874 Mr. Gladstone followed 
 this precedent, and resigned without meeting Parliament ; 
 and in 1880 Mr. Disraeli again resigned the moment his 
 defeat at the polls was complete. Once more, in 1886 
 Mr. Gladstone accepted the defeat of Home Rule at the 
 polls, and resigned before Parliament met. These pre- 
 cedents were not followed in 1892, when the Ministers who 
 were defeated reverted to the older practice, and retained 
 office till the House of Commons met and passed an adverse 
 vote ; the majority against them being indeed much less 
 decisive than those on the former occasions. But the con-
 
 8 THE WORKING CONSTITUTION 
 
 venience of the practice begun in 1868, and thrice followed 
 since, is incontestable, and it affords a most significant 
 illustration of the supremacy of the authority exercised by 
 the constituencies. 
 
 and must The accord between the House of Commons and the 
 
 retain it. Ministers of the Crown, which must be established at the 
 commencement of Parliament, if it does not already exist, 
 remains the dominant principle as the period of Parliament 
 goes on. This accord may be lost by changes in the conduct 
 of the Ministry which are condemned by the House of 
 Commons, or by a change in the Hpuse of Commons itself, 
 shifting its balance from one side to the other. A vote 
 of the House adverse to the judgment of the Ministry may 
 indeed arise upon some secondary matter, or even through 
 an accidental combination, and such a vote need not be 
 regarded as significant, nor attended by serious conse- 
 quences. A Ministry, conscious of growing divergence 
 between itself and the House of Commons, or embarrassed 
 by other difficulties in the conduct of administration or 
 legislation, may however treat as serious an adverse vote 
 which in itself is trivial, and the same results follow as if 
 the vote had been a premeditated and indubitable declara- 
 tion of want of confidence. Such a situation, however 
 created, must be followed by a resignation of the Ministry, 
 unless Ministers act on the belief that the House of 
 Commons no longer reflects the balance of judgment of 
 the constituencies, and accordingly advise the Crown to 
 May the dissolve Parliament. The Crown has never, during the 
 Crown refuse present reign, refused to accept and act upon such advice, 
 Parliament? but ^ wou ld be too much to declare that it could not be 
 declined. In the self-governing colonies, where Parliaments 
 have been established on the pattern of that of the United 
 Kingdom, and where the Governor bears the same relation 
 to his Ministers as the Crown bears to its Ministers at
 
 PARAMOUNTCY OF COMMONS 9 
 
 home, the advice to dissolve the Assembly corresponding 
 to the House of Commons has been often rejected. This 
 has been done where the Assembly has been very recently 
 elected, and the Governor for this, or for some reason in 
 his judgment equally cogent, believes that it reflects the 
 will of the constituencies, and that a new election is uncalled 
 for, and would be vexatious. The Governor, however, in 
 refusing to accept the advice to dissolve, must be prepared 
 to accept the resignation of his Ministers ; and his refusal can 
 be maintained only where he finds other men ready to under- 
 take the ministerial functions. Could similar circumstances 
 arise in the United Kingdom, the Crown might be found 
 acting, as its vice-regents have acted; and the fact that 
 the Crown has not during the present reign so acted may 
 be due to this, that a dissolution has never been advised 
 except under conditions making it reasonable and proper. 
 The fundamental principle is in any case clearly established 
 that the Ministers of the Crown cannot remain in office with- 
 out the support and confidence of the House of Commons, 
 unless the right of the House of Commons to represent the 
 will of the nation is seriously disputed, and it is intended 
 forthwith to appeal to the constituencies to decide the dispute. 
 
 A principle correlative to that just enunciated may here Can Ministers 
 be examined. Ministers must enjoy the confidence of the wit . h a 
 House of Commons to remain in office ; and we have seen dismissed ? 
 that colonial Governors have sometimes refused to accept 
 the advice of Ministers who, having lost that confidence, 
 had recommended a dissolution of the popular assembly. 
 Is it true that, as long as Ministers retain the confidence 
 of the House of Commons, they are entitled to remain in 
 office, or may the Crown dispense with their services and 
 call upon new Ministers to test the judgment of the nation 
 by a dissolution? It was long understood that King 
 William iv. exercised the right thus suggested when, in
 
 10 THE WORKING CONSTITUTION 
 
 the autumn of 1834, he dismissed Lord Melbourne's Govern- 
 ment, which undoubtedly possessed the support of the House 
 of Commons, a step followed by the acceptance of office by 
 Sir Robert Peel and a dissolution of Parliament. The result 
 was the election of a new House of Commons still hostile to 
 Sir Robert Peel, who, after vainly struggling with an adverse 
 majority, resigned; and this result must be regarded as a 
 condemnation of the dismissal of the former Ministry, if 
 that is to be treated as an act of the Crown based upon 
 an apprehension that Lord Melbourne and the House that 
 supported him were both out of accord with the nation. 
 It became clear, however, through the publication of Lord 
 Melbourne^ papers in 1889, that he himself suggested and 
 almost invited the dismissal of the Ministry by the King ; 
 and though it may be true that this action was not the 
 outcome of an united Ministry, it is certain that Lord 
 Melbourne^ dismissal was not the spontaneous and un- 
 prompted act of the King. This case, strictly examined, 
 is scarcely an exception to the rule which has prevailed 
 throughout the whole period of the United Kingdom, that 
 the Crown does not of its own mere motion dismiss a Ministry 
 possessing the confidence of the House of Commons. 
 Precedent The records of colonial history furnish us with a couple 
 in New of cases apparently only a couple in which a Governor 
 ' claimed and exercised the right not used by the Crown. In 
 1855 the Legislature of New Brunswick, then a separate 
 colony, passed a prohibitory liquor law, and the Governor, 
 after some experience of its operation, or want of operation, 
 sent a minute to his Ministers expressing his conviction 
 ' that a continuance of the existing condition of affairs was 
 fraught with peril to the best interests of the community," 
 and advised a dissolution ' with a view to a decided ex- 
 pression of public opinion in favour of, or in opposition 
 to, the prohibitory principle. 1 The Ministry demurred to
 
 PARAMOUNTCY OF COMMONS 11 
 
 the proposal, and the Governor pressing it to the point of 
 ordering a dissolution, they resigned. Other Ministers took 
 their place and carried through an election, which was 
 immediately followed by an extra Session, when both 
 Houses expressed their satisfaction at the Governor's 
 judicious exercise of his constitutional powers and at the 
 promptitude with which he had had recourse to the advice 
 of Parliament ; and the Act of the preceding legislature was 
 immediately repealed by thirty-eight to two in the Lower, 
 and without a division in the Upper House. In this case 
 the result may be taken as attesting the constitutionality of 
 the action of the Governor. The justification of the case 
 is strictly deducible from the principle that supreme 
 authority is to be found in the decision of the constitu- 
 encies; but it must be admitted that the responsibilities 
 of Ministers supporting any Governor in the exercise of 
 such a prerogative would be found excessive if the result 
 proved a miscarriage. 
 
 The second case was that of the dismissal of Mr. Molteno Another case 
 and his colleagues in the Cape Ministry by Sir Bartle Frere I? P ape 
 in 1877. The Cape Parliament was not sitting, and a 
 difference arose between the Governor and his Government 
 respecting the co-ordination of the Colonial and Imperial 
 forces in military operations then in progress. Sir Bartle 
 Frere dismissed Mr. Molteno, having found other advisers 
 ready to take office. But the case differs from that of New 
 Brunswick in that the Cape House of Assembly, upon 
 meeting again for business, supported the new Ministry by 
 a decisive majority, thus condemning Mr. Molteno, who had 
 before enjoyed its confidence ; and the necessity did not 
 therefore arise of appealing to the electorate. These acts 
 of colonial Governors are illustrations of what might be 
 conceivably done by the Crown ; but they have no parallel 
 in our history during this century.
 
 12 THE WORKING CONSTITUTION 
 
 Prime The result of an analysis of the present working of the 
 
 authority of Constitution may be summed up in the phrase that the 
 House of Commons is the prime organ of the national will. 
 It is always unconsciously admitted that the ultimate spring 
 of government rests in the will of the people, and this under- 
 lying principle finds expression in a hundred forms of 
 familiar speech. In the election of a new House of Com- 
 mons the sense of the country is taken ; and the authority 
 of the new House is accepted as indisputable in connection 
 with the issue or issues presented at the election. The 
 authority abides until some occasion arises when it is seri- 
 ously questioned whether the view of the majority of the 
 House remains in accord with the national will ; and if 
 it is disregarded on the ground that the majority has 
 ceased to represent the policy approved by the nation, 
 the dispute can only be solved by another General 
 Election, 
 retained These principles have guided the action of all parties for 
 
 through m0 re than a century, and it is to be noted that the same 
 
 many 
 
 changes. absolute acceptance of the result of the General Election, as 
 
 an expression of the national will, has prevailed throughout 
 the most striking changes in the essential facts of a General 
 Election. Whatever the discontents of some or even of a 
 large number in former generations concerning the distribu- 
 tion of electoral power, the use and habit of speech and 
 thought accepted the House of Commons as the expression of 
 the national will ; the mass of each generation not disputing 
 the circumstances of its time, if not always regarding them as 
 beyond enquiry. Up to 1832 the majority of the members of 
 the House of Commons (in England, as much as five-sixths) 
 were elected by boroughs, and, in the bulk of them, the privi- 
 lege of voting was restricted to a few men, often absolutely 
 subservient to the will of one man, the real owner of the 
 borough, who sold or gave away its right to representation at
 
 PARAMOUNTCY OF COMMONS 13 
 
 his pleasure. Many, perhaps most, of these borough-owners 
 were members of the House of Lords. A General Election 
 before 1832 would seem to us now to be most defective and 
 unreal as an appeal to the nation ; yet men talked then, as 
 they do to-day, of taking the sense of the country; and 
 the authority of the House of Commons, when elected, was 
 accepted as supreme. After the great change of 1832 there 
 was a disfranchisement of the smallest boroughs, an enfran- 
 chisement of new large boroughs, and an increase of county 
 members by division of counties ; but the right of voting 
 remained limited in boroughs to householders inhabiting 
 houses of the annual value of 10 or upwards, while in 
 counties the voting was confined to owners of real property 
 and occupiers of the value of 50 or more. The change was 
 enormous, but the voters remained a limited class, and the 
 extreme disparity in the size of boroughs necessarily occa- 
 sioned great inequalities in electoral influence among voters ; 
 but the House of Commons that issued from a General 
 Election under the new conditions was accepted, as before, 
 as an indisputable exponent of the national will. The 
 changes of 1867-68 extended the privileges of voting in 
 boroughs to all householders, irrespective of value ; and the 
 still greater change of 1884, conf erring the same rights on 
 householders in counties, and accompanying the extension of 
 franchise by considerable redistribution of electoral districts, 
 has left us using the same phrases and accepting the authority 
 of the House of Commons with the same unqualified sub- This explained 
 mission. This continuity in the regard paid to the House bv * he P er " 
 of Commons has sometimes led to the suggestion that the f pu bii c 
 changes which have been made in the processes of its election opinion, 
 have been really unimportant, because, under all conditions, 
 what is called public opinion has permeated the House and 
 has stamped it with its true claim to represent the national 
 will. Even before 1832 there were some open boroughs with
 
 14 THE WORKING CONSTITUTION 
 
 large masses of voters ; and the voting in counties, though 
 confined to owners of real property, was free ; and the mani- 
 festation of opinion secured in these elections insensibly 
 influenced the patrons of the close boroughs and their 
 nominees, thus producing a final resultant which, it is argued, 
 did roughly correspond to the will of the nation. So 
 again, after 1832, the opinion of those excluded from the 
 vote affected the privileged voters and the representatives 
 of privileged voters, producing once again, it is urged, a 
 trustworthy presentment of the sense of the country. There 
 Inadequacy is some ground for this reasoning; but if it be time, as 
 of this suggested, that the opinion of outsiders influences the pos- 
 sessors of privilege, it is equally true that the possession of 
 privilege influences outside opinion, and it may be doubted 
 whether, on the whole, there is not a greater tendency to 
 mould opinion in accordance with the influence of power, 
 than to mould the exercise of power in accordance with the 
 influence of opinion. 
 
 Present The essential fact to which I recur is that we are not 
 
 tendency very different to-day from those who have gone before us 
 refonn ' * * n acce pting the House of Commons as the prime organ of 
 the national will; and this provokes the suggestion that, 
 as we wonder at the prevailing acquiescence by successive 
 generations in things as they were, so those who follow us 
 may wonder at our unenquiring acquiescence in the organisa- 
 tion of our own time. We are indeed approaching a 
 certain simplicity of electoral ideals, and it is not difficult 
 to suggest some changes that may be confidently anticipated. 
 The alterations that have been made, at least since 1832, 
 have been effected by adding new franchises to those 
 already in existence, thus producing an overlapping of 
 voting powers and an embarrassing accumulation of electoral 
 privileges. The main facts, however, are that every male 
 householder is entitled, after a prescribed term of residence,
 
 to vote in the borough or county in which he lives, and 
 that every male owner of real property, of a certain small 
 value, is entitled to vote in the county in which it is 
 situate. There are other qualifications which need not be 
 now stated, but it will be seen, from what has been said, 
 that a man may be entitled to vote in more places than 
 one. The last great arrangement of constituencies in 1884 is towards 
 
 proceeded on the plan of subdividing counties and the e< l ua | single- 
 . . , . , member con- 
 
 larger towns into constituencies, each returning one member, stituencies. 
 
 although a few of the larger towns, returning two members, 
 were left undivided. The rearrangement involved also an 
 approximation to equality in size (having regard to popula- 
 tion rather than area) of constituencies, although, out of 
 tenderness to existing privileges, some small towns with 
 inferior claims in respect to population were left with a 
 member. A full examination would compel a compari- 
 son between the representation of Great Britain and of 
 Ireland ; but, putting that aside for the present, it may 
 be confidently asserted that the tendency in Great Britain 
 is at present towards constituencies equal in size and 
 with one member apiece, involving an absorption of 
 smaller boroughs, some fresh arrangement of county divi- 
 sions, and a subdivision of larger boroughs now returning 
 two members. 
 
 Reverting to the rights of voters and the suggested ' One man 
 possibility that a voter might be entitled to vote for more ~ e vo * e . 
 places than one, it may now be stated that a voter is one value.' 
 entitled to vote in every county division and in every 
 borough in which he has a qualification. Where a borough is 
 subdivided, he can only vote in one of its divisions, though 
 he may have qualifications entitling him to vote in more 
 than one. The organisation thus described in outline is 
 in itself suggestive of change. The tendency to equality 
 of constituencies has been noted. A simplification of the
 
 16 THE WORKING CONSTITUTION 
 
 franchise, at least to the extent of reducing all existing 
 occupation franchises to one, may also be anticipated. An 
 attack upon the ownership franchise may not be so 
 imminent ; but its practical importance would be destroyed, 
 if the change were realised, which has been called for, 
 taking away the right to vote in more than one constituency 
 at any election. The agitation for this change has found 
 expression in the formula 'one man one vote, 1 and the 
 strength of the principle underlying this formula is con- 
 fessed and insisted upon rather than contradicted by those 
 who would add to it the words 'and every vote an equal 
 value. 1 The ideal to which the authors of the formula 
 and the authors of the addition are alike moving, is an 
 equality of power on the part of the electors, but though 
 the attraction of this idea is largely confessed, there may 
 be a prolonged delay in ascertaining the form in which 
 it should be realised. 
 
 Woman The change last suggested must be approached from 
 franchise. ano ther quarter, in order to be fully understood, and the 
 path we have to tread leads to another large change which 
 has now for some time been a subject of debate. The 
 House of Commons is accepted as the prime organ of the 
 will of the nation, and it appears that it is elected by 
 male voters, possessing certain qualifications, and voting 
 in defined constituencies. Have women no share in the 
 determination of the will of the nation ? And if it must 
 be confessed, from the nature of things, that they contribute 
 towards its development, must their share in its expression 
 be confined to such indirect influence as they can exercise 
 over men who are privileged to vote ? The argument that 
 they have large, material, and sufficient influence without 
 voting, is such as has always been used with respect to 
 unenfranchised classes, but has been found ineffective to 
 stem successive demands for the enfranchisement of men.
 
 PARAMOUNTCY OF COMMONS 17 
 
 A direct claim for the enfranchisement of women, possess- 
 ing the same qualification as men, was first made in 1867 ; 
 but it has never yet been adopted by any Ministry. 
 Successive governments have, however, treated it as an 
 open question when not proposed as an embarrassing 
 addition to their own legislative projects; and on all the 
 occasions since the General Election of 1880 when it has 
 been submitted to the House of Commons, as a question 
 to be determined apart from ministerial influence, it has 
 been approved by a majority of those voting. It is evident 
 that, whenever the time comes for the serious reconsideration 
 of the conditions of parliamentary franchise, this question 
 will be pressed to a decision, though it may be unwise to 
 hazard any definite opinion as to the result. 
 
 The accuracy of the fundamental assumption, so uni- Defects in 
 versally made, that the House of Commons, on the morrow present 
 of a General Election, is an indisputable exponent of the mac hinery. 
 will of the nation, must be examined in another light. It 
 seems to be generally thought that, if the country were 
 parcelled out into constituencies of equal size, each repre- 
 sented by one member (the form towards which it has 
 been suggested our electoral organisation is moving), the 
 balance of judgment among the members then elected would 
 correspond with trustworthy accuracy to the balance of 
 judgment among the whole mass of electors. To put the 
 matter in other words, it is tacitly and almost universally 
 believed that, if the issue presented to the nation was 
 whether the policy of Mr. A or Mr. B should be adopted, 
 the answer made by the members elected by the constituencies 
 would be the same as that made if all the electors of all the 
 constituencies voted together. It is upon this assumption 
 that the result of a General Election is accepted as a 
 declaration of the national will. This assumption is, 
 however, one that would be often falsified in fact even 
 
 B
 
 18 THE WORKING CONSTITUTION 
 
 though the most absolute equality of size were established 
 among the constituencies; nor would the falsification arise 
 from the circumstance that some voters were allowed to 
 vote in more than one constituency, supposing that privilege 
 still to be maintained. The exercise of more than one vote 
 operates equally in both the contemplated processes of 
 ascertaining the national will, and therefore does not explain 
 the discordance between the results of the two processes. 
 Whenever that discordance appears, it will be found due to 
 the fact that the distribution of opinion is not uniform 
 throughout the nation, and that a division of the nation 
 into constituencies, however honestly made, introduces an 
 element of chance in the presentment of collected opinion. 
 Owing to this unevenness of distribution of opinion through- 
 out the country it may easily happen that the determination 
 of the national judgment, as ascertainable by testing the 
 constituencies separately, differs from what it would be if 
 the nation could be consulted as one constituency. 
 
 An illustra- An illustration of a simple character will make plain the 
 arbitrariness of the assumption so universally made, and 
 the reason why it must often be falsified. Suppose three 
 contiguous constituencies, each with 5000 voters, making 
 therefore 15,000 in all, and a choice between A and B 
 being presented to the three constituencies, the first de- 
 clared by 4000 in favour of A against 1000 for B ; whilst 
 each of the other two gave A 2000 and B 3000. The 
 result would be that, on the vote of the three, A would have 
 8000 supporters as against 7000 for B, but, as represented 
 by persons elected, B would have two supporters as against 
 one for A. It will be seen that the miscarriage of repre- 
 sentation shown in this example arises from the fact that 
 the force of the party A is congested in the first con- 
 stituency, and it would have been possible to have parcelled 
 out the constituencies differently, so that the party A
 
 PARAMOUNTCY OF COMMONS 19 
 
 should have been in the majority in two, or indeed in all 
 three of them the last result, excluding party B from 
 representation altogether, being only less unfortunate than 
 the first, which gave it, though numerically inferior, the 
 larger representation. In the absence of special political 
 calculation and design, when, that is to say, constituencies 
 are arranged from considerations of geographical convenience 
 only, a grave element of chance is evidently introduced in 
 the working of the representative machinery of the country, 
 organised in the way contemplated. It may indeed be said 
 with some truth that when some hundreds of constituencies 
 are arranged in a large area, errors of chance must counter- 
 balance one another, but this only means that they would 
 not all be accumulated on one side, and the way in which 
 the balance of errors lies must remain a matter of chance. 
 It is only through repeated practical experiments, enabling 
 us to compare the relative strength of opinion as shown in 
 the total votes cast in a General Election with that shown 
 by the election of representatives in separate constituencies, 
 that we can tell whether the arrangement of a country in 
 constituencies has been effected in a fairly trustworthy 
 manner. Any imputation of political design in the 
 arrangement of the constituencies of the United Kingdom 
 must be discarded; but the tests of experience already 
 referred to suggest a doubt whether the existing arrange- 
 ment is not somewhat lop-sided, tending now to exaggerate 
 the victory, and now to lessen the defeat, of one party. 
 
 Enough has been said to discredit the implicit faith put Au ideal of 
 
 in the result of a General Election as demonstrating the representa- 
 
 tion. 
 will of the nation. The acceptance of a newly elected 
 
 House of Commons as an absolute demonstration of national 
 j udgment is a useful, perhaps necessary formula ; but there 
 is no certainty that it is well founded, and the enquiry 
 arises whether electoral methods are not possible, giving a
 
 20 THE WORKING CONSTITUTION 
 
 greater assurance of the truth of the result. This enquiry 
 must be deferred to a later chapter ; but it may be remarked 
 here that it would appear to be desirable to aim at the 
 election of a House of Commons which should not only 
 reflect the balance of the national will at the moment of 
 its election, but should also contain within itself such a 
 representation of the elements of national character as to 
 give us the hope that it would continue to reflect the 
 balance of national judgment for a working period of fail- 
 duration. It may be difficult to move forward to such an 
 ideal ; but if the House of Commons were in some measure 
 a microcosm of the nation at the time it was elected, it 
 would not only reflect the national judgment at that time; 
 it would also consider the circumstances that must arise 
 during the period of its existence much as the nation itself 
 considers them. It is a matter of chance how far its first 
 service is faithfully executed. We shall see hereafter how 
 the second purpose is fulfilled, and the enquiry will throw 
 light on the application of the principle already mentioned, 
 * one man one vote, and every vote of an equal value. 1
 
 CONTROL OF NATIONAL PURSE 21 
 
 CHAPTER II 
 
 THE SANCTION OF THE AUTHORITY OF THE 
 HOUSE OF COMMONS 
 
 THE House of Commons has been described as the prime Predomin- 
 organ of the national will. Its authority is recognised as I? 06 j 16 
 absolute when issuing from a General Election, and it has Commons 
 a prima facie claim to predominance whilst it lasts which 
 can only be temporarily disputed pending recourse to a new 
 election to ascertain whether it continues to represent the 
 national will. If it is asked on what this predominance 
 rests, the common answer will be that it is only the ex- 
 pression of the right of a free nation to self-government ; 
 that the House of Commons is the voice of the nation, and 
 to it every partial authority must yield. This may be the 
 right answer to the question considered as a problem in 
 political ethics ; but it remains to be seen by what sanction 
 this just authority is asserted and maintained. The clue is 
 to be found in the exclusive rights of the House of Commons 
 over taxation. Since the great civil war the Crown has 
 never pretended to any right to impose a tax on the nation. 
 Parliament, and Parliament alone, can authorise any levy 
 of duties. The two Houses, however, have very unequal attested and 
 shares in this authority. The House of Commons claims {J^SiTite 
 and this claim is allowed by the House of Lords to originate exclusive 
 all taxation. It claims more than this. Whilst it admits g ht to o"gj- 
 the right of the House of Lords to withhold its assent to 
 any proposal of taxation sent up to it, it refuses to the
 
 22 THE WORKING CONSTITUTION 
 
 Lords any power to modify or vary such proposals, and 
 though within the House of Lords this limitation of its 
 power is denied, and action has been taken from time to 
 time as if it were free to alter proposals sent up to it, no 
 such action has been tolerated by the House of Commons 
 since 1678 ; and indeed the Lords have now for a long time 
 past abstained from sending down to the Commons any 
 amendments dealing with the taxation of the people. What- 
 ever claims the Lords may assert being thus confined to their 
 own chamber, and never put to any test, may now without 
 disrespect be regarded as an idle pretension. In the House 
 of Commons alone proposals of taxation originate, and 
 they must be accepted without change or rejected by the 
 House of Lords. 
 
 Most taxation The power thus recognised as vested exclusively in the 
 armuallv House of Commons is further supported by the practice of 
 renewed. imposing a large proportion of the taxation of the country 
 for one year only. The revenue raised by taxes of a 
 permanent character is insufficient to meet the normal cost 
 of government, and there would be a large deficiency, were 
 not certain annual taxes annually renewed. The income- 
 tax, when revived in 1842 by Sir Robert Peel, was imposed for 
 a term of three years, and then for a second period of three 
 years, and Mr. Gladstone in 1853 settled it for seven years ; 
 but this settlement did not stand the strain of financial 
 necessities, and ever since the year 1860 the tax has been 
 imposed for twelve months only and constantly renewed, 
 often with variations of rate. The duty on the impor- 
 tation of tea is an example of an indirect tax which 
 is also imposed annually. The facts that the revenue 
 arising from such duties is annually required, that the 
 proposals for them must originate in the House of Com- 
 mons, and that the House of Lords practically confesses 
 that it cannot alter a Tax Bill constitute a strong, but
 
 CONTROL OF NATIONAL PURSE 23 
 
 far from exclusive illustration of the predominance of the 
 House of Commons. 
 
 Out of the chain of circumstances thus stated, a larger Claim of 
 claim over taxation has been established even in recent years. P on l m v n ^ 
 The House of Commons has not only absolute mastery over taxation- 
 necessary annual taxes ; it has practically an absolute mastery 
 every year over all questions of taxation, unless the House 
 of Lords is prepared to throw the taxing machinery of the 
 country out of gear. This extension of authority has been 
 effected by bringing together in one Act proposals of 
 taxation which were formerly introduced separately. In 
 1860 a Bill for abolishing the then existing duties on paper e.g. Paper 
 was passed by the House of Commons, but when sent up to Dut y> I860 
 the Lords was rejected in their House. This produced some 
 excitement, and the step was denounced on the ground that 
 maintaining a tax against the will of the House of Commons 
 was next door to imposing a tax ; but the Lords had acted 
 within their legislative capacity, and there was no immediate 
 remedy. In the next Session, however, the repeal of the 
 paper duties was effected by a clause in the annual Bill 
 providing for the necessary reimposition of annual duties; 
 and if the Lords had any desire to maintain their action of 
 the preceding Session they did not venture to throw out the 
 general Bill submitted to them, and they could not change 
 it. By tacking on a clause repealing a tax or a clause established by 
 modifying a tax to clauses for the reimposition of absolutely tackin g- 
 necessary taxes the Commons attained complete control 
 over the whole subject of taxation. The importance of the 
 step thus taken may be measured by a consideration of the 
 parliamentary situation some fifteen years earlier. Sir Robert 
 Peel was carrying his Bill for the repeal of the Corn Laws 
 through Parliament in 1846, and was watching with much 
 anxiety its uncertain course in the House of Lords. He 
 was prepared to appeal to the country against their decision
 
 24 THE WORKING CONSTITUTION 
 
 had they rejected it; but it may be said with certainty 
 that it never occurred to him to compel their acceptance of 
 the abolition of taxes on corn by incorporating this abolition 
 among the clauses of an annual Customs and Excise Bill. 
 In his own mind he would probably have regarded such a 
 proposal as unconstitutional, and his view would have been 
 in harmony with the opinion of the day. The action of 
 1861 quietly effected a change now beyond question. 
 Further con- The policy of that action has indeed been carried further 
 solidation of by both the great parties of the State. What used to be 
 Finance Bill ca ll e( l the Customs and Inland Revenue Bill received in 1894 
 1894. the name of the Finance Bill, when Sir William Harcourt 
 
 embodied in it his extensive proposals on Death Duties ; 
 the Finance Bill being avowedly intended to include all the 
 financial changes of the Session. In 1899 Sir Michael Hicks- 
 Beach submitted to the House of Commons proposals 
 altering the permanent provisions made for the reduction 
 of the National Debt. Up to then, the several arrangements 
 that had been successively proposed for the redemption of 
 the National Debt had been incorporated in separate Bills ; 
 but Sir Michael Hicks-Beach made his proposals in clauses 
 forming part of the Finance Bill ; and though the policy of 
 this new departure was observed upon by a member of the 
 Opposition, it was maintained by Sir Michael Hicks-Beach 
 with the support of Sir William Harcourt. Nothing was 
 said in the House of Lords on this change imposing a new 
 check on a power they might theoretically claim to exercise. 
 National The House of Commons controls the taxation of the 
 
 Expenditure coun t r y it does more. It has a power which may be 
 pronounced even more effectual in establishing its pre- 
 dominance. Of the money raised by taxation not a penny 
 can be spent (apart from the sums devoted to the service of 
 the National Debt, the Civil List of the Crown, the salaries 
 of Judges of the High Court, and to other purposes
 
 CONTROL OF NATIONAL PURSE 25 
 
 deliberately set above the necessity of annual approval all 
 which payments are ordered by standing Acts of Parliament) 
 except under special and separate votes designating the 
 services to be executed and the sums set apart for the 
 execution of each. It may be noted in passing, that the 
 House of Commons protects itself against itself by requiring 
 that no vote of money shall be considered except on the 
 proposition of a Minister of the Crown ; but this safeguard 
 against irresponsible proposals does not touch the funda- must be 
 mental fact that the House of Commons gives its express sanctioned 
 sanction to each vote in turn, and then sanctions the Commons, 
 application of the monies raised by taxation to the support 
 of the several votes that have been passed. It is provided 
 moreover that no money unspent, in respect of the vote to 
 which it has been assigned, can be transferred to augment 
 any other vote, or to meet a new vote, except in cases of 
 sums voted for the several departments of the Army or of 
 the Navy, in which cases savings under one head may, with 
 the consent of the Treasury, be applied to meet deficiencies 
 under other heads. Moreover, the sums thus voted are 
 voted for the financial year only, and whatever is left un- 
 spent at the end of the year lapses and is withdrawn. 
 Lastly, a special department, the salaries of whose chiefs, 
 like those of the Judges of the High Court, are placed 
 above annual supervision, is charged with the duty of seeing 
 that the monies voted are spent on the objects for which 
 they are voted, and on nothing else, and of reporting on 
 any divergence from this rule. All this may be summed up 
 in the statement that the House of Commons votes annually 
 and specifically what is required for the several services of 
 government. It rests with the House of Commons to 
 renew these votes every year, and without such renewal all 
 the services of the country come, at the end of every year, 
 to an abrupt suspension.
 
 26 THE WORKING CONSTITUTION 
 
 Concurrence 
 of Lords 
 necessary, 
 
 and might 
 conceivably 
 be withheld. 
 
 Every detail of national expenditure thus originates in, 
 and is supervised by, the House of Commons. Without its 
 initiation nothing can be proposed, nor can anything be 
 spent, except as it expressly directs. It must not, however, 
 be supposed that the House of Lords has not any right of 
 formal sanction over expenditure. It has a power which 
 might in case of necessity be invoked, though the attempt 
 to use it with effect would involve consequences not easily 
 contemplated. Whilst the House of Commons makes grants 
 of expenditure in detail, and votes the money to provide for 
 these grants, its separate resolutions are gathered up in Bills 
 from time to time during the parliamentary Session, and 
 finally at the close of the Session are collected in an 
 Appropriation Bill; and these Bills are, like other legis- 
 lative proposals, sent to the Lords for their concurrence. 
 The House of Lords must accept or reject each such Bill as 
 a whole. Not a word can be altered in them. Any attempt 
 to send back such a Bill altered in any degree to the House 
 of Commons would be met by a refusal on the part of the 
 latter to look at it. Yet the concurrence of the Lords is 
 necessary before the Bill becomes an Act, and until this is 
 done money cannot be legally issued for any of the purposes 
 that have been proposed. 
 
 It has been said that the House of Lords might reject the 
 annual Taxation Bill on pain of throwing all the machinery 
 for raising money from the people out of gear. Similarly it 
 might reject the Supply Bills, if prepared to arrest expendi- 
 ture on every service, and to bring the general machinery 
 of government to a stop. These are latent powers. If we 
 cannot say that under no circumstances could any of them 
 be used, we may still remember that no thought of using 
 them has ever been entertained for centuries. The sug- 
 gestion has been made in words, if not entertained as a near 
 possibility, that the House of Commons should stop Supplies.
 
 CONTROL OF NATIONAL PURSE 27 
 
 Such a threat was heard before the great Reform Act of 
 1832. No one, however, can remember a suggestion that the 
 House of Lords should refuse to assent to Supplies. The 
 power is not dead. It cannot be called living. 
 
 The exclusive and conclusive authority of the House of Colonial cases 
 Commons over expenditure has long been practically estab- ? f s " ch a ^ tion 
 lished in the United Kingdom. This historic truth may Chamber, 
 however be qualified by the suggestion that it has not been 
 disputed because it has not been abused, and that the 
 reserved if dormant power of the Lords might be invoked 
 to check abuse, were it proposed. Collisions have been 
 prevented because there is a general understanding as to the 
 provinces of action of each branch of the Legislature, and 
 because a General Election is recognised as being always at 
 hand to solve any rising difficulty before it becomes too 
 acute. In this connection recurrence may again be made 
 to colonial experiences, as illustrating, by their sharper 
 trials, the safeguards enjoyed within the United Kingdom. 
 In organising self-government within the colonies to which 
 it has been given, a Lower House, generally called the 
 Assembly, has been set up and invested with the rights and 
 privileges of the House of Commons. A second House, the 
 Council, was added, which was in a majority of cases made 
 elective like the Assembly, though of a somewhat less popular 
 character. There was early manifested a disposition on 
 the part of elected Councils to claim a greater authority 
 over money Bills than that exercised by the House of Lords, 
 and in some cases the Council succeeded in obtaining the 
 power of amending money Bills, or at least of sending them 
 back to the Assembly with suggestions of amendment. In 
 other cases the Council did not claim the power of amend- 
 ment, but did exercise the power of rejecting money Bills 
 where it was alleged that they had been abused by an 
 incorporation in their clauses of proposals improperly
 
 28 THE WORKING CONSTITUTION 
 
 included. The colony of Victoria has been richest in these 
 experiences, and it may be instructive to examine two cases 
 in its history. 
 
 Victorian J n 1865 the Assembly was bent on passing a protective 
 in 1869 tariff to which it was known the Council was hostile, and 
 the Assembly inserted its tariff in the Appropriation Bill, 
 and sent up the whole as one measure to the Council. The 
 latter, unable to alter the Bill, laid it aside, whilst declaring 
 its readiness to pass an Appropriation Bill, if restricted to 
 the provision of money for the public service. The colony 
 was thus left without the means of paying its officials, and 
 Sir Charles Darling, the Governor, gave his sanction to the 
 borrowing of money by the Government and the payment 
 thereout of the sums that had been voted in the Appropria- 
 tion Bill. Not only so, he sanctioned the levy of duties as 
 proposed in the rejected tariff. These irregularities were 
 immediately censured by the Colonial Secretary, and the 
 censure was quickly followed up by the recall of Sir Charles 
 Darling. Stopping here, it may be observed that the first 
 departure from home practice lay in the tacking together of 
 the tariff and the Appropriation Bill. If such a proposal 
 were laid before the Crown by Ministers in the United 
 Kingdom, the question would arise whether the Crown, after 
 failing to induce Ministers to refrain from the proposal, 
 should seek other Ministers who would undertake the re- 
 sponsibility of office without this new departure. In the 
 course of such negociations it would naturally be pressed 
 that, if the legislation proposed to be incorporated in the 
 Appropriation Bill were sent up separately and rejected, it 
 would be possible to appeal to the country, and the verdict 
 of the constituencies upon the issue presented to them would 
 IKJ accepted as conclusive. Similar pleading would not have 
 had the same effect in Victoria, because it was not there a 
 constitutional understanding that the Council would defer to
 
 CONTROL OF NATIONAL PURSE 29 
 
 the result of a new election, and Sir Charles Darling urged in 
 defence of his conduct (what subsequent trial proved to be 
 true) that a new election would approve the policy of his 
 Ministry, and yet the Council would not yield. It may still 
 be urged that Sir Charles Darling should have taken more 
 practical action in withstanding the tacking proposed by 
 his Ministers, but he might have failed in obtaining other 
 advisers, and it seems certain that, if he had succeeded in 
 this step, the new Ministry could not have carried through 
 the Legislature in a separate Bill the proposals for a pro- 
 tective policy, on which the Assembly and the constituencies 
 of the Assembly insisted. The rejection of the separate 
 tariff Bill would have been a defeat to the Assembly and 
 the constituencies electing it, and the device of tacking 
 would have been again pressed upon the Governor, who 
 must then have yielded to the only course left open. His 
 sanction of tacking as actually given was therefore no more 
 than an anticipation of action to which, as the last resort, 
 he must have yielded. If this view is correct, Sir Charles 
 Darling simply jumped two stages in an inevitable conflict, 
 and we must be slow to condemn the adoption of what was 
 plausibly deemed the only possible way out of an impasse. 
 Where there is no solution provided for a deadlock, a 
 solution must be invented, and tacking seemed the sole, 
 though it proved an ineffectual, means of relief. In con- 
 senting to the borrowing of money and to payments there- 
 out by his Ministers without full legislative authority, Sir 
 Charles Darling more clearly departed from the constitutional 
 path. Later experience in the same colony showed that 
 something like an absolute arrest of the machinery of 
 government should have been suffered as a preparation to 
 a solution that must, in some way or other, be discovered. 
 It will presently be seen how this was developed. 
 
 Sir Charles Darling was censured and recalled, and he retired
 
 30 THE WORKING CONSTITUTION 
 
 The from the colonial service. The Victorian Government there- 
 
 ' Darling U p on resolved to make to Lady Darling a grant of money 
 which, as the wife of a private citizen, she could accept 
 without breach of rules. In such a case the course at home 
 would be for the Crown to send to the House of Commons 
 a message recommending the grant, and to the House of 
 Lords a message recommending their concurrence. Replies 
 of compliance would have followed, and a vote would there- 
 upon be moved in the House of Commons and embodied in 
 an Appropriation Bill sent up to the Lords. No instance is 
 known of the Lords having replied to the message of the 
 Crown demurring to the proposed grant, but could such 
 a thing happen, the Commons would doubtless proceed to 
 pass the vote and to include it in an Appropriation Bill, 
 leaving to the Lords the option of assenting, or of pre- 
 venting all grants of supplies. Events have never proceeded 
 to such extremities here, but the imaginary course has been 
 traced for the sake of illustration. In Victoria a message 
 recommending the grant was sent to the Assembly, but not, 
 it would seem, in the first instance, to the Council. The 
 grant was voted by the Assembly and included in an 
 Appropriation Bill which was rejected by the Council. 
 Ministers resigned, but it was proved impossible to find 
 others to accept the responsibility of office, and they were 
 accordingly retained in power, and Parliament prorogued, 
 and as quickly brought back, so that the grant might be 
 renewed in a new Session. This time a special message was 
 sent to the Council asking their concurrence, but the Appro- 
 priation Bill including the grant was again rejected by 
 them. New Ministers were this time found to undertake to 
 separate the grant from the ordinary Supply, but they were 
 immediately censured by the Assembly for excluding it, and 
 the old Ministers came back. Nearly twelve months had 
 passed between the first submission of the grant and this
 
 CONTROL OF NATIONAL PURSE 31 
 
 return to power of the Government that proposed it, and 
 the public service of the colony must have been reduced 
 to great straits; but at this juncture Sir Charles Darling, 
 after explanations given and received at home, was reinstated 
 in the public service, and he withdrew on behalf of himself 
 and his wife the acceptance of the grant for the latter, and 
 the cause of controversy thus disappeared. No censure can 
 be passed upon the Governor, his successive Ministers, or 
 the Assembly for the conduct of this crisis. The Council 
 too acted within its legal powers and was victorious, and 
 censure is inapplicable here also. The real fault lay in a 
 constitution which provided no way of escape from a dead- 
 lock ; and the strain of the conflict of powers was not 
 sufficiently prolonged and profound as to force a way where 
 it was not provided, as it has been forced at home. 
 
 The colony of Victoria furnishes yet another episode in its Another 
 history, which may perhaps prove to have a greater bearing deadlock 
 upon constitutional development at home than those that 
 have been noticed. The members of the Assembly receive 
 payment for their services under a temporary Act, and in 
 1877 the Assembly passed a Bill to continue such payment, 
 and to make assurance doubly sure included in the Appro- 
 priation Bill votes to meet the payment. The Council laid 
 aside both Bills, and for some months the government of 
 the colony was left unsupported by fresh supplies. The 
 Governor was pressed to economise expenditure by con- 
 senting to the dismissal of public functionaries, and to this 
 he consented even to the length of dismissing judicial 
 officers such as County Court Judges; but, being better 
 informed as to the limits of legality in this respect, he 
 addressed his Ministers, and their steps were retraced, so 
 that the dismissals extended only to those functionaries 
 whose tenure of office permitted such an act. The Governor 
 was further pressed to sanction payments on the votes and
 
 32 THE WORKING CONSTITUTION 
 
 resolutions of the Assembly alone ; but to this he remained 
 resolutely opposed. Some attempt was made to discover 
 an authority for the payment of essential services under 
 the Act of the Imperial Parliament which established the 
 colonial Constitution, and the Governor was apparently 
 prepared to accept the advice of his Ministers on this 
 point; but the occasion for acting upon it did not arise. 
 After many months of extreme agitation the Council 
 agreed to approve an Act continuing the payment of 
 members to the end of the Parliament ; and the Assembly 
 withdrew the obnoxious votes providing for their payment 
 from the Appropriation Bill. Both Bills passed, and the 
 immediate conflict ended ; but the colonial Ministers intro- 
 duced into the Assembly Bills to prevent the recurrence 
 of such controversy by providing for the eventual victory 
 of that House in case of a prolonged dispute ; and, though 
 these Bills were not proceeded with, the Prime Minister of 
 the colony and a colleague were sent to London to induce 
 the Imperial Government to take action if necessary through 
 the Imperial Legislature. 
 
 Sir Michael They did not succeed in this mission ; but Sir Michael 
 Hicks-Beach Hicks-Beach, then Colonial Secretary, who had been not a 
 situation. little embarrassed in some previous stages of the contest, 
 sent a composing despatch to the colony, recommending sub- 
 mission to the principles observed at home, more especially 
 (1) that the Assembly should 'refrain from annexing to a 
 Bill of Aid or Supply any clause or clauses of a nature 
 foreign to or different from the matter of such a Bill,' (2) 
 that the Council should ' refrain from any steps so injurious 
 to the public service as the rejection of an Appropriation 
 Bill, 1 and (3) 'that the Council should so transact its 
 business that the wishes of the people as clearly and 
 repeatedly expressed should ultimately prevail 1 ; and Sir 
 Michael Hicks -Beach concluded the despatch with the
 
 CONTROL OF NATIONAL PURSE 33 
 
 expression of an opinion that the Imperial Parliament would 
 not interfere, unless the Council should refuse to concur with 
 the Assembly in some reasonable proposal for regulating 
 the future relations of the two Houses in financial matters 
 in accordance with the high constitutional precedent to 
 which he had referred, 'and should persist in such refusal 
 after the proposals of the Assembly for that purpose, an 
 appeal having been made to the constituencies on the 
 subject, have been ratified by the country and again sent 
 up by the Assembly for the consideration of the Council.' 
 
 It will be seen that the concluding observation of Sir Conclusion 
 Michael Hicks- Beach is limited to legislation in respect to be drawu - 
 to finance ; but this limitation naturally arose from the 
 circumstances with which he had to deal. It cannot be 
 admitted as indicating any existing limitation of the 
 principle that the House of Lords must defer to the will 
 of the nation clearly expressed at a General Election upon 
 an issue clearly presented. The principles enunciated by 
 Sir Michael Hicks-Beach must indeed be regarded as strictly 
 interdependent, and they may be summed up in saying 
 (1) that the House of Commons should never tack to a 
 money Bill legislation foreign to it, (2) that the House of 
 Lords should never reject a money Bill, properly framed, and 
 (3) that the House of Lords should defer to the authori- 
 tative expression of the national will. A breach of the first 
 principle on the one side may justify a disregard of the 
 others on the other side, but as long as the third principle 
 is faithfully observed, it is unnecessary to anticipate a breach 
 of the first. Legislation need not be smuggled through the 
 Legislature, when it can be regularly passed if willed by 
 the nation after what must be regarded, in the life of a 
 nation, as a moderate period. The discretion which has 
 been developed in the past may be trusted to be maintained 
 in the future. The House of Commons in the ordinary 
 
 c
 
 34 THE WORKING CONSTITUTION 
 
 course exercises an unqualified authority over the amount 
 and the destination of the expenditure of the country ; and 
 it can in the last resort exercise the supreme power of with- 
 holding all supplies, thus bringing the government of the 
 country to a standstill. The House of Lords may indeed 
 refuse to concur, and the House of Commons may refuse 
 to initiate ; but these powers have rested, and may long 
 rest, entirely unused, as weapons that may conceivably be 
 employed, but should never be wanted.
 
 COMMONS' AUTHORITY CONTESTED 35 
 
 CHAPTER III 
 
 HOW THE AUTHORITY OF THE HOUSE OF COMMONS 
 MAY BE CONTESTED 
 
 IT has been seen that, according to the developed usage of The authority 
 our time, the ultimate force of government is found in the * ^ e derived 
 will of the nation expressed in a General Election ; the issue General 
 of that process, sometimes called the sense of the country, Election 
 sometimes the voice of the people, sometimes the judgment 
 of the nation, being accepted by all as authoritative beyond 
 appeal. It is no doubt true that the judgments of indi- 
 vidual men, and even of masses of men, are liable to consider- 
 able change ; and it may perhaps be admitted that, if what 
 may be called an instantaneous vote could be taken at any 
 moment, the result could scarcely be trusted as expressing a 
 permanent stable judgment. A General Election however 
 does not happen without some, generally much, previous 
 preparation, and though the defects of the Ministers of the 
 immediate past are necessarily more patent and more clearly 
 appreciated than the chances of performance by any suc- 
 cessors, yet the conduct of a General Election must be 
 recognised as in some measure educational, so that the 
 result comes to be regarded as deliberate. Still it must be 
 confessed that whilst knowledge is diffused, passion and 
 prejudice are also developed during this appeal to the 
 nation ; and occasions must arise (it may be said, have arisen)
 
 36 THE WORKING CONSTITUTION 
 
 may be 
 questioned 
 as time goes 
 on (1) by 
 the Crown ; 
 
 (2) by the 
 Lords. 
 
 Claim of 
 Lords to 
 appeal to the 
 country, 
 
 if made in 
 good faith, 
 must be 
 allowed. 
 
 when the result is the expression of a transitory judgment. 
 The necessity of finality compels its acceptance at the time, 
 but the impossibility of any stability remains, and may be 
 quoted as a reason for questioning, disputing, and even 
 denying, the authority of the House of Commons as time 
 passes by. It has been pointed out how a colonial governor, 
 questioning the representative authority of the Lower House 
 of his Legislature, dismissed his Ministers possessing its 
 confidence, and calling new men to his service dissolved the 
 Assembly ; and that the result was an approval of his action. 
 A similar power may exist in the Crown, though it has long 
 been dormant. The second chamber, the House of Lords, 
 is however in practice the effective disputant of the continued 
 authority of the House of Commons. It defers to the ex- 
 pressed judgment of an election ; but on the questions that 
 arise in intermediate periods it claims a large, if not an equal 
 authority of its own. Has it a right to insist, with respect 
 to any dispute thus arising during the life of a Parliament, 
 that it shall be referred to the constituencies for decision 
 between itself and the House of Commons ? Lord Salisbury 
 claimed this power in 1884, over the question whether a re- 
 distribution of seats could be insisted upon as a necessary 
 adjunct to an extension of the franchise in counties, and Mr. 
 Gladstone vehemently disputed the claim as a novel attempt 
 to usurp authority in resistance to which he was prepared 
 to make any sacrifice. The dispute was avoided before it 
 proceeded to extremities, by arriving at an agreement on the 
 redistribution of seats ; and the issue between the claim and 
 the denial remains unsettled. It is not at once evident how 
 such a claim as that made by Lord Salisbury can be effec- 
 tively met, as long as it is made in good faith under 
 conditions not outraging the common j udgment. If resorted 
 to as a mere device of obstruction, to stay the progress of 
 legislation because it was disliked, and with no real ground
 
 COMMONS' AUTHORITY CONTESTED 37 
 
 for thinking it might be disapproved by the constituencies, 
 it might provoke a strength of resentment outside, that 
 would support a Ministry possessing the confidence of the 
 House of Commons in resorting to extreme measures to 
 enforce its way. This is only saying that if the House of 
 Lords abused its power on one side, an abuse of power on 
 the other might be provoked and sustained. But if the 
 House of Lords puts aside a project of legislation through 
 an honest, though it may prove to be a mistaken, apprehen- 
 sion of popular judgment, or even under honest doubt of 
 what that judgment may be, it cannot be condemned as 
 acting in excess of its duty. This expression of opinion 
 must not be taken however as prejudging any question as to 
 the proper composition of the House of Lords, or even as ex- 
 cluding the consideration of the expediency of other methods 
 of settling disputes between the two Houses in respect of 
 questions which are not of sufficient gravity and importance 
 to require an express reservation for national judgment. 
 
 There are many matters of considerable though second- Practical 
 rate importance which could never become the primary fa^u of 
 ground of a national appeal ; and there are other subjects on secondary 
 which a dispassionate judge might hold that the nation had issues. 
 spoken in its main decision, even though this was honestly 
 doubted by a reluctant House of Lords. Those who recog- 
 nise the will of the nation as the ultimate force of the Con- 
 stitution must admit that in cases like those thus suggested 
 its operative power fails ; and it remains an unsettled 
 question whether it is possible to introduce such modification 
 in practice as shall serve its due enforcement. An illustra- 
 tion from past, though not distant, history may make the 
 nature of the problem somewhat plainer. The eligibility of An illustra- 
 
 Jews to sit in the House of Commons was for many years t l .?.;. ' Dl *~ 
 i -r i abilities of 
 
 a subject of contest between the two branches of the Legisla- j ews .' 
 
 ture. Jews had been elected in more than one instance, so
 
 38 THE WORKING CONSTITUTION 
 
 that the question was one of a practical character, and the 
 House of Commons again and again sent up Bills to the 
 Lords to remove the disabilities of the Jews, which were as 
 often rejected by the Upper House. From the nature of 
 things it could scarcely happen that this dispute would be 
 a paramount issue at any General Election ; but it was of 
 course often mentioned between candidates and voters, and 
 the fact that successive Houses, however varying in their 
 composition, maintained a consistent support of the Bill for 
 removing the Jewish disabilities, showed that the will of the 
 constituencies was in its favour. The Lords, safe in the 
 second-rate character of the issue, persisted in their attitude, 
 until at last they yielded to the advice of a Government of 
 the same political complexion as their majority, and then 
 only so far as to give each House power to admit Jews, 
 keeping up the barrier of exclusion as regarded themselves. 
 They have since removed this obstacle of their own accord, 
 and Jews now sit freely in both Houses. But the example 
 is noteworthy as illustrating the force of inertia which the 
 Lords maintain in the parliamentary system. There are 
 Suggested doubtless other questions now pending which remain un- 
 remedies. so i ve j through the operation of a similar sluggishness ; and 
 it may become a matter worth consideration whether the 
 advantages of slow and cautious movement in respect of 
 subjects of first-rate importance could be secured without 
 suffering an indiscriminate delay in the settlement of 
 secondary issues. A gradual change in the composition of 
 the House of Lords might do much to diminish the number 
 of the instances in which legislation is impeded. But pro- 
 posals have often been made of other methods of meeting 
 the difficulty. Similar suggestions have been thrown out in 
 the colonies where parliamentary institutions have been 
 established ; but even in them public opinion is slow to 
 favour drastic changes. The subject may be again dis-
 
 COMMONS' AUTHORITY CONTESTED 39 
 
 cussed. It is enough here to note that while the House of 
 Commons expressing the judgment of the constituencies is 
 admitted to be entitled to have its own way on questions 
 of paramount importance, its will may be effectually and 
 continuously checked on subordinate matters by the quiet 
 and steady resistance of the House of Peers.
 
 CHAPTER IV 
 
 THE GROWTH OF THE AUTHORITY OF THE HOUSE 
 OF COMMONS 
 
 The King THE strength of the House of Commons lies in its authority 
 summons over taxation, and it is under this influence that its relations 
 to obtain with the Crown and the House of Lords have taken shape, 
 money help. In the organisation of England under Norman and Plan- 
 tagenet Kings everything came from the Crown. All rights, 
 privileges, and powers had, nominally at least, their origin 
 in royal grants. The Church alone maintained a certain 
 independence ; but even its temporal organisation worked 
 with, if not under, the approval of the King. It was by his 
 summons that barons, bishops, and abbots were called to 
 his Council; and it was under his writs that in due time 
 knights of the shire were chosen to speak for the free- 
 holders of counties, and burgesses were sent up from the 
 cities and boroughs selected by him for what was then 
 accounted as often a burden as a privilege. Traces of this 
 great authority still survive in the fact that writs from the 
 Crown summon members of the House of Lords to their 
 service in Parliament, and enjoin sheriffs and mayors and 
 other returning officers to proceed to the election of members 
 of the House of Commons. Lords and Commons came 
 when the King wanted them, and only when he wanted 
 them, and on his death any parliament then in existence
 
 GROWTH OF COMMONS' AUTHORITY 41 
 
 was ipso facto dissolved. Their attendances upon him were 
 occasional and irregular, and the purpose for which he called 
 them together was generally, if not universally, to obtain 
 grants of money for his service. 
 
 His ordinary charges were supposed to have been met by Lands of 
 
 a large endowment of land in his possession, and by rents *^? Crown 
 
 oriffin.3,llv 
 and services of the tenants, who directly or indirectly held adequate 
 
 from him every acre of the land of the country which he for normal 
 had not in possession. The position of the King in England ex P ei 
 may be illustrated by that of a lord of a manor who has 
 his demesne, rents from his tenants, and fines, heriots, and 
 services due and payable by copyholders and others on 
 special occasions. The King had his lands and rents for 
 annual maintenance, and he could demand additional con- 
 tributions, when his eldest son was knighted, or his eldest 
 daughter given in marriage, and upon other occasions of 
 special need, admitting of extension or contraction, and 
 being characterised by a vagueness, at one time useful to the 
 Crown, and at another time to the subject. It must however 
 be repeated that the King's estate, the endowment of the 
 Crown, was the usual and sufficient appropriation to meet all 
 kingly charges, not merely the expenses of the King's house- 
 hold and personal maintenance, but of the whole service 
 of the Crown, judicial, military, and civil, so far at least as 
 these were not sustained by fees received in relation to the 
 services which the several officials performed. The Crown 
 lands still furnish in theory the true and full endowment 
 of the Crown. For two hundred years there has been a 
 new transaction at the commencement of every reign, by 
 which these lands are handed over to the care of Parliament 
 during the reign. Parliament undertakes to furnish an 
 adequate sum for the maintenance of royalty, and to relieve 
 the Crown of the charges attendant upon the Crown estates ; 
 and an examination of the successive Acts of Parliament
 
 42 THE WORKING CONSTITUTION 
 
 By the time 
 of Elizabeth 
 Parliament 
 was definitely 
 constituted, 
 
 but often 
 dispensed 
 with, owing 
 to royal 
 frugality. 
 
 passed to embody these transactions will show conclusively 
 that, if the Crown resumed the Crown lands, it would 
 resume at the same time not merely the burden of royalty 
 as popularly understood, but also the cost of the King's 
 Ministers, Judges, Ambassadors, and other agents. The 
 attenuated revenues of the Crown lands to-day bear a 
 ludicrous disproportion to the charges which the royal 
 endowment was meant to serve; but though the lavish 
 grants of kings early diminished their resources, and forced 
 them to extraordinary measures to meet their wants, it is 
 still true that even so late as the days of Elizabeth, a frugal 
 monarch could rule without recourse to parliamentary 
 assistance to supplement the normal revenues of the Crown. 
 For an adequate, if not a complete comprehension of the 
 Constitution as it is, it is scarcely necessary to go much 
 further back than the days of Elizabeth. By that time the 
 Houses of Lords and Commons were well organised with 
 separate functions. The House of Lords had been reduced 
 in numbers during the Wars of the Roses, and the power 
 and wealth of those who survived had been broken ; but new 
 members were called to it by the royal favour of the Tudors, 
 being previously or simultaneously by the same favour 
 enriched with the spoils of dissolved religious houses. The 
 Tudor sovereigns, and Elizabeth conspicuously among them, 
 added largely to the number of boroughs represented in the 
 House of Commons, with the result that at the close of her 
 reign the representation of England at Westminster was 
 much the same as it was down to 1832. Parliament may be 
 said to have been formally and definitely constituted in the 
 days of Elizabeth ; yet it is to be remembered that, out of 
 the forty-five years of her reign, there were thirty-three years 
 without any parliamentary session, and the interval between 
 the prorogation of one parliament and the assembling of the 
 next extended in one instance to no less than six years.
 
 GROWTH OF COMMONS' AUTHORITY 43 
 
 Elizabeth ruled much without Parliament, being able to do 
 without parliamentary assistance. She was no less autocratic 
 than her successors; but where she was frugal they were 
 lavish, and the necessity of raising money became the means 
 of establishing the authority of Parliament, and especially 
 of the House of Commons. It must be added in extenuation 
 of an extravagance that might unduly seem their fault, and 
 was certainly their ruin, that the change in the value of The in- 
 money following the discovery of America added greatly ^e^^ities 
 to the amount required to meet the expenses of govern- of the Crown 
 ment, whilst the rents of the Crown were not easily suscep- 
 tible of commensurate increase. The rebellion in the North 
 in the later years of Elizabeth was in some measure due 
 to the discontent of peers finding themselves strangely im- 
 poverished; and the necessities of Charles were aggravated 
 in a similar fashion. This king had not the frugality of 
 Elizabeth, and could not, like her, dispense with the assist- 
 ance of Parliament. Had it been otherwise he might have 
 confirmed and even strengthened an autocratic rule; but 
 as often as he was forced to call Parliament together to 
 ask for money aids the deep discontent of his subjects 
 broke forth. His attempts to levy ship-money under the make it 
 royal prerogative are so far justified by precedents that dependent 
 the judges who decided in his favour must not be hastily Parliament, 
 condemned. But in fact a new spirit had gone forth, and 
 the stubbornness of resistance to his exactions was a mani- 
 festation of the deeper resistance to his attempts to overrule 
 the religious movements among his people. It is unnecessary 
 to follow the development of the struggle between the 
 Parliament and the King. The majority of the House 
 of Commons absolutely refused to bend to his will. The 
 arrest of individual members, and the attempt to overawe 
 the assembly by entering it in person, were alike unavail- 
 ing. When at length he gathered his followers together
 
 44 THE WORKING CONSTITUTION 
 
 Provisions 
 of Petition 
 of Right 
 
 and of Long 
 
 Parliament 
 
 against 
 
 arbitrary 
 
 taxation. 
 
 to establish his rule by force, Parliament organised an 
 adverse army, and the conflict ended in his ruin. 
 
 Before the civil war actually broke out much had indeed 
 been done in the way of formal recognition of the rights 
 of Parliament. The Petition of Right of 1628 protected 
 the liberty of the subject by declaring that no man could 
 be lawfully detained in custody except upon a warrant 
 showing a definite accusation, and the same declaratory 
 statute condemned as illegal every tax not sanctioned by 
 Parliament. This last declaration was not understood to 
 cover Customs duties, the right to levy these, without autho- 
 rity of Parliament remaining undetermined ; but the two 
 provisions if faithfully preserved would have gone far to 
 destroy the arbitrary power of the Crown. The King was 
 however able, after assenting to the Petition of Right, to 
 rule for nearly twelve years without convoking Parliament ; 
 and its provisions remained to be interpreted by a judiciary 
 dependent upon him without fear of parliamentary action. 
 The Long Parliament began its career by establishing the 
 illegality of customs duties unless authorised by Parliament, 
 by providing that no Parliament could be dissolved within 
 fifty days of its meeting, and by enacting that every Parlia- 
 ment must be dissolved at the end of three years and a new 
 Parliament immediately summoned. To secure this last 
 object electors were required to meet together of themselves 
 and choose members if the King delayed issuing his writs 
 and other authorities failed to take the necessary steps for 
 holding elections. The abolition of the Star Chamber, 
 which had exercised a criminal jurisdiction without the 
 protection of a jury, was yet another step accomplished by 
 this Parliament in defence of the liberty of the subject. 
 The limitation of Parliament to three years was quite dis- 
 regarded by the Long Parliament itself and repealed on 
 the Restoration, but the other great legislative guarantees
 
 GROWTH OF COMMONS' AUTHORITY 45 
 
 of security against the Crown were maintained, though 
 liable to perversion through the suppleness of judges still 
 dependent on the royal pleasure. The abolition of feudal 
 tenures and incidental duties under the Commonwealth 
 proved moreover to be a step that could not be reversed, 
 and thus added to the dependence of the Crown upon 
 Parliament. It may be broadly said that since 1660 
 no Sovereign has ever dreamed of, no Minister has ever 
 ventured to counsel, the levying of a tax or duty except 
 under the authority of an Act of Parliament. 
 
 What remained wanting was a more unequivocal pre- Habeas 
 scription to judges of their duties, a provision for their Corpus Act 
 absolute independence in discharge of them, and a com- 
 plete nullification of any royal pretence to suspend or 
 dispense with the execution of any law. These additional 
 safeguards were provided within a generation. The Habeas 
 Corpus Act of Charles n. contains the most stringent regula- 
 tions to enable any prisoner to be brought peremptorily 
 before any judge of the superior courts, and to be discharged 
 from custody unless held in arrest under some specific and 
 sufficient reason duly assigned, in which case he must be 
 brought up for trial at the next gaol-delivery. 
 
 The edifice was crowned by the Declaration of Rights on the Declaration 
 flight of James the Second. That great act of State really 
 made the Crown a creature of Parliament instead of Parlia- 
 ment being the creature of the Crown. In the Declaration of 
 Rights, Parliament, after having dismissed an inconvenient 
 Sovereign, was addressing others of its own acceptance, and 
 the Bill of Rights which followed was a formal recognition 
 of a fact irresistibly established. 1 It condemned for ever 
 
 1 By a strange inconsistency the principle that Parliament is dissolved 
 immediately on the demise of the Crown was left undisturbed ; but six years 
 later an Act was passed providing that Parliament should determine six 
 months after the demise of the Crown. (See page 83.)
 
 46 THE WORKING CONSTITUTION 
 
 Independence 
 of Judges 
 established 
 (1701). 
 
 Supremacy 
 of Parlia- 
 ment now un- 
 questioned. 
 
 Influence of 
 Lords on 
 Commons 
 
 the power of the Crown to suspend laws, and passed a 
 similar judgment on the abuses practised by the judiciary 
 in the administration of laws. 
 
 Twelve years however yet passed before an Act provided 
 that judges should hold office during good behaviour with 
 suitable salaries, and should be removable by the Crown 
 upon the address of both Houses of Parliament. 
 
 William the Third had not indeed immediately acquiesced 
 in a system of parliamentary government as now established. 
 He did not at once accept a homogeneous Ministry 
 associated together by common opinions ; and whilst doing 
 nothing contrary to the will of Parliament, he attempted 
 to make his own office in some degree an independent factor 
 in the determination of that will. This period soon passed, 
 and thenceforward it may be said no wearer of the Crown 
 has ever tried to exert a power except through the recog- 
 nised channels of parliamentary action. Kings may have 
 spent money in getting their candidates chosen at elections ; 
 they may have bribed members by pensions and places ; and 
 may have used their personal influence in affecting the votes 
 of peers. But what Peers and Commons have agreed upon, 
 they have accepted, and they have not tried to maintain 
 Ministers in office unsupported by the House of Commons, 
 except when it was doubted whether the House of Commons 
 reflected the minds of the constituencies, and this doubt 
 was to be presently put to the test of a General Election. 
 
 The two Houses of Parliament had thus established their 
 authority against the Crown ; but more than a century 
 passed before the House of Commons, as the organ of 
 national judgment, effectively established its authority 
 against the House of Peers. It was not only provided by 
 law that no tax of any kind could be levied except by 
 the authority of Parliament ; it was recognised as beyond 
 dispute that all grants of money must originate in the
 
 GROWTH OF COMMONS' AUTHORITY 47 
 
 House of Commons. But the discretion of the Lords in 
 dealing with money Bills was not so clearly understood ; and 
 the House of Commons had become and remained down to 
 1832 an Assembly, a large proportion of whose members due to 
 were in truth nominated by members of the Upper House, ownership 
 In this way even a formal recognition of the privileges of boroughs 
 the House of Commons did not in fact amount to an 
 installation of the supremacy of the popular will. Behind 
 a large number of the members of the House of Commons 
 were the peers to whose favour they owed their seats ; and 
 if the nation could then be described as self-governed, the 
 nation must be understood as consisting of the peers and other 
 wealthy proprietors of pocket boroughs, of the landowners who 
 controlled county elections, and of the ' free and independent 
 electors' 1 who were privileged to vote in the open boroughs. 
 Occasions however did arise between 1688 and 1832 when 
 the Lords and Commons were found divided against one 
 another, though for the greater part of this period the 
 forces controlling the two Houses were so far substantially 
 the same that serious and fundamental contests were im- 
 possible. Thus the Commons early attempted an abuse 
 of their exclusive power over money Bills by tacking on to 
 them legislation obnoxious to the Lords ; but in 1702 the 
 Lords protested against this practice as fatal to their rights, 
 and it was tacitly abandoned. Within a little more than 
 a dozen years a precedent of the highest gravity was how- 
 ever created, which after long lying dormant was invoked 
 again in 1832 with such effect that the suggestion of it 
 procured the passing of the Reform BiU. The Tory 
 Ministers under whose influence the Treaty of Utrecht had 
 been negociated had not a majority in the Lords, and the 
 Queen assented to a creation of peers so as to turn the 
 balance in favour of the treaty. A step so violent could 
 only be justified by necessity, and necessity could only arise
 
 48 THE WORKING CONSTITUTION 
 
 illustrated when the elements composing the two Houses were in strong 
 
 by their hostility to one another. The practical intercommunion 
 
 rejection * r . 
 
 of Fox's between the two chambers grew during the eighteenth cen- 
 
 India Bill, tury as the proprietary control of boroughs increased, and as 
 the representation of counties tended to become a struggle 
 between great landowners or combinations of landowners. 
 Contests involving the distinct principles of origin of the 
 two Houses thus became rarer and rarer. The struggle 
 over Mr. Fox's India Bill, though somewhat confused in 
 its history, affords a most striking illustration of the relative 
 position of the branches of the legislature in 1783. The 
 Bill had been supported in all its stages in the House of 
 Commons by considerable majorities ; but it had been 
 bitterly attacked outside that Assembly, and had provoked 
 a widespread agitation in the country. The defence of the 
 privileges of the East India proprietors was covered and 
 assisted by a jealousy of aggravated bureaucratic power and 
 zeal for the rights of the Crown. Could a similar situation 
 have arisen to-day the Lords would, on their own motion, 
 have thrown out the Bill, and Ministers without suffering 
 its rejection to affect their tenure of office would in due 
 time have gone to the country. The only other conceivable 
 course (and this cannot be suggested as beyond constitutional 
 criticism) would be for the Crown to assume the responsibility 
 of dismissing its Ministers and of summoning other advisers 
 on the ground that the first no longer possessed the con- 
 fidence of the electorate. George in. did not, even in 1783, 
 venture on this stroke, but he allowed Lord Temple to show 
 a paper to wavering peers intimating that he would regard 
 as his enemies those who voted for the Bill. The Peers so 
 stimulated rejected it, and George in. was thereupon em- 
 boldened to dismiss his Ministers. He thus affected to 
 treat a hostile vote of the House of Lords as equal in 
 constitutional weight to a hostile vote of the House of
 
 GROWTH OF COMMONS' AUTHORITY 49 
 
 Commons, and even more than equal ; since for some months 
 the Commons repeatedly addressed him, in firm though 
 dutiful language, protesting against the action that had 
 been taken. The votes of censure of the House of Commons 
 upon the new Ministry were disregarded, while the vote of 
 the Lords rejecting the measure of a former Ministry had 
 been followed by their dismissal. Mr. Pitt, who had been 
 called to the head of affairs, endured these votes of censure 
 during the spring of 1784 ; but the General Election which 
 followed in the early summer resulted in an extraordinary 
 change of seats. Mr. Pitt's triumph was complete, and the 
 King's action was vindicated by the end, though not in 
 its means. 
 
 The main interest of this retrospect may indeed be said Significance 
 to consist in two facts : first, that George in. concealed of thls crisis - 
 himself behind the apparently independent votes of Peers ; 
 and next, that despite the increase of pocket boroughs 
 there remained a large proportion of seats amenable to 
 influences really political in their character, though excited 
 and inflamed by confused passion. What came out at the 
 end was perhaps a vague impression of national sovereignty. 
 The King and the Lords had played their respective parts, 
 but all would have been in vain if the constituencies, such 
 as they were, had not supported them at the General 
 Election. 
 
 The unity of feeling between the two Houses, temporarily Struggle for 
 interfered with by the episode of Mr. Fox's Bill, was soon 
 re-established ; and it was not till fifty years later, after the 
 great experience of the Napoleonic War had passed away, 
 and the return of peace had been followed by fresh develop- 
 ments of domestic energy, that the real struggle arose which 
 resulted in the permanent submission of the Peers, in the 
 presence of a regenerated representation of national opinion 
 in the House of Commons. On this occasion the royal will
 
 50 THE WORKING CONSTITUTION 
 
 ends by 
 establishing 
 the supre- 
 macy of the 
 Commons. 
 
 had not become insignificant, and such as it was, it was 
 exerted, at least in the initial stages of the controversy, 
 against the House of Lords. But the real struggle was 
 between a House of Commons, twice strengthened by a 
 General Election, and supported by a most threatening 
 unorganised force outside, against a stubborn majority of 
 possessors of privileges in the House of Lords. The 
 successive phases of the struggle need not be recalled. 
 The possibility of violence was always in the background, 
 though the memory of it has so far passed away that the 
 record now seems incredible. The followers of precedent 
 were ready to repeat the stroke which made the Lords 
 consent to the Treaty of Utrecht by creating new peerages 
 or calling up the eldest sons of the lords favourable to 
 Reform so as to turn the majority. 
 
 In the end the more cautious leaders of the Tory peers 
 advised their followers to retire from the conflict, and the 
 change was consummated which definitely put the Upper 
 House in the position it now occupies. The existing scope 
 and limitations of its powers are explained elsewhere. It is 
 enough here to recall the modest contention of its leading 
 members that the House of Lords serves as an instrument 
 to secure harmony of will between the House of Commons 
 and the constituencies by interposing to arrest the action of 
 the former upon questions in respect of which the latter 
 has made no declaration.
 
 HOUSE OF COMMONS TO 1707 51 
 
 CHAPTER V 
 
 CONSTITUTION OF THE HOUSE OF COMMONS DOWN 
 TO THE UNION WITH SCOTLAND 
 
 WHEN the House of Commons first began to assume a Knights of 
 definite and recognisable shape it was composed of persons the 
 sent up to speak for the counties called knights of the shire, 
 and of others deputed as burgesses to speak for certain 
 selected boroughs of the kingdom. Between these two classes 
 there long remained a sharp distinction as to conditions and 
 circumstances of their election, although for many centuries 
 there has been no discrimination between them as respects 
 their rights as members after they have taken their seats. 
 There still remains some difference in the suffrages by which 
 the two classes are chosen ; but, as will be seen, this differ- 
 ence has in late years been much diminished. Originally 
 members, whether for county or borough, were always 
 elected in pairs, for the purpose, Mr. Disraeli once sug- 
 gested, of protecting one another on the way. It was more 
 probably thought that the two would, between them, speak 
 more fully and faithfully for their neighbours. The king's 
 writ was issued to the sheriff in each county, directing him to 
 hold a court for the election of two knights. It is difficult, 
 perhaps impossible, to determine with accuracy who were 
 entitled to attend these courts. Probably at first the chief 
 tenants came alone, others who might be qualified escaping 
 the duty ; but we may take our stand as a point of
 
 52 THE WORKING CONSTITUTION 
 
 departure on a statute of Henry vi., which, after reciting 
 that elections had been of late made by excessive numbers of 
 people ' of which the most part was people of no substance 
 and of no value, 1 provided that no one should vote who was 
 not a resident l in the county and possessed of a freehold 
 therein of the value of forty shillings. The qualification 
 thus prescribed was at the time (1430) a high limit, and it 
 remained through all alterations of value the sole qualifica- 
 tion for county electors for four centuries. The same 
 statute empowered the sheriff to put a claimant to his oath 
 as to his qualification to vote. 
 
 Borough The king's writs were always sent to the sheriffs of counties 
 members. ^o proceed to election of knights ; but in the earlier centuries 
 there was much irregularity in summoning the representa- 
 tives of boroughs. The most important cities and boroughs 
 were probably never overlooked, but with respect to others 
 writs were sometimes sent and sometimes omitted. Parlia- 
 ments were generally summoned for the purpose of obtaining 
 grants of money, and the possibility of refusing the king's 
 demand was scarcely entertained, whilst the cost of comply- 
 ing with it was fully realised. In the centuries now under 
 review both knights and burgesses received wages from their 
 constituents to enable them to defray the expense of attend- 
 ing the king, and petitions were frequently addressed to 
 the Crown by the poorer boroughs to be relieved from the 
 duty and the burden of returning members. It depended 
 entirely upon the will of the Crown to determine the places 
 to which writs should be sent, and although the principle 
 that the king cannot derogate from his own grant might be 
 held to fix the right of a borough to representation when 
 once a charter had been given conferring the privilege, this 
 principle was of little validity at a time when charters them- 
 selves were of doubtful permanence unless confirmed by 
 1 The qualification of residence was abolished 14 Geo. in. c. 68.
 
 HOUSE OF COMMONS TO 1707 53 
 
 successive monarchs. With the settlement of the Tudor 
 family in the possession of the crown under Henry vn. 
 the rights of the boroughs returning members to his 
 parliaments became definite and permanent. A writ of Creation 
 return was never subsequently discontinued ; but the sue- f new 
 cessive Tudor sovereigns very freely exercised the power ^ e Tudors 
 of calling new boroughs into existence. As the House 
 of Commons became a more important part in national 
 organisation these sovereigns sought to strengthen their 
 influence within it by the addition of members whose loyalty 
 might be regarded as trustworthy, and they accordingly 
 multiplied boroughs in those districts where the Crown was 
 thought to have special influence through the management 
 of its landed property or otherwise. Elizabeth in particular 
 added some sixty members to the House of Commons, of 
 which six in the Isle of Wight and twelve in Cornwall l 
 were doubtless due to Crown possessions in those parts. 
 
 An important addition to the numbers of the House of Addition of 
 
 Commons, but of an entirely different character, was effected l? 161 ?^ 6 ^ 8 
 
 for W sifts 
 
 under Henry vm. in 1536, when Wales and the march- Monmouth, 
 county of Monmouth were incorporated with England, and Chester, 
 receiving twenty-seven members, two for the shire and one 
 for the borough of Monmouth, and one member from each 
 of the twelve Welsh shires together with one from each of 
 the county towns, these being the first and up to 1832 
 the only cases of constituencies returning one member. 2 
 This was followed in a few years by the summoning of 
 members from the march-county of Chester. 
 
 Other circumstances remain to be added which had a 
 more important influence in later centuries, but which must 
 
 1 Elizabeth was not the first of her family in this work. The Tudors 
 raised borough members for Cornwall from twelve to forty-two. 
 
 2 There was one exception. Bewdley was summoned by James I. to 
 return one member.
 
 54 THE WORKING CONSTITUTION 
 
 Management have always had some effect on the character of parlia- 
 pf elections me ntary representation. The writs were carried by the 
 
 iniDPriPct 
 
 king's messengers to sheriffs and mayors ; but the rules 
 governing the election procedure were nowhere precisely 
 formulated, and were largely determined by usage. The 
 elections for each county were held at one and the same 
 place, to which all who wished to vote had to come. There 
 was neither in county nor borough any formal list of voters 
 to which reference could be made ; and returning officers had 
 to use their discretion in admitting votes (sheriffs as we 
 have seen being empowered to put claimants to the test of 
 an oath), a discretion which might be reviewed by the House 
 of Commons in determining the validity of the return, and 
 perhaps by a court of law. 1 All this involved much uncer- 
 tainty and confusion in the conduct of elections, and allowed 
 scope for partiality on the part of returning officers, though 
 as far as sheriffs were concerned there never seems to have 
 been much room for suspicion. Yet another circumstance 
 and very added great expense to other evils. A county election might 
 costly. b e continued from day to day as long as voters came to the 
 poll for as many as eleven days, and this extension of the 
 time of voting applied to cities which were counties of them- 
 selves, whilst even in boroughs the elections were not always 
 finished in one day. The franchises in boroughs were of 
 the most varying character, and in those instances where 
 the right of voting was given to freemen, whose numbers 
 admitted of extension, the ingenuity of election managers 
 was exercised in after centuries to manufacture voters as 
 elections were in progress. This stage cannot be said to 
 have been developed before the close of the sixteenth 
 century ; but even in the later days of Elizabeth the com- 
 plicated difficulties of elections had a considerable influence on 
 the status and character of men chosen to serve in Parliament. 
 
 1 See post. chap. x.
 
 HOUSE OF COMMONS TO 1707 55 
 
 The difficulties just noticed may be described as arising Religious 
 from defects in the machinery of elections. A cause of 
 a very different kind became operative in the. sixteenth 
 century on the character of the House of Commons. The 
 separation of the Anglican Church from Rome was followed 
 in 1562 by an Act imposing an Oath of Supremacy upon 
 members of the House of Commons, which Elizabeth did 
 not care to have extended to the Lords, feeling probably 
 there was more danger in any alienation of the sympathies 
 of her few Catholic peers than could be apprehended from 
 their legislative action. Roman Catholics were 'thus 
 disabled from entering the House of Commons, and the dis- 
 ability became so fixed that it survived Scotch and Irish 
 Unions, and it was not until the year 1829 that it was 
 removed. James i. made a few additions to the number 
 of the House of Commons ; the most remarkable involving representa- 
 a new departure when he conferred on the Universities tionofUni- 
 of Oxford and Cambridge the privilege of returning two 
 members apiece. This cannot be said to have greatly 
 affected the character of the assembly ; but it is noteworthy 
 as the introduction of the principle of the representation 
 of persons associated together by circumstances of education 
 rather than of common residence. This process of adding Parlia- 
 other members to the English House of Commons was not mentary 
 closed till 1681, when Charles n. gave the privilege of se } ltat j ou 
 representation to Newark, a step preceded in 1674 by the under the 
 representation of the county palatine of Durham in the 
 parliamentary system ; but the Stuarts may be said to have 
 found the constitution of Parliament permanently settled. 
 The great struggles of the seventeenth century were waged 
 by men elected for constituencies as left by Elizabeth and 
 subject to the laws and usages established before her death. 
 The knights of the shire had come to be chosen by the 
 owners of real property in the several counties. They
 
 56 THE WORKING CONSTITUTION 
 
 contributed a most independent and most representative 
 element of the House of Commons. The old practice of 
 receiving wages had died out though not legally abolished, 
 and the charges attendant upon parliamentary service 
 restricted the choice of knights to men of substance and 
 standing; but there was as yet little or no suggestion of 
 bribery and corruption and the consequent power of mere 
 wealth to win a victory. These knights of the shire 
 Predomi- however constituted only about a fifth of the House of 
 nance of Commons, the rest being representatives of cities and 
 boroughs and of the two Universities. Franchises in these 
 constituencies varied as we have seen considerably, the 
 privilege of voting being in most cases confined to members 
 of the corporations of the several boroughs (generally filled 
 up by co-option), though in others it was extended to freemen 
 whose admission might be due to right or to favour. In 
 the earliest days the boroughs usually sent up their own 
 residents or neighbouring gentlemen whom they regarded 
 with respect ; but under the Tudors the Court sometimes 
 attempted to influence the choice, and persons from a 
 distance began to be chosen. The voting force of the 
 House of Commons evidently depended upon these borough 
 members, who could if united easily command a majority; 
 and it appears on examination that, out of the crowd of 
 members who were disabled under the Long Parliament and 
 whose places were taken by 'recruiters'' more than a due 
 proportion represented boroughs. The 'recruiters 1 being 
 chosen under conditions excluding the opponents of Parlia- 
 ment, whether as voters or members, were necessarily not 
 of the usual type ; and this must be remembered when we 
 try to recall the constitution of the Long Parliament at 
 the time when it exercised supreme power. 
 
 In the United Parliament under the Protectorate, when 
 for the first time the representatives of England, Ireland,
 
 HOUSE OF COMMONS TO 1707 57 
 
 and Scotland met together, the smaller boroughs were Cromwell's 
 swept away, the county representation increased so that p" 1 * 6 * 1 
 it became two-thirds of the whole, and a somewhat high 
 property qualification was introduced. This however 
 passed away with the Commonwealth, and on the Restora- The 
 tion the separate Parliaments of the three kingdoms were Restoratlou - 
 revived, and the old boroughs recovered their rights of 
 representation. The old order was re-established, and for 
 a time at least was moved by a violent spirit of reaction. 
 The first elected House of Commons insisted that all its Further 
 members, upon pain of suspension, should take the sacrament *. &V?! 1 ? 
 according to the forms of the English Church, but this 
 most questionable usurpation of authority was not main- 
 tained. The same parliament did however, j ust before the 
 termination of its prolonged existence, disable Roman 
 Catholics from sitting in the House of Lords ; thus re- 
 moving the exemption which the peers had enjoyed under 
 the statute of Elizabeth. This spirit of religious exclusion 
 was the spontaneous temper of the Commons, and indeed 
 worked in opposition to the "desire of the king. But Manipulation 
 
 Charles and his brother had their own policy in dealing borough 
 
 r J representa- 
 
 with Parliament, and sought by manipulating the springs tion by 
 
 of election to make it more subservient to their aims. The Charles n. 
 efforts of the later Stuarts were directed to an attempt to 
 transform the conditions of borough elections so as to 
 obtain from their members that support which the Tudors 
 hoped for when they multiplied boroughs ; and it was to 
 further this aim that old charters were examined under 
 writs of quo warranto, and superseded by newer instruments 
 effecting amongst other results a closer limitation of the 
 parliamentary franchise. Corruption at the same time 
 began to appear, and the character of the House of 
 Commons became affected, not only by the great increase 
 of the election expenditure which was regarded as allowable
 
 58 THE WORKING CONSTITUTION 
 
 and legitimate, but by the direct purchase of the votes 
 of electors. These last causes of demoralisation went on 
 increasing in the next century ; but the revolution of 1688 
 was followed by a nullification of the proceedings by quo 
 warranto, and the restoration of the old charters. If the 
 use of money in elections was little affected by this change, 
 the power of the Crown to influence elections was thence- 
 forward limited to the use of money. It came into the 
 market as a purchaser of seats. References to this develop- 
 ment may however be left to be dealt with in connection 
 with the next century. 
 
 Triennial Before the seventeenth century closed another attempt 
 Act - was made to settle the long-standing difficulty of the 
 
 duration of Parliaments, and the Union of England and 
 Scotland under one legislature was consummated. In 1694 
 William in. assented to a Bill providing that Parliaments 
 should expire three years after their election, but no 
 provision was made respecting annual sessions as this was 
 now secured through financial necessity. The steps leading 
 Union with up to the Union of the Parliaments of England and 
 Scotland. Scotland will be found touched upon in connection with 
 the parliamentary history of Scotland. The advantages of 
 free trade between the two kingdoms established under the 
 Commonwealth had been appreciated on both sides of the 
 Tweed ; but jealousies and apprehensions on the part of 
 Scots and English had prevented the re-establishment of a 
 common Parliament till under Anne the English administra- 
 tion became alarmed at the possibility of Scotland breaking 
 away, and consented to terms which had up to then been 
 resisted. The final treaty embodied in the Act of Union 
 maintained intact the English House of Peers and the English 
 House of Commons as parts of the new Parliament while join- 
 ing to them respectively sixteen elected Peers of Scotland 
 and forty-five Scottish representatives of counties and burghs.
 
 SCOTLAND BEFORE THE UNION 59 
 
 CHAPTER VI 
 
 SCOTS CONSTITUTION DOWN TO 1707 
 
 DURING the period when the Norman and Plantagenet kings Causes of the 
 were approximately establishing the unity of law and O f f ^ le ^ ess 
 administration in England Scotland presented the spectacle Parliaments. 
 of an imperfect regal authority and of divided and even 
 hostile jurisdictions. The Highlands and the Lowlands 
 were almost two nations, and such unity as existed in the 
 latter was largely due to the influence of a common resist- 
 ance to English pretensions. Even in the Lowlands great 
 feudatories claimed and exercised exclusive jurisdiction 
 within their possessions, making them almost independent 
 of any higher authority ; whilst in the North the chiefs 
 of the great clans were petty kinglets yielding obedience 
 to the Crown only on the irregular occasions when the 
 king showed himself backed by a force sufficient to compel 
 obedience. The prelates of the Church were equally dis- 
 posed to assert a practical independence of royal power ; 
 and municipal life was feeble and timid, choosing obscurity 
 rather than self-assertion. It necessarily followed that when, 
 after the example of England, a species of Parliament was 
 brought into existence, it was bound to be imperfect, 
 because of the absence of elements favourable to its 
 formation. 
 
 The kings of Scotland had summoned to their councils 
 the bishops of the Church, the thanes or earls of counties,
 
 60 THE WORKING CONSTITUTION 
 
 The Lords 
 of Articles 
 acquire the 
 main 
 authority. 
 
 and the greater tenants of the Crown, and these remained 
 the chief constituent parts of later parliaments. The 
 bodies thus called together were moreover rather judicial 
 than legislative assemblies. Their chief work was to 
 compose quarrels that had arisen in different parts of the 
 country ; and such laws as they made obtained an observance 
 which was rarely general and still more rarely permanent. 
 Scots Parliaments remained indeed very feeble institutions ; 
 and so far from there being a general desire to develop 
 parliamentary power, efforts were from time to time made 
 to escape the burden of parliamentary service. 
 
 The permanent endowment of the Crown remained suffi- 
 cient for its wants, even after lavish grants to religious uses, 
 and the granting of aids did not occupy that prominent 
 part in the work of Parliament in Scotland which it filled 
 at the corresponding time in England. Whilst pecuniary 
 interests were thus of secondary importance, law-making was 
 regarded as an onerous duty, and the principle of representa- 
 tion was at first introduced as a relief from direct service. 
 The tenants of the Crown, not of the first rank, were 
 suffered to appear by deputy instead of in person ; and in 
 this way county representation may be said to have origi- 
 nated. When the royal burghs were summoned to send 
 spokesmen, they did their best to diminish their influence by 
 clubbing together here and there to choose the same deputy. 
 When it is added that bishops, earls and barons sat to- 
 gether in the same House with the representatives of 
 tenants and of burghs, it may be concluded how little power 
 was really exercisable by the latter. A still more fatal 
 illustration of the weakness of Scots Parliaments appeared 
 towards the end of the fourteenth century, in the shape of a 
 committee which came afterwards to be called the Lords 
 of Articles. This committee consisted of representatives of 
 each of the three Estates, the Bishops, Lords and Commons
 
 SCOTLAND BEFORE THE UNION 61 
 
 chosen at the commencement of Parliament, to which was 
 entrusted the elaboration of the several Acts which Parlia- 
 ment as a body met together to sanction at the close of the 
 session. At first it would appear to have been intended 
 that this committee should simply work out the instructions 
 given to it on its nomination, and that the final sanction 
 of Parliament should be discriminating and real ; but in 
 practice the indication of subjects of legislation seems to 
 have often if not generally disappeared, so that the Lords 
 of the Articles determined in their own discretion what 
 should be done, and the final ratification was very loosely 
 secured. The complete degradation of Parliament was 
 realised when we find that, instead of each Estate choosing 
 its own representatives among the Lords of Articles, the 
 Lords Spiritual chose the temporal members and the Lords 
 Temporal chose the spiritual ; so that the clergy found it 
 easy to exercise a ruling influence in the committee. This 
 mode of selecting these Lords was in full operation in 1561, 
 'and so remained down to the union of the two Crowns. 
 
 Before that time however the greater part of the nation The General 
 
 had gone through that tremendous upsetting of religious Assembly 
 
 . . . becomes the 
 
 belief which characterised the Scottish Reformation, and the popular 
 
 new birth of faith which dominated the struggles of the whole representa- 
 of the next century had been completed. A manifestation 
 of new life appeared in the establishment of the General 
 Assembly in 1560. It consisted of the ministers of the 
 parishes of Scotland and of delegated laymen representing 
 the mass of the people ; and it seems to have often happened 
 that the latter far exceeded in number the ministers who 
 were gathered together. The legal origin of the General 
 Assembly may be obscure, and its relation to the Crown ill- 
 defined, but it possessed a moral sanction to which Parliament 
 could lay no equal claim ; and when James succeeded to the 
 exercise of power after his minority his efforts were directed
 
 62 THE WORKING CONSTITUTION 
 
 to the bringing of this new force into relation with, if not 
 into dependence upon, the older Parliament. 
 
 James vi. One way of doing this was to confer upon the ministers 
 
 tries to make w hom he favoured the old titles of bishops and abbots, 
 
 on Parliament without however any addition of spiritual function ; and 
 
 by the Parliament gave him in 1597 the power of making such 
 
 institute nominations, involving as a consequence the admission of 
 
 these titular prelates to Parliament itself. At the time of 
 
 the Union of the two Crowns Scotland had thus become 
 
 possessed of two bodies of rival authority: the General 
 
 Assembly, which though ecclesiastical in conception often 
 
 strayed into the domain of political action, and Parliament, 
 
 consisting of such Bishops as have been described, the Lords 
 
 Temporal, and the elected representatives of the king's 
 
 tenants in the counties and of the burghs. 
 
 The accession of James to the English crown naturally 
 made him much more independent of his Scotch subjects, 
 whose pecuniary assistance was always insignificant, and 
 residence in the South strengthened or perhaps developed 
 his disposition to restore episcopacy. It is needless to go 
 through the tortuous Acts by which he sought to accom- 
 plish this end. By successive prorogations he did what he 
 could to deprive the Assembly of its right to meet at least 
 once a year; and he more insidiously undermined the strength 
 of the Presbyterian organisation by providing, with the 
 consent of a conference of a certain number of ministers of 
 his own nomination, that the moderators of their several 
 gatherings should be permanent officers chosen by himself, 
 his bishops being ex qfficio moderators in the Synods to 
 which they were attached. By means like these, and by 
 the persecution and banishment of obstinate ministers, he 
 got an Assembly to assent to five Articles of ritual at Perth 
 in 1617 (ratified by his Parliament in 1621), and thus pre- 
 pared the way for the complete establishment by Charles
 
 SCOTLAND BEFORE THE UNION 63 
 
 of an episcopate and liturgies on the Anglican model. 
 Charles began his reign with an Act for the resumption of Charles i. 
 church lands ; but after two years of agitation this was [| ir1 : her 
 transformed into a salutary arrangement, under which the freedom of 
 grosser evils of levying teinds (tithes) in kind were abated, Parliament 
 and the stipends of ministers improved, and it seems possible 
 that this last change facilitated the subsequent development 
 of his policy. In 1633 a Scots Parliament was summoned, 
 and in the choice of the Lords of Articles a further in- 
 novation was effected. The bishops as before chose eight 
 peers, and the lords chose eight bishops; but the sixteen 
 thus selected now took upon themselves to chose eight 
 representatives of the lesser tenants and eight representa- 
 tives of the burghs. Very little independence was left in 
 thirty-two so chosen, and when eight Crown officials were 
 added and the whole body sat under the presidency of 
 the Chancellor, the Lords of the Articles might be trusted and completes 
 
 to do whatever Charles desired. In fact they drew up an *^ e re ^ tora - 
 
 tion of 
 Act empowering the king to regulate the vestments of episcopacy. 
 
 ministers of religion ; and this with other Acts quite dis- 
 similar from it in character were submitted to Parliament 
 to be voted upon en bloc, the king attending in person to 
 overrule objections to this method of procedure and to note 
 the names of those who voted against his wishes. The 
 ratification was in this way pushed through, and the re- 
 organisation of the Scottish Church on the Anglican model 
 effected. The events of the years of struggle that followed 
 need not be described. Charles paid for the restoration of 
 episcopacy with his crown and his life, though the Scots United 
 themselves were unwilling to enforce the last penalty, 
 For a brief period under the Protector Scotland and Cromwell. 
 Ireland were joined with England in a United Common- 
 wealth. Freedom of trade, and as far as possible identity 
 of institutions were established throughout North and
 
 64 THE WORKING CONSTITUTION 
 
 Degradation 
 of Parlia- 
 ment under 
 Charles u. 
 
 The Revolu- 
 tion in 
 Scotland. 
 
 South Britain, and Scotland was represented in the United 
 Parliament. 
 
 With the Restoration all things were put again into the 
 position they had reached in the earlier years of Charles i. 
 The separate parliamentary organisation of Scotland, such 
 as it was, came again into being, and the Episcopal Church 
 was re-established. In the reigns of Charles n. and his 
 brother infamous laws were still more infamously ad- 
 ministered, so that it is now a wonder that rebellion was 
 not frequent and even chronic. Yet it appears that the 
 attempt at a revolution would have been delayed, had not 
 England led the way. The situation was not indeed 
 regarded as wholly secure by the Stuarts and their Ministers, 
 and the memory of one of the great advantages of Cromwell's 
 system was invoked with a design of strengthening the 
 position of the Episcopal Church, if not of adding to the 
 power of the Crown. The benefits of free trade established 
 by Cromwell were well remembered, and it was seen that 
 with the increasing importance of the colonies an equal 
 participation with England in their development would 
 still more largely promote Scots prosperity. Proposals of 
 legislative union were twice entertained and twice abandoned 
 under Charles n. ; but on each occasion it was the funda- 
 mental part of the project to maintain the Episcopal Church 
 so that it might be buttressed by the whole force of England. 
 It was fortunate that these plans proved abortive, that 
 iniquitous laws and prostituted justice continued unchecked 
 or even aggravated until the flight of James from London. 
 When William and Mary were accepted in England, the 
 re-settlement of Scotland was among the first cares of 
 the new king. He caused a Scots Parliament to be 
 summoned, in the returns to which the attainders of Peers 
 and the tests imposed upon parliamentary electors were alike 
 disregarded, although at the same time bishops attended
 
 SCOTLAND BEFORE THE UNION 65 
 
 and took their seats in it. The assembly thus convoked 
 took even a stronger stand than the Convention in the 
 South. It declared the crown forfeited by James, and 
 decreed the abolition of prelacy, and invited William and 
 Mary to the throne as a matter of bargain and settlement. 
 All or nearly all the violations of law of the late regime 
 were condemned ; and, upon the basis of a Declaration con- 
 taining all the resolutions of this Convention Parliament, 
 William and Mary were invited to accept and did accept 
 the crown. It is unnecessary to review in detail the later 
 history of the Scots Parliament. The re-establishment of 
 the Presbyterian Church was in due time formally completed, 
 but William tried in vain to accomplish a legislative Union 
 of the two kingdoms. Some little time was still necessary Union with 
 before the economic advantage of this Union and the 
 possibility of effecting it under conditions affording a 
 sufficient guarantee for the maintainance of the peculiar 
 institutions of the two kingdoms, especially of their Churches, 
 could be fully recognised. It is probable that it would not 
 at last have been agreed upon, had not the English Parlia- 
 ment consented to suffer that equal participation of Scotland 
 in colonial trade which it erroneously thought would be 
 injurious to English interests rather than face the apparent 
 determination of the Scots Parliament to insist upon a 
 different limitation of the descent of the crown from that 
 which the English Parliament had passed a course involving 
 the danger of the separation of the two kingdoms. The 
 terms of Union provided for the presence of sixteen Scotch 
 representative peers in the House of Lords and of forty-five 
 Scots members in the House of Commons, and left un- 
 touched the franchises under which these members should 
 be elected. They remained unaltered till the Act of 1832 
 recast the electoral machinery of the United Kingdom.
 
 66 THE WORKING CONSTITUTION 
 
 CHAPTER VII 
 
 THE HOUSE OF COMMONS, 1707-1801 
 
 The AMONG the early changes, though not the earliest, affecting 
 
 ^ e I* ar li amen t f Great Britain was one, the constitutional 
 propriety of which has been much debated. It has been 
 noticed that William in. assented to a Triennial Bill. The 
 first parliament of George i. had scarce begun to sit before 
 it was apprehended that a new election might return a 
 House of Commons unfriendly not only to the Ministry 
 but to the Hanoverian succession ; and an Act was passed 
 extending the duration of parliaments to seven years. This 
 step could not be justified now when the principle of popular 
 sovereignty is firmly established; and it must be defended 
 as the necessity of a situation that might otherwise have 
 developed into a revolution. It must be remembered also 
 that the electorate and the disposition of electoral privileges 
 were wholly different in 1716 from what they are now ; and 
 a General Election could scarcely have been described as 
 an appeal to the people without a perversion of language. 
 The greatest danger in the Act lay in the possibility 
 of further legislation tending to restore the old abuses 
 of unlimited parliaments; but it has in fact remained 
 unchanged ever since it was passed. 
 
 Property Preceding the Septennial Act a Bill was passed which 
 
 2 ua il fica i ion must be taken with several others as indicating continued 
 
 tor i cut I M* !'* 
 
 efforts to increase the independence of the House of
 
 HOUSE OF COMMONS, 1707-1801 67 
 
 Commons. The privilege of members of freedom from 
 arrest cannot be said to have made the House a sanctuary 
 for debtors ; but when coupled with parliaments of in- 
 definite duration, the possession of a seat was a relief to the 
 embarrassed. Many needy men were recognised among 
 members, and it was to prevent their entrance that an 
 Act was passed in 1710 that county members must have 
 landed property worth 600 a year, and borough members 
 similar property to the extent of d^300 a year. A uniform 
 qualification of 300 a year was subsequently enacted ; but 
 the law was habitually evaded, and was finally repealed 
 in 1858. More effective legislation was that directed Exclusion 
 against the presence of placemen and pensioners in the of P lacem en 
 House of Commons, which has been reserved for notice Pensioners 
 here though it first assumed a permanent shape in 1705. 
 Under it, no person holding any office under the Crown 
 created after that date can hold a seat unless expressly 
 authorised by the Act creating the office; and any person 
 holding any earlier office must vacate his seat on appoint- 
 ment to it, although eligible for re-election. The same 
 legislation provides that no person can sit in the House 
 of Commons holding a pension at the pleasure of the Crown, 
 a disqualification subsequently extended to pensions for 
 terms of years. The Act of Anne, thus referred to, remains 
 the governing statute on the eligibility of office-holders ; but 
 a large number of the pre-existing offices have since been 
 abolished altogether or have had the condition of disquali- 
 fication attached to them. Efforts were constantly made 
 during the eighteenth century to reduce the influence of 
 the Crown in the House of Commons, by the abolition of 
 offices, especially those attached to the Royal Household. 
 
 Akin to the legislation against placemen was that for and of 
 
 the exclusion of Government contractors from the House Government 
 f n on, f .,. i Contractors. 
 
 ot Commons, ine presence ot persons of this class enjoy-
 
 68 THE WORKING CONSTITUTION 
 
 ing pecuniary advantages through the favours of Ministers 
 became a considerable scandal in the wars of the eighteenth 
 century; and reached such a pitch during the American 
 War of Independence that an Act was passed in 1782 dis- 
 qualifying contractors. This however did not extend to 
 subscribers to public loans who had also enjoyed consider- 
 able benefits as favoured allottees ; but this source of corrupt 
 influence was destroyed by the development under Pitt of 
 the system of negotiating loans by sealed and secret tenders 
 to the best bidder through the agency of the Bank of 
 England. Disqualification under the statute is however 
 limited to persons contracting for themselves, or as partners 
 in private partnerships, and does not extend to share- 
 holders of public companies consisting of ten or more 
 persons even though the shareholder may as chairman or 
 director be directly concerned in the management of the 
 company. In the present organisation of business it would 
 be found impossible to exclude dormant shareholders in such 
 companies from Parliament; and whilst legislation could 
 doubtless be directed against managing directors, adequate 
 security against corrupt influences is probably realised 
 through the publicity of modern contracts and the active 
 competition to which they are subject. The question is 
 more complicated where a shareholder in a contracting 
 company is not only a member of the House, but a Minister 
 of the Crown ; but this contingency does not seem to have 
 been discussed in Parliament, and has certainly not been 
 made the subject of legislation. 
 
 Abortive Apart from the purification of the House of Commons 
 
 projects of from pensioners, placemen and contractors, its composition 
 remained practically unchanged during the eighteenth cen- 
 tury. Under George in. steps were continually taken to 
 augment the influence of the Crown in the House of 
 Commons by the purchase of seats from borough-owners at
 
 HOUSE OF COMMONS, 1707-1801 69 
 
 successive General Elections. The private correspondence 
 of the King with Mr. Robinson, the Secretary of the Treasury 
 under Lord North, contains numerous illustrations of the 
 personal interest of his majesty in the prices paid to the 
 noble patrons of boroughs for the return of members devoted 
 to the King's party. The secret employment of the public 
 revenue for these purposes was not indeed maintained in 
 later years; but the sale of seats to private purchasers 
 long survived all attempts at reform. Lord Chatham 
 had proposed an increase in the county representation 
 so as to strengthen its independent elements, and the 
 irresponsible suggestions of the Duke of Richmond and 
 Wilkes had been followed by the careful plans of Mr. Pitt, 
 which included the purchase and disfranchisement of corrupt 
 boroughs at a cost exceeding a million. But all these 
 projects proved abortive. The great war with France 
 threw schemes of parliamentary reform entirely in the 
 background, and the century ended with the maintenance 
 of a system under which seven-tenths of the seats in 
 England and Wales were in private ownership ; whilst the 
 representation of Scotland did not, even in regard to 
 counties, afford a parallel to the moderate independence 
 which in this respect prevailed in England. It will be 
 seen that in the Union with Ireland some reduction was 
 made in its corrupt and decayed borough representation ; 
 but nothing similar was attempted as a preparation for 
 the entrance of Great Britain into the Union.
 
 70 THE WORKING CONSTITUTION 
 
 CHAPTER VIII 
 
 THE GOVERNMENT AND PARLIAMENT OF IRELAND 
 DOWN TO THE UNION 
 
 Irish SCOTLAND came into connection with England through the 
 
 subonihmted succession of its king to the English crown, and it retained 
 by Poyning's its own institutions, including an imperfect Parliament. 
 Law to the r fhe relations between the two kingdoms became confused 
 under the Stuarts, but the complete separateness and 
 independence of Scotland were fully confirmed at the 
 Revolution. The story of Ireland is that of a conquered 
 country. For a long time imperfectly subdued and un- 
 organised, it remained down to a comparatively recent time 
 (1782) in something like the position of a Crown colony. 
 Within the area actually settled, or to use the appropriate 
 phrase within the Pale, the leading institutions and Common 
 Law of England were introduced, and a Parliament after the 
 English model began to be developed. But in 1495 an Act 
 was passed in a parliament at Drogheda, under the influence 
 of the then Governor or Ix>rd Deputy Poyning, which kept 
 Ireland in subordination for nearly three centuries. Along 
 with many useful provisions for the repression of lawlessness 
 and the maintenance of order and justice were two others 
 conspicuous for the prominence of their influence. The 
 first declared that all laws passed in England up to that 
 time were in force in Ireland, whilst the second provided 
 that no Bill should be introduced to the Irish Parliament
 
 IRELAND BEFORE THE UNION 71 
 
 which had not previously been submitted by the Lord 
 Deputy to the King and approved by his English Council. 
 Money grants were excepted from this last provision, but 
 subject to this limitation it remained in force till it was 
 repealed in 1782. Barely half of Ireland was organised 
 when Poyning's Law was passed, but as county after county 
 was formed and the area of parliamentary representation 
 extended, its chain was only lengthened. Nor was this the Catholics 
 only constitutional fetter by . which Ireland was bound, disabled. 
 When the Reformation came Catholic recusants were soon 
 disabled from holding judicial and the higher administrative 
 offices; but they appear to have been freely admitted to 
 Parliament till 1641, when in the crisis of the Irish re- 
 bellion they were excluded from the House of Commons 
 by a resolution of a majority of its members. An English 
 statute of William and Mary enforced this exclusion, and 
 under Anne, Catholics were practically debarred from voting 
 as well as from sitting in Parliament. 1 The Legislature Rotten 
 would thus at its best represent but a small fraction O f borou hs 
 the inhabitants of Ireland ; and it must be added that the 
 device to which the Tudors resorted in England of granting 
 privileges of representation to petty boroughs likely to be 
 loyal had been still further developed in Ireland ; and was 
 in fact freely employed up to the end of the seventeenth 
 century. The degradation of the Irish Parliament was 
 further proclaimed by a statute passed by the Parliament 
 of Great Britain in the sixth year of George i., which of its Further 
 own authority went beyond Poyning^s Law and declared subordina- 
 that the British Parliament had full power to make laws Parliament, 
 binding the people and kingdom of Ireland. 
 
 Little or no light can be thrown upon the constitution 
 of to-day by a review of the dismal tale of repression and 
 
 1 This exclusion from voting was formally enacted by an Irish statute 
 of 1727.
 
 72 THE WORKING CONSTITUTION 
 
 Political rebellion, of treachery and force, which characterised the 
 condition hjgtory o f Ireland during the seventeenth century. It is 
 in the enough if we realise something of the situation as it stood 
 middle i n the middle of the eighteenth century. The mass of the 
 eighteenth population was then, as always, devoted to the Catholic 
 century. faith, the north-eastern corner excepted, which was occupied 
 by Protestant descendants of colonists, mainly from Scotland. 
 English elements were found along the eastern coast, and 
 here and there in the south were families or groups of 
 families descended from refugees from the Palatinate and 
 elsewhere who had been planted in Ireland. But all these 
 together could not perceptibly modify the character of the 
 people. If the religion of the overwhelming majority was 
 not absolutely proscribed, its services were maintained with 
 difficulty and danger; persecution dogged every movement 
 of its priests, and its laymen were not secure in the enjoy- 
 ment of property ; whilst the great endowments of the 
 Church were appropriated to the support of the Protestant 
 episcopal establishment, whose bishops, imported mainly 
 from England, not seldom returned there as absentees. 
 The Protestants indeed had little more real enjoyment of 
 political privileges. The greater part of the borough 
 representation was in the hands of a very few proprietors 
 or patrons, and the Protestant voters in counties were 
 subservient to the great landowners, whose favour was a 
 shelter to them amid the Catholic masses of the people. 
 The lay members of the House of Lords were the most 
 powerful of these borough-mongers and landowners, while 
 the Lords Spiritual were the Protestant bishops and arch- 
 bishops, owing their nominations to the favour of the 
 Crown. It should be added that no limit had ever been 
 imposed on the duration of an Irish parliament. In the 
 absence of a dissolution it might continue in existence until 
 the demise of the Crown. The death of George n. being
 
 IRELAND BEFORE THE UNION 73 
 
 thus necessarily followed by a General Election, one of the 
 first attempts of the new parliament was to put a limit to 
 its own existence. A Septennial Act was passed, and when 
 the English Privy Council with a minute perversity altered 
 the period from seven to eight years the Irish Parliament 
 was wise enough to accept the change. The score of years 
 that followed would probably in any case have been pro- 
 ductive of reforms, but the difficulties of the American War 
 powerfully contributed to their success. 
 
 Catholic disabilities in reference to the holding of land Parlia- 
 were almost entirely removed, and in 1782 the perfect in- Tj 6 "^^ s 
 dependence of the Irish Parliament was formally declared by modified, 
 the Irish and admitted by the British Parliament. Poyning's 
 Law was repealed, as was the Act passed in the early years Independence 
 of George i. Ministerial responsibility was not indeed p a y[;ament 
 introduced into the government of Ireland. The Irish recognised. 
 Administration remained dependent upon the Administration 
 of Great Britain, the maintenance of such a system being 
 facilitated by the great influence the Irish Executive was 
 able to exercise on the Irish House of Commons. The 
 Irish Legislature promptly used its unfettered power to 
 pass a Habeas Corpus Act on the English model, and a little 
 later on (1792) it removed the parliamentary disabilities of 
 Catholic voters ; but it must be added that the same 
 independence was shown in a jealousy of Mr. Pitt's pro- 
 posals for Free Trade which rendered them abortive after 
 he had overcome like obstacles in Great Britain ; and again 
 when the illness of the King necessitated the establishment 
 of a Regency, the Irish Parliament refused to impose the 
 conditions which Mr. Pitt persuaded the British Parliament 
 to attach to the Regency of the Prince of Wales. It must 
 be admitted that the situation as it existed at the end of the 
 eighteenth century could not be maintained. Parliament 
 was independent without being national, and it was in-
 
 74 THE WORKING CONSTITUTION 
 
 dependent in the making of laws but not in the controlling 
 Act of Union, of the administration. Popular dissatisfaction developed 
 into rebellions, and Mr. Pitt was convinced that the only 
 way of restoring order was through a legislative Union of 
 the two islands. The consent of Irish peers and borough- 
 mongers was obtained by the payment of lavish compensation 
 for the loss of their privileges, but in judging of this pro- 
 ceduje it must be remembered that in the scheme of reform 
 of the British Parliament which Mr. Pitt had submitted in 
 a Bill in 1785 he proposed to buy out the proprietors of 
 nomination boroughs. The Articles of Union ultimately 
 passed by both Parliaments, and resulting in the establish- 
 ment of a Parliament of the United Kingdom on the 
 1st of January 1801, gave Ireland one hundred members 
 in the House of Commons and twenty-eight representative 
 peers, elected for life, in the House of Lords. It was 
 provided also that the number of Irish peers should be 
 gradually reduced till they fell to one hundred.
 
 THE PERIOD OF REFORM 75 
 
 CHAPTER IX 
 
 UNION WITH IRELAND : CATHOLIC EMANCIPATION I 
 REFORMS OF 1832, 1867, 1884 
 
 THE Parliament of Great Britain and the Parliament of Union with 
 Ireland were united in 1801 as the Parliament of the Ireland - 
 United Kingdom. It is not necessary to examine in detail 
 the story of the way in which this was accomplished. In 
 form each Parliament was a contracting power, and by 
 simultaneous Acts enunciating the same conditions, each 
 consented to merge its existence in a United Parliament 
 starting into life under the conditions agreed upon. A 
 Union of this kind had long been the subject of speculative 
 interest, and statesmen and economists had desired it both 
 for the sake of uninterrupted facilities of commercial inter- 
 course and of the unity of the governing authority. But 
 the difficulties impeding the accomplishment of the Union 
 were considerable. The bulk of the population of Ireland 
 differed in race, and were even more widely separated in 
 religious belief, from the bulk of the population of Great 
 Britain. But these differences cannot be said to have con- 
 stituted the main hindrances to union, since no one could 
 be a member of either House of Parliament in Ireland who 
 was not a Protestant, and members were as a fact allied in 
 race as in creed to the people of Great Britain. It may 
 be difficult to gauge the sentiments of the masses of the 
 inhabitants of Ireland at that time on the subject of the
 
 76 THE WORKING CONSTITUTION 
 
 Union. The power of England was doubtless regarded as 
 that of a foreigner and an enemy which had imposed and 
 maintained many tyrannies, but the Irish Parliament as it 
 existed was the expression of the domination of a class, and 
 Roman Catholics of education and position turned to the 
 United Parliament with hope of a more enlightened govern- 
 ment under it than had hitherto prevailed. In spite of the 
 antagonisms which had been manifested in the recent fierce 
 rebellions, it must be uncertain how far the fusion of the 
 Irish Parliament with that of Great Britain excited popular 
 resentment. There can be no doubt as to the strong oppo- 
 sition among the Protestants in the Irish Parliament. This 
 was overcome with great difficulty and with the narrowest 
 majority after a first failure, and even then was accomplished 
 under the influence of large compensation in titular honours 
 and in money which may not incorrectly be described as bribes. 
 The result was however achieved, and when it is urged that 
 the circumstances of origin of the United Parliament gave it 
 no moral sanction in the consciences of the Irish people, it 
 may be asked, what was the worth of the moral sanction of 
 the pre-existing Irish Parliament ? Here as in so many other 
 cases, the origin of power is to be found in a force not yet 
 enveloped in law. The true moral sanction of the United 
 Parliament must spring from what it does and will do. In 
 its history must be found its defence or its condemnation. 
 Its binding A more practical question arises when examination is 
 made into the character of the binding force of the con- 
 ditions under which the Union was agreed upon. Are these 
 of perpetual obligation, or may they be regarded as provi- 
 sions admittedly of the highest authority and importance 
 under the sanction of their origin, which may nevertheless 
 be wholly set aside by the United Parliament in the exercise 
 of its deliberative wisdom ? The same question might be 
 raised as to the conditions of Union between England and
 
 THE PERIOD OF REFORM 77 
 
 Scotland, though it has in fact been less debated. The 
 answer in each case must be the same, and it seems to be 
 that the United Parliament has the right to revise the terms 
 of Union in any way that may appear good. The Acts of 
 the Legislatures agreeing to unite together contain no pro- 
 vision whatever for dissolving the Union agreed upon. Each 
 Legislature confides the destinies of its country to the United 
 Parliament, subject indeed at the outset to prescribed con- 
 ditions, but unrestricted by any machinery to impede their 
 modification or abandonment. It is not intended to declare, 
 what is sometimes asserted, that the United Parliament 
 being established as supreme, could never cease to be supreme 
 in every part of the United Kingdom. However fanciful 
 the suggestion may appear, it must still be possible for the 
 United Parliament, if thereto resolved, to separate itself 
 again into two or more parts each starting an independent Conditions 
 existence within the territory assigned to it. Putting aside ? f Union 
 
 I13,VG D66I1 
 
 this violent supposition, it must be observed that the United altered, 
 Parliament has in fact more or less seriously altered the 
 conditions of union between Great Britain and Ireland, and 
 indeed between England and Scotland. The Treaty between 
 England and Scotland fixed the number of members to be 
 sent from each to the Parliament of Great Britain. The 
 Union with Ireland fixed the number of members from Great 
 Britain and Ireland to the United Parliament. The Act of 
 1832 materially altered the proportion of members between 
 England and Scotland. The Act of 1884 again altered this 
 proportion, and the proportion between Great Britain and 
 Ireland. The fact that the total representation of Ireland 
 has remained unchanged is immaterial, seeing that its 
 relative force has changed ; and as there is no power 
 capable of maintaining that number as an irreducible 
 minimum, the number itself must be subject to alteration 
 according to the wisdom of the United Parliament. Another
 
 78 THE WORKING CONSTITUTION 
 
 of the conditions of union between Great Britain and Ireland 
 was the maintenance of the establishment of the Protestant 
 Episcopal Church in Ireland. This Church was disestab- 
 lished and disendowed by the United Parliament in 1869. 
 A third condition of the Irish Union determined the 
 proportion of the revenue to be raised in the two islands 
 until a certain situation should be realised, when one finan- 
 cial organisation was to be established. This was avowedly 
 a transitory condition, and the situation when it should 
 and may cease was reached more than eighty years ago. But even if 
 be altered ^is k a( j no j. b een so? jt mus t have been within the compet- 
 
 ence of the United Parliament to set aside the arrangement, 
 and to put up in its place whatever might have seemed 
 equitable in its wisdom. In a word, the United Parliament 
 was uncontrolled save by its own sense of fitness and pro- 
 priety. As will be seen hereafter, it respects the varying 
 circumstances of the different parts of the United Kingdom, 
 and it does so because this seems good to it and not because 
 there is any power outside itself capable of imposing limita- 
 tions on its action. 
 
 Exclusion of Having thus sketched the character of the authority of 
 clergymen. ^ e United Parliament, the principal changes in its constitu- 
 tion may be briefly noticed. One of comparatively minor 
 importance may first be dismissed. The doubtful question 
 of the eligibility of persons in holy orders was settled in 
 1801 by an Act excluding priests and deacons, and ministers 
 of the Church of Scotland, 1 but ministers of nonconformist 
 denominations were left eligible and have often been elected. 
 A question of far wider importance presently became a subject 
 of active controversy. It may be remembered that the 
 
 1 Under an Act of 1870 English clergymen can renounce their order and 
 relieve themselves of consequent disabilities. It would seem that orders of the 
 Church of Scotland have not been regarded as indelible, as men who have 
 been ministers have been elected members of the House of Commons without 
 question.
 
 THE PERIOD OF REFORM 79 
 
 members of the Irish Parliament were exclusively Protestant. Catholic 
 The right of voting had been confined to Protestants up to Emancipa- 
 1792, when Catholics possessing the necessary qualification 
 were allowed the franchise; but no Catholic could take 
 his seat in the Parliament and none were chosen. In 
 the United Parliament the same disability prevailed. 
 The House of Commons by and by declared in favour 
 of its removal. This policy became an open question 
 within Tory Cabinets, but even if Ministers privately agreed 
 upon the subject among themselves, which they did not, 
 they might have hesitated to recommend the repeal of 
 Catholic disabilities in face of the stubborn resistance of 
 George in. and the equal opposition, of temper if not of will, 
 of George iv. The solution came from the action of the 
 electors of Clare. In the summer of 1828, soon after the 
 prorogation of Parliament, they choose Mr. CTConnell by 
 a great majority in opposition to Mr. Vesey Fitzgerald, a 
 member of the Government, and it was known that Mr. 
 O'Connell would present himself at the bar of the House of 
 Commons at the commencement of the new session to take 
 his seat, notwithstanding the oath which barred him as a 
 Catholic from doing so. The action of Clare produced the 
 most serious excitement in Ireland, and Ministers felt they 
 had either to yield or to repress discontent that might 
 assume the form of armed rebellion. They yielded them- 
 selves, and convinced the King of the necessity of accepting 
 their advice ; and the new session saw the legislative removal 
 of parliamentary disabilities of Roman Catholic laymen; 
 clerics being placed in the same position as their Anglican 
 brethren and ministers of the Scottish Church. 
 
 The Act of 1829 was of the greatest significance in con- Representa- 
 nection with the representation of Ireland, and it W as^ ll ! efore 
 followed three years later by a change with a still wider England 
 range of influence. The representation of England in the and Wales,
 
 80 THE WORKING CONSTITUTION 
 
 United Parliament had remained practically unchanged in 
 form since the death of Elizabeth. Some of the boroughs 
 had dwindled even to a vanishing point. The greater 
 number, including those owing their parliamentary existence 
 to Elizabeth and her family, had lost any measure of relative 
 importance they once possessed. In comparatively few cases 
 it was a privilege of voting extended to the inhabitants or 
 ratepayers at large. In very many boroughs the right of 
 election had become vested in a small corporation which 
 filled up its number as vacancies occurred by co-option, and 
 these corporations had passed under the influence of some 
 great proprietor who, through a purchase of property in the 
 borough, had practically become the purchaser of the right 
 of nominating its members. On the other hand, large towns 
 which had come into existence in the changes of industrial 
 development were in no way represented in the House of 
 Commons. Manchester, Birmingham, Leeds and the like, 
 had no representation whatever. Bristol and Liverpool are 
 associated in parliamentary history with the illustrious 
 names of Burke and of Canning, and in these ancient towns 
 the freemen were numerous if not independent. London 
 and Westminster were the most conspicuous examples of free 
 and open voting in the kingdom, and the results of the 
 elections there were watched with the utmost intensity as 
 real manifestations of popular opinion. In other boroughs, 
 the constituencies consisted of an irregular number known 
 as * scot and lot voters,' ' potwollopers, 1 and the like, and in 
 one instance (Preston) something like universal suffrage 
 prevailed. Members for counties were elected by freeholders, 
 and as these constituted an independent class, county elec- 
 tions afforded some test of national judgment ; but in many 
 counties freeholders did not increase in number, and the 
 expense of a contest, when there was only one voting place 
 in each county, and voters were brought up to vote during
 
 THE PERIOD OF REFORM 81 
 
 a period which might run to eleven days, was so enormous 
 as to produce a most practical limitation of the class of 
 candidates. They must be very rich themselves or stand as 
 the nominees of some rich patron or patrons, to whom they 
 would be bound if successful. In the mass of the smaller 
 boroughs the patron sold the right of representation, or if 
 he gave it to a nominee it was upon the understanding that 
 the nominee voted according to his wishes, if not absolutely 
 as his agent. 
 
 The case of Scotland was even worse than that of Eng- Scotland, 
 land. The county electorate presented no body of voters 
 that could be compared to the forty-shilling freeholders 
 of the South. The old feudal franchises had remained un- 
 modified, and the privilege of voting was exercised by very 
 small numbers whose qualifications had become grotesque. 
 Inverness, with a population of 90,000, was stated on the 
 eve of the Reform Bill to have had eighty-eight electors, of 
 whom fifty were non-resident. The burghs were the closest 
 of corporations, the electors in Edinburgh and Glasgow 
 being only thirty-three in each case. In Ireland the Ireland, 
 boroughs exhibited similar anomalies, and although the 
 numbers of voters in the counties were relatively large, they 
 were in fact under the control of a few landowners whose 
 power, despite the instance of Clare, had as yet been scarcely 
 disputed by the priests. 
 
 In 1830 a large measure for reforming this system was The Reform 
 introduced into the House of Commons. It was proposed Bil l of 1832> 
 to sweep away altogether fifty-six boroughs returning two 
 members apiece, and to deprive thirty other boroughs of one 
 of their two members, to bring into existence such parlia- 
 mentary boroughs as Manchester, Birmingham and Leeds, 
 twenty-two in all, with two members apiece, and twenty-four 
 other boroughs with one member, to trisect Yorkshire into 
 Ridings, to bisect other populous counties, and to add a 
 
 F
 
 82 THE WORKING CONSTITUTION 
 
 third member to others which were not populous enough to 
 be bisected, and yet had a claim to additional representation. 
 In all boroughs it was proposed to give the right of voting 
 to householders paying 10 rental and upwards, whilst the 
 rights of freemen existing under some charters were to cease. 
 In counties the franchise was still to be reserved to owners 
 of real property, but in addition to the old freeholders, 
 copyholders and leaseholders were to be admitted. It is not 
 necessary to pursue the fortunes of this proposal in detail, 
 as this story has been sufficiently told in another chapter. 
 Some changes were made in the shape in which it ultimately 
 became law ; one, saving the rights of existing freemen, was 
 important not so much for its immediate effect as in laying 
 down a precedent ever since followed of avoiding disfran- 
 chisement; another of more pregnant consequences was 
 the addition to county voters of tenants paying ^50 and 
 upwards rental. This last was stoutly resisted by the 
 authors of the Bill, who had adopted the principle, vicious 
 in expression as in reason, that borough elections should 
 represent numbers and county elections property. It 
 seems obvious now that the idea underlying this phrase, 
 namely a representation of the different elements making 
 up national opinion, could not be permanently realised by 
 apparently arbitrary variations of the rights of citizens resid- 
 ing in different areas. The Parliament of ten-pound house- 
 holders, as it got to be called from the predominant franchise 
 in boroughs, remained unchanged in constitution till 1867-68 
 Franchise as far as regards Great Britain, but in respect of Ireland an 
 in Ireland. Act was passed in 1850 establishing an 8 rating franchise 
 in boroughs and a 12 rating franchise and 5 ownership 
 franchise in counties. 
 
 Two changes in the eligibility of persons to serve as 
 members of the House of Commons were indeed effected 
 in the interval. The law requiring members to have an
 
 THE PERIOD OF REFORM 83 
 
 income of 300 a year in land had long been evaded by Property 
 fictitious qualifications ; but an unfortunate candidate having qualification 
 
 Oi HftGITl D6I*S 
 
 been convicted and sentenced to imprisonment for falsely abolished, 
 swearing to a qualification before he had been clothed with 
 it even fictitiously, it became necessary to repeal a law fre- 
 quently evaded and yet at times operating so harshly, and in 
 1858 every property qualification was abolished. The same 
 year saw the settlement of a struggle that had been inter- 
 mittently waged since 1832. An Act was passed giving Jews 
 each House power to alter the oath of members, so that it admitted, 
 might be taken by Jews, and thereupon Jews who had been 
 elected and re-elected on several occasions, but had been 
 unable to obtain full admission as Members, formally entered 
 the House of Commons. 
 
 The great changes of 1867-68 involved large extensions of Reform of 
 the franchise and some slight redistribution of seats. A 1867-8. 
 clause in the Act of 1867, introduced on the suggestion of 
 Lord Stanhope the historian, removed the last relic of the 
 dependence of Parliament upon the Crown by providing 
 that its course should run undisturbed by any demise of 
 the Crown. The most notable fact with regard to the 
 redistribution of seats was that a third member was 
 given to the most populous boroughs, Glasgow, Manchester. 
 Liverpool, Birmingham, and Leeds; and in relation to 
 these and to the counties returning three members, all 
 which came to be called three-cornered constituencies, 
 a provision was introduced that no voter should vote 
 for more than two candidates. Similarly it was provided 
 that in the city of London with four members, no voter 
 should vote for more than three candidates. These pro- 
 visions were intended to secure to the minority of votei-s 
 a share in the representation of the constituency, a result 
 which was attained in all cases except Glasgow and Birming- 
 ham, where the minority was too small to win a seat. As
 
 84 THE WORKING CONSTITUTION 
 
 regards voters, the franchise was extended in boroughs in 
 England and Scotland to all householders, and in Ireland 
 to 4< householders, whilst in counties the occupation fran- 
 chise was reduced in England to a rating value of \%, 
 and in Scotland to a rental of 14> ; a rating franchise in 
 Irish counties having already been enacted. In boroughs 
 lodgers also were admitted to vote if occupying lodgings 
 of the value of 10 a year when let unfurnished. These 
 changes were followed up in the first parliament elected 
 after them by the passing of a law providing for secret 
 voting in elections. Immense importance had been attached 
 to this change which had long been advocated, and the 
 method of voting-papers which formed part of the plan of 
 the new system has greatly improved the simplicity, celerity, 
 order and certainty of elections. These results would be 
 attained even if the voter were permitted to sign his 
 paper, but a signature or any mark serving to identify 
 the voter involves the penalty of the nullification of his 
 vote. 
 
 Bradlaugh Another change affecting the eligibility of candidates 
 case preceded the last great electoral reform of 1884. It has 
 
 been seen that the parliamentary 1 oath of members had 
 been modified, first to admit Roman Catholics, and then 
 Jews ; but it still retained an appeal to God which could 
 only be made with any meaning by a Theist. In 1880 
 Mr. Bradlaugh was elected, and claimed and made an affirma- 
 tion on the ground that an oath was not binding on his con- 
 science ; but it was decided in the Courts, and this part of 
 the decision upheld on appeal, that the statute under which 
 he claimed to affirm, did not apply to parliamentary oaths. 
 
 1 A Quaker was permitted in 1833 to ma ke an affirmation instead of 
 taking the oath by the authority of the House of Commons itself; though 
 any doubt as to the validity of this step was subsequently removed by the 
 Act enacted in the same year.
 
 THE PERIOD OF REFORM 85 
 
 Mr. Bradlaugh subsequently offered to take the oath itself, 
 but on the interposition of a member reminding Mr. 
 Speaker Brand that Mr. Bradlaugh had avowed that an 
 oath was not binding on his conscience, the Speaker refused 
 to allow it to be taken. It is needless to go through the 
 stages of the controversy during that parliament. In 1885 
 Mr. Bradlaugh was again elected at the General Election, 
 and on his presenting himself to be sworn, Mr. Speaker Peel 
 refused to interfere, declaring that the honourable member 
 took the oath at his own risk. As on many other occasions, 
 Parliament quickly recognised an open scandal, and an Act 
 was passed allowing any member to affirm, who declared his Final re- 
 desire to substitute an affirmation for an oath. The removal ij^ g 
 of religious disabilities was thus as complete as the removal disabilities. 
 of property qualifications, and any adult male subject not 
 being a felon or lunatic is now competent to serve in the 
 House of Commons. 
 
 This last contest began before, though it was not ended till Reform of 
 after the Reform Act of 1884. By that statute the house- 1884< 
 hold qualification in boroughs in Great Britain was extended 
 throughout all constituencies in the United Kingdom. 
 Other franchises were not disturbed, but it may be broadly 
 stated that a male householder in any constituency in the 
 United Kingdom is entitled to vote in that constituency. 
 The representation of the city of London was reduced to 
 two members. All the counties were subdivided into districts 
 returning one member apiece, and the same process was 
 applied to the larger cities and boroughs. The smallest 
 boroughs were merged in the county divisions in which they 
 were situate, and a limited number of boroughs between 
 those thus disfranchised and those which had been subdivided 
 returned the member or two members to which they had 
 been entitled. No constituency was left with two members 
 except the city of London, the boroughs twenty-one in
 
 86 THE WORKING CONSTITUTION 
 
 number to which reference has been made, and the Univer- 
 sities of Oxford, Cambridge, and Dublin. The dominant 
 features of the present organisation are the household 
 franchise as regards voting, and single-member seats as 
 regards constituencies. It has been already suggested* that 
 a further progress may be made towards the universal adop- 
 tion in boroughs as in counties of single-member seats, 
 although a doubt has been expressed as to whether this 
 organisation will permanently endure, in view of the defects 
 in its results which experience may demonstrate.
 
 PRIVILEGE 87 
 
 CHAPTER X 
 PRIVILEGES OF THE HOUSE OF COMMONS 
 
 THE building up of the House of Commons has been traced Freedom 
 through its several stages, and the measure of its paramount arrest. 
 power explained. But before entering on an examination 
 of its action as part of the legislative machine, something 
 must be said of its authority and privileges considered by 
 itself. Freedom of its members from molestation is evidently 
 one of the first conditions of its efficiency ; and it must 
 possess power to prevent interference with this freedom, 
 and to punish those who attempt to abridge it. The 
 claim to immunity from arrest was at one time extremely 
 general, and extended even to the servants of members. 
 It is now limited to their personal freedom during the 
 sitting of Parliament and for forty days preceding and 
 succeeding the Session. An arrest on a charge of crime 
 was early recognised as outside the privilege, and a long 
 series of cases has now established the principle that the 
 House will not interfere where a member is committed by 
 a judge of the High Court for contempt. With the 
 abandonment of imprisonment for debt, freedom from arrest 
 has ceased to be an important privilege ; but it exists, and 
 covering also freedom from molestation can be enforced 
 both by an order of release on the one hand, and by the 
 Speaker's wan-ant of commitment of any one guilty of 
 breach of it on the other.
 
 88 THE WORKING CONSTITUTION 
 
 Freedom Next to freedom from personal molestation, freedom of 
 
 of speech. speech ranks among the privileges of the House of Commons. 
 
 No member can be questioned in a court of law or elsewhere 
 
 outside the House on anything he may have said in debate 
 
 within it. In this connection the power of the House to 
 
 exclude strangers from attending its debates may be noticed. 
 
 Exclusion of Till comparatively recent times any member could enforce 
 
 strangers. j- ne exclusion of strangers by informing Mr. Speaker that 
 
 he ' espied ' them ; but the rule is now laid down that upon 
 
 attention being called to the presence of strangers, the 
 
 Speaker shall forthwith take the sense of the House on 
 
 Reports of the question of their exclusion. To the same sentiment 
 
 debates. o f irresponsibility may be traced the origin of the ancient 
 
 rule making it a breach of privilege to publish any report 
 
 of debates. This rule, which was severely enforced up to 
 
 an advanced period of the last century, exists now only 
 
 as a terror against an abuse of reporting. It has never 
 
 been formally abandoned, but large facilities are now given 
 
 for taking of reports, the publication of which may indeed 
 
 be said to be part of the life of the House of Commons ; 
 
 and the old rule would never be invoked, except to punish 
 
 false or malicious perversions of speeches. 1 
 
 Examination It is not one of the privileges of the House of Commons 
 of witnesses. o administer an oath to any witness called to answer an 
 examination before the House or any of its committees ; 
 but the statutory right was in 1871 conferred both on the 
 House and Committees, and false evidence made liable to 
 penalties of perjury. Oaths however are not administered 
 by Committees except when their enquiries are of a judicial 
 character, and it is not believed that a witness has ever been 
 
 1 It was ruled by Chief Justice Cockbum that no action would lie for matter 
 contained in a fair report in a newspaper of anything said in the House, and 
 this doctrine has been ratified and extended to other reports by the Newspaper 
 Libel Act.
 
 PRIVILEGE 89 
 
 sworn before the House as a whole. Although witnesses 
 cannot under ordinary circumstances be sworn, their 
 attendance can be enforced, resort being had if necessary 
 to Mr. Speaker's warrant under which a recalcitrant witness 
 or any one in custody and so unable of himself to attend 
 can be brought up for examination. 
 
 The House of Commons has always tried to enforce the The testing 
 
 independence of election of its members. It declares every of election 
 
 .1 i i<? .1 i , ^returns, 
 
 session that no peer may concern himself in the election of 
 
 members to serve for the Commons in Parliament ; although 
 
 it is admitted that peers frequently break this rule, and 
 
 the Commons are without any means of enforcing it. The 
 
 recognised usage of peers is to abstain from interference 
 
 in elections after a writ has been issued ; but there appears 
 
 to be no ground for the distinction thus suggested. It 
 
 seems probable that interference of any kind on the part 
 
 of peers is an offence against the law of Parliament, and 
 
 if a case arose in which it could be suggested that the 
 
 determination of an election had been influenced by such 
 
 interference, there might be ground for setting aside the 
 
 return. The jealousy of the House has indeed at all times 
 
 been watchful of the independence of elections, and formerly 
 
 it strove to keep the control of everything respecting them 
 
 in its own hands. A famous controversy thus arose in 1704, Aylesbury 
 
 when one Ashby claiming to be an elector of Aylesbury case- 
 
 brought an action at law against the returning officer for 
 
 refusing to receive his vote. The Commons resented this 
 
 appeal to the courts, and Ashby was ultimately committed 
 
 to prison under the Speaker's warrant for contempt of their 
 
 privileges. The judges were divided, but the Lords as the 
 
 highest court of appeal upheld the right to proceed at 
 
 law. In the end a prorogation got rid of the dispute, 
 
 neither side yielding its claim. The larger privilege of 
 
 the House to examine and determine the validity of the
 
 90 THE WORKING CONSTITUTION 
 
 Present 
 method. 
 
 Writs issued 
 by Speaker. 
 
 The House 
 may declare 
 a seat vacant 
 but cannot 
 disqualify 
 any person 
 elected. 
 
 return of any member of its own body has not for centuries 
 been contested ; and the claims of petitioners against such 
 returns were decided by votes of the whole House until a 
 sense of the irresponsibility and partiality of such decisions 
 caused the passing of Grenville's Act in 1770 remitting the 
 enquiry into controverted returns to select committees of 
 fifteen. All this is now changed. A definite procedure has 
 been prescribed by successive Acts, under which the rights 
 of persons to be registered as voters are determined in the 
 first place by revising barristers in the several con- 
 stituencies, and then on appeal by judges of the High 
 Court, whilst the trial of election petitions has been 
 remitted to two judges of the High Court serving on the 
 rota appointed for the purpose. Although a doubt has 
 sometimes been expressed on the point, it seems now certain 
 that the House of Commons has abandoned all its privileges 
 of testing returns. In this connection a special privilege 
 of the House in respect of the filling of casual vacancies 
 amongst its members must be noticed. At the commence- 
 ment of a parliament, writs for the election of members 
 are issued under the authority of the Crown, but if any 
 vacancy occurs whilst Parliament is in existence, a writ is 
 issued by Mr. Speaker. Formerly this could only be done 
 when the House was in session and by its authority, but 
 Mr. Speaker is now empowered by Statute to issue the 
 writ when the House is not sitting, provided the vacancy 
 is not caused by the resignation of a member. 
 
 The House can thus order a new writ, but it can also 
 abstain from making the order, and it has the power of 
 declaring a seat vacant and of issuing a writ for a new 
 election. No authority can interfere with it in either 
 respect, but the House cannot disqualify any person from 
 being elected, and a constituency may if so disposed return 
 again the person who has been dispossessed, and in the
 
 PRIVILEGE 91 
 
 absence of a petition against him, supported by a decision 
 of the election judges, his return would be valid. The 
 House of Commons would be slow to repeat the controversy 
 in which it was engaged with the electors of Middlesex 
 over the return of Wilkes. In the settled and ordered 
 procedure of the law courts is found a trustworthy defence 
 of electors against registration officers, returning officers, 
 and the House of Commons itself. At the same time, the 
 House of Commons has often declared a seat vacant where 
 a member has been proved guilty of some criminal offence, 
 has escaped from justice, or has otherwise appeared dis- 
 qualified from sitting ; but as a writ for a new election has 
 always followed, the constituency has the power of protest- 
 ing against any injustice to its representative. It is not 
 apparent what would happen if a constituency re-elected 
 a felon, no other candidate standing and claiming the seat. 
 
 What has been written suggests certain cases in which Possible 
 the House of Commons, if so disposed, might adopt abuse of 
 arbitrary courses without being checked. The House can powers 
 declare a seat vacant, and a dispossessed member would 
 look in vain to a court of law for redress, however unjust 
 his eviction. The House might follow this up by refusing 
 to issue a writ for a new election, and it could not be 
 compelled to act otherwise. In the days of small boroughs, 
 when corrupt practices had been proved in any contest 
 and the seat had consequently been vacated, it was not 
 uncommon to suspend the issue of a writ for a session, or 
 even to the end of the current parliament, as a punishment 
 to the constituency. Such cases have not occurred in recent 
 years, and are indeed not likely to happen. Apart from 
 declaring a seat vacant, the House has a right to suspend 
 the service of any member, and under its own rules 
 frequently exercises the right as a punishment for obstruc- 
 tion or other disorderly conduct. No outside authority
 
 92 THE WORKING CONSTITUTION 
 
 Real safe- 
 guard. 
 
 Speaker's 
 warrant and 
 courts. 
 
 could control it, if it carried this power further and 
 suspended members because they offended the political 
 sentiments of the majority, or even for more arbitrary 
 reasons. Historical instances might be cited of such abuses, 
 and the safeguard against their occurrence lies in a deep- 
 rooted sense of parliamentary principles to which leaders 
 can effectually appeal to control the incipient violence of 
 followers. The House can suspend from its service one or 
 more members, or even a group of members. It is not 
 long since action of this kind was indeed taken. The House 
 can go further. It can declare seats vacant and abstain 
 from issuing writs for new elections. If violence and 
 counterviolence were permitted to run their course such 
 fatal extremes might be reached, and party feeling some- 
 times runs high enough to occasion anxiety as to what 
 will follow. Parliamentary tradition and habit may how- 
 ever be trusted. Individuals may still sometimes suffer 
 from the disorderly clamour of an excited majority; but 
 no definite action of a formal kind for silencing a member 
 or extinguishing a minority need be apprehended. 1 The 
 sanction which the House employs for the punishment of 
 offenders against its privileges is committal to prison under 
 a warrant of the Speaker for contempt. This warrant is 
 however only valid till the end of the Session, when the 
 offender must be released. Formerly fines were imposed, 
 but as these could only be enforced by committal, and 
 committal expired with the Session, the infliction of a 
 fine was sometimes nugatory, and the practice has been 
 long discontinued. Committal itself is indeed now most 
 rarely resorted to, and the House has sometimes been 
 
 1 In 1881 a motion was revived, which had not been heard of for two 
 hundred years, that a particular member be no longer heard. The only 
 result was an increased disorder. The motion was adjourned and will 
 never be repeated.
 
 PRIVILEGE 93 
 
 content with a solemn warning addressed by Mr. Speaker 
 to offenders at the bar, which would perhaps cease to be 
 serious if it were not excessively rare. A warrant of com- 
 mittal for contempt is a sufficient answer to a writ of 
 habeas corpus, the judges refusing to go behind the 
 warrant ; but it would seem that if the warrant specified 
 some action which on the face of it could not be construed 
 as contempt, the judges would be prepared to deal with 
 it as insufficient. This is a contingency which must be 
 regarded as one of an extremely speculative character.
 
 94 THE WORKING CONSTITUTION 
 
 CHAPTER XI 
 THE HOUSE OF LORDS I PAST AND PRESENT 
 
 Origin of IT is not within the scope of this book to enter into 
 fLo d* 186 an examnm tion of the origins of the House of Lords. 
 The early Norman and Plantagenet kings had their Great 
 Council about them, some at least of whose members 
 from time to time attested, if they did not confirm, their 
 acts. The Council varied within elastic limits, sometimes 
 consisting of little more than the principal officers of State, 
 at other times comprising all the greater tenants, the 
 bishops, and some of the principal abbots. As son followed 
 father in his tenancy, so was the son summoned after the 
 father to the Council. But the summons was not necessarily 
 transmitted by descent. If not purely personal, it should 
 be held as attached to the holding of the lands which passed, 
 rather than to the family through whom the lands descended. 
 It is indeed still suggested that one or two of the existing 
 peerages are held by virtue of the possession of particular 
 Honours that is to say, of castles or lands so designated 
 by way of pre-eminence, but the suggestion can scarcely be 
 regarded as more than an antiquarian fancy. It is not 
 easily to be believed that on the sale of any such Honour 
 the purchaser would be admitted to sit in the House of 
 Lords as a consequence of his purchase. 1 
 
 1 It has been recently decided that the Crown cannot attach to the grant 
 of a peerage a provision that it should shift with the shifting of certain
 
 HOUSE OF LORDS 95 
 
 In these earlier times the summons was clearly dependent Becomes 
 on the will of the king, although it may be admitted that 
 the king would not omit to summon any of his greater Crown, 
 tenants or barons, especially where the tenant had been 
 admitted to inherit from a father who had been summoned. 
 Constant usage converted customs and privileges into rights ; 
 and when the Tudors came to the throne the titles of 
 entrance and of succession in the House of Lords were very 
 much the same as they are to-day. All grants originating in 
 the Crown, a writ of summons was sent afresh to every 
 peer at the commencement of every parliament, and on the 
 death of a peer his successor presented a petition for the 
 issue of a writ to himself, until which application he was 
 not summoned. The original grant might be, and generally 
 was, to the grantee and the heirs-male of his body. In some 
 instances however it was to the grantee and the heirs of 
 his body, and in one case at least under the Tudors the 
 grant was to the grantee and to his heirs-male generally. 1 
 Whatever the terms of the grant, and whatever the power of 
 the Crown to withhold the issue of a writ of summons from 
 any particular peer at the commencement of a new parlia- 
 ment, it had come to be settled procedure to determine the 
 forfeiture of a peerage by Act of Parliament only. What- 
 
 designated land. Mr. Sackville West, next brother to Earl de la Warre, 
 being in possession of certain estates subject to the proviso that, if his elder 
 brother died leaving no male descendant, and the De la Warre estates passed 
 to him, the estates which he held should thereupon pass to his next brother, 
 was in 1864 created Lord Buckhurst, with a provision that in case of his 
 succeeding to the De la Warre property and earldom, the Barony should pass 
 to his next brother. Earl de la Warre did die a bachelor, and his brother 
 thereupon succeeded to his title and property, and the estates he held passed 
 to his next brother. It was held, however, that the Barony of Buckhurst 
 did not pass, the shifting provision being declared invalid and void. 
 
 1 This was the case of a revival of a peerage, and the intention of the 
 peculiar limitation apparently was that it should pass to collaterals, who 
 might have inherited the original peerage.
 
 96 THE WORKING CONSTITUTION 
 
 ever might be then thought as to the power of the Crown to 
 decline to summon a peer, it was practically settled that the 
 Crown could not take away the peerage, nor was it possible 
 in England for a peer to surrender his right and title to 
 the Crown. Besides the lay peers, who had become very 
 few in number at the accession of Henry vn., the bishops 
 were summoned, and until the suppression of monasteries 
 the principal abbots. The Lord Keeper (generally Lord 
 Chancellor also) presided over the sittings of the Lords, 
 though not necessarily a member of the body ; but he had 
 and has no authority over their proceedings, and indeed 
 the Lords then, as now, were not controlled by any rules of 
 order in debate. The abbots dropped out of the House 
 of Lords, and the lay peers were added from time to time 
 by the favour of the Crown as great possessions or personal 
 liking suggested, but the position of the House of Lords 
 otherwise remained unaltered down to the troublous times 
 of Charles i. 
 
 That monarch started with as little respect for the 
 privileges of the Peers as of the Commons. He arbitrarily 
 imprisoned the Earl of Arundel in the Tower, till the Lords 
 remonstrated that such an arrest was a breach of their 
 privilege ; and at the commencement of the Parliament of 
 1625 he withheld the usual writ of summons from the Earl 
 of Bristol ; when the Lords again showed their independence 
 by declaring this step beyond his prerogative, and the 
 summons was issued, thus settling what before might have 
 been unsettled. 1 
 
 Is abolished In 1641-42 the House of Lords was attacked in another 
 
 and restored. wa y ^ n A C was passed excluding bishops from attendance 
 
 in the House. This was done with perfect regularity of 
 
 1 The King subsequently disabled Bristol from attending Parliament by 
 causing his Attorney-General to prefer articles of charge against him, but did 
 not interfere with the rights of the peerage.
 
 HOUSE OF LORDS 97 
 
 parliamentary procedure. A Bill was introduced in the 
 House of Commons by a resolution, and though rejected by 
 the Lords on the first occasion, was subsequently passed 
 by them and assented to, however reluctantly, by the king. 
 In the war that almost immediately followed, the greater 
 number of the peers rallied to the king or withdrew from 
 public life ; but a small remnant continued to sit and co- 
 operate with the majority of members that remained to 
 constitute the House of Commons, until the final stage, when 
 they refused to approve the Act establishing the High 
 Court to try the king. Even after the king was beheaded, 
 half a dozen peers met and wished to join the Commons in 
 settling the government of the country ; but the Commons 
 replied one week after the execution by resolving ' that the 
 House of Peers was useless and dangerous and ought to be 
 abolished.' The period of revolution may be passed over 
 with the observation that the Lord Protector's attempt to 
 reorganise what had become a united Commonwealth in- 
 volved the establishment of a new House of Lords, though 
 its shape cannot be considered to have been definitely settled. 
 In the first parliament elected after the Restoration, Lords 
 and Commons resumed the position they relatively occupied 
 immediately before the Civil War, and one of the first 
 steps taken by the new parliament was the passing of 
 an Act restoring to the Bishops their seats in the 
 Upper House. The parliamentary regularity of their ex- 
 clusion was attested by the necessity of parliamentary 
 restoration. 
 
 In the years that followed no changes were made in the Changes in 
 constitution of the House of Lords. New peerages and ^^ wnc 
 promotions in the peerage were freely made, but always Union with 
 following the old order, until the Act of Union with Scotland. 
 Scotland, when it became necessary to provide for the 
 representation of Scotland among the Lords. The Act
 
 98 THE WORKING CONSTITUTION 
 
 disabled the Crown from creating any more peers of England 
 or of Scotland. Thenceforward all peerages were to be 
 peerages of Great Britain, and in the United House of 
 Lords all peers of England would be entitled to sit, and 
 sixteen peers of Scotland to be elected by the full body of 
 Scotch peers at the commencement of each parliament. It 
 has been elsewhere suggested that the prerogative of the 
 Crown to create new constituencies to send members to the 
 House of Commons ceased when the Act of Union made 
 the representation in that House, of England and of 
 Scotland, a matter of parliamentary sanction ; and it may 
 be argued that the Act was not without effect on the 
 position of the peers. The prerogative of creating fresh 
 peerages was carefully preserved, but if any doubt lingered 
 after Lord Bristol's case as to the rights of peers to be 
 summoned at the commencement of any parliament, that 
 doubt must be considered to have been finally dispelled by 
 the Act of Union. The Act requires the issue of a writ 
 for the election of Scotch representative peers, and this 
 would seem to involve a parliamentary duty to issue writs 
 of summons to peers of England and of Great Britain. 
 Viewed in this light the issue of a writ of summons becomes 
 a purely ministerial proceeding, as to which there is no 
 discretion, although no legal authority is entitled to enforce 
 its exercise. 
 
 Attempts The accession of George i. was followed by an attempt 
 to limit on t^e p ar t O f the House of Peers itelf to alter its position 
 of Peers. i a wa y that would probably have been fatal to its per- 
 manent existence, had it been successful. A Bill was intro- 
 duced and passed the Lords imposing a fixed limit to their 
 number. Twenty-five hereditary peers were to take the 
 place of the sixteen elected Scotch representative peers, 
 and the number of the rest of the peerage was to be 
 limited to 184, thus leaving a margin of six to be filled
 
 HOUSE OF LORDS 99 
 
 up. The rejection of the Bill by the Commons saved the 
 Lords from the attacks that would have grown in number 
 and violence, had such an invidious barrier of exclusion 
 been established. Throughout the rest of the century 
 the possession of parliamentary power by the owners of 
 boroughs was continually used to obtain admission to the 
 House of Lords ; and had the Act limiting the number of 
 peers been passed, it must have been repealed, or the House 
 of Peers exposed to the most serious jeopardy. When 
 membership of the House of Commons became a matter 
 of frequent purchase, the power of the possessors of wealth 
 to enter the House of Lords almost necessarily followed, 
 and the sentiment prevailing at the close of the century 
 is exemplified in the opinion attributed to Mr. Pitt, that 
 any man with a certain fixed income was entitled to a seat 
 in the Lords if he wished it. 
 
 The Act of Union with Ireland followed, with some Changes on 
 modifications, the method of the Scotch Act. The peers of 
 Ireland were entitled to elect twenty-eight representatives, 
 but each elected peer was elected for life and not for a 
 parliament. The power to create new Irish peerages was 
 not destroyed, but was limited, so that new peerages should 
 only be called into existence as older peerages became 
 extinct, and that in the proportion of one to three, until 
 the number fell to one hundred. 1 Any Irish peer, not being 
 a representative peer nor joining in the election of represen- 
 tatives, is qualified to sit in the House of Commons for any 
 constituency in Great Britain, a privilege entirely debarred 
 to Scotch peers. The Act of Union further provided for a 
 representation of the Irish archbishops and bishops in the 
 
 i The House of Lords addressed the Crown in 1875, praying that no more 
 Irish peerages should be created. The address was graciously received, but 
 in 1898 Mr. Curzon was created Earon Curzon of Kedlestone in the peerage 
 of Ireland on being made Governor-General of India.
 
 100 THE WORKING CONSTITUTION 
 
 House of Lords, but this was abolished when the Church 
 of Ireland was disestablished. 
 
 Represents- As the Irish representatives peers are elected for life, and 
 tive Peers. the whole body is convoked for the election of a vacancy 
 when it occurs, it easily follows that the twenty-eight 
 representative peers belong exclusively to the party of 
 the majority in the Irish peerage. It is not quite so 
 certain that the sixteen representative peers of Scotland 
 elected at the commencement of each parliament should all 
 be of the same political complexion, but in practice this 
 too is secured. A suggestion has been from time to time 
 made to alter the methods of election of these representa- 
 tive peers, so as to secure in some degree a representation 
 of the different opinions that may be found in Scotland and 
 in Ireland, but such attempts have so far been unsuccessful, 
 and have indeed not excited much attention. 
 
 The position The peerage thus described must be recognised as a body 
 of the House [ n ^ o which the possessors of great wealth, especially of wealth 
 
 Of Lords i j -IP i j j -,oan 
 
 since 1832. ln l an d, easily tound admission, and as up to 1832 a very 
 large proportion of the seats in the House of Commons 
 were under the control, if not the property of, the same 
 class, it follows that up to that time the government of 
 the country was practically vested in an oligarchy of great 
 inherited wealth, but unlike other oligarchies continually 
 admitting the heads of more recently enriched families. It 
 is true that the House of Lords was also recruited by success- 
 ful lawyers attaining the office of Lord Chancellor or other 
 high judicial positions and by naval and military com- 
 manders of distinction (' a peerage or Westminster Abbey 1 
 was the aspiration of Nelson) ; but these recruits were already 
 sufficiently wealthy to belong to the same class or were 
 enriched by grants of pensions to enable them to hold an 
 analogous position. The struggle of 1832 was a struggle 
 on the part of the other classes of the community working
 
 HOUSE OF LORDS 101 
 
 through such of the constituencies of the Commons as were 
 free, and overaweing not a few of the rest, to transfer the 
 power of government to a wider representation of the people 
 at large in the House of Commons. The incidents and 
 result of the struggle have elsewhere been glanced at, and 
 it has been also noted as universally admitted, that the 
 House of Lords must now always defer to the will of 
 the nation as expressed in the response to an appeal 
 at a General Election. The strongest illustration of this 
 deference is perhaps to be found in the circumstances of 
 the disestablishment and disendowment of the Irish Church. 
 This was a change which would naturally be regarded with 
 extreme disfavour by the Lords, and when in 1867 a pre- 
 paratory Bill was sent up from the Commons to prevent 
 the creation of any more vested interests in respect of 
 ecclesiastical preferment in Ireland, it was decisively rejected. 
 But the election in the autumn of 1868 was fought on the 
 issue of Irish Disestablishment, and when the complete Bill 
 came up in 1869, the principle was accepted as decided by 
 the constituencies, and the contest turned on details which 
 admitted of accommodation, and were in fact settled with 
 comparatively little difficulty. 
 
 The House of Lords since 1832 has received additions Its future, 
 from time to time much as before. Its numbers have grown 
 alongside the wealth of the nation to such a degree as to 
 excite speculation as to whether it would be possible to 
 maintain indefinitely this continuous increase. It has 
 checked, modified, and delayed proposals of legislation sent 
 up from the House of Commons, and on some minor matters 
 not of wide and general interest, it has maintained an atti- 
 tude of resistance ; but in rejecting larger proposals, it has 
 taken its stand on the necessity of consulting the nation 
 whose voice is recognised as the ultimate power. The House 
 of Lords in recent years has almost entirely ceased to
 
 102 THE WORKING CONSTITUTION 
 
 originate legislation. Bills consolidating particular branches 
 of the law, and an administrative measure or two of a non- 
 contentious character may be introduced into the Lords; 
 but even these experiments are of hazardous fortune, and 
 Governments of all parties find themselves constrained to 
 bring into the House of Commons first the measures on 
 which they set store. The House of Lords remains how- 
 ever the barrier moderating and obstructing movement ; and 
 though discretion in the exercise of its powers may keep 
 them theoretically unimpaired, it may not be amiss to enquire 
 whether any change can be detected as in progress, or can 
 be anticipated as probable if not inevitable. 
 
 Life In the year 1856 the Crown was advised to bestow a 
 
 Peerages. p eera g e f or \{f e on gj r James Parke with the title of Baron 
 Wensleydale. Peerages for life had frequently been created, 
 although they had been perhaps exclusively bestowed upon 
 women; but the House of Lords, while fully recognising 
 the prerogative of the Crown to create life-peerages, passed 
 a resolution declaring that life-peers were not entitled to 
 sit and vote in the House of Lords. It could scarcely be 
 expected that the members of an hereditary peerage would 
 consent quietly to an exercise of the prerogative that had long 
 since fallen into disuse, the employment of which threatened 
 their legislative powers ; and the attempt to introduce life- 
 peerages in this manner was certainly unlucky. It must 
 be noted in passing that the resolution of the Lords admits 
 that there may be peers who are not legislators, nor like 
 Scotch and Irish peers represented by brother legislators. 
 Law Lords. The attempt to create life-peers by prerogative failed, 
 but there has since been a minute addition of life-peers 
 authorised by statute. The House of Lords was for a long 
 time in fact, as it still remains in name, a Court of ultimate 
 appeal in all causes in the United Kingdom not arising in 
 the Ecclesiastical Courts. It was this Court of ultimate
 
 HOUSE OF LORDS 103 
 
 appeal for England up to 1707, for England and Scotland 
 up to 1801, when it became the Court for the United King- 
 dom. The House at large was the Court, and down to the 
 end of the last century lords learned and unlearned voted 
 freely on decisions. Those who had not been trained as 
 judges or ex-judges gradually withdrew from hearing and 
 deciding appeals ; but it was not till the year 1845 that the 
 abstention of unlearned lords became recognised as a moral 
 obligation. In an appeal on the validity of the conviction 
 of Mr. O'Connell the Law Lords were divided by a majority 
 of one against the Crown, and certain lay lords wished to 
 support the Government and the conviction by their votes. 
 But the Lord Chancellor (Lyndhurst) acting, it would seem, 
 more under the influence of Sir Robert Peel than of his own 
 motion, discountenanced their action, and they abstained 
 from interference. From that time the House of Lords 
 as an appellant Court confessedly consisted of the Law 
 Lords only, and when in 1875 the judicial system was 
 reorganised, part of the scheme was to set up a supreme 
 Court of Appeal entirely detached from the House of Lords. 
 It was urged that it was inexpedient that the position of 
 a member of the Supreme Court should be limited to 
 persons who were ready to sustain the burden of an heredi- 
 tary peerage. On the other hand, there was a great jealousy 
 of a change that would take away from the House of Lords 
 the lustre and dignity conferred upon the body at large 
 by the fact that the supreme Court of Appeal consisted 
 of a few of its members. In 1876 a compromise was agreed 
 upon which enabled life-peerages to be conferred on four 
 Law Lords, and the Court of Appeal within the Lords 
 was expressly confined to those qualified to be members 
 of it. The Act as originally passed allowed these life-peers 
 to sit and vote as legislators only as long as they were 
 Lords of Appeal ; but it has since been amended so as to
 
 104 THE WORKING CONSTITUTION 
 
 preserve their legislative functions after they had ceased 
 to serve as Appeal judges. Life-peerages have thus been 
 introduced, though on a very limited scale, nor have sug- 
 gestions been wanting for adding to them. Bishops are life 
 peers and there might be others neither legal nor clerical. 
 Non-attend- The continuous growth of the House of Lords may be 
 
 ance and checked by the increase in life-peerages. Life-peers pass 
 
 remedies J 
 
 for it. away, but an hereditary peerage may descend to a man who 
 
 is quite uninterested in political action, and is rarely found 
 sitting in the Legislature. The ordinary attendance of the 
 Lords is never large, and its quorum is indeed limited to 
 three. The absence of work to be done is to some extent 
 an excuse for non-attendance, but non-attendance prevailed 
 in the days when the Lords were a more active branch of 
 the Legislature. Proxies were then allowed to be used by 
 those who were present on behalf of the absent, and a peer 
 could even be entrusted with a general proxy, not limited to 
 a special occasion. Proxies could not indeed be counted in 
 Committees on Bills, and the number of proxies which a 
 peer might* hold was latterly reduced to two ; but in 1868 
 the Lords passed an order against calling for proxies, and it 
 may be inferred that they will never again be employed. 
 Peers are not now allowed to vote in debates which they 
 have not heard, and in respect to matters of which they 
 have had no specific notice ; but the spectacle is now 
 presented, at distant intervals, of a crowd of peers, ordi- 
 narily inattentive to their legislative duties, coming up to 
 swell an already large majority. The political expediency 
 of such demonstrations must be doubtful, and among 
 possible changes in the working of the Upper House two 
 may be named : the first, that of vesting the legislative 
 functions of peers in a smaller number chosen by the main 
 body ; and the second, that of disabling from voting those 
 who have 'not attended for a prolonged period until they
 
 HOUSE OF LORDS 105 
 
 recover the right by adequate attendance. The former 
 suggestion may be traced to the representation of Scotch 
 and Irish peers. The latter is probably based upon some 
 colonial precedents where the Upper House is nominated, 
 and members lose their rights through non-attendance. A 
 precedent for disabling peers from exercising their legislative 
 functions, without however losing other privileges of peerage, 
 was set in 1871, when it was enacted that on a peer 
 becoming bankrupt he should lose his right to sit and vote, 
 and no writ of summons should be issued to him whilst his 
 bankruptcy lasted. 
 
 Suggestions such as have been glanced at might gradually Other pro- 
 modify the composition of the House of Lords ; but, unless Pfals of 
 the introduction of life-peers were continuously if cautiously 
 extended, no material change would be effected. Proposals 
 of a wider character point either to greater changes in the 
 composition of the House, or to stricter limitations of its 
 veto on legislative proposals. The first would transform 
 the House into a combination of representation of the 
 hereditary peerage, certain ex officio members anct members 
 elected by elected local authorities of sufficient importance. 
 The second, taking note of the admission that the Lords 
 must defer to the verdict of a General Election on any 
 specific issue, would make their rejection of a Bill valid 
 only from one parliament or even from one session to the 
 next, when it should become law over their dissent if 
 presented again by the House of Commons in the same 
 form. It may be said however of all proposals like these, 
 that they require for their adoption a popular resolution 
 in their favour which the Lords may be slow to provoke. 
 The public judgment may long tolerate a machine which 
 works without unnecessary friction, although it would not 
 construct it in the same fashion if it had to be for the first 
 time devised.
 
 106 THE WORKING CONSTITUTION 
 
 Impeach- A few words may be added on the process of impeach- 
 ment, ment, under which the Lords were the judges and the 
 House of Commons the accusers of persons, whether lords or 
 commoners, charged with high crimes or misdemeanours 
 affecting the realm. This form of prosecution of state- 
 offenders played an important part in the seventeenth and 
 even in the eighteenth century as illustrated by the trial 
 of Warren Hastings ; but though copied and even enforced 
 in other constitutions it must be regarded as fallen into 
 desuetude among ourselves. President Johnson was im- 
 peached before the Senate of the American Congress in 
 1867, and escaped conviction only because the majority 
 condemning him fell short by one of the two-thirds required 
 by the constitution ; the French Senate is now (December 
 1899) sitting as a High Court on a similar process; but 
 an impeachment could not now be begun at West- 
 minster. The procedure is uncertain and dilatory as was 
 exemplified in the trial of Hastings, and there prevails 
 to-day a strong and probably growing distrust of the justice 
 of a multitudinous tribunal. Moreover the courts of law 
 afford the surest means of obtaining conviction and punish- 
 ment for actual crime, whilst more ordinary official mis- 
 conduct can be promptly investigated by committees of 
 either House, and is in general sufficiently met by that 
 dismissal from place from which no functionary is exempt. 
 It may be confidently declared that the rusty weapon of 
 impeachment will not again be taken from the political 
 armoury. 
 Lord Hi^h There is yet another class of cases in which the peers 
 
 Court"* 8 ^ ave ^ ^ a court f ^ aw wn i cn cannot be dismissed as 
 obsolete. This is where one of their body is accused of 
 treason or felony or misprision of treason and claims his 
 privilege to be tried before his fellow peers. If Parlia- 
 ment is sitting his case according to past custom would be
 
 HOUSE OF LORDS 107 
 
 removed to the House of Lords, and a Lord High Steward 
 appointed to preside on the occasion. If Parliament is not 
 sitting, the Lord High Steward is similarly appointed and 
 the peers are summoned to form his court. The verdict is 
 by a majority, which however must contain not less than 
 twelve. It is sixty years since such a court sat, and it 
 may be surmised that if unhappily the occasion arose of 
 putting another peer in this fashion on his trial there 
 would be a strong feeling that the process should be 
 abolished and the accused tried in an ordinary law- 
 court, where indeed he might claim a jury of his peers. 
 This feeling cannot but be strengthened when it is re- 
 membered that for misdemeanour a peer is tried in the 
 ordinary courts. 
 
 It has been seen that a peer is entitled to have his writ May a Peer 
 
 j I t 
 
 of summons issued at the commencement of every parlia- 1 " 6 
 ment ; but the writ is not issued to a peer upon whom the 
 dignity has descended until he petitions the Crown for its 
 issue. The question arose in 1897 whether a member of 
 the House of Commons upon whom an earldom had de- 
 scended could continue to sit in the Lower House by 
 abstaining to apply for a writ. It appeared that there was 
 no obligation to make such an application, and that in the 
 absence of it men had lived and died without entering the 
 House of Lords though fully entitled to do so. It was 
 further stated, and apparently with truth, that in one 
 instance at least a person had served through one parlia- 
 ment in the House of Commons whilst possessing an un- 
 revealed title to a peerage. The case in 1897 was one of 
 novelty, since no one had before openly asserted his claim 
 to sit as a Commoner whilst the House of Lords was 
 open to him ; and the House of Commons might have 
 decided the issue upon more general considerations of 
 public policy than were disc%ssed on the occasion. The
 
 108 THE WORKING CONSTITUTION 
 
 House of Commons decided that the claimant was disabled 
 from remaining a member of its body ; but as the House 
 does not bind itself by a decision of this kind the 
 question may possibly be re-opened and reconsidered in 
 spite of the precedent. If there were found in the House of 
 Commons a majority who looked upon the House of Lords 
 as a strong wall obstructing progress, such a majority would 
 perhaps welcome the prospect of loosening its structure by 
 allowing ambitious members upon whom peerages had 
 descended to remain in the Lower Chamber.
 
 THE CROWN AND ITS ADVISERS 109 
 
 CHAPTER XII 
 THE CROWN I PRIVY COUNCIL I CABINET 
 
 IT has been seen that Lords and Commons were originally Hereditary 
 
 called together by the will of the King, as they are still in descent of 
 
 form summoned to Parliament by writs from the Crown. O f the Crown 
 
 The Great Council of the nation, as it was sometimes called, 
 
 was so much the creature of the monarch that it dissolved 
 
 ipso facto on his death. It was long thought useful, if not 
 
 necessary, to obtain renewals of charters and grants of 
 
 privileges from each succeeding sovereign, as though they 
 
 had lapsed at the death of his predecessor. Under the 
 
 feudal monarchy everything originated with the King. His 
 
 right of descent was the predominant fact, in subordination 
 
 to which all powers and authorities existed. There had not 
 
 indeed grown up that peculiar notion of the separation in 
 
 blood which was developed, partly through foreign influence, 
 
 under the ceremonial of later centuries. The King was not 
 
 the less the sole fount of power, and nothing could detract 
 
 from the fulness of his inheritance. It might be a question 
 
 which of two competitors had the better claim to succeed ; 
 
 but there could be no dispute as to the quantity of authority 
 
 that devolved on the person best entitled. In the two 
 
 instances in which kings were deposed, an undiminished 
 
 kingship passed to their successors. The Wars of the 
 
 Roses were closed by the accession of Henry VIL, who had 
 
 in himself no title to the throne ; but whether he ruled by
 
 110 THE WORKING CONSTITUTION 
 
 his relation to his mother or to his wife, the persistency 
 of the old principles of descent was strongly illustrated 
 under his successors. Henry viri. was authorised by Act 
 of Parliament to dispose of the Crown by his will, and he 
 exercised his power with perfect formality ; but the will was 
 in fact set aside by the succession of his children and of 
 James i. according to the recognised order of descent. The 
 tenacity of the right of descent suffered the rudest check 
 under Charles i. ; but it reappeared under the Restoration 
 set aside at with every mark of recognition ; and it was not until the 
 Jj 1 o e n Revolu - Revolution of 1688 and the Act of Settlement that the 
 parliamentary disposition of the Crown was fully and finally 
 established. The abortive design of setting it aside on the 
 death of Anne served in fact to prove the strength of the 
 new principle ; and on the only occasion which has since 
 arisen, involving in any way an examination of rights of 
 succession, the authority of Parliament was further con- 
 firmed. When George in. became incapacitated by illness 
 for the exercise of the functions of royalty, Mr. Fox was 
 betrayed into arguing that the Regency devolved as a 
 right on the Prince of Wales; but no one now contests 
 the position successfully taken by Mr. Pitt that it was a 
 matter to be settled by Parliament. The succession to the 
 Crown itself is indeed a matter of parliamentary arrange- 
 ment. It is vested in the descendants of the Electress 
 Sophia, subject to the limitation that the successor is a 
 Protestant. 
 
 Since then When Parliament, which must here be understood to 
 the C ro ^ n mean the two Houses, undertook to regulate the descent 
 through of the Crown, the position of the Sovereign in the Con- 
 Ministers, gtitution underwent a natural change. Something like a 
 complete inversion has in fact been accomplished. The 
 will of the Crown is now the will of the Minister, and the 
 Minister is a person possessing the confidence of the House
 
 THE CROWN AND ITS ADVISERS 111 
 
 of Commons which represents the will of the nation. If 
 
 on rare occasions of transcendent importance the Crown sets 
 
 aside the will of the Minister, this step is defensible only on 
 
 the assumption that the Minister no longer represents the 
 
 national will, and it cannot be taken unless another Minister 
 
 is found ready to accept the responsibility of a different Survivals 
 
 advice. It does not follow that the personal influence O fpfp ersona l 
 
 iniiuGiiCG 
 
 the sovereign is entirely lost in the working of the organisa- O f the 
 tion of the State. In matters of appointment not perhaps Crown 
 of first-rate importance, personal preferences may prevail, 
 though the allowance of such preference must depend on 
 the readiness of the Minister to consent to it ; and so it 
 could not extend to cases where the maintenance of a policy 
 was involved in the choice. So far did Sir Robert Peel carry in appoint- 
 this view of ministerial right that he declined to accept ments > 
 office, when called upon to form an Administration in 1839, 
 because his recommendation that a fresh appointment should 
 be made of ladies in the higher posts of the Household was 
 resisted. The difficulty in this case was perhaps a little 
 overstrained on both sides, and it could scarcely recur 
 to-day. It must indeed be always a matter of discretion 
 how far the influence of the Sovereign in appointments may 
 be allowed and how far it should be withstood. In the 
 days of George in. ambassadors and bishops were often 
 chosen through royal preference, and a Lord Chancellor 
 was once so selected, with unhappy results. George iv. 
 when Prince Regent constrained Lord Eldon to appoint a 
 personal friend Master in Chancery. The memoirs of our 
 own time speak of differences of opinion respecting appoint- 
 ments to the highest offices in the Church, which were 
 however ultimately settled between Sovereign and Minister. 
 Beyond the personal preferences involved in the appointments 
 to certain offices, the influence of the Sovereign may be felt 
 in the conduct of questions of larger policy. The experiences
 
 112 THE WORKING CONSTITUTION 
 
 in foreign of long years and the intimacy that has been possible with 
 policy. personages of the highest authority abroad may bring 
 elements of weight into consultation, especially in respect 
 to foreign policy, with the result that the suggestion of the 
 Sovereign may influence the judgment of the Minister, and 
 the advice of the latter may receive a different shape and 
 direction from that which it would otherwise have assumed. 
 The influence of the Crown must not however be permitted 
 An illustra- to obscure in any degree the responsibility of the Minister 
 tionofits W jj ultimately tenders the advice upon which action is 
 taken. Mr. Disraeli was severely criticised in 1868 for 
 having on a critical occasion apparently given the Crown 
 the option of determining the precise course to be taken 
 when he should himself have definitely recommended it. 
 He was completing, in respect of Scotland and Ireland, the 
 parliamentary reform he had canned through in England 
 and Wales, when Mr. Gladstone inflicted on him a severe 
 defeat on the subject of the disestablishment and disendow- 
 ment of the Irish Church. The balance of convenience, 
 approaching to necessity, required that he should complete 
 the task of parliamentary reform before resigning or sub- 
 mitting the new issue to the country ; but in announcing to 
 the House of Commons the course he intended to pursue, 
 he was accused of sheltering himself behind the authority of 
 his sovereign. The dispute viewed retrospectively may 
 seem to turn on the use of words and phrases, but it 
 illustrates clearly and sharply the indivisible responsibility 
 of the Minister. Light might perhaps be thrown on the 
 delicate question of the constitutional limits of the action 
 of the Sovereign by a reference to the action of colonial 
 governors. It has appeared that a governor has gone to 
 the length of dismissing a Ministry possessing the confidence 
 of the popular House of Assembly, and the maxim that 
 an agent can have no more authority than his principal
 
 THE CROWN AND ITS ADVISERS 113 
 
 warrants us in saying that what a colonial governor is 
 permitted to do lies within the power of the Sovereign. 
 
 It is not intended to retrace the process of transition by Growth 
 which the Crown, from being almost autocratic, became the f Pri vy 
 minister of its Ministers. From the earliest times there 
 were great officers about and attendant upon the king to 
 execute his will in their several offices ; and as it would 
 always be easy to call this lesser council together, it would 
 not have been unnatural to claim for it an authority equal 
 to that of the great council of Parliament. The danger 
 may be traced in different periods of our history; but it 
 was the happy fortune of England that it was met and 
 resisted at the critical time when in other countries it was 
 suffered to make head. In the days of Elizabeth the 
 Queen in Council threatened to assume a law-making power, 
 especially when Parliament was not sitting ; but the peril 
 that might have developed into a shipwreck of national 
 liberties was happily dispelled under her successors. The 
 council thus spoken of consisted of the chief officers in 
 Church and State; but the dignity and style of member 
 of the Privy Council was retained by the person who had 
 filled a great office after he had retired from it, unless his 
 name was struck off the list by an act of royal disfavour. 
 In this way the Privy Council gradually grew to be what it 
 is to-day. It consists of men who fill or have filled great 
 positions, or have otherwise been privileged to be called by 
 the Crown to the status and dignity. 1 The Privy Council 
 is never summoned as a body except on the demise of the 
 Crown. 2 It has no legislative authority. It may and does 
 
 1 Up to recently no one was made a Privy Councillor who had not filled 
 some public office, but with the last decade or so members have been added 
 without any distinct qualification of this character. 
 
 a The Lord Mayor of London commonly attends on this occasion, although 
 not a member of the Privy Council. 
 
 H
 
 114 THE WORKING CONSTITUTION 
 
 proclaim law on special occasions, though its proclamation 
 cannot make anything legal or illegal which is not so through 
 higher authority. Certain administrative acts are executed 
 at its meetings, some under the common law, others under 
 special provisions of Acts of Parliament. Such transactions 
 amount to little more than solemn registrations of ministerial 
 acts. They are executed at meetings where two or more 
 members are present whose attendance is a matter of 
 arrangement by the Ministry. 
 
 Rise of the Although the Privy Council as a whole is a mere registering 
 Cabinet. body, there are committees of it charged with functions of 
 the highest importance ; and chief amongst them that most 
 loosely constituted committee, the Cabinet Council. The 
 Council, as has been said, consisted originally of the chief 
 Ministers attendant on the Crown. The Sovereign sat with 
 these Ministers in deliberation, and the Sovereign still presides 
 over those meetings for purposes of registration which have 
 been mentioned. At the councils where there was delibera- 
 tion, the attendance was naturally confined to the actual 
 Ministers of the hour, and this constituted the inner work- 
 ing committee of the larger body. It was a step of great 
 importance when the members of this committee began to 
 assemble and deliberate without the presence of the Sovereign. 
 Such conferences in an embryonic and secret form must have 
 existed from the earliest times. They became more frequent 
 after the Restoration, when the word Cabal was invented, 
 and the meaning soon attached to it illustrated the light in 
 which these meetings were regarded. Under Anne what 
 was frequent became customary, and the ignorance of the 
 English language of the first Georges precluding them from 
 joining the consultation, what was customary became the 
 rule. The character of the Cabinet Council has not since 
 been altered, though its numbers have lately shown a strong 
 tendency to increase.
 
 THE CROWN AND ITS ADVISERS 115 
 
 When a statesman is summoned by the Crown to form Formation of 
 an administration, his first duty is to invite others to fill a C 
 the great offices of State. He himself becomes and is called 
 Prime Minister. He is so by virtue of the fact that he was 
 the first to receive the summons of the Sovereign, and it 
 was on his invitation that others have joined him ; and 
 although among his colleagues there may be men of the 
 utmost weight in counsel and in public respect, he is still 
 entitled to exercise, and commonly does exercise, an un- 
 questioned superiority over all. It was indeed formerly 
 asserted that the immediate Ministers of the Crown were 
 all equal to one another, and that no one could claim to be 
 first ; but this declaration would now be a pedantic affecta- 
 tion. It would be something worse. In the recognition 
 of the position of the First Minister the unity and solidarity 
 of an administration are established and maintained. The 
 Prime Minister commonly takes to himself the office of 
 First Lord of the Treasury, to which are attached few 
 departmental duties ; but this is only a matter of con- 
 venience, and Lord Salisbury has twice preferred as Prime 
 Minister to fill the office of Foreign Secretary. 1 The men 
 whom the Prime Minister associates with himself as 
 Ministers have probably been engaged in active political co- 
 operation with him before, though from time to time he may 
 seek additional strength in fresh alliances. The names of those 
 whom he is enabled to enlist are submitted to the Crown 
 for approval with an intimation as to the composition of 
 the Cabinet. Some officers, the Lord Chancellor, the Lord 
 President of the Council, the Secretaries of State, the First 
 
 1 Mr. Gladstone in 1 880-81, following the example of Pitt and other 
 precedents, joined the office of Chancellor of the Exchequer to that of 
 First Lord of the Treasury. Lord Salisbury, whilst remaining Prime 
 Minister, is now (October 1900) vacating the office of Foreign Secretary and 
 accepting the dignified sinecure post of Lord Privy Seal.
 
 116 THE WORKING CONSTITUTION 
 
 Lord of the Treasury, the Chancellor of the Exchequer, 
 the First Lord of the Admiralty, are always included in 
 the Cabinet ; but there remain other offices the holders 
 of which may or may not be invited into this inner circle 
 according to their personal qualifications. Some, or even 
 many, of the persons thus called together need not have 
 been Privy Councillors before. They are summoned to the 
 Council as the result of their acceptance of their several 
 functions. 
 
 Solidarity Additions may be made to the Cabinet from time to 
 and secrecy time by the simple process of an invitation on the part of 
 Cabinet. ^ ne I* r i me Minister to the new member to attend ; and this 
 body, the cardinal importance of which, in the working of 
 the constitution, will hereafter appear, has no legal form 
 or recognition, and might almost be described as a 
 'fortuitous concourse.' No record of its deliberations is 
 maintained. No authoritative summary of its conclusions 
 is published. Nothing is known of the different opinions 
 that may be exchanged or the plans that may be discussed, 
 until a definite result is reached in some act of policy 
 recommended to the Crown or some proposal of legislation 
 submitted to Parliament. This mode of secrecy in the 
 working of the Cabinet maintains its unity as the central 
 power of the Government for the time being. The memoirs 
 of the past reveal discords in former Cabinets, and the 
 possibility of such discords can never wholly pass away ; 
 but as long as the Cabinet holds together, it is one. Each 
 member is responsible for every other member, and the 
 solidarity of the combination is complete. When, as some- 
 times happens, a Minister resigns because he differs from 
 his colleagues, he commonly obtains, if Parliament is 
 sitting, a release from the obligation of secrecy, so that 
 he may explain in his place the reason of his retirement. 
 It has been suggested that in the larger Cabinets of later
 
 years unity and the easy dispatch of business have been 
 secured by the existence of an inner Cabinet within the 
 Cabinet, the decisions of which habitually command the 
 deference of their colleagues ; but besides this, consultations 
 of the whole body are frequent, whenever the movement of 
 public affairs requires them. The actual working of a The functions 
 Cabinet must vary with the different idiosyncrasies of ?-[. a .^ rime 
 Ministers, and especially of the Prime Minister. The 
 memoirs of Sir Robert Peel sufficiently reveal the course of 
 business in his last Ministry. He himself was First Lord 
 of the Treasury ; but he kept himself in constant touch 
 with his chief associates, each of whom referred to him 
 directly on any matter of great importance, whilst with 
 one or two, pre-eminently with Sir James Graham, he was 
 in the closest personal relations, revealing his innermost 
 thoughts. Sir Robert thus knew what each department 
 was doing, and his knowledge not unfrequently meant 
 direction as well as approval. Foreign affairs, the affairs 
 of India, Ireland, and Canada, and domestic affairs were 
 referred to him in turn, whilst in addition to this constant 
 supervision he took into his own hands, although not 
 Chancellor of the Exchequer, the delivery of budgets, and 
 the conduct of such a Bill as that regulating the note issues 
 of the Bank of England. It is possible, and indeed certain, 
 that with the increased multiplicity of affairs, the develop- 
 ment of the functions of government, as well as the growth 
 of the Empire, no Prime Minister could now maintain the 
 same intimate association with the several departments of 
 State. But Mr. Gladstone's conduct of office during his 
 first, if not throughout his second and later administrations, 
 is believed to have followed the fashion of Sir Robert 
 Peel, and it may be remembered that he took to himself 
 the carriage of the several branches of his Irish legislation. 
 Besides however the relations between the Prime Minister
 
 118 THE WORKING CONSTITUTION 
 
 and his colleagues, the latter are kept acquainted among 
 themselves with all that is critical in the action of each 
 other. Purely departmental business need not and does 
 not pass beyond the discretion of the individual Minister. 
 But whenever any question of policy arises, and especially 
 when any international or colonial episode of importance 
 is in progress, memoranda are circulated among the 
 Ministers, so that each is charged with a knowledge of 
 what is going on, and has an opportunity of intimating 
 an opinion upon it. It is in the prosecution of such 
 Cabinet matters that the members of the Cabinet are from time 
 Councils. t o time called together in Cabinet Councils to discuss the 
 situation and to determine what shall be done. Besides 
 these meetings there are others which may be regarded as 
 of a more routine character, and which are necessarily held 
 at particular periods. The legislation of the next Session 
 is settled at Councils held at the end of the autumn. The 
 leading Bill of the coming year may be marked out by 
 circumstances which Ministers recognise rather than control; 
 but the propriety of promoting other Bills is urged by 
 separate Ministers and their claims compared. The scale 
 of expenditure on the Army and Navy is, about the same 
 time, settled in Cabinets in which the First Lord of the 
 Admiralty, the War Secretary, and the Chancellor of the 
 Exchequer may be supposed to take the leading parts. 
 After Bills have in principle been determined upon, the 
 examination of them in some detail is often referred to a 
 Committee of the Cabinet, to which for this special purpose 
 may be added some member of the Government not in the 
 Cabinet, and after this revision they come back for final 
 sanction. Later on, the budget proposals of the Chancellor 
 of the Exchequer, at first perhaps discussed with the Prime 
 Minister and the Leader of the House of Commons and 
 then circulated, are formally considered at a Cabinet Council.
 
 THE CROWN AND ITS ADVISERS 119 
 
 The Cabinet is thus like a Court of Directors under the 
 leadership of a chairman, each with a department of his 
 own, yet acquainted with the principal business transacted 
 in the other departments, and all meeting together from 
 time to time to receive reports, to deliberate, and to 
 determine the course of business to be followed. Each 
 brings to the performance of his work not only his own 
 abilities, but the accumulated knowledge and suggestions 
 of his permanent officers, whilst they all live in the common 
 atmosphere of Parliament, and in this way are made hourly 
 familiar with the conditions which must influence if they 
 do not govern their action. 
 
 Another Committee of the Privy Council is that called Judicial 
 the Judicial Committee, which is practically a Court of c lttee 
 Appeal from the Ecclesiastical Courts in England and from Council, 
 the Courts in the colonies and dependencies of the Crown. 
 The work of this Committee necessarily ranges over the most 
 extended and dissimilar systems of law. Its composition 
 may be said to be still in a state of transition. When the 
 Judicature Act of 1875 was passed it was intended that the 
 Committee and the House of Lords should be united into 
 one Supreme Court of Appeal, and when this scheme was 
 modified, as elsewhere noted, it was provided that the Lord 
 Chancellor and the four Lords of Appeal, whose appoint- 
 ment was then arranged for, should serve as paid members 
 of the Judicial Committee. Since then three colonial Chief 
 Justices have been added to the Committee and have occa- 
 sionally served, whilst any Privy Councillors who have had 
 judicial experience are qualified to sit, and in the ecclesi- 
 astical appeals it is required that at least three episcopal 
 assessors shall attend the hearing. It may be added that all 
 these appeals are made in point of form to the Sovereign, 
 who refers them to the Committee for advice, and the answer 
 given may express no more than the judgment of the majority.
 
 CHAPTER XIII 
 
 ARMY : NAVY I CIVIL SERVICE 
 
 Army : War Office 
 
 Dependence IT results from what has been already said, that the Army and 
 
 of Army and j>javy have become strictly the creatures of Parliament. They 
 
 N&vv on 
 
 Parliament, are designated indeed the military and naval forces of the 
 
 Crown, and are organised under the supreme headship of the 
 Crown. Men are recruited and officers are commissioned in 
 the service of the Crown ; but in this, as in every other con- 
 nection, the Crown stands forth as the impersonation of the 
 realm ; and the action of the Crown is supported, not to say 
 directed, by the advice of Ministers. The Army and Navy 
 exist to protect the nation, and to fulfil the policy which 
 may be determined upon by Ministers possessing the con- 
 fidence of Parliament. All this is attested by the subordina- 
 tion of the military arm to the Secretary of State for War, 
 and of the Navy to the First Lord of the Admiralty ; and, 
 as if to emphasise the civil supremacy, both the War 
 Secretary and the First Lord are almost invariably civilians. 
 There can be no question indeed as to the supremacy of 
 the civil power. This is secured in the first place by the 
 dependence of both services upon Parliament for the votes 
 which sustain the cost of their existence. Unless the House 
 of Commons renewed annually its fitting appropriation, the 
 Army and Navy would soon cease to be. This is not all.
 
 ARMY: WAR OFFICE 121 
 
 Soldiers have been known to serve though irregularly paid, 
 and even for a limited time without any pay at all; but 
 there remains in the United Kingdom another safeguard 
 against the continued coherence of an armed force which 
 has not received the sanction of Parliament. The discipline 
 of the Army depends upon a special code of military law, 
 and this code is made applicable from year to year for 
 twelve months only, so that unless its force is renewed by 
 an annual Act before the expiry of each term the bonds of 
 law keeping the Army together as an organised force would 
 be dissolved. These principles are not indeed always brought 
 into notice. Long periods may pass without any formal 
 recognition ; but the secret of the silence respecting them is 
 that they are enthroned in the order of the nation like natural 
 forces in the order of the world. No one thinks of the 
 possibility it is beyond imagination of any part of the 
 national force being employed in opposition to what may 
 be ordered by the Government of the day, that is to say 
 by Ministers of the Crown receiving their mandate from 
 Parliament and the nation. 
 
 The situation thus stated has been gradually developed Development 
 
 since the great Revolution of 1688. Up to that time of P f rlia ~ 
 
 . ,. . mentary 
 
 Parliament refused to recognise a standing army in time of control. 
 
 peace, and no law had been enacted for the government 
 of such an institution. In time of war the prerogative 
 of the Crown was construed to extend to the publication of 
 ' Articles of War ' governing the military forces in the field. 
 The necessity of a standing army was soon recognised under 
 William and Mary ; and a statute, limited however to less 
 than a year, was passed for its regulation. Even this was 
 not renewed with perfect regularity, and the special law 
 was allowed to lapse altogether for three or four years at 
 the close of the seventeenth century when domestic and 
 foreign peace seemed to be assured. On the accession of
 
 122 THE WORKING CONSTITUTION 
 
 the Hanoverian dynasty the statute was revived and com- 
 pletely established as the Mutiny Act ; and as such renewed 
 from year to year with modifications and additions down to 
 1879. It contained a code of law for the government of 
 the Army in peace at home, soon supplemented by a power 
 it conferred on the Crown to issue Articles of War for the 
 regulation of the Army throughout the King's dominions ; 
 the prerogative power of the Crown in time of war not 
 being dealt with till 1803, after which date the Mutiny 
 Act covered this prerogative also. The last great change 
 Forces voted was effected in 1879. In that year all the provisions 
 for one year governing the military forces, whether contained in the 
 Mutiny Act or in Articles authorised by that recurring 
 statute, were collected together in one Act of Parliament 
 which may be described as the military code ; and this Act 
 has ever since been applied, sometimes indeed with modifica- 
 tions and additions, by a short annual Act to the number 
 of the forces annually authorised. Without therefore 
 going through the labour of revising every clause of the 
 code afresh, Parliament retains complete command over it, 
 for without a renewed sanction in reference to defined 
 numbers its force would expire. 
 
 Functions of The civil head of the military organisation of the 
 the War kingdom is the Secretary of State for War. As a separate 
 office this is a comparatively recent creation. Up to and 
 during the earlier years of the Crimean War, the Secretary 
 of State for the Colonies l was also the War Minister. The 
 experiences of that war compelled a separation of functions 
 and the appointment of a new Secretary of State. The 
 War Secretary has under him all the staff necessary to 
 direct and register the movement of troops, distribution of 
 pay, and the provision of supplies; and it is his duty to 
 
 1 This was created as a separate office in 1801, before which the Colonial 
 administration was under the Home Secretary.
 
 ARMY: WAR OFFICE 123 
 
 select and recommend the fittest persons for high appoint- 
 ments whether under the organisation of peace or for 
 service in the field. As the special agent of the resolutions 
 of his colleagues and himself in the Cabinet, he organises 
 expeditions and sees generally to the execution of the 
 military policy of the Government. 
 
 Quite recently indeed the War Secretary has been assisted Council of 
 by a sub-committee of the Cabinet, to which has been given National 
 the name of the Council of National Defence, consisting of 
 himself, the First Lord of the Admiralty, the Foreign 
 Minister, and two or three other colleagues, whose duty it 
 is to bring the forces of the Crown into correlation with one 
 another and to assist the Cabinet in forming its decisions 
 on all questions involving warlike operations. This Council 
 is however rather an aid to the Cabinet than to the War 
 Minister, who remains charged with all the executive 
 functions of his office. For their due performance he is 
 in constant communication with the Commander-in-Chief Commander- 
 and other heads of the working army. He interferes in no iu - CI "ef. 
 way with the discipline of the service, and when the Army 
 is engaged in warlike operations, the actual conduct of 
 affairs in the field is necessarily left to the Generals ap- 
 pointed for the purpose, though the aims of their action 
 are directed by him, and he regularly receives reports of 
 what they are doing. The military organisation of the 
 Army underwent its last great change subsequently to 1870, 
 after Europe had watched the experiences of the Franco- 
 German War. As now organised, the mass of the rank 
 and file is enlisted for a term of seven years' active service Terms of 
 followed by five years in the reserve ; the period of seven service - 
 years being liable to the addition of a year, if at the end 
 of it the soldier is on foreign service. The Army Service 
 Corps enlist however for only three years 1 active service and 
 nine years in the reserve ; while the Guards have the option
 
 124 THE WORKING CONSTITUTION 
 
 Rank and 
 File. 
 
 of enlisting according to either system, and may pass from 
 the three years to seven years' active service. About one- 
 third of the Army habitually serves in India, where its 
 whole cost (including a charge in respect of previous 
 expenses of recruiting, drilling, etc.) is defrayed by the 
 Indian Government. 
 
 The distinguishing characteristic of the British Army is 
 that it rests upon a basis of voluntary enlistment. Men 
 satisfying prescribed limits of age and stature are invited 
 to enter the service, and the recruit fulfilling the necessary 
 conditions binds himself to serve for a term of years which, 
 as has been said, differs according to the corps he joins. 
 The fighting force is divided into regiments of cavalry and 
 infantry and batteries of artillery, and the recruit enters 
 into one of these divisions. Promotion to the position of 
 a non-commissioned officer is always open to him ; but the 
 commissioned officers form a separate order into which an 
 occasional private may enter as the reward of special and 
 distinguished merit. The mass of officers in the cavalry and 
 infantry obtain their commissions as the prizes of competitive 
 examinations which are open to candidates satisfying pre- 
 scribed conditions ; whilst engineers and artillery officers are 
 trained in a special school into which cadets enter as the 
 result of other competitive examinations. A limitation of 
 a very effective kind is placed on the supply of candidates 
 for commissions in the Army by the fact that the ordinary 
 pay in the lower ranks is quite insufficient to meet the 
 inevitable expenses- of the officer, the disproportion varying 
 with the different arms. Each regiment and battalion has 
 its special officers advancing from grade to grade to colonel ; 
 Promotion, and these again are combined in brigades and divisions, 
 under generals of different grades. The whole of the 
 fighting force is brought together under the Commander- 
 in-Chief and his chief assistants the Adjutant-General and 
 
 Commis- 
 sioned 
 Officers.
 
 ARMY : WAR OFFICE 125 
 
 Quarter-master-General and the Commander-in-Chief is 
 responsible to the Secretary of State for all promotions. In 
 this he is assisted by a board comprising the heads of 
 departments, and furnished with confidential reports con- 
 cerning the qualifications of every officer; and officers who 
 do not within prescribed limits of time pass from any one 
 grade to that next above it are forced to retire on defined 
 money terms. 
 
 The forces of the regular army are supplemented by those Militia. 
 of the Militia and of the Volunteers. The Militia was 
 originally a strictly local force organised under the authority 
 of the Lord Lieutenant in each county ; but it is now wholly 
 directed and controlled by the Secretary of State, and differs 
 from the regular army in that the men enlist for six years 
 only, are called out for drilling for a limited period in each 
 year, and are not liable for service outside the United 
 Kingdom. The enlistment for the Militia is in fact 
 voluntary, but an unused statutory power exists for supply- 
 ing deficiencies in voluntary enlistment by a ballot. The 
 Militia is now officered on the same principles as the Army, 
 but the position is less burdensome and more accessible, and 
 facilities are given for the passage into the Army of Militia 
 officers of approved service. It constantly happens in time 
 of war that Militia regiments volunteer for garrison duty 
 outside the United Kingdom, and they do in fact often 
 furnish large drafts to the army in the field. 
 
 Other auxiliary forces are the Yeomanry, a local cavalry Yeomanry 
 of from 10,000 to 12,000 men, and the Volunteers, number- ^} t 
 ing some 250,000, who, as their name implies, offer them- 
 selves for drill and service. They were originally self- 
 supporting ; but they now receive allowances in money and 
 outfit which have been gradually extended. In ordinary 
 circumstances volunteers satisfy certain conditions of drill 
 and efficiency, and after a varying number of years of
 
 126 THE WORKING CONSTITUTION 
 
 service retire as voluntarily as they enter; but they are 
 liable under stress of apprehended invasion to be called out, 
 and to be kept serving till the danger passes away; and 
 at such a time, as also when associated with the regular 
 forces for training, are subjected to military law. The 
 war now (1900) in progress has been characterised by the 
 formation of several special corps of volunteers who have 
 come forward to offer their services during the contest, and 
 have passed with the more permanently organised military 
 forces to the campaign in South Africa. 1 
 
 Navy: Admiralty 
 
 The civil administration which governs the Navy presents 
 at first sight a different appearance from that governing the 
 Board of Army, since a Board of Admiralty takes the place of the 
 Admiralty. \y ar Secretary. The Board consists of four Lords appointed 
 to execute the functions of the Lord High Admiral, an office 
 which has been in abeyance for nearly two centuries with 
 the exception of a short interval in 1827-28 ; but the First 
 Lord is pre-eminent among these, and his political position 
 is now almost identical with that of the War Secretary. 
 He is always a member of the Cabinet, and the policy and 
 great movements of the Navy being determined upon by 
 himself and his colleagues, he becomes the agent of the 
 Cabinet in carrying out their decisions. He has at his 
 right hand a First Naval Lord who is always an admiral 
 of experience and authority, but he remains supreme as well 
 over the general service of the Fleet as over appointments 
 and promotions. The fourth Lord assists him in Parlia- 
 
 1 No attempt has been made to describe the territorial organisation of the 
 Army or the way in which regulars, militia, and volunteers are associated 
 together for the development of the efficiency of their several services, as 
 these are matters lying outside of the constitutional relation of the Army to 
 the nation.
 
 NAVY : ADMIRALTY 127 
 
 merit under the title of Civil Lord, whilst the Secretary of 
 the Admiralty, holding technically a position subordinate 
 to that of the Lords other than the First, but in reality of 
 greater parliamentary authority, also assists the First Lord 
 in the discharge of his parliamentary duties. When, as 
 has happened more often than not, the First Lord is a 
 peer, the Secretary takes the lead as responsible Minister 
 in the House of Commons, and, having the conduct of the 
 estimates for the Navy, occupies a position of considerable 
 importance. Other branches of the naval service are under 
 the direction of chiefs not sitting in Parliament, who work 
 in constant co-operation with the First Lord, upon whom 
 rests the full responsibility of the department. Technically 
 the status of the First Lord is below that of a Secretary of 
 State, but it is believed that no trace of this subordination 
 is now found existing in practice, and the First Lord is in 
 the same relation to his colleagues in the Cabinet in respect 
 to the Navy as the War Secretary in respect to the Army. 
 
 The men who serve in the Navy are like those in the Personnel: 
 Army divided into two classes, commissioned officers and Officers '> 
 the ranks ; and it is most rare for any one to pass from the 
 latter to the former. The supply of officers is drawn from 
 youngsters who are allowed by the First Lord to compete 
 for entrance to a naval college, where they are educated and 
 trained and whence they are ultimately sent afloat. They 
 are promoted from step to step as in the Army, and in a 
 similar way are forced to retire if, at defined periods, they 
 do not rise from one grade to another. It should be 
 observed that the pay of naval officers is not so dispro- 
 portionate to the necessary or standard scale of expenditure 
 as in the Army, and it may be added that ambitious and 
 active officers specially qualifying themselves in navigation, 
 gunnery, torpedo-work, etc., may obtain relative appoint- 
 ments carrying with them additional rates of pay, in which
 
 128 THE WORKING CONSTITUTION 
 
 cases an officer finds himself at a comparatively early age 
 with an income adequate to his expenditure. Besides the 
 naval officers thus described there are chaplains, medical 
 officers, engineer officers, paymasters, and clerical assistants 
 entering their several services on special conditions and 
 generally after qualifying examinations, and in the case 
 of engineers after special training in a college at Keyham. 
 Ordinary * Rankers "" are obtained by the admission of boys of fifteen 
 Seamen. years to training ships along the coast, where they receive 
 education civil and naval, and whence they pass afloat 
 under an obligation of service for ten years from eighteen to 
 twenty-eight. On the expiry of this term a bluejacket can 
 quit the service, or he can and generally does re-enter for 
 another term of ten years, after which he retires with a 
 pension unless he has become a petty officer or a warrant 
 officer, in which case his service is extended and his retiring 
 pension increases. Besides the seamen thus obtained, there 
 are civilians amongst the ships 1 crews entering as adults as 
 stokers, carpenters, etc., constituting a separate class though 
 subjected to the same discipline ; and there is also the 
 force of Marines, which in fact is organised like the Army 
 and under the military code in the earlier stages ashore, 
 but coming under a naval discipline when sent afloat. 
 The naval code under which discipline is maintained in 
 the fleet, and when necessary courts-martial held, is found 
 in an Act passed in the year 1866 ; and it must be added 
 that it is not necessary as in the Army to apply this Act 
 annually to the personnel of the Navy, the members of 
 which remain continuously subject to its provisions with- 
 out a special renewal. 
 
 Civil Service 
 
 Every Minister of the Crown has a separate department 
 with separate duties, but he is assisted in the discharge of
 
 CIVIL SERVICE 129 
 
 his special functions by an organised body of servants whom Ministers 
 he finds at work when he enters upon his office, and most and their 
 of whom will in all probability be left remaining at the assistants. 
 work after he has resigned his post. These men, with 
 stores of personal and inherited experience, maintain the 
 traditions of their several departments, and are of the 
 greatest help both in knowledge and in suggestion to their 
 political chiefs. The latter may be quite new to the special 
 work to which they are allotted, and they must needs 
 depend upon those who are familiar with it. But at the 
 same time the statesman brings into his bureau something 
 of the activity and power of the outer world, and at the 
 lowest he should save his subordinates from lapsing into 
 that worship of routine, and from that setting up of the 
 persons who serve above the aims to be served, which are 
 the besetting sins of office. The Minister and his sub- 
 ordinates, working together and correcting one another, 
 generally succeed in maintaining a high standard of prompt 
 and efficient service. 
 
 Permanency of position is the rule of the Civil Service, and Security 
 is generally accepted as a condition and as a guarantee o 
 its high character. Every civil servant is secure in his 
 office during his good behaviour, at least up to the age 
 (sixty-five), when the rule of the service requires him to 
 retire. This security has indeed a tendency to diminish 
 the energy and vivacity of work, especially if promotion is 
 allowed to depend upon years of service with little atten- 
 tion to the character of the work performed; but apart 
 from the recognition of merit, which is not wanting, zeal 
 of office may generally be trusted. One of the difficulties 
 in the organisation of the departments is that in most of 
 them there is a great deal of work to do requiring no 
 special qualifications beyond regularity and fidelity in 
 routine. It is in view of this fact that two classes of clerks
 
 130 THE WORKING CONSTITUTION 
 
 have been established, the Upper and the Second Division. 
 Up to 1855 all clerks of every class owed their first 
 appointments to favour, but in that year a new method was 
 introduced which has since been extended till it is how 
 practically universal. Under it, appointments to the 
 Second Second Division are obtained through success in competitive 
 Division examinations. Candidates between the ages of seventeen 
 and twenty are invited once or twice a year to present them- 
 selves, and are examined in appointed subjects, the examina- 
 tions being conducted by a special board called the Civil 
 Service Commission. The successful candidates, due proof 
 of character having been forthcoming, are drafted into 
 offices as vacancies happen, and commence their career. 
 The pay is such as to attract an ample number of candidates, 
 who may not however always realise when entering the 
 service its prospective limitations. A gradual increment of 
 pay is ensured to all till it reaches 250 a year ; beyond 
 which 'duty' pay may be obtained in connection with 
 certain special appointments ; but these must be the reward 
 of a minority, whilst promotion to another class is and must 
 be rare. Below these there are copying clerks, recruited for 
 temporary service, although their engagements are often 
 renewed for long periods, whose pay is necessarily inferior 
 and position less open to improvement ; and from copying 
 clerks and Second Division clerks complaints have from 
 time to time arisen and must be expected to arise. 
 Upper Above the Second Division clerks are those of the Upper 
 Division Division, now also universally appointed by open com- 
 petition J after examinations of a severer character. These 
 are men destined for higher duties requiring superior 
 qualities of education and character. Their pay starts 
 from a higher level and reaches by annual increments 
 a higher standard, whilst they may be promoted from 
 1 In the Foreign Office (see post) competition is limited.
 
 CIVIL SERVICE 131 
 
 class to class within the division up to the top. There 
 are however a few appointments the very highest, such as 
 Under Secretaryships which may be filled, and not un- 
 frequently are filled, by selection from without. Such an 
 extended power of choice is useful in adding to the efficiency 
 of an office, while the interest of the head of the office who 
 makes the choice, in the capacity of his nominee, is so great 
 that the risk of abuse of patronage disappears. In this way 
 the permanent service of the department is built up, whilst 
 it is crowned by the political personage who comes to it 
 out of the struggles of public life, into which after a season 
 he probably returns. 
 
 The description thus given applies to the departments The Postal 
 of the Civil Service strictly so called. The departments Service - 
 connected with the collection of the revenue differ some- 
 what in character, especially in the Post Office, which last 
 requires some special attention. The postal service is 
 an example of the discharge by the Government of a large 
 national business, the branches of which have of late years 
 been extended by the carriage of parcels as well as of letters, 
 by providing facilities for the transmission of money, by 
 Post Office Savings Banks, and by the addition of the 
 Telegraph Service. It is possible that after a time 
 telephonic communications may be engrossed by the Post 
 Office. They have been judicially declared to lie within 
 the Post Office monopoly, and they are now conducted by 
 other agencies on condition of paying royalties to the Post 
 Office. Besides these extensions actual and potential of the 
 Post Office itself, there are various proposals in the air for 
 nationalising other services, in respect of which present 
 experience may be a precedent. The Central Bureau of the 
 Post Office is organised much on the same plan as the other 
 departments already noticed, but it has under it in London 
 alone a large number of collecting- houses, each with a staff
 
 132 THE WORKING CONSTITUTION 
 
 and an army of sorters, distributors and messengers ; and 
 the continual extension of country offices has developed a 
 still vaster force of postmasters, clerks, and, at the base, of 
 weekly wage-earners. It is obvious that competitive ex- 
 aminations could have little to do with entrance into such 
 a system, and up to recently the smaller postmasterships in 
 the country were absolutely in the gift of the local members 
 of Parliament supporting the political party in power, or if 
 there was no such member, of some other person as nearly 
 as possible corresponding to him in station and supporting 
 the Government. This last relic of patronage was abandoned 
 in 1896, and all appointments to postmasterships and pro- 
 motions are now made by the Postmaster General aided by 
 the advice of the Surveyors of the several districts in which 
 the kingdom is divided and by the credentials of past 
 service. Appointments on the staff of the post offices are 
 made in the same way, while entrance to the lowest grade 
 of clerkships and the choice of subordinate and auxiliary 
 letter-carriers is left to the local postmasters themselves, 
 subject of course to dismissal by higher authority in case of 
 incompetence or misconduct. The rates of pay vary from 
 district to district according to the current local standards of 
 wages, but are regulated from headquarters; and entrance 
 on the staff, which carries with it a title to pension, is 
 checked by the necessity of passing a qualifying examination 
 under the Civil Service Commission. This system has been 
 built up bit by bit as the circumstances of successive years 
 suggested modification or addition, and the result is a great 
 network of government employees pervading all parts of the 
 United Kingdom. It would be hopeless to expect complete 
 satisfaction with the conditions of service throughout such 
 extended ranks, but the difficulties that have from time to 
 time arisen have so far been fairly overtaken. They have 
 not been made less by the fact that government placemen,
 
 CIVIL SERVICE 133 
 
 who had up to 1868 been disqualified from voting at 
 parliamentary elections, were in that year accorded equal 
 political privileges with other citizens. There would be 
 some delicacy in managing a trade organisation whose work- 
 men had an important influence in electing the directors 
 who fixed their wages. The influence of Post Office officials, 
 though widespread, is still slight in each constituency, 
 especially compared with the influence exercised in those 
 boroughs where government manufacturing establishments 
 are centred. The members for 'dockyard' boroughs are 
 habitually recognised in the House of Commons for their 
 zeal on behalf of the dockyardsmen ; and the reception 
 of theories for nationalising services involving large local 
 establishments must be qualified by this recollection.
 
 134 THE WORKING CONSTITUTION 
 
 CHAPTER XIV 
 ROYAL COMMISSIONS, ETC. 
 
 Function REFERENCE has been made to the help and support Ministers 
 Commissions ^ ^ e Crown receive from the co-operation of a permanent 
 Civil Service ; and attention may now be drawn to another 
 form of assistance enjoyed not merely by Ministers, but by 
 Parliament and the nation at large in the acquisition and 
 digestion of knowledge, and in the formation of opinion. 
 Public questions may be debated by isolated thinkers or by 
 the newspaper press, and in due course may become the 
 objects of attention of special associations formed for the 
 purpose; but it frequently happens that the time arrives 
 when something more exact, more precise, and more authori- 
 tative is wanted than can be evolved through these com- 
 paratively irresponsible agencies. The matter may require 
 a large knowledge of the details of existing business, or a 
 power of severe analysis and reasoning not always the attri- 
 bute of public life, or a collision of judgments approaching 
 it from different quarters and holding as yet unreconciled 
 views. In the solution of such difficulties recourse is had 
 to a mixed body charged with the examination of the subject 
 referred to them and the formation of conclusions relative 
 to it. Such bodies are Committees or Commissions, and 
 their services have often proved of the greatest public 
 advantage. They must be distinguished from Committees, 
 whether separate or joint, of the two branches of the legis- 
 lature, to which reference will be hereafter made, and which
 
 ROYAL COMMISSIONS 135 
 
 are generally appointed at later stages of an enquiry, or in to be dis- 
 eases where it is not thought necessary to resort to such ^ n ^ u i!^ e ,4 
 , ,. . M- rx v from Parlia- 
 
 bodies as are now in question. Extra-parliamentary examina- m entary 
 
 tion may be conducted by a Departmental Committee, or by Committees 
 a Royal Commission. The former is inferior in dignity and 
 authority, and is usually chosen to consider something of 
 departmental or secondary importance. A Departmental and from 
 Committee will ordinarily consist of some person or persons, Departmental 
 from the department in relation to which the enquiry arises, 
 associated with other persons representing the interest or 
 trade, or combinations primarily affected, and with other 
 persons, some of parliamentary position recognised as 
 possessing special knowledge or capacity or independence 
 of judgment fitting them for the service. A Depart- 
 mental Committee is appointed under a minute of a 
 Minister desiring its assistance. A Royal Commission, as 
 its name imports, is nominated by a commission from the 
 Crown. It generally consists of parliamentary, official, and Composition 
 outside persons who from experience, training, general and powers 
 knowledge, and character, may be classed as experts in Commissions. 
 relation to the subject-matter of enquiry. Both Com- 
 mittees and Commissions conduct their work in the same 
 way, and have the same powers. They cannot compel 
 witnesses to attend or to give evidence when they do 
 attend. Still less have they power to administer an oath. 
 The cases however of reluctance to give evidence are rare, 
 and may be said to be found only on the part of bodies 
 who apprehend their privileges are about to be attacked. 
 It is within the discretion of the Commissioners whether 
 evidence should be taken in public or in private, or again 
 whether counsel should be allowed to be present as repre- 
 senting any interest concerned and to take part in the 
 proceedings whether by examination or cross-examination of 
 witnesses. In the great majority of cases sittings are held in
 
 136 THE WORKING CONSTITUTION 
 
 private, and even when they are public, professional assist- 
 ance is rarely suggested and still more rarely allowed. After 
 the reception of evidence has been completed, the Commis- 
 Their reports sioners deliberate and draw up their report, and if they are 
 not agreed, reports may be presented by a majority and by 
 a minority. Even when one report has been agreed upon, 
 qualifying remarks may be appended by single commissioners 
 or by groups of commissioners. The report or reports 
 with the minutes of evidence received are submitted to the 
 Crown or Minister as the case may be, and are usually 
 printed and circulated for the information of Parliament 
 often a basis and the country. A report is not unusually a preparation 
 for legisla- f or legislation upon the lines suggested by it, sometimes 
 wholly in conformity with its recommendations. Illustra- 
 tions of this work have now long abounded, but perhaps 
 none can be found more remarkable than that of the Poor 
 Law Commission of 1832, the result of whose labours was 
 the absolute transformation in 1834 of the principles and 
 methods of the relief of the poor throughout England and 
 Standing Wales. In addition to Commissions such as have been 
 Commissions, described, Parliament is sometimes assisted by others where 
 what is wanted is an authority that can be trusted in rela- 
 tion to matters about which the mind of Parliament is 
 clear, but its own knowledge and capacity are recognised 
 as limited. Bills for the amendment of special branches 
 of the law such as the conveyance of real property have 
 thus been drawn up by experts, and accepted by Parlia- 
 ment, on what has proved to be a well-founded faith in 
 their guidance. Another Standing Commission has existed 
 for many years for the purpose of clearing the Statute Book of 
 obsolete and spent enactments, and though its recommenda- 
 tions are formally referred to a Joint-Committee of both 
 Houses for examination before they are adopted, they are in 
 fact approved on the authority of the Commission. 1 
 1 For Parliamentary Commissions see /or/, pp. 184 seq.
 
 THE PARTIES 137 
 
 CHAPTER XV 
 
 THE PARTIES 
 
 IF every act of the Crown must be supported by the How party 
 
 responsibility of a Minister, and Ministers must possess the go vernm ent 
 
 r J arises. 
 
 confidence of the House of Commons as the exponent of 
 
 national judgment, it must be the continual care of Ministers 
 to keep in agreement with that judgment. To the main- 
 tenance of this agreement their conduct must be habitually 
 addressed. The result may be secured partly by studying 
 the development of public opinion, and by shaping the 
 course of the ministerial action, so as to move alongside of 
 it, and partly by capturing and moulding that opinion, so 
 that it shall support the actions of the Ministry ; or both 
 processes maybe pursued together; the national judgment 
 being now drawn after the Ministers of the Crown and the 
 Ministers of the Crown now following the national judg- 
 ment. The influences which move the swaying tides of 
 opinion are not always the same. Sometimes a Ministry 
 attracts support by fidelity to a particular body of policy 
 which commends itself to the country. Sometimes its 
 strength lies in the loyalty felt towards the character of 
 its chief, not always its nominal head, who inspires trust 
 and confidence as a leader and guide. Ministers supported 
 by a majority of the House of Commons immediately after 
 a General Election are by hypothesis supported by the 
 national judgment also. It must be their ambition to keep
 
 138 THE WORKING CONSTITUTION 
 
 the House of Commons and the nation together, and if a 
 divergence should appear to be threatening, it would seem 
 to be more far-sighted to cultivate the power that must be 
 supreme at the next General Election. Ministers cannot 
 however always maintain this detachment of spirit. They 
 may clearly see that opinion is for the time irreclaimably 
 moving away from them, and while cherishing the hope 
 that in later years it may again move towards them, they 
 may be schooling themselves to give way to others when the 
 nation has spoken. This change in succession of popular 
 judgment must, to be effectual, involve the existence of 
 other men prepared and ready to take office ; and if the 
 previous analysis of the working of the constitution be 
 correct, such reserves must have been at hand more or less 
 definitely organised ever since the responsibility of Ministers 
 to the nation through Parliament was established. 
 
 Its continu- At a time when the House of Commons was in a pre- 
 ance through dominant degree under the control of men of wealth, these 
 changes. reserves not unfrequently appeared as combinations of men 
 brought together by family connections or accidental in- 
 timacy, rather than associations having, as the bond of 
 union, agreement on a fixed set of principles of national 
 policy and conduct. Yet even then the differences were 
 often real, and men at least sought to distinguish them- 
 selves from one another by professions of divergent aims. 
 Apart from family traditions or purely irresponsible 
 ambition, men have always been and must be drawn into 
 two camps of progress and of caution. The gradations of 
 temperament must be infinite, and the same man not seldom 
 passes from phase to phase. Yet there are always two 
 masses, the one characterised by attachment to things as 
 they are and by hesitation to change ; the other, by a strong 
 sense of existing shortcomings and defects, and by a readi- 
 ness to entertain plans for their amendment. Names change,
 
 THE PARTIES 139 
 
 but Whigs and Tories, Liberals and Conservatives, Radicals 
 and Constitutionalists are only different ways of describing 
 the same essential divisions. Adherence to things as they 
 are may become less stubborn, the passion for reform less 
 ardent, but the divergence of tendencies is never lost, 
 though it may be less sharply manifested. Since the 
 Reform Act of 1832 the line of demarcation has been 
 repeatedly drawn afresh. Every change accomplished in- 
 volves the assumption of new positions. Every new proposal 
 of far-reaching change provokes a similar shifting. The 
 objects of controversy are altered, the combatants pass to 
 and fro, and still the two armies confront one another. 
 
 It may even be said that year by year the two great Groups 
 divisions are more highly organised, and this development Wlt m t 
 is not inconsistent with an organisation of sub-divisions 
 which, if not absolutely new, has of recent years been 
 carried to an unprecedented length. There have always 
 been groups within the two great parties. Before 1832 
 they were frequently distinguished as clustering about some 
 particular person. A certain number of members might 
 even be known as the men of a great borough-monger 
 whose seats they occupied. In the years following 1832 
 the Whigs or Reformers had among their following Mr. 
 O'Connell and his Repealers, the members of the Manchester 
 School, and the Philosophical Radicals, whilst the Con- 
 servative party of landowners, commercial magnates, and 
 churchmen ran through all shades from High Toryism and 
 unbending Protection, to the open mind of Sir Robert Peel. 
 The Maynooth grant and the demands of Repealers dis- 
 turbed parties then as they are disturbed to-day, nor was 
 there wanting a migration of leading spirits who, seceding 
 from a Ministry, remained some time on its flank, and 
 then became embodied in the opposite ranks. Sub-divisions 
 may have become somewhat more accentuated of recent
 
 140 THE WORKING CONSTITUTION 
 
 years through the assumption of forms of organisation such 
 as Church Committees, Service Committees, Labour Parties, 
 etc., which meet more openly and with a greater affectation 
 of independence than heretofore; but groups of a similar 
 character have long been known and have perhaps exercised 
 as much influence in the past as in the present on parlia- 
 mentary life. All these sub-divisions are apt to disappear 
 when the two great parties are set in array, nor can it be 
 positively said, when the experience of to-day is compared 
 with what we know of the experience of fifty or sixty 
 years since, that the difficulty has seriously increased of 
 marshalling the parliamentary hosts in conflict. 
 
 Present com- There can be no doubt as to the increased energy with 
 pleteness of which the two great parties are worked. The increase of 
 sation. railway and postal facilities, the comparative cheapness of 
 
 paper and printing, the multiplication of newspapers, have 
 all helped to develop this political activity. But it has 
 been perhaps most stimulated by the multiplication of 
 single-member seats of nearly equal size. The transforma- 
 tion of constituencies has greatly reduced the intensity and 
 power of personal and family influence, and has opened 
 up fields where the greatest effect is produced by working 
 through the forms of political organisation. Central offices 
 are maintained in London, and local committees in almost 
 every constituency are established, between which and the 
 central offices there are frequent communications. Literature, 
 or what passes as such, is thus disseminated, and it becomes 
 more profuse as a General Election approaches. Meetings, 
 or as they are more commonly called, mass-meetings, are 
 held in and through the parliamentary vacation, with the 
 exception of a few weeks after the usual August prorogation, 
 and even in the session itself they are not unknown. To 
 these meetings the leading political personages are drafted 
 for the purpose of keeping up the fire of party zeal in every
 
 THE PARTIES 141 
 
 district. This unceasing and widespread activity is the 
 newest development of party. Such men as the leaders 
 of the House of Commons and of the Opposition might in 
 a former generation deliver a couple of political addresses 
 outside Parliament in the course of the year. The demands 
 upon their energies have multiplied at least tenfold, whilst 
 some members of the Government and of the Opposition 
 find their main if not exclusive duty in urging upon pro- 
 vincial audiences the merits of their own party and the 
 demerits of their opponents. 
 
 The employment of the machinery thus kept in constant Defects of 
 work cannot be said to be altogether free from evil effects. P ar ^Y orgam- 
 
 Set tion 
 Many of them are incontestable, and a realisation of their Are they 
 
 number and weight has often led men to speculate whether the incurable ? 
 use of the machinery is on the whole productive of good or of 
 evil, and whether, if it could not absolutely be dispensed 
 with, some readjustment might not be possible promising 
 a diminution of the bad consequences that are only too 
 flagrant. When these enquiries find a voice they are often 
 met with the declaration that party government is in- 
 dispensable, and must be taken with all its defects. Some 
 intellectual energy may be necessary to imagine other modes 
 of life than those in which we act, and there is a natural 
 temptation on the part of the men who have been called 
 to direct a great machine to decry suggestions for its 
 transformation or abolition ; but still discontent will recur 
 and the grounds of it must be examined. It is true that 
 in a nation there must be forces of hesitation and of 
 adventure; but corresponding moods exist in the breast 
 of every man, and the effort of the individual is not to 
 give way to alternate fits of inaction and of rashness, but 
 to maintain an equable course of regulated labour. The 
 aim of education is to substitute continuity for dis- 
 continuity, an uninterrupted flow for mere gush and
 
 142 THE WORKING CONSTITUTION 
 
 check. If national life is so organised that its manifesta- 
 tions are habitually characterised by discontinuity in 
 successive periods of time, we may suspect some defect in 
 its organisation, even though we may not be able to see 
 a way to its remedy. Such discontinuity does not in fact 
 exist in real life, and it is noteworthy how habitually the 
 conduct of the parties in power is shaped so as to correct 
 the discontinuity which party organisation tends to produce. 
 Every party in power leans in the direction of the policy 
 of its opponents. A Conservative Government is Liberal, a 
 Liberal Government is Conservative. It is a common ex- 
 perience for each in turn to be condemned by its extreme 
 followers for adopting the policy of its adversaries. The 
 complaint is well-founded, and it shows that both Liberal 
 and Conservative are conscious that the true line of national 
 movement follows a course between their exclusive fields of 
 A suggested policy. If it were possible to organise the representation 
 remedy. Q f na tj ona ] life so that it should be habitually embodied in 
 something reproducing this central line of movement, we 
 should be spared the falsity and the waste resulting from 
 an organisation always producing more or less serious mis- 
 representations. Such a vision is at least conceivable. It 
 must be made the subject of further enquiry before it can 
 be declared to be in any degree practicable. Meantime it 
 may be observed that, could it be realised, the Government 
 of the future would have a promise of permanence and 
 stability corresponding to the permanence and stability of 
 the nation itself. It would be entitled to be called, what 
 many governments vainly claim to be, national. It would 
 from time to time part with some elements and receive others. 
 As years went by it would be entirely renewed, but there 
 would rarely be a break in the continuity of its existence. 
 Such a transformation cannot be accomplished at a jump. 
 Any steps towards it must be gradual. It is enough if the 
 movement gives us a real promise of approach.
 
 GENERAL ELECTION 143 
 
 CHAPTER XVI 
 GENERAL ELECTION 
 
 THE supreme importance of a General Election has been The appeal 
 
 frequently stated. Its verdict upon the question immediately *? ^ e 
 
 4. u j u ii i c Country, 
 
 at issue is accepted by all as conclusive. Some controversy 
 
 may indeed arise as to the range of questions so decided. 
 First and most immediately important is whether the 
 Ministers in office at the time of the election should be 
 retained in power or dismissed from their places. This is 
 tested by the balance in numbers of the members returned, 
 whose disposition towards the existing government had been 
 declared beforehand, and whose votes on this issue may be 
 accounted as certain. The balance may however vary 
 largely, and if it be small in number, the firmness of the 
 position of the Ministers of the day cannot be reckoned as 
 well assured. They may be safe against an immediate vote 
 of want of confidence, but in the course of administration 
 they may commit some act, or when they propose legis- 
 lation to Parliament they may recommend some measure, 
 either of which may be so displeasing to a fraction of their 
 supporters as to turn the scale against them. In ordinary 
 circumstances however the competitors for the support 
 of the nation submit some definite claims for the support 
 they desire, and the verdict of the constituencies may be 
 relied upon as determining not merely the question whether 
 Ministers should be retained or dismissed, but also whether
 
 144 THE WORKING CONSTITUTION 
 
 some prime object of policy recommended by them should 
 be approved or condemned. 
 
 Main issue There is generally no doubt as to what this paramount 
 stated m proposal is, although it may not be presented in the formal 
 addresses, manner worthy of the occasion. Every candidate for the 
 election issues an address to his own constituency containing, 
 with more or less amplification, the grounds on which he 
 makes his appeal ; and the addresses of the leaders, who 
 sit in the House of Commons, supply the main subjects 
 of contention, with some indication of the order of their 
 importance. These addresses are issued the moment the time 
 of the General Election is determined, and the addresses 
 of followers reproduce their leading features with the addi- 
 tion of declarations of loyalty to the party chief. Up to a 
 comparatively recent time, the questions at issue were rarely 
 expressed in a definite manner except in these addresses. The 
 Tamworth manifesto was a letter of Sir Robert Peel to his 
 constituents, and Lord John Russell in the same way wrote 
 to the electors of the city of London. The members of the 
 House of Lords watched elections in silence, and no attempt 
 was made on the part of party conventions to draw up pro- 
 grammes of policy above or beside the action of the leaders 
 of parties. Recently however Lord Salisbury, as Conservative 
 leader, has issued an address to the nation at large, a pre- 
 cedent which may be said to have been set by Lord Beacons- 
 field in 1880, when he published an address in the shape 
 of a letter to his Irish Viceroy, the Duke of Marlborough ; 
 while Lord Rosebery, the Liberal leader in 1895, laid his 
 views before the country through the medium of speeches 
 delivered in London after a dissolution had been announced 
 though before the necessary official steps had been taken. 1 
 
 1 In 1900 Lord Salisbury followed the course he had pursued in 1895 ; and 
 Lord Rosebery although no longer a titular leader addressed the country 
 under cover of a letter to a political friend who was a candidate for Newcastle- 
 on-Tyne.
 
 GENERAL ELECTION 145 
 
 Such appeals from peers may indeed be said to be novelties 
 of form rather than of substance. The formation of party Party 
 programmes and party conventions is quite new. The Conventions 
 programmes thus put forth are not of the transcendent 
 importance of the platforms formulated in the United 
 States, when, on the eve of a Presidential Election, the 
 delegates of the great political associations meet to draw 
 up a declaration of policy, and to choose candidates for 
 the presidency and vice-presidency. But they may be 
 regarded as partaking in a minor degree of the same char- 
 acter. It is probable that in the course of time the 
 proceedings in connection with these party conventions 
 will be more formally regulated, but hitherto they have 
 been rather loosely managed. The committees which exist 
 in almost all constituencies are affiliated to a National 
 Association, and they are invited to send delegates to the 
 meetings of this association, one of which is held annually, 
 while others are summoned for special occasions. The 
 choice of delegates has not been closely watched, nor are 
 credentials narrowly scrutinised. When the delegates meet 
 a series of resolutions is generally submitted for their 
 approval, and it has of late been found increasingly diffi- 
 cult to move additions or amendments to them ; and it may 
 be assumed that at no time are any substantial alterations 
 effected. When settled, these constitute a party programme, 
 but they cannot as yet be regarded as of binding authority. 
 Instances have been known where the most formal and have as yet 
 practically unanimous resolutions of these conferences have 
 been quietly set aside by party leaders. Up to the present 
 date the determination of the issues to be immediately 
 fought has been made by parliamentary chiefs, but these 
 latter must at least listen to the resolutions passed by 
 their followers, and on one or more critical occasions they 
 have yielded to their wishes. The annual national gather- 
 
 K
 
 146 THE WORKING CONSTITUTION 
 
 ings of these associations are supplemented by provincial 
 conferences of the same character; and it is out of this 
 apparently confused medley of resolutions and addresses 
 that the leading issues of a General Election are at last 
 evolved. The date of an election is generally anticipated 
 sometime beforehand. The extreme life of a House of 
 Commons is seven years, and as it is very inconvenient to 
 enter upon a session which must be broken off before its 
 normal work is accomplished, the House of Commons rarely 
 passes beyond its sixth year. It may be dissolved at a 
 much earlier date ; but if so, it is because some conflict has 
 arisen requiring an appeal to the constituencies, and this 
 seldom happens without sufficient signs of warning. A 
 General Election is in fine an event for which preparations 
 are commonly made. Candidates are sought for before- 
 Selection of hand, and no constituency lacks them where the result 
 Candidates. o f a contest is at all doubtful. Even where one party is 
 so predominant as to make the issue certain, a candidate 
 is often found willing to fight a hopeless battle, partly by 
 way of experience, and partly to make himself known so 
 that he may be chosen for a better chance elsewhere on 
 some subsequent opportunity. As in the great majority 
 of cases there is one member to be elected, and the contest 
 is a stand-up fight between two candidates, a choice of 
 candidates is a matter of the utmost importance. The 
 ideal candidate should keep together all fractions of the 
 party he hopes to represent, and should have personal or 
 political gifts effective to attract voters wavering uncer- 
 tainly between the two great parties. As the constituencies 
 of the kingdom are parcelled out, many exist in which the 
 adherents of one party are so predominant that there is 
 no contest, or no real contest, for the seat. Whole counties, 
 or even larger contiguous areas, are thus found apparently of 
 the same political complexion. In such cases the adherents
 
 GENERAL ELECTION 147 
 
 of the minority, in the aggregate often very considerable, 
 lose all organic connection with parliamentary life. Where 
 the voters are more equally divided and contests are real, 
 the result probably depends more upon the coherency of 
 parties than on any other element of success. There is 
 always a natural tendency to coherence. A fight brings 
 out the combative qualities of man, and lukewarm politicians 
 become partisan under the stress of a General Election. 
 Great occasions, when great issues are fought, increase the 
 power of this movement, and any candidate will serve who 
 can be trusted to repeat the phrases of his party, and to 
 follow its leaders in the enterprise on hand ; though even 
 then there will be groups of voters devoted to some 
 particular aim and zealous to extort from the candidate a 
 pledge in their favour. On occasions when the main issues 
 are less marked and less stirring such groups are more 
 energetic in their requisition, and the quality of the 
 candidate is shown in the success with which he handles 
 them. Add to these considerations the fact that the Expenses of 
 candidate must generally be prepared to spend a sum o 
 money which cannot be described as small. There is a p. 
 limit to the permitted expense of a General Election vary- 
 ing with the size of the constituency, but the total remains 
 large enough to lessen the number of available candidates, 
 especially as the holding of the seat is necessarily attended 
 with some annual charges. If a dweller in the constituency 
 is possessed of adequate means, and is prepared to accept 
 unhesitatingly the party programme, he has a fair chance 
 of being accepted as a suitable candidate, because although 
 he may excite some jealousies, neighbourly feelings may 
 give him more supporters. It very often happens that no ' Carpet- 
 local candidate is forthcoming or that the local committees ba SS ers - 
 cannot agree upon one, and in these cases recourse is had 
 to the central organisation, where a list is kept of men
 
 148 THE WORKING CONSTITUTION 
 
 ambitious to enter the House of Commons and serve their 
 party. Two or three names may be sent down. Possible 
 candidates may themselves visit the local committees or a 
 deputation may be sent up to London to interview them 
 and make a provisional selection. In the end the man 
 reckoned the most suitable is adopted as a candidate, and 
 he issues his address. He may never have been heard of 
 in the constituency before he was suggested as a candidate, 
 but when adopted it becomes his business to make himself 
 known by holding meetings, delivering speeches, answering 
 questions, interviewing clubs and district committees, and 
 indeed seeking the acquaintance of as many individual 
 electors of prominence as he can reach. His own action 
 may be in some degree restricted by the legal limit of his 
 expenditure ; but friends can give their labours gratuitously 
 to any extent, and it has been found possible for central 
 associations to flood the constituency with pamphlets and 
 leaflets, and even to be the means of introducing auxiliary 
 .speakers to win over by their arguments doubtful and 
 p arty neutral voters. This kind of help tends to develop what 
 character is already sufficiently apparent. It binds together all the 
 contest ' contests in the several constituencies, so as to make them 
 portions of one campaign between two opposing armies, 
 and though here and there fights may be so disconnected 
 from the general fray as to have characters of their own, 
 these exceptions are too few to affect the meaning of the 
 whole. Such at least is the case in Great Britain. In 
 the greater part of Ireland General Elections have turned 
 in recent years upon the one issue of parliamentary 
 autonomy; and though the elections of the near future 
 may show contests between different partisans of this 
 autonomy, the issues fought in Ireland will still be foreign 
 to the controversies of Great Britain, except so far as the 
 latter are dominated by the same question of autonomy.
 
 GENERAL ELECTION 149 
 
 For the present at least Ireland must be regarded as 
 a backwater in the main current. In after years a 
 unity of controversy may be re-established or established 
 in the United Kingdom, and the characteristics of a 
 General Election, that may now be noted in Great Britain, 
 will, unless the methods of election are substantially 
 changed, be then noted everywhere. What is to be Result of 
 observed is that by every step of preparation, and by s s y stem 
 every successive incident of the actual contest, a General 
 Election has become a marshalling of the drilled forces 
 of the two great parties into a hostile array whenever 
 the chances of fight present any appearance of equality, 
 for the purpose of deputing to the House of Commons 
 men who have succeeded in obtaining, in the several 
 divisions of the kingdom, the greatest demonstration of 
 numbers on their behalf; that those who are outnumbered 
 in every area are, as far as direct representation goes, 
 voiceless ; that those who obtain the privilege of a voice 
 do so under conditions giving no assurance that the voice 
 is anything more than a declaration of the numerical pre- 
 ponderance of the hour on the issue of the day. Taking 
 into consideration the want of direct representation on 
 the one hand and the uncertainty of direct representation 
 on the other, the result of a General Election gives no 
 promise that the aggregation of victors will be competent 
 to deal with the new questions that must be developed 
 as the days of the new parliament pass by, and no surety 
 that any decision they may, whether competent or not, 
 pronounce will correspond to the decision that would be 
 pronounced by the nation. There is indeed, as has already is to invali- 
 
 been pointed out, no certainty that even on the prime date the A 
 
 rGDrcsGntS 1 " 
 issue of a General Election the majority of the votes of t i ve character 
 
 persons elected will be on the same side as the majority of Parlia- 
 of the votes given by the electors ; but there was at least m
 
 150 THE WORKING CONSTITUTION 
 
 an issue pronounced upon and decided within each con- 
 stituency, and it may be said that for working purposes 
 a balance of the constituencies is as good as a balance of 
 the electors. But beyond that issue all is dark. When- 
 ever a new question arises, and it may come very quickly, 
 it cannot be said with certainty that the votes of members 
 correspond either to what the constituencies would say, if 
 appealed to again, or what the nation would say, if 
 appealed to as a whole. The result of a General Election 
 is universally accepted as the sense of the country, the 
 voice of the people, the expression of the national will, 
 but an examination of its claims to these honours would 
 seem to indicate the extreme insecurity of the title. 
 Need of a An examination of the working of the constitution may 
 practical exhibit some serious defects in it, but practical men will 
 insist on the inutility of such an analysis if unaccompanied 
 by any suggestions of amendment capable of being adopted. 
 It is quite true that the decision of a freshly-elected House 
 of Commons may not be the decision that a plebiscite 
 would give, but some decision is wanted, and how can we 
 get a better than the one we use ? It is quite true that the 
 House of Commons cannot be regarded as the nation in 
 miniature dealing with questions arising from day to day 
 in the course of its history. There is no pretence that it is 
 a distillation of national wisdom, a presentment of national 
 judgment. It is a rough-and-ready collection of men of 
 affairs chosen by people at large as sufficiently competent, 
 or at all events the best they can get, and if there is any 
 lack in their preparation for grappling with new questions, 
 are not their possible defects supplied by an abundant 
 literature, the writers of which are always furnished with 
 the knowledge and the power required for their discussion ? 
 This defence of things as they are is intelligible if amend- 
 ment is difficult ; it is conclusive if amendment is impossible ;
 
 GENERAL ELECTION 151 
 
 but it cannot be adopted without serious enquiry into the 
 feasibility of proposals of change. 
 
 The late Mr. Hare conceived a plan for making the Hare's 
 House of Commons an absolute representation of the scheme of 
 electorate of the kingdom, and his scheme received the en- 
 thusiastic approval of Mr. John Stuart Mill, who saw in 
 it 'the greatest improvement of which the system of 
 representative government is susceptible.' 1 
 
 The idea of Mr. Hare was that if a certain definite 
 number of electors agreed together to choose one repre- 
 sentative, howsoever the electors were scattered throughout 
 the kingdom, the man agreed upon would be an elected 
 member of the House of Commons. It is unnecessary to 
 explain the machinery devised for carrying out the idea; 
 but the result if achieved would be that every member 
 would be representative of a definite number of voters, 
 and the members taken all together would exhaust, or 
 nearly exhaust, all the voters of the kingdom. The House 
 of Commons so elected would be a real microcosm of the 
 nation, and the fraction of voters left over would be 
 relatively minute. The nation at large would be thinking 
 and acting in the House of Commons. All the elements 
 of life in the one would be found in the other, and 
 might be trusted to deal with new circumstances arising 
 in the course of its existence much as the nation would 
 deal with them ; whilst the members, though thus accurately 
 representative, would have a singular independence in- 
 dividually, since their titles would rest on the support 
 of an aliquot part of all the voters of the nation, and 
 men of honest and courageous conduct would have some 
 faith in the continuance of this kind of support. However 
 attractive this scheme may be to those who have mastered 
 its meaning and working, it must be admitted that it is 
 
 1 J. S. Mill's Autobiography, p. 258.
 
 152 THE WORKING CONSTITUTION 
 
 too revolutionary in principle and too intricate in machinery 
 to be treated as within the range of possible adoption. 
 Those who are at the head of, if they do not control, 
 political life as it is now organised, cannot regard with 
 favour what would deprive them of much of their authority ; 
 whilst more imaginative and intellectual energy than can be 
 attributed to the mass of men is necessary for that adequate 
 understanding of the scheme as a whole which must precede 
 consideration of its adoption. 
 
 A suggested It may be doubted whether any one conversant with the 
 modification circumstances of political life ever regarded Mr. Hare's 
 scheme as feasible as a whole. Even Mr. Mill must be 
 taken to have looked upon it as an ideal, towards the ful- 
 filment of which slow and distant approaches might be 
 made. It is not a practical proposal to fuse all the constitu- 
 encies into one, but it is open to discussion whether some 
 five or six constituencies contiguous to one another might 
 not be coalesced so as to obtain within their united area a 
 representation of all the elements of political life working 
 in it. If for example Manchester were treated as one con- 
 stituency with five members instead of being sub-divided in 
 five constituencies with a member apiece, it would not be 
 difficult to introduce into it a mode of voting securing the 
 result that the five members should represent all that is 
 politically active and vivid in Manchester. Manchester 
 would send itself to the House of Commons. The different 
 classes and the different interests, local and national, pre- 
 dominant within it, would have voices. It has been shown 
 by practical experiment that the machinery could be worked 
 without difficulty, and the result, whatever its worth, at- 
 tained. What could be done for Manchester could be done 
 for other great crowded centres of population. The ap- 
 plication within such limited areas of a method of securing 
 the total representation of their electors cannot be con-
 
 GENERAL ELECTION 153 
 
 demned as impracticable, whatever other objections may be 
 raised against it. The first perhaps would be that this 
 method of representation, if applied at all, must be applied 
 universally. The whole country should be parcelled out 
 into constituencies admitting the application of the principle. 
 This does not seem necessary or even expedient. If the 
 places in which it is proposed to introduce the new method 
 be so chosen as not to involve any great result of party 
 advantage or disadvantage, there is no reason why a partial 
 application should not be made, so that its working might 
 be tested, before it was carried further. Nor would it be 
 difficult to constitute such new constituencies with from 
 three to seven members as not to involve the hazard of 
 great party changes. The present political representation 
 of London, and of the greater centres of population, is so 
 varied, as to present from this point of view no difficulty in 
 forming aggregations that would be admissible. As the 
 division of parties would be represented with fair accuracy 
 in the membership of each multiple constituency, the division 
 would remain fairly accurately represented in the aggrega- 
 tion of members of all together. There would in fact be 
 no great party balance, and if therefore the system were 
 applied to combinations which do not at present as a whole 
 show a great party balance, the party result of the change 
 might be neglected. What is important is, that instead of 
 having so many members on each side, so bound and tied, 
 so labelled and ticketed, so numbered as to be commonly 
 mere pawns for the players, there would be sent to the 
 House of Commons so many active and independent em- 
 bodiments of the active and independent voters who chose 
 them. The managers of party might feel dismayed at the 
 prospect of such unmanageable elements. It cannot be 
 denied that their task would be more difficult than it is 
 now. One of the main purposes for considering the proposal
 
 154 THE WORKING CONSTITUTION 
 
 Practical 
 working of 
 the proposed 
 scheme. 
 
 is the increase of independent thought in the House of 
 Commons, and the advantages and disadvantages of this 
 result must be taken together. The drawbacks of the com- 
 position of the House of Commons as it is, must be compared 
 with the drawbacks as it would be. It is not however 
 believed that the difficulty of conducting business in the 
 House of Commons would be seriously increased. The new 
 freedom would bring a new sense of responsibility, and an 
 appreciation of the conditions of practical life would remain 
 a law among the members of the Legislature. The truth 
 cannot however be ascertained without experiment, and it is 
 admitted that whilst in the United Kingdom as elsewhere 
 the defects of the existing parliamentary representation are 
 recognised, and there are some mutterings that parliamen- 
 tary government is breaking down, there is as yet little 
 active disposition to consider proposals of change even of a 
 limited and experimental character, nor can any change 
 be anticipated till a deeper sense of existing defects has 
 grown up, and perhaps until trials elsewhere indicate a way 
 of escaping from them. 1 
 
 1 The scheme glanced at in the text is that of introducing into constituen- 
 cies returning from three to seven members the single transferable vote 
 known as Mr. Hare's system. Under it, each voter going to the polling 
 booth receives a paper with the names of candidates printed upon it, and 
 puts the figure I against the candidate most to his liking, adding if so disposed 
 the figure 2 to his second choice, the figure 3 to his third choice, and so 
 on through the list, as far as he chooses to go. This is all the work required 
 of the voter. At the close of the election the returning officer and his assist- 
 ants will determine from the number of votes given and the number of 
 candidates to be elected how many votes a candidate must have to be suc- 
 cessful. Suppose 4000 to be this number. The votes are then sorted in 
 heaps ; each heap consisting of the papers on which a particular candidate 
 has I marked against his name. Thus there will be a heap for Jones, another 
 for Smith, another for Brown, and so on for every candidate who has got any 
 papers marked I, and if any of these heaps contain more than 4000, the man 
 to whom it belongs is elected ; since 4000 have declared their preference for 
 him. A number of papers over 4000, not being wanted by the elected
 
 GENERAL ELECTION 155 
 
 This principle of election has however been put into Examples of 
 
 operation in Tasmania, in the representation of its chief its adoption 
 
 . _m lasmama. 
 
 towns, Hobart Town and Launceston, in the House 01 
 
 Assembly ; and the experiment seems to have been so much 
 approved that a Bill has been introduced, and has passed 
 the House of Representatives, for extending the method 
 throughout the colony by dividing up the rest of it into 
 multiple constituencies. If the Council passes this Bill, and 
 it becomes law, Tasmania will have furnished an example of 
 the process which has been suggested as applicable in some 
 future day to the United Kingdom. 1 
 
 The single transferable vote or Harems plan is that which Swiss and 
 has received most attention in England ; but another Bel ia " 
 method of securing Proportional Representation has found 
 more favour on the Continent. It was first adopted in 
 Ticino, and the example was speedily followed in several 
 other Swiss cantons. Still more recently the same method 
 has been adopted in Belgium, and a General Election has been 
 held on the new plan. Under this system any party may 
 put forward a list of its candidates, and the voter gives his 
 vote for the list he prefers. If for example Antwerp were 
 the constituency, the Clerical party, the Liberal party, the 
 Labour party, and perhaps other parties, put forward their 
 lists. When the poll is closed the Returning Officer, knowing 
 the number of votes given and the number of votes for 
 each list, would declare a number of candidates elected from 
 
 candidate, is taken by shance from his heap and distributed among those who 
 are marked 2 on them. This may secure the election of another candidate, 
 and the same process of distributing surpluses is repeated as long as there are 
 any surpluses to distribute. If when that is reached all the candidates are 
 not elected, that one of the remaining heaps which contains the least number 
 of papers is taken (the candidate to which that heap belongs being treated as 
 out of the running) and its papers are distributed according to the next pre- 
 ferences recorded on them, and this process is repeated until all the candidates 
 are elected. 
 
 1 The Bill has since passed.
 
 156 THE WORKING CONSTITUTION 
 
 each list proportional to the number of votes given for it. 
 The question remains how the candidates are to be taken 
 from each list. This is sometimes provided for by allowing 
 the party putting forth the list to arrange the candidates 
 upon it in the order they may prefer, and the selected candi- 
 dates are in this case those at the top of the list. In other 
 cases it is provided that the voter may not only vote for the 
 list, but may indicate the particular person on the list whom 
 he prefers, and the selection of successful candidates is then 
 made in accordance with the preferences shown by the electors 
 themselves. In Switzerland, where political life is very active, 
 this method in one or other of its forms seems to have given 
 great satisfaction, as has been testified by its rapid spread 
 from canton to canton, and the result of the experiment in 
 Belgium has apparently been received with equal satisfaction 
 there. As lists may be put forth indefinitely this scheme 
 gives great freedom of choice. But the single transferable 
 vote appears to have secured still greater individual freedom, 
 and in considering the respective claims of the single trans- 
 ferable vote and the list system, we have to set off the alleged 
 greater freedom of the first against the alleged greater 
 simplicity of working of the second. 
 
 Note on the expenses of candidates and members, see p. 147. In some cases 
 constituents subscribe to defray part or even the whole of the election ex- 
 penses of a candidate, and trade organisations and other bodies specially 
 interested in a member representing their views may provide an income for 
 him whilst serving as member.
 
 BUSINESS IN PARLIAMENT 157 
 
 CHAPTER XVII 
 COURSE OF BUSINESS IN PARLIAMENT 
 
 THE ordinary session of Parliament may now be regarded Session of 
 as fixed to begin early in February and to end in the middle 
 of August. At the commencement of the century and period, 
 down to 1832 it was customary to assemble Parliament 
 a few weeks before Christmas, and the session was then 
 closed about the 4th of June (the birthday of George in.). 
 Suggestions have, from time to time, been made for a 
 recurrence to this period, and a motion in favour of such 
 a change was carried by Sir George Trevelyan in 1890; 
 but whatever the inconveniences attaching to a session 
 beginning in February and lasting through the summer 
 to mid-August, the balance of considerations seems on 
 the whole to support it, and the motion in favour of a 
 change has not been followed up. An examination of 
 the machinery of our financial system will show that it 
 practically determines the period of the session. Before 
 however entering on a review of the ordinary course, it 
 may be well to note the characteristics of extraordinary Extra- 
 sessions. Of these the most important is the first session ordinary 
 of a new parliament. A dissolution frequently interrupts n \ a ft er a 
 the business of the year before it is completed, and it is dissolution 
 necessary to call the new parliament together to complete t ^ year's 
 the interrupted work. A dissolution may produce a change work 
 of Ministers, and in this case it is convenient to summon
 
 158 THE WORKING CONSTITUTION 
 
 Parliament, if only to provide for the issue of writs to fill 
 and to elect up vacancies caused by acceptance of office. In any case 
 a Speaker^ a gp ea k er mus t be chosen by the new House of Commons, 
 though this of itself is not a sufficient reason for a session. 
 It may now be taken as settled practice that a Speaker shall 
 be re-elected who has proved himself competent for the post. 
 It is understood that in some self-governing colonies a new 
 choice for the Speakership is made at the commencement 
 of every parliament ; but in the United Kingdom the 
 member chosen becomes at once outside party, and he 
 is habitually re-elected. Speakers have happily been so 
 chosen that no question of unfitness for re-election has been 
 suggested for long years past. It is said that, at the 
 commencement of the parliament of 1874, Mr. Disraeli had 
 in his mind to set aside Mr. Brand, who had been chosen 
 Speaker in the last parliament under the influence of 
 Mr. Gladstone, and to support the election of another 
 member ; but he met with opposition within his own party 
 and the idea was abandoned. The present Speaker, 
 Mr. Gully, was first elected in 1895, shortly before the 
 dissolution of that year, when Sir Matthew White-Ridley 
 was nominated in opposition to him. This was the first 
 contest for the Speakership since 1835, and as the majority 
 was not large, and the approaching dissolution was expected 
 to change the balance of parties in the House of Commons, 
 it was asserted with some appearance of authority that 
 the choice would not be regarded as binding by the new 
 House. In the event, there was an unparalleled overturn 
 of parties, but if the intention to set aside Mr. Gully was 
 ever seriously entertained, it was again abandoned. This 
 experience has established more strongly than ever the 
 principle that a member once Speaker should remain 
 Speaker as long as he is fit for the office. It will be 
 observed that expressions have been used implying that
 
 BUSINESS IN PARLIAMENT 159 
 
 the Speaker is the choice of the Ministers of the Crown. 
 This is indeed the fact, though Ministers naturally have 
 regard in this as in all other questions to the feelings and 
 opinions of their friends ; and the mere acts of proposing 
 and seconding the candidates are ostentatiously left to 
 private members. The Speaker-elect is presented at the 
 bar of the House of Lords for the approval of the Crown ; 
 but this is as pure a formality as the Royal Assent to a 
 Bill that has passed both Houses. 
 
 Besides the session at the commencement of a new parlia- (2) to meet 
 
 ment another kind of extraordinary session must be noticed. unf( > res een 
 mi /-i . .1 expenditure. 
 
 The House of Commons votes in the course of its regular 
 
 annual sitting supplies to support the ordinary cost of 
 government for twelve months, and if any new and un- 
 expected cause of expenditure of a grave character arises, 
 it is necessary to summon Parliament for fresh supplies. 
 The breaking out of a war compels this action. It is the 
 prerogative of the Crown to declare war, but war cannot 
 be sustained without fresh grants of money, and Parliament 
 is therefore assembled, and the House of Commons invited 
 to vote additional supplies. 1 Another extraordinary session 
 something of a survival is that held immediately on the (3) on the 
 demise of the Crown, when members meet and swear rown 
 allegiance to the new sovereign. 
 
 We may now return to consider the course of a normal A Normal 
 session. It is opened with a Speech from the Throne, Session, 
 under cover of which the Ministers of the Crown glance Speech and 
 at foreign and colonial relations, briefly note any national the Address, 
 events of transcendent importance, enumerate the chief 
 proposals of legislation intended to be recommended by 
 
 1 A short session of this character was necessitated by the South African 
 War in the autumn of 1899, more than thirty years having elapsed since the 
 holding of a similar session ; and a similar session was held in 1900, as the 
 same war had involved greater expenditure than had been provided for.
 
 160 THE WORKING CONSTITUTION 
 
 Estimates. 
 Votes on 
 account. 
 
 them, and invite the House of Commons to vote the 
 supplies submitted as necessary for the services of the 
 country. The Royal Speech is in fact a declaration of 
 ministerial policy, and it becomes at once a subject of 
 debate. An address of reply is formally moved, which at 
 one time thanked the sovereign seriatim for every sentence 
 in the Speech, but since 1890 has been made a simple 
 dutiful acknowledgment. This abbreviated Address admits 
 however as wide a range of discussion as the fuller reply. 
 It has been already pointed out that Ministers of the Crown, 
 although defeated at an Election, formerly used to wait 
 for an amendment to the Address before resigning, and 
 that this happened again in 1892. The amendments now 
 ordinarily moved do not look to such serious consequences. 
 They are submitted as texts for the discussion of questions 
 that might not otherwise come under debate, and as other 
 opportunities have become fewer there has been a tendency 
 on the part of private members to make more use of this 
 first opening. The prolongation of debates on the Address 
 is attended with some inconveniences, and whenever the 
 course of business in the House of Commons is again 
 seriously reviewed, this will require attention. The dominant 
 fact to be borne in mind is that the financial year ends on 
 the 31st of March. It has been already explained that 
 money voted for a particular year and unspent, lapses, 
 and is not carried forward to the new year; also that 
 before any money can be issued for public services, the 
 supplies must be voted and money granted to meet them, 
 and the whole embodied in a Bill passed by Parliament. 
 It follows that much work must be done between the 
 opening of the session and the 31st of March. 
 
 As soon as the Address is agreed upon, the estimates for 
 the coming year are laid upon the table, and the House of 
 Commons is asked to sanction one or two votes for the
 
 BUSINESS IN PARLIAMENT 161 
 
 Army sufficient to meet military expenditure for two or 
 three months, similar votes for the Navy, and a vote on 
 account for the Civil Services sanctioning advances to the 
 separate departments sufficient to enable them to carry on 
 for about four months. All votes are passed in Committee 
 of the whole House, where members have the privilege 
 of speaking more than once on the same question, and 
 before the Army or the Navy votes can thus be considered 
 in Committee, general debates on the Army and Navy 
 respectively take place in the House itself on motions that 
 the Speaker do leave the chair ; and it is not obvious why, 
 in principle, there should not be a similar debate before a 
 vote on account is sanctioned for the Civil Services. The 
 foundation of the proceeding is the old maxim that a dis- 
 cussion of grievances precedes Supply, and this would seem 
 to require a general debate before the Vote on Account ; 
 but in fact this general debate is postponed until the 
 Civil Service votes come to be discussed and voted separately. 
 It is perhaps a sufficient explanation of the apparent 
 anomaly that there is quite enough work to do as it is, for 
 indeed the statement of the financial business to be trans- 
 acted before the 31st of March is not yet fully given. 
 
 This additional financial business is that of sanctioning Supple- 
 supplementary estimates for the year drawing to a close. ei j tar y 
 It has been already mentioned that if any grave cause 
 of additional expenditure arose in the course of the year, 
 such as that due to a war, Parliament would be called 
 together to approve of it ; but minor occasions of outlay 
 continually arise not foreseen when the estimates were 
 originally framed, and for such additions under the name 
 ' Supplementary Estimates ' the sanction of Parliament is 
 asked between February and March. A little reflection 
 will show how the several branches of financial organisation 
 and the sitting of Parliament hang together. Whatever
 
 162 THE WORKING CONSTITUTION 
 
 be the end of the financial year, Parliament must meet 
 before it is reached in order to complete the service of 
 the expiring year and to provide for the new, and again 
 before Parliament meets all the Estimates for the several 
 departments must be drawn up and revised ; and it is in 
 the interests of economy that the settlement of these 
 Estimates should be as little distant as possible from the 
 time to which they refer. If Estimates are drawn up 
 long in advance, it is inevitable that wider margins must 
 be allowed for possible contingencies. Once more, economy 
 is secured by the passing of all these Estimates under 
 one control before they are submitted to Parliament ; and 
 it is plain that that control must be that of the depart- 
 ment which has to provide the money to meet the proposed 
 expenditure. The outcome is that throughout the several 
 departments, when they set to work after the autumnal 
 holidays, there is a preparation of estimates which are sent 
 on to the Treasury, so that with the 1st of January they 
 may be in process of revision so as to be ready for the forth- 
 coming session. The estimates for the Army and Navy 
 are not examined in the same detail by the Treasury, but 
 they too must be made ready, and must be accepted by 
 the Chancellor of the Exchequer as the basis of his 
 calculations and of his provision for the coming year. 
 No vote In the fashion thus described, the whole financial 
 
 moved organisation of the country, so far at least as expenditure 
 
 except by . . , r 
 
 a Minister, is concerned, is drawn by convergent lines under the 
 
 scrutiny and control of the House of Commons; and in 
 this connection it need only be added that no vote of 
 money and no addition to any vote can be proposed except 
 by Ministers of the Crown. This is under a Standing 
 Order of the House of Commons which the House might 
 of course alter or revoke, but it is rightly regarded as a 
 most valuable safeguard against irregularities, and there
 
 BUSINESS IN PARLIAMENT 163 
 
 is no danger of its being abrogated, although individual 
 members often evade it by proposing a diminution in a 
 vote, when they have argued that it is insufficient, and they 
 really desire to augment it. The House of Commons when 
 seriously and deliberately bent upon it can effectually 
 procure increased expenditure; and Chancellors of the 
 Exchequer often complain that the House stimulates 
 extravagance and is indifferent to economy, but the 
 rule disabling private members from proposing votes or 
 additions to votes is a security against casual irresponsible 
 action which would be condemned by many too indolent 
 to be always at hand to oppose it. 
 
 It may here be noted that the Chancellor of the The Budget. 
 Exchequer generally opens his Budget soon after the com- 
 mencement of the new financial year. 1 Early in April he 
 reviews the income and expenditure of the year that has 
 just run out, comparing the results with those of the 
 preceding twelve months and also with the anticipations 
 which were put forward in the last Budget. He takes 
 the opportunity to draw attention to the course of 
 commerce and industry in the same period, and he is 
 naturally led to notice the state of the public debt as 
 left at the end of the transactions of the year. He then 
 passes to the Estimates of expenditure for the new year 
 already laid before the House and the Estimates of 
 revenue as they would accrue from existing taxes, and 
 if the comparison of revenue and expenditure shows a 
 surplus or a deficit, he has to propose means of dis- 
 tributing what is not wanted, or of raising what is 
 
 1 When however large additional taxation is imminent and increases of 
 Customs and Excise duties are known to be inevitable, a Chancellor of the 
 Exchequer may be forced to anticipate the ordinary period of his Budget so as 
 to prevent the loss of revenue which would be experienced through the 
 clearances of commodities out of bond ui.der the lower duties. This occurred 
 in March 1900.
 
 164 THE WORKING CONSTITUTION 
 
 required. At one time it was supposed to be his duty 
 to underestimate income and to overestimate expenditure 
 so as to be certain of a surplus after meeting his way ; 
 but whilst he is always bound to be cautious, any tendency 
 to wilful error would now be condemned, and is not to 
 be suspected. 
 
 Other work . The financial work that must be done between the 
 Parlia- opening of the session and the 1st of April has been 
 stated, and some note has been taken of the Budget of 
 the Chancellor of the Exchequer. Incidentally it has 
 appeared that the Government has to obtain in the rest 
 of the session the sanction of the House of Commons to 
 the several votes of the Army and the Navy and the 
 Civil Service, and to pass through Parliament such Bills 
 as, in its judgment, are demanded for the public welfare. 
 Parliament has however other functions besides that of 
 examining and approving the proposals of the Ministers 
 The of the Crown. It contains an organised Opposition whose 
 
 Opposition. rg j. duty may be to criticise ministerial action, but which 
 must have some more or less definite policy of its own. 
 Its members may be trusted to use every opportunity of 
 explaining their policy so as to attract the approval of 
 the nation. And besides the organised Opposition there 
 Private are private members with views and projects which have 
 Members. no j. y e {. rece j ve d formal adoption by any party, and which 
 their authors are all the more ready on that account to 
 press upon public attention. The prime difficulties of the 
 House of Commons are to estimate at their proper value 
 these several branches of work, and to allocate the time 
 of the session in due proportion to each. It is not un- 
 natural that the Ministers of the Crown should continually 
 seek more time for the work they recommend, all of which 
 is undoubtedly important, and much inevitable ; and it is 
 also to be expected that the leaders of the Opposition,
 
 BUSINESS IN PARLIAMENT 165 
 
 many of whom have been Ministers, would not very 
 strenuously resist the demands of the Government for 
 additional time. It is however confessed that in genera- Important 
 tions before our own, private members have done work o f P art P laved 
 incalculable benefit to the country in advocating reforms, 
 in the extension of franchises, the liberation of commerce, 
 the amendment of the criminal law, and the removal pf 
 religious disabilities, which would have made slower pro- 
 gress but for their energy ; and it betrays some simplicity 
 of mind to repeat, what is sometimes heard, that all 
 far-reaching reforms are exhausted, and nothing now re- 
 mains for the private member to undertake that could be 
 put in comparison with the triumphs of the past. It is 
 more probable that private members have for a time fallen 
 below their predecessors than that the field for their action 
 is exhausted. It may be taken as certain that if Parlia- 
 ment, especially in the House of Commons, fulfilled its 
 claim to be the Grand Inquest of the nation instead of 
 an array of rival partisans, there would be a great revival 
 in the variety and interest of subjects submitted for debate. 
 It cannot be said indeed that there is now any lack of 
 legislative projects. At the commencement of the session 
 a crowd of members contend for the privilege of introducing 
 Bills, and there are bitter complaints that the allocation 
 of time for them is insufficient, and that what is given 
 is squandered and wasted through the operation of ill- 
 conceived rules. 
 
 As at present arranged the sittings of the House of Allocation 
 Commons are limited to Monday, Tuesday, Thursday, and * 
 Friday, from 3 to 12, after which unopposed business may 
 be taken till l.O, 1 and Wednesday afternoon from 12 to 
 5.30, after which unopposed business may be taken till 
 
 1 A single opponent suffices, and sittings after 12.0 rarely last ten minutes. 
 The twelve o'clock rule may be suspended, if notice is given beforehand.
 
 166 THE WORKING CONSTITUTION 
 
 6.0. Of these sittings Monday, Thursday, and Friday 
 are absolutely appropriated to the work of the Govern- 
 ment, and Tuesday and Wednesday are left for the use 
 of private members, though their control of these days 
 is often disturbed. It has been seen that a large mass of 
 important work, mainly financial, must be executed before 
 the 31st of March, or even before an earlier date if 
 Easter falls at the end of March ; and if the debate on 
 the Address is prolonged, the remaining Government days 
 may be too few for the discharge of this inevitable business, 
 in which case the Government comes applying for private 
 members 1 days in motions that are equivalent to commands. 
 In April the days of private members may be left un- 
 disturbed, but they are soon again broken in upon. It has 
 been seen that the detailed examination of the separate 
 votes of Supply is generally wholly left till after the 1st 
 of April. For many years this work, which admits of a 
 review of every branch of the administrative action of 
 government in turn, was extremely ill done. In 1896 
 Nights Mr. Balfour proposed a rule that twenty-two nights, which 
 reserved might be extended by motion to twenty-four, should be set 
 apart for Supply, Friday being the night usually appro- 
 priated ; and he left it largely to the discretion of the 
 Opposition, or of groups of the Opposition, to say what 
 particular votes should be taken. The rule was adopted, 
 and has since been annually renewed, and in many ways it 
 has worked extremely well. The nights for Supply and the 
 votes to be taken are known beforehand, and the conduct 
 of foreign or colonial affairs, of some, if not all, of the 
 more important domestic departments, and Scotch and 
 Irish administration, are reviewed in turns. There is a 
 tendency requiring watchful attention to discuss votes with- 
 out finally passing them, thus leaving an undue number of 
 votes to the last hours of the allotted nights, when the rule
 
 BUSINESS IN PARLIAMENT 167 
 
 requires that they shall be voted without debate. But no 
 possible number of days would be sufficient for the examina- 
 tion of every item. The rule has not been made a Standing 
 Order, because it has been thought well that it should be 
 first fully tested by experience ; and before it is thus adopted 
 it may be supplemented by a provision ensuring the passage 
 of votes as the nights go by ; but it may be assumed that 
 in some form or other the new rule will be permanent. Its 
 effect however on the time of the Government has scarcely 
 been fully appreciated. If twenty-four nights are absorbed 
 by Supply, the nights, two a week, normally left to the 
 Government for legislation and other work must fall below 
 forty, and hence the pressure of business is soon felt to be 
 severe. It has come to pass that somewhere between Easter 
 and Whitsuntide the Government have asked for and ob- 
 tained the addition of Tuesday to their days, and when Diminishing 
 Whitsuntide is over two or at most three Wednesdays are time ^ 
 left for private members, after which Wednesdays also are members 
 appropriated by the Government. The time left for private 
 members is thus reduced to Tuesdays up to about the middle 
 of the session, and Wednesday afternoons up to a fortnight 
 after Whitsuntide. It cannot be said that this reduced not wisely 
 allotment is economically used. Tuesdays are reserved 
 for motions made on subjects of public interest, and the 
 subjects to be discussed are determined four weeks in 
 advance by the chance of a ballot. The names of members 
 competing for the privilege are drawn from an urn, and it 
 may be that the subject thus chosen is one of insignificant 
 importance, and the member proposing it not a person to 
 attract attention. It has however precedence, and until 
 it is done with no second subject can be taken, and it 
 frequently happens that the attendance of members dwindles, 
 so that the absence of a sufficient quorum terminates the 
 sitting, if not before the first subject is ended, before a
 
 168 THE WORKING CONSTITUTION 
 
 Difficulties 
 in the way 
 of a private 
 member's 
 Bill. 
 
 Course of a 
 Bill through 
 Parliament. 
 
 second is seriously entered upon. It is an obvious sugges- 
 tion that the selection of subjects to be discussed should 
 be determined not by chance, but by the choice of the 
 House, subject to the provision that this choice should be 
 exercised by minorities in turns. But private members 
 have never been sufficiently organised to insist upon regu- 
 lations for this purpose, and the ballot holds its own as 
 giving a chance all round. The disposition of Wednesdays 
 is at least as improvident. Wednesdays are given up to 
 the Bills of private members ; and at the commencement 
 of the session every possible Wednesday in the session is 
 secured, as the result of a ballot, by some member. The 
 competition is indeed so great that after one Bill has been 
 set down for Wednesday a second, a third, or a fourth may 
 be added on the possible chance of its being reached. The 
 first Bill in the majority of cases absorbs the sitting, and 
 a division upon its second reading may be assumed as 
 certain ; but even if it successfully passes this ordeal it can 
 scarcely go further if there is any real opposition to it. 
 There is no opening for the subsequent stages until after* 
 Whitsuntide, when on the two or three Wednesdays already 
 mentioned precedence is given to Bills in accordance with 
 the progress they have made ; and it is just possible that 
 with the help of these Wednesdays one, or perhaps two, 
 Bills may get through the House of Commons, and be sent 
 to the Lords, too probably to come to an untimely end, 
 though not for lack of time. It is perhaps a matter of 
 wonder that a private member ever passes a Bill ; and this 
 indeed can only happen when the member has been very 
 lucky at the ballot, and the Bill is such as to command 
 an almost overwhelming measure of support. 
 
 References have been repeatedly made to the successive 
 stages of a Bill on the assumption that they are generally 
 known, but it may here be well to give them in detail. In
 
 BUSINESS IN PARLIAMENT 169 
 
 the House of Commons a member gives notice that he 
 
 proposes to introduce a Bill on a particular subject, and 
 
 at the appointed time he makes his motion. This may be First 
 
 discussed and opposed ; but except in connection with Bills Readm &- 
 
 of great importance introduced by Ministers of the Crown 
 
 this first motion (called 'the first reading 1 ) passes with 
 
 little or no debate and without a division. A day is then 
 
 fixed for the second reading, before which the Bill is printed Second 
 
 and circulated, and on which a debate on its principle is Readin &- 
 
 taken if it is opposed. If it passes this stage, it may be 
 
 referred to a Select Committee, but this happens only Select 
 
 when it is thought expedient that its provisions should be Committee. 
 
 examined in detail, and evidence taken thereon if necessary, 
 
 by a small number of members specially qualified to deal 
 
 with them. The next stage after the Bill has been reported 
 
 upon by a Select Committee or after the Second Reading, 
 
 as the case may be, is a reference to a Committee of the 
 
 whole House or to one of the two Grand Committees called Grand 
 
 respectively the Committees of Law and of Trade. These Committee 
 
 r . J or Committee 
 
 Committees consist of eighty members chosen so as to O f the whole 
 
 represent the House in miniature, to which fifteen other House, 
 members are added in respect of each separate Bill ; and 
 it was intended when the Committees were first constituted 
 that the Bills referred to them should be such as were not 
 opposed in principle, though their provisions required 
 careful and authoritative revision by a miniature House. 
 It must be noted that in all Committees, whether engaged 
 in examining Bills or in other work, a member may 
 speak repeatedly to the same question. After a Bill 
 has passed through either a Grand Committee or a 
 Committee of the whole House, it is reported and con- Report, 
 sidered in detail with the Speaker in the Chair, if any 
 amendment has been made in progress through Committee. Third 
 If no amendment has been made there is no Report stage, Reading.
 
 170 THE WORKING CONSTITUTION 
 
 and the Third Reading is the next taken, after passing 
 Bill brought which the Bill is carried to the Lords. A Bill brought from 
 the Lords proceeds at once to the second reading in the 
 Commons, and a Bill brought from the Commons proceeds 
 in the same way to the second reading in the Lords. A 
 Bill originating in the Lords is presented by the lord who 
 is sponsor for it ; after which it proceeds to a second reading. 
 Its subsequent progress was formerly exactly the same as 
 the progress of a Bill in the House of Commons before the 
 institution of Grand Committees; that is to say, with or 
 without a reference to a Select Committee it passed through 
 a Committee of the whole House, Report if an amend- 
 ment had been made, and Third Reading. In the year 
 Committees 1888 however the Lords resolved upon introducing a change 
 of the Lords. j n their procedure, and they then had the intention of 
 setting up several Standing Committees to which Bills 
 should be referred for better examination than seemed 
 possible in a Committee of the whole House. This scheme 
 was never wholly carried out, and so far as it has been 
 adopted it has been modified in practice. One Standing 
 Committee has been set up consisting of about a hundred 
 members chosen by the Lord Chairman of Committees 
 and eight other Lords associated with him to form a 
 Committee of Selection. To the Standing Committee 
 thus appointed every Bill is referred after having passed 
 through a Committee of the whole House unless the 
 House shall otherwise order, and it is perhaps noteworthy 
 that the quorum of this Standing Committee is fixed at 
 seven, the quorum of the House itself, as will be re- 
 membered, being no more than three. After consideration 
 by the Standing Committee the Bill passes to the Report 
 stage if amended, and if unamended goes directly to the 
 third reading. 
 
 All the formalities of procedure in reference to Bills are
 
 BUSINESS IN PARLIAMENT 171 
 
 within the control of the House through which the Bill is Exceptions to 
 
 passing. Each House has exercised its discretion in varying **" s order. 
 
 them, and is doubtless competent to change them altogether. 
 
 No radical alteration is indeed to be apprehended, but action 
 
 is sometimes taken which must be noted. The House of 
 
 Lords, recognising the limitation of its functions in respect 
 
 of Appropriation Bills, ordinarily suspends all its Standing 
 
 Orders after such a Bill has been read a second time, and 
 
 passes the Bill through all its stages immediately. In the 
 
 House of Commons in 1883, after a series of dynamite 
 
 outrages, a Bill intended to protect the community against 
 
 their repetition was passed through all its stages at the 
 
 same sitting, after some demur as to the haste of the 
 
 proceeding, but without any division upon it. There may 
 
 appear to be very little difference between passing a Bill 
 
 through all its stages one after another, and abolishing 
 
 several stages for that turn ; but the sacred character of 
 
 the steps in procedure is attested by the form in which 
 
 they are set aside. Each House remains omnipotent, and 
 
 must be trusted not to abuse its power. 
 
 The ordinary formalities of legislative procedure in Obstruction. 
 Parliament manifestly afford large opportunities of debate ; 
 and it cannot be surprising if in times of excitement, when 
 measures in progress are strenuously opposed, the oppor- 
 tunities are in danger of being abused. Such an abuse is 
 recognised by the name of obstruction ; and it is almost 
 always denounced, sometimes without reason, sometimes 
 with very good reason, when resistance to the course of 
 legislation is obstinate. It may be hazardous to attempt 
 to define obstruction. When a project of legislation is 
 brought forward with little or no forewarning, embodying 
 perhaps a novel policy and containing provisions which 
 have not undergone public discussion, and in reference to 
 which the mind of the nation may be unenlightened and
 
 172 THE WORKING CONSTITUTION 
 
 its judgment unknown, a repetition of hostile argument 
 in debate after debate may be a public duty such as it 
 is the especial function of an Opposition to discharge. But 
 such debates easily pass beyond defensible limits especially 
 in Committee, when the same member may make speech 
 after speech. When the conduct of Opposition degenerates 
 into a resolution to use all the forms and privileges of 
 debate to prevent a Bill passing, not because it is new and 
 strange and not understood or not approved by the nation, 
 but simply because it is disliked by those who are opposing 
 it, the offence of obstruction is developed. Up to 1882 
 there was no parliamentary rule under which debates could 
 
 Closure. be compelled to come to a conclusion. In that year the 
 principle of ' Closure 1 was adopted in the House of Commons, 
 and the rule now stands that if a question is under debate, 
 and a member moves that it be put to a division, the 
 Speaker, or in Committee the Chairman, can at his dis- 
 cretion put, or refuse to put, the motion ; and if he puts 
 it, and it is carried with one hundred persons told as voting 
 for it, the question in debate is forthwith put and settled. 
 The immediate obstacle is thus overcome; but the rule 
 goes further. When a Bill is under discussion in Committee 
 or on Report, a motion can be made that certain words or 
 that a clause stand part of the Bill, which motion, if 
 accepted by the Speaker or Chairman and carried, may have 
 the effect of overcoming several obstacles at once. Even 
 this however is only slightly effectual when opposition is 
 minute and prolonged, which may happen with or without 
 justification. On three or four occasions recourse has been 
 had to another and still more drastic method of procedure. 
 
 'Guillotine.' In the case of the Crimes Act (Ireland) in 1887 the opposition 
 was bitter and stubborn ; and a motion was made and carried 
 that, if the Committee stage was not ended by a certain 
 night, the remaining clauses should then be put from the
 
 BUSINESS IN PARLIAMENT 173 
 
 chair without debate ; and a similar procedure was employed 
 at the close of the Report stage. These precedents were 
 followed in the next parliament in 1893, when the Home 
 Rule Bill was, to use the phrase of the day, ' guillotined, 1 
 as was also the Evicted Tenants (Ireland) Bill in the year 
 1894. The procedure has thus been employed by both 
 great political parties, but it is not the less deplorable. If 
 habitually used it would mark the ruin of parliamentary 
 methods ; but it may be said with some truth that it has 
 been an odious necessity provoked by reiterated discussions 
 from which the parliamentary spirit had already vanished. 
 Those who desire to see it fall into disuse must be zealous 
 to co-operate in restraining the abuse of opposition on 
 the one side and the passion of impatience on the other. 
 At times when great constitutional questions are in agitation 
 it may be difficult to restrain the licence of irresponsible 
 followers ; but those who have seen the violent expedients 
 to which excesses lead should be on the watch to check the 
 unparliamentary spirit on its first manifestation. 
 
 Another function of Parliament in relation to public Questions, 
 affairs must be noted. 1 At the commencement of public 
 business, questions may be addressed to Ministers seeking 
 information with respect to the administration of their 
 several departments. Argumentative questions are not 
 permitted, nor is any discussion allowed to follow, but a 
 Minister may be asked any question of fact touching his 
 action or inaction, and such questions attest a constant 
 vigilance which may check administrative error. They can 
 be asked in both Houses, and in the Lords a question may 
 be supported by a speech and followed by debate ; but in 
 the Lords questions are rare, whilst in the Commons they 
 are habitually numerous, and have been known to exceed 
 
 1 The work of Parliament in respect of private bills will be reviewed in 
 a subsequent chapter.
 
 174 THE WORKING CONSTITUTION 
 
 a hundred. This species of control is often exercised in 
 respect of very trifling matters, where a member un- 
 ambitious of publicity could obtain his information by 
 private enquiry, but the liberty of questioning a Minister 
 is of great value as a safeguard against possible error. 
 
 Adjourn- It has been said that discussion cannot follow a question ; 
 
 ment. ^ u j. j n f ormer years a member dissatisfied with the answer 
 
 he received was at liberty to move the adjournment of the 
 House, and upon this motion a discussion could ensue. 
 This privilege was highly valued, and Mr. Bright is known 
 to have said when it was in force that it should never be 
 given up ; but it is manifestly capable of being easily 
 abused, and in 1882 a new rule was adopted regulating it, 
 which rule however has itself been often abused. Under it 
 a member can, when questions are over, ask the leave of 
 the House to move its adjournment for the purpose of dis- 
 cussing a particular specified question of 'urgent public 
 importance 1 ; and if the House does not unanimously allow 
 the motion, it can still be made, and discussion upon it 
 follow, if forty members rise in their places to support the 
 application. This species of interpellation sets aside the 
 appointed business of the day as long as it lasts, and cases 
 have not been infrequent where the necessary forty members 
 have risen to support the application, and the majority 
 of them have forthwith gone out, leaving the discussion 
 of * urgent public importance ' to take its course. There is 
 practically no means of testing the urgency or importance 
 of a question beyond the adhesion of forty members, and 
 amendment of the rule seems desirable though some power 
 of interpellation is necessary. Its operation is at present 
 checked by a device still more irregular. If it is suspected 
 that adjournment will be asked for in relation to a particular 
 question, some member, who does not want it discussed at 
 all, gives notice in anticipation that he will bring it on for
 
 BUSINESS IN PARLIAMENT 175 
 
 discussion on a future day, and by virtue of such registered 
 notice prevents its being brought on at once. 
 
 Some surprise may be felt that nothing has as yet been Petitions, 
 said of the ancient right of the people to petition Parlia- 
 ment. In former generations this was of great service, 
 and its exercise occupied a considerable position in parlia- 
 mentary business. Strict regulations were drawn up which 
 are still maintained touching the form of drafting petitions ; 
 but in substance it was left free to any member to present 
 any petition setting forth in becoming terms any public 
 grievance and praying for some distinct remedy. This 
 privilege remains intact, and it is still possible for a member 
 presenting a petition to ask that it be read by the clerk 
 at the table ; but this is very rarely done, and if an attempt 
 were made to use this process at all indiscriminately, it 
 would not improbably be taken away. Formerly a member 
 could at once draw attention to a petition thus presented 
 and initiate a discussion upon it, and this is still within 
 the practice of the House of Lords; but the absorption 
 of parliamentary time to which reference has been already 
 made has rendered it impossible in the Commons. The prac- 
 tice of petitioning has indeed become somewhat mechanical 
 in the Lower House. The member presenting his petition 
 writes his name across the top, gives an attendant a filled- 
 up form naming the petitioners, and the prayer, and 
 drops the petition silently into one of the bags hanging 
 at the table for the purpose. A Committee of Petitions 
 publishes every week a statement of petitions received, 
 of the names of the members presenting them, and the 
 numbers of signatures attached, and reprints in an appendix 
 to the statement such petitions as appear to be typical 
 or otherwise of special importance. From time to time, 
 when some particular question stirs the public mind, 
 petitions from every part of the country are poured in
 
 176 THE WORKING CONSTITUTION 
 
 through members, such petitions being often stimulated by 
 the urgency of a central association pressing its friends 
 everywhere to unite in petitioning, and the number and 
 weight of petitions so presented furnish arguments in 
 subsequent debates. The development of public meetings, 
 of newspapers, and of other vehicles for the manifestation 
 of opinion has however greatly diminished the importance 
 of petitions, which may be expected to continue to decline. 
 Summary and It may now be possible to conceive the action of Parlia- 
 conclusion. m ent, and more especially of the House of Commons, from 
 day to day. Throughout the session questions are con- 
 stantly addressed to Ministers respecting their administrative 
 acts, and the Address in answer to the royal speech at the 
 commencement gives an opportunity of formulating sug- 
 gestions of policy. For a certain number of Tuesdays the 
 opinion of the House may be taken on motions or subjects 
 of public interest ; and on a larger number of consecutive 
 Wednesdays Bills may be submitted ; though the choice of 
 subjects of motions and of Bills is largely a matter of chance. 
 The rest of the session is occupied by Government work 
 such as the consideration of votes in Supply, the proposals 
 of the Budget, and projects of legislation, and there is a 
 constant tendency on the part of Ministers to ask for and 
 obtain additional time for their own work at the expense of 
 private members. The Government, it must be remembered, 
 is in office because it is supported by a majority of the 
 House, and there is a presumption in favour of its getting 
 what it wants. But it must be remembered also that every 
 parliament comes to a certain end, that many members have 
 hopes and plans for re-election, and that if the Government of 
 the day does not feel sure of retaining its power through and 
 after a General Election, it looks to the possibility of being 
 brought back again into office at some later period. All 
 the forces inside and outside Parliament thus tend to con-
 
 BUSINESS IN PARLIAMENT 177 
 
 verge together to maintain it as a national resultant, i.e. as 
 the living and moving expression of the national will ; but 
 its claim to high respect which this description involves is 
 vitiated by the strict organisation of parties, which makes 
 Parliament itself for the time being an engine for effecting 
 the purposes of party. The questioning of Ministers, the 
 submission of motions for discussion, the interpellations 
 justified as of ' urgent public importance, 1 the detailed super- 
 vision of the action of every department presenting some- 
 thing of the characteristics of the diagnosis of an organism, 
 the proposals of new laws removing old defects or providing 
 for fresh needs all combine to make up the presentment of 
 a nation at work upon itself, moving and growing from 
 phase to phase in the course of a natural development. 
 
 But the maintenance of this larger ideal, though never 
 wholly lost, is too often obscured by the pursuit of nearer 
 and meaner issues. How far it can be upheld must depend 
 largely upon the sense each member has that he is an 
 elementary factor in the execution of the national purpose ; 
 but it must still more largely be affected by the appreciation 
 of their powers and duties by the Ministers of the day 
 whose animating spirit controls and directs the whole. As 
 long as these last remember that they are something more 
 than the occupants of offices which chance has brought 
 them, which chance may take away and may again restore, 
 that they are for the time the chief actors in a great history 
 rooted in the past and with manifold promise in the future, 
 the petty intrigues and transitory struggles of the hour 
 cannot destroy that abounding life and power of Parliament 
 which justifies its title to be regarded as the nation in 
 action. 
 
 M
 
 178 THE WORKING CONSTITUTION 
 
 CHAPTER XVIII 
 
 Former 
 subjects 
 of private 
 legislation. 
 
 PRIVATE BILL LEGISLATION 
 
 THE work of Parliament so far noticed has been en- 
 tirely of general public interest ; but a sphere of its action 
 remains which is of great importance, though its range has 
 been frequently narrowed. Application is made to Parlia- 
 ment by some private person or by a group of persons to 
 obtain some privileges which it is alleged should be given 
 in the public interest, or for relief from injustice in circum- 
 stances with which the Courts of Law are not competent to 
 deal. Thus prior to 1857 a divorce a vinculo matrimonii 
 could be obtained by persons domiciled in England only by 
 an Act of Parliament; and domiciled Irishmen must still 
 seek it in this way. Foreigners were generally naturalised 
 by Act of Parliament before the Act of 1870 laid down the 
 conditions under which certificates of naturalisation can be 
 obtained from the Secretary of State. Persons interested as 
 tenants for life or otherwise in family estates often sought 
 leasing and selling powers from Parliament until the practice 
 of conveyancing was so improved that such powers were 
 commonly found in settlements, and still later under General 
 Acts the Chancery division of the High Court was em- 
 powered to sanction the largest dealing with settled estates. 
 All these are examples of powers that have been wholly or 
 partially relinquished by Parliament. 
 
 There remains a very large class of cases in which local
 
 PRIVATE BUSINESS LEGISLATION 179 
 
 authorities seek to obtain powers to expropriate land for Its present 
 purposes of public improvement or the development of some range- 
 public enterprise ; or groups of persons combining together 
 in some undertaking such as the construction of a railway, 
 canal, docks, or harbours, ask for like powers of expropria- 
 tion on the ground that it is in the public interest that they 
 should be granted. 
 
 The cases in which public bodies seek for powers which Provisional 
 apply to such things as street improvements, municipal or Orders, 
 public buildings, gas or water works, etc., are now generally 
 dealt with by Provisional Orders. The public body makes 
 its application in the first place to the appropriate depart- 
 ment of the government (Home Office, Board of Trade, 
 Local Government Board, etc.), which sends down an inspector 
 to the locality to hold a public enquiry for and against the 
 application, and to report thereon. If the result is favour- 
 able, a Provisional Order is drawn up giving the powers 
 asked for, subject to such limitations and conditions as the 
 public department is qualified by its practice to insert ; and 
 the Provisional Order singly or in conjunction with other 
 similar orders is submitted by the department to Parliament 
 in the next session, in the shape of a Bill which commonly 
 passes through all its stages without any opposition, though 
 it may be opposed like the other Bills to which reference 
 must now be made. 
 
 These are the applications made by persons combining Railway 
 together to construct railways, etc. Such persons are Bills, etc., 
 required to deposit plans of their undertakings and Bills 
 embodying the powers they seek, and to serve notices on all 
 persons interested at such times and in such a manner as 
 the Standing Orders of the two Houses prescribe ; so that, 
 when the session opens, every preparation has been made for 
 hearing in each case the application and the opposition, 
 and determining on its merits. These Bills and the Bills
 
 180 THE WORKING CONSTITUTION 
 
 embodying Provisional Orders are introduced and read a 
 second time like public Bills, but they are dealt with at the 
 commencement of sittings before questions are entered upon, 
 and as a rule they are read a second time without opposi- 
 tion. Occasionally however the principle of a Bill is 
 discussed by the House itself on the second reading, the 
 discussion being justified on the ground either of the 
 novelty or of the magnitude of the proposals contained in 
 the Bill. 
 
 after second In any case the issues involved in private Bills are such as 
 reading are re quire examination in detail by a special tribunal, and for this 
 Committees, purpose such Bills, if opposed, are, in the House of Commons, 
 referred to committees of four persons, two from each side 
 of the House, and one of the four is nominated as chairman 
 with a casting vote. They are all required to declare that 
 that they have no interest in the subject-matter of the Bill, 
 and the four are selected by a standing committee called 
 the Committee of Selection and composed of a limited 
 number of members in whose experience and character the 
 House has the highest confidence. Before this tribunal of 
 four the applicants and the opponents are heard, witnesses 
 are called, counsel are engaged, and the investigation pro- 
 ceeds with something approaching the strictness of a court 
 of law. The report of the committee if adverse (when it is 
 declared that the preamble is not proved) is final ; and is 
 commonly so when favourable, though in this case attempts 
 are sometimes made at the next stage in the House itself to 
 upset the decision of the responsible committee ; attempts 
 Procedure which are much discouraged by the House. The procedure 
 in Lords. i n the House of Lords is practically the same as in the 
 House of Commons, except that five lords constitute the 
 committee, and that its members are got together by the 
 Chairman of Committees instead of being nominated by a 
 Committee of Selection. There are however variations in
 
 PRIVATE BUSINESS LEGISLATION 181 
 
 the practice of the House of Commons. An important Police and 
 
 class of Bills consists of those promoted by municipalities ^, anita yy 
 
 j - - 1 i i .1 . i-i / r Committee, 
 
 and other local authorities seeking larger powers of police 
 
 and sanitary control ; and it was found that, when such Bills 
 
 were submitted to committees of four, great variations of 
 
 decision followed. It was determined in 1882 to refer all 
 
 such Bills to a special committee called the Police and 
 
 Sanitary Committee in which continuity of service might 
 
 secure continuity of procedure, and this Committee has 
 
 ever since (except in 1883) been appointed and re-appointed 
 
 by motion from the House itself. Again, it sometimes 
 
 happens that applications for private Bills involve questions 
 
 of public interest that cannot be adequately protected 
 
 by the presence of the limited class of persons whose rights 
 
 are so interfered with by the Bill as to give them a title 
 
 to appear against it ; and such Bills have been referred by 
 
 the House to what is called a hybrid Committee with Hybrid 
 
 instructions to receive evidence and allow opposition from Committee. 
 
 any quarter. A hybrid Committee consists of an even 
 
 number of persons chosen in the ordinary course by the 
 
 Committee of Selection, and an uneven number added by the 
 
 House, one of whom, being entirely disinterested, is chosen 
 
 to be chairman, while the others are equally divided as 
 
 promoters and opponents of the Bill. 
 
 All the proceedings so far spoken of are conducted Joint 
 separately before the two Houses, and it sometimes happens Committee, 
 that the opposition which has failed in one House is success- 
 ful in the second. Cases however occur from time to time, 
 in which a hearing before a joint-committee of the two 
 Houses is substituted for hearings before successive com- 
 mittees. These cases usually involve some very large 
 questions of almost national importance, and the joint- 
 committee is selected with extreme care, so that its decision, 
 though practically final, is as authoritative as the repeated
 
 182 THE WORKING CONSTITUTION 
 
 decision of the two committees ; but saving this reference to 
 a joint-committee the procedure in respect of second and 
 third readings is conducted separately before each House as 
 in ordinary cases. It will be seen that the necessity of 
 applying to Parliament for Private Acts generally arises 
 from the desire to expropriate land which can in no other 
 way be satisfied. Whether the land be wanted by a public 
 body for purely public purposes, or by an association of men 
 engaged in an enterprise promising private advantage as 
 well as public utility, the principle has been usually held 
 sacred, that no one shall be obliged to sell his land except 
 under the authority of an Act of Parliament. It was 
 indeed set aside in 1883-5 in relation to Ireland, where the 
 Privy Council was allowed by Parliament to authorise the 
 taking of lands for labourers' cottages and for light rail- 
 ways, and a departure from it seems to have been quietly 
 sanctioned in a Scotch local Act; but it was not in any 
 degree overruled in England till 1894, when, after a heated 
 controversy, a compromise was agreed upon in the Local 
 Government Act giving an order of the Local Government 
 Board the force of an Act of Parliament for the taking of 
 land for allotments. This Act of 1894 was promoted by a 
 Liberal Government ; but in 1896 a Conservative Adminis- 
 tration bettered the precedent against which its leading 
 members contended two years before. In that year the Light 
 Light Rail- Railways Act was passed, under which a small Commission 
 ways Act. was a pp O j n ted for the local examination of proposed schemes 
 for subsidiary railways, and if the Commission reported 
 favourably to the Board of Trade, that department, after 
 giving opportunities to objectors to appear again before 
 it, could sanction the scheme conferring all necessary powers 
 for its execution without having recourse to Parliament. 
 
 The experiment of the Light Railways Act appears to 
 have worked satisfactorily, but it has not yet been extended
 
 PRIVATE BUSINESS LEGISLATION 183 
 
 in other directions. The hindrances to small local improve- Difficulty 
 ments and to the development of undertakings of public of Private 
 interest involved in the necessity of resorting to Parliament 
 have long been felt. The process is difficult and uncertain, 
 subject to all the chances of parliamentary sessions, and is 
 withal very expensive. It would probably have long since 
 been set aside, had it not been supplemented by the cheaper 
 and easier method of provisional orders. 
 
 Still the complaints have not been appeased, especially A remedy 
 
 from Scotland, where there has appeared to be a strong attempted 
 
 , . . , . , . ,. . j 11 m Scotland, 
 
 objection to the necessity 01 bringing applications and all 
 
 the evidence in their support up to London. Many plans 
 have been drawn up to meet these complaints, and in the 
 last session (1899) an Act was passed providing local 
 machinery for dealing with some Scottish Bills. The 
 machinery was changed and again changed during the pass- 
 ing of the Bill ; and in the end, although a local tribunal 
 was established, there was added a provision for re-hearing 
 cases before a joint-committee of Parliament, if objection 
 was carried so far ; and we must wait for some experience of 
 the working of the Act before it can be said that it in any 
 way fulfils the motives for passing it. Parliament may be 
 led to relinquish the consideration of Bills involving the 
 expropriation of land, as it has relinquished the consideration 
 of other Bills, but at present it jealously guards this privi- 
 lege, and plausibly objects to the appointment of a permanent 
 tribunal to execute the work on the ground that its action 
 would be stiff and legal, and wanting in that flexibility 
 which enables parliamentary committees to shape their 
 decision in accordance with the changing circumstances of 
 the time.
 
 184 THE WORKING CONSTITUTION 
 
 CHAPTER XIX 
 
 Parlia- 
 mentary 
 Commissions 
 have semi- 
 independent 
 executive 
 or judicial 
 functions. 
 
 Executive 
 Commis- 
 sions : 
 
 The Ecclesi- 
 astical Com- 
 mission. 
 
 PARLIAMENTARY COMMISSIONS 
 
 IN the preceding chapter mention was made of the creation 
 by Act of Parliament of a Commission charged with the 
 duty of examining applications for making light railways. 
 Upon this Commission is devolved what would otherwise 
 be the direct work of Parliament, and if it approves of any 
 scheme laid before it, its approval, subject to the sanction 
 of the Board of Trade, has all the authority of an Act of 
 Parliament. This is an example of a large class of Parlia- 
 mentary Commissions, varying very much among them- 
 selves, but all possessing the characteristic that they are 
 intended to be in some degree independent of direct 
 parliamentary influence and direct parliamentary control. 
 Their functions are sometimes executive, sometimes almost 
 judicial, and sometimes have a mixed character combining 
 several elements. 
 
 A conspicuous example of a purely executive Commission 
 is found in the Ecclesiastical Commission. This was ap- 
 pointed in 1836 for the purpose of relieving the bishops 
 and cathedral corporations of the management of their 
 estates, paying them instead fixed annual stipends and 
 appropriating the surplus revenue it received in the endow- 
 ment of new sees designated by Parliament, in the sub- 
 division of large populous parishes, in the provision 
 of funds to support the clergy of the new districts cut off,
 
 PARLIAMENTARY COMMISSIONS 185 
 
 and in augmenting the stipends of those livings in public 
 patronage where the population was considerable and the 
 existing endowment fell below a certain moderate standard. 
 The character of the work to be done by this Commission 
 was defined by Parliament, and from time to time additions 
 have been made to its labours ; but the execution of its 
 work was largely left to its own discretion, and it is so 
 far independent of Parliament that the expenses are a 
 charge on the revenue it administers, and do not come 
 as a vote under the annual survey of the House of 
 Commons. Its action might at any time be overhauled 
 by Parliament which called it into being and could put 
 an end to its existence. But as no Minister sanctions 
 its acts in detail, so no Minister is directly responsible 
 in Parliament for them. 
 
 The Ecclesiastical Commission is permanent in character. 
 Others have been appointed for a limited term of years to 
 fulfil the intention of Parliament in matters which could 
 not conveniently be entrusted to a department of the 
 Civil Service. University Commissions have thus been 
 charged with the partial re-organisation of the Universities University 
 and their Colleges, and in the fulfilment of these duties Commission, 
 they have had to draw up new College or University 
 statutes; but provision has been made that such statutes 
 shall under certain conditions be laid before Parliament, 
 where they may be annulled. This limited form of 
 reserved control finds more extended use in connection 
 with the Charity Commission with which the Endowed Charity 
 Schools Commission is now incorporated. The Charity Commission. 
 Commission, like the Ecclesiastical Commission, relieves 
 Charity trustees of the management of their endowments, 
 though only when these trustees so desire, and it has other 
 functions of visitation and inspection and, subject to many 
 limitations, of remodelling charitable trusts. The work
 
 186 THE WORKING CONSTITUTION 
 
 Parliament 
 is jealous of 
 such Com- 
 missions. 
 
 of the Endowed Schools Commission, now, as has been 
 said, part of the Charity Commission, is practically confined 
 to the construction of new schemes for the management 
 of endowed schools. But these powers and the other 
 powers of remodelling trusts are subject to the proviso 
 that schemes opposed by the persons interested in them 
 must be laid before Parliament, where either House could 
 set them aside. The Charity Commission indeed has never 
 enjoyed the independence of the Ecclesiastical Commission. 
 Its expenses are provided for by an annual vote of Parlia- 
 ment, and it works in connection with, if not absolutely 
 in dependence upon, a branch of the Executive Govern- 
 ment. Under an Act of last session (1899) the position 
 of the Charity Commission was still further modified, and 
 we may expect to see it soon become a sub-office of the 
 Board of Education. 
 
 It must be admitted that though Parliament from time 
 to time creates Commissions intended to be in some 
 measure independent of itself, it is easily moved to inter- 
 ference by a certain jealousy of independence of the bodies 
 thus created. The acts of such a Commission affect the 
 interests or excite the feelings of individuals whose com- 
 plaints find vent through the remonstrances of their 
 representatives in the House of Commons. The conditional 
 independence is resented, and then abridged, and by and 
 by the Commission is absorbed in the ordinary adminis- 
 tration. The carrying out of the Poor Law reform was 
 handed over to a Commission which, it was hoped, might 
 have some independence, but in the nature of things this 
 could not be. The work of the Commission was permanent; 
 its cost was from the first a parliamentary charge, and 
 it soon became a department represented by a responsible 
 Minister in Parliament. 
 
 Some elements of a judicial character will have been
 
 PARLIAMENTARY COMMISSIONS 187 
 
 observed in the functions of the Charity Commission and Railway and 
 allied Commissions. They are found in greater prominence Canal Corn- 
 in the work of the Railway and Canal Commission estab- 
 lished in 1873, though mixed with administrative duties. 
 The primary purpose of this Commission was to secure 
 to traders and the public those facilities which the legis- 
 lature had designed should be given by Railway and Canal 
 Companies, especially the former, but which through want 
 of adequate expression, effective legislative provision, or 
 the general complexity of the subject-matter, the Courts 
 of Law were unable or ill-fitted to enforce. The securing 
 of a through rate for goods, the prevention of unjust dis- 
 crimination, the removal of impediments impairing or 
 preventing the connection of services, the adjustment of 
 working arrangements between railways themselves, are 
 examples of the functions entrusted to this Commission ; 
 and though the direct operation of the Commission has 
 apparently been small, and complaints have been raised 
 of the inadequacy of its service, it is believed that it has 
 been an efficient check upon neglect or abuses of powers 
 that otherwise would have been suffered; and it may 
 confidently be anticipated that the scope of its duties will 
 be enlarged rather than diminished. Most of its work 
 takes the form of trials publicly conducted between parties 
 with witnesses and counsel, and its decisions are given as 
 legal judgments with a reasoned consideration of the facts 
 and arguments submitted. Its expenses are charged upon 
 annual votes, but any interference by Parliament is rather 
 by way of support than of restriction. 
 
 There remain other Parliamentary Commissions created Judicial 
 for purposes of investigation, strictly judicial in their Commissions ; 
 character and attributes. It has been already noticed that Election 
 the validity of returns of members to the House of Commons Commission, 
 was at first determined by the House itself voting as a
 
 188 THE WORKING CONSTITUTION 
 
 multitudinous court, but was subsequently delegated to 
 small committees which were in fact Courts of Law giving 
 final judgments. It was however difficult for these com- 
 mittees to make exhaustive examinations of electoral 
 contests, and an Act was passed providing that where a 
 committee reported that there was reason to believe that 
 corrupt practices had generally prevailed at a particular 
 election, a commission of qualified persons should immedi- 
 ately issue charged with full power of investigating the 
 conduct of elections in the particular constituency, and 
 armed for that purpose with authority to give complete 
 immunity from prosecution of any witness incriminating 
 himself in the frank confession of truth. These inquisitorial 
 powers were often effective in revealing a state of corrup- 
 tion which the House of Commons punished by a temporary 
 suspension of electoral privileges, and in more than one 
 instance Parliament went further and disfranchised the 
 borough whose electoral corruption had been exposed. 1 
 Parnell No Election Commission has been called into existence 
 
 Commission. s i nce the great redistribution of constituencies in 1 884 ; 
 but a Parliamentary Commission has been created in the 
 interval which was the subject of much controversy. When 
 the House of Commons thinks it expedient that a particular 
 question should be investigated, its first impulse is to 
 entrust the duty to a Committee of its own members, and 
 this is specially the case when the matter to be investigated 
 is the conduct of a member. On other subjects of difficulty, 
 the instrument at hand may by common agreement be set 
 aside, and it has already been explained how largely Royal 
 Commissions are employed for purposes of enquiry. The 
 
 1 The principle of this legislation was followed in Canada in 1873 by the 
 appointment of a Special Commission, headed by a judge of the High Court, 
 for enquiry into alleged corrupt transactions involving the Prime Minister 
 of the Dominion in connection with the recent General Election.
 
 PARLIAMENTARY COMMISSIONS 189 
 
 investigation of the conduct of a member, especially if it 
 affects his legislative character, rouses the jealousy of the 
 House for exclusive possession of the enquiry. On the 
 other hand, it must be remembered that a Committee of 
 the House of Commons has no original power to take 
 evidence on oath, and that however valuable a Committee 
 may be as an instrument of investigation (upon which 
 indeed some discredit has recently been thrown in the 
 history of the South African Committee), the impartiality 
 of its judgment, when considerations of party enter into 
 the enquiry, cannot be highly rated. These were the 
 matters that had to be weighed in 1888, when the conduct 
 of Mr. Parnell and his associates was publicly arraigned. 
 Charges of a very gross and sweeping kind were made 
 against many Irish members and pre-eminently against 
 Mr. Parnell ; and he claimed the appointment of a Com- 
 mittee of the House of Commons for the investigation 
 of the charges against himself. The proper answer to this 
 application probably was that the charges against him 
 did not touch his conduct as a member. They were not 
 such as, if proved, would have amounted to any breach 
 of privilege on his part ; and his true course was to cite 
 his assailants to answer in an action in a Court of Law. 
 This he declined to do, on the natural though insufficient 
 ground fhat he could not hope to obtain a verdict from 
 an English jury. Thereupon the Government of the day, 
 having refused to assent to the nomination of a Committee, 
 at first offered, and then insisted upon, the appointment 
 of a special Commission composed of three judges of the 
 High Court to investigate the whole body of accusations 
 against Mr. Parnell and his associates. The result was 
 eminently satisfactory in proving the excellence of the 
 tribunal as an instrument for the investigation of truth. 
 But looking back upon the history, the conclusion can
 
 190 THE WORKING CONSTITUTION 
 
 scarcely be resisted that the proceeding was altogether 
 uncalled-for and improper. If the charges had lain within 
 the proper competency of a Select Committee, a tribunal 
 of judges might have been invoked as a better instrument 
 of investigation. But if, as appears to be the better 
 opinion, they were not within that competence, they should 
 have been left to the regular process of the Courts of Law 
 at the instance of the aggrieved parties. It may be con- 
 cluded that Parliament forgot to respect those limitations 
 of its own power which must presently be noted as residing 
 in the fundamental constitution of the country.
 
 PART II 
 
 INSTITUTIONS SUBORDINATE 
 TO PARLIAMENT
 
 ENGLISH LAW 193 
 
 CHAPTER I 
 
 ENGLAND I JUDICIAL SYSTEM, CHURCH, 
 LOCAL ORGANISATION, LAND LAWS 
 
 Judicial System 
 
 PARLIAMENT is the last and highest authority in the land, 
 from whose laws there is no appeal; but even the action 
 of Parliament is tempered by the existence of institutions, 
 subject indeed to its control, but with which it is slow to 
 interfere. Foremost among these is the organisation of the 
 judiciary and the fundamental rules of the administration 
 of the law, civil and criminal. The principle that a man Trial by 
 cannot be convicted of a crime except by the unanimous Jury. 
 verdict of twelve fellow-men is older than Parliament itself; 
 and though it may be set aside locally or even generally in 
 times of acute crisis, and minor offences with strictly limited 
 punishment may be exempted from its operation ; yet as if 
 doubtful of its own power Parliament hesitates to touch it, 
 and its sanctity is most jealously guarded. 
 
 The visitation of every county by the highest judges 
 at least twice a year for the purpose of trying all prisoners 
 in detention under a charge of crime is another safeguard 
 of justice which could never be made less stringent. Two 
 other guarantees of liberty having their origin in Common Arbitrary 
 Law, though strengthened and secured by statute, should Arr est. 
 also be mentioned. The first is that the warrant for the
 
 194 THE WORKING CONSTITUTION 
 
 Habeas 
 Corpus. 
 
 General 
 Warrants. 
 
 Independence 
 of Judges 
 secured. 
 
 The 
 
 Magistrates 
 in Petty 
 Sessions. 
 
 arrest of any person must state on the face of it sufficient 
 cause for arrest. The early Stuarts attempted to evade 
 this obligation, but it was insisted upon in the Petition 
 of Right and again reinforced by the Long Parliament. 
 The second is the right of any one under detention or 
 of any one on his behalf to apply to any superior judge 
 for a writ of Habeas Corpus directing a jailer to bring 
 up a prisoner and show sufficient cause for his detention, 
 a safeguard which we have seen was made most effective 
 by the Habeas Corpus Act in 1679. 
 
 Yet another safeguard was vindicated by the courts 
 of law without requiring statutory assistance in the early 
 years of George in., when 'general warrants' for the arrest 
 of persons unnamed though accused of definite offences 
 were declared illegal. 
 
 These are examples of institutions not of parliamentary 
 origin, though in some cases strengthened by parliamentary 
 support. The security of judges in their office is no less 
 sacred, and this is due to parliamentary action. Judges 
 are officers of the Crown ; so much so that originally 
 their functions ceased on the death of the king, and they 
 were long removable at the royal pleasure ; but the great 
 Act of Settlement of 1701 provided that they should 
 be removable upon addresses from both Houses in favour 
 of such removal ; and their salaries are fixed, so that they 
 are not subjected to the annual criticisms incident to 
 votes in Supply. The immunity of judges almost tends 
 to excess. A difficulty occasionally recurs, though at long 
 intervals, when a judge becomes unfit and does not himself 
 recognise the painful truth. 
 
 At the base of the judicial hierarchy in relation to crime 
 are the Justices of the Peace. When not justices or magis- 
 trates ex ojfflcio they are appointed for counties and for such 
 boroughs as have separate Commissions of the Peace. They
 
 ENGLISH LAW 195 
 
 are appointed by the Lord Chancellor ; but in the case of 
 counties, usually though not necessarily, on the recommenda- 
 tion of the Lord Lieutenant. This official is generally some 
 person of high standing in the county selected by the Crown 
 practically for life, and his most important function is that 
 of recommending fit persons to be magistrates. County 
 magistrates not ex officio must possess a qualification of 
 property. This is not required of Borough Magistrates. 
 Ex officio justices or magistrates are, in counties, the 
 chairmen of the County Councils and of District Councils ; 
 and in boroughs the Mayor, and an ex-Mayor for one year 
 after ceasing to be Mayor. 
 
 Any person seeing another committing a felony or one of Law of 
 the graver offences, or who, knowing such offence to have Arrest. 
 been committed, reasonably suspects another to have com- 
 mitted it, may and should arrest him on the spot; and 
 policemen constables or officers of the peace have larger 
 powers of summary arrest. But where the offence is not 
 so grave or the necessity of arrest not urgent, a summons 
 or warrant should be obtained from the magistrate, the first 
 requiring the alleged offender to appear before him, the 
 second directing an officer to arrest and bring him. What- 
 ever the preliminary step may be, the accused must be 
 brought before two or more magistrates sitting in the court 
 of the district of the offence, or Court of Petty Sessions ; 
 and the magistrates may in the case of defined light offences 
 proceed to conviction, and sentence not exceeding six months' 1 
 imprisonment, and must, in graver doubtful cases, unless 
 satisfied there is no evidence to convict the prisoner, commit 
 him for trial at Quarter Sessions or Assizes. In addition to Stipendiary 
 the magistrates so described, there exist under statute in Ma g lstrates - 
 London and the largest boroughs stipendiary magistrates 
 appointed by the Home Secretary at fixed salaries paid, 
 in the metropolis, by the nation, elsewhere by the borough,
 
 196 THE WORKING CONSTITUTION 
 
 Quarter 
 Sessions. 
 
 Coroner's 
 inquest. 
 
 each of whom is invested with the powers of two ordinary 
 justices. Magistrates not ex officio may be struck off the 
 Commission of the Peace by the Lord Chancellor, and 
 the power is occasionally exercised. Next in rank above 
 the magistrates sitting in Petty Sessions are the magistrates 
 for the county, with one of them chosen by themselves pre- 
 siding as chairman, assembled together in Quarter Sessions, 
 and the Recorder of the borough, where such exists, also 
 sitting in Quarter Sessions. These can hear appeals against 
 convictions in the inferior sessions, and they also try, with 
 the assistance of a j ury, such prisoners as have been com- 
 mitted for trial before them ; and from the decisions of 
 such courts appeals may be carried on points of law, 
 though not on questions of fact, to the High Court of 
 Justice. 
 
 Another most ancient method of conducting enquiries 
 into the gravest crimes is that of the Coroner's court. 
 Coroners are, as a rule, county officers, serving for a district 
 of a county, and until recently were elected by the free- 
 holders of the district without regard to the value of their 
 holdings; but they are now appointed by the County 
 Councils. Their tenure is for life ; but they are removable 
 by the Lord Chancellor for inability or misbehaviour, and 
 a similar power is vested in any Court before which a 
 coroner may be convicted of misconduct in his office. 
 
 The duty of a coroner in case of any violent or sudden 
 death, or death in prison, within his district is to summon 
 a jury and to examine witnesses as to the cause of the 
 death ; and, if the result of the examination is a verdict by 
 the jury charging any person or persons with the murder or 
 manslaughter of the deceased, the coroner issues his writ 
 for the arrest of the person so charged and he is brought 
 up upon it at the next assizes. This process, though of 
 great antiquity and of undoubted utility in the investiga-
 
 ENGLISH LAW 197 
 
 tion of the causes of violent or sudden death, does not 
 interfere with the procedure before magistrates in petty 
 sessions already explained, and is indeed frequently held 
 concurrently with it. Boroughs with quarter sessions also 
 possess coroners by virtue of ancient charters. These 
 officers are appointed by the borough council and their 
 duties are similar to those of the county coroner. 
 
 The judges of County Courts may be said to be at County 
 
 the base of the civil administration of justice, though their ~ /0 " rts ,. t .., 
 
 J 7 . basis ot civil 
 
 jurisdiction is strictly concurrent with that of the judges justice. 
 of the High Court. These are of comparatively modern 
 origin, County Courts having been created in 1846 to 
 facilitate the recovery of small debts, displacing many 
 petty local courts existing by charter which had mostly 
 become quite inefficient. These courts are competent to try 
 claims up to 50, and by consent to higher sums. They 
 have also a jurisdiction of administration in Equity and 
 in Bankruptcy up to 500. Judges of County Courts 
 are appointed by the Lord Chancellor, and must be 
 barristers of ten years' standing, and they are removable 
 by him 'for cause assigned/ though it is believed that 
 this power has not been exercised in more than one or 
 two cases. These judges ordinarily sit without jury, though 
 either plaintiff or defendant can claim a jury (limited to 
 five) in cases involving more than 5. Where the sum 
 exceeds 2,0, or by leave of the judge for smaller sums, 
 appeals may be carried, on a point of law, to the High 
 Court; but they are excessively rare in proportion to the 
 cases tried. The most serious fact connected with these 
 courts is the exercise by the judges of their power of 
 committal for contempt. It is most common for a debtor 
 to be ordered to pay his debt by instalments; but the 
 order, whether for immediate or deferred payment, is too 
 often disobeyed, and judges feel themselves compelled to
 
 198 THE WORKING CONSTITUTION 
 
 High Court, 
 Queen's 
 Bench 
 Division* 
 
 Probate, 
 Divorce, and 
 Admiralty 
 Division. 
 
 commit the debtor to prison for contempt. The use of this 
 power is obviously a matter of discretion, and the discretion 
 may be abused ; but as yet no attempt has been made to 
 regulate the power, although attention has from time to 
 time been directed to the subject. 
 
 Above the courts of civil and criminal jurisdiction thus 
 noticed the High Court discharges its functions. This 
 consists of three divisions, and for the moment attention 
 may be directed to the Common Law division. At its head 
 is the Lord Chief Justice, who is associated with fourteen 
 other judges. From this division the judges are sent in 
 pairs to try civil and criminal cases at the Assizes already 
 referred to in each county ; and such Assizes are held at 
 least twice a year for civil and four times a year for criminal 
 cases. The judges of the division also try cases of an 
 original character in London ; and two of the judges are 
 from time to time associated together and form a divisional 
 court which hears appeals from inferior courts and applica- 
 tions for a new trial, which may in fact be appeals from 
 other judges of the court acting singly. 
 
 Side by side with the Queen's Bench Division rank the 
 other divisions of the High Court. The first to be noticed, 
 because the simplest, is the Probate, Divorce and Admiralty 
 Division. This division has succeeded to the jurisdiction 
 of courts originally ecclesiastical. The recognition of wills, 
 the administration in simplest form of the estates of in- 
 testates, the allowance of divorce, and the settlement of 
 claims originating in the high seas were matters unknown 
 to the Common Law, and were first noticed and cared for 
 by the courts of bishops. Not till 1857 did the last vestige 
 of this peculiar origin disappear, when the Divorce Court 
 was set up with full powers to grant divorces a vinculo 
 matrimonii; and the existing division of the High Court, 
 consisting of a President^ and another judge, has succeeded
 
 ENGLISH LAW 199 
 
 to these powers and to the full jurisdiction of the Admiralty 
 Court. 
 
 The third or Chancery Division of the High Court Chancery 
 consists of the Lord Chancellor and six judges. The juris- ^ ivision - 
 diction of the Court of Chancery early arose to supplement 
 the deficiencies and correct the injustice of a limited and 
 rigid Common Law. Its history down to the time of the Equity and 
 
 Reformation illustrated the larger and more equitable Common Law, 
 
 . . ill i formerly 
 
 temper of ecclesiastics ; and the laymen who, with one separated, 
 
 exception, subsequently presided over the court continued 
 to apply equitable principles in correction of the Common 
 Law even down into this century, when the judicial develop- 
 ment of the new jurisprudence became complete. The court 
 gave relief from penalties, the exaction of which would be 
 unjust; set aside agreements made fraudulently or at 
 variance with the true meaning of the parties; prevented 
 the abuse of powers beyond the true limit of their intention ; 
 and enforced the performance of trusts which the Common 
 Law, refusing to recognise, left to the uncontrolled dis- 
 cretion of the trustee. The delays of the Court of Chancery 
 became a byword; but the stubbornness of the Common 
 Law judges in maintaining the narrowest interpretation 
 of their own maxims and principles made its interference 
 indispensable, if the law of the country was to grow 
 with the wants and expand with the equity of the nation. 
 The full attainment of justice required however the co- 
 operation of two sets of courts. The Court of Chancery 
 restrained suitors from enforcing their rights in the Common 
 Law courts when their enforcement would be inequitable; 
 but on the other hand sent issues of facts to be tried by 
 Common Law judges and juries ; and it was not until 1875 became fused 
 that the courts were fused into one, every judge having the m 18/0> 
 same power and administering the same principles. The 
 divisions now existing are maintained with relation to the
 
 200 THE WORKING CONSTITUTION 
 
 kind of business transacted in them, the simpler and directer 
 issues being tried in the Common Law Division ; the more 
 complicated and interwoven relations being investigated, 
 adjudicated up<5n, and administered in the Chancery Division ; 
 but each judge may move from one to the other ; and 
 wherever he sits he applies the same law though the pro- 
 cedure may be different. 
 
 Court of Above the High Court thus constituted in its three 
 Appeal, divisions is found the Court of Appeal, of which the Lord 
 Chancellor, the Lord Chief Justice, the Master of the Rolls, 
 and President of the Probate Division are ex officio members, 
 the other members being the five Lords Justices. This 
 Appeal Court generally sits in two divisions with three 
 judges in each the Master of the Rolls and the five Lords 
 Justices being the members ordinarily acting and from it 
 cases may be carried to the House of Lords, or rather the 
 Committee bearing that name, which has already been 
 described as a final Court of Appeal. 
 
 Choice of The choice of members of the High Court other than 
 Judges. j. ne L or d Chief Justice, and of the Lords Justices of Appeal, 
 is the peculiar function of the Lord Chancellor ; but it may 
 be possible that, in the fulfilment of this duty, the Lord 
 Chancellor sometimes consults his more exclusively political 
 colleague, the Prime Minister, just as the latter may consult 
 the Lord Chancellor respecting such appointments as that 
 of the Lord Chief Justice, the Lords of Appeal, and the 
 Master of the Rolls, which lie within his power of recom- 
 mendation to the Crown. The exact apportionment of the 
 measure of influence in every appointment may be difficult ; 
 but in respect of ordinary members of the High Court, the 
 discretion of the Lord Chancellor is believed to be untram- 
 melled ; although it was said, a generation since, when a 
 late Lord Chancellor retired, that one element conducing 
 to it was his refusal to appoint as j udge a less worthy person
 
 ENGLISH LAW 201 
 
 pressed on him by the Prime Minister. It has been already 
 explained that all these judges hold office during good 
 behaviour, and are removable on an address to the Crown 
 from both Houses of Parliament praying for a removal ; l 
 and that for a further security their salaries are charged 
 on the Consolidated Fund. 
 
 This view of the organisation of the Courts of Law is Barristers 
 scarcely complete without some reference to the persons and Sollcltors - 
 who are permitted to act as representatives of parties to 
 processes civil or criminal within them. These are of two 
 classes, barristers and solicitors. The first have exclusive 
 audience before the superior judges and generally in Quarter 
 Sessions ; they have now the fullest authority to examine and 
 cross-examine witnesses, and address the Court or jury, and 
 generally to do everything which a client could wish to do 
 for himself. The second are the agents for parties in the 
 several stages of procedure preliminary to and attendant 
 upon an audience in court. Solicitors, called also attorneys, 
 have to fulfil a certain apprenticeship and pass sundry 
 examinations before being admitted to act; and they can 
 be and are discharged from their functions by the judges 
 if shown to be guilty of misconduct in their profession. 
 Barristers are admitted to their position by four societies 
 of great antiquity which, like so many mediaeval guilds, pre- 
 scribe conditions of fitness for professional status and see 
 that they are fulfilled. They exercise also the right of 
 disqualifying ('disbarring 1 ) any one who has proved unfit 
 to continue to act. Any one disbarred may indeed appeal 
 to the judges against the sentence of the society disbarring 
 him; and those who are 'called to the bar' are formally 
 presented to judges after being called, though it is not 
 
 1 In fact the judges have come to be regarded as removable only if such 
 an address is presented ; and it is so expressly declared in the latest colonial 
 constitutions.
 
 202 THE WORKING CONSTITUTION 
 
 known that the j udges have any power to refuse to recognise 
 any one so called. 
 
 The Church. 
 
 The In the earlier history of England the organisation of the 
 
 legislative Church was the most powerful of all checks on the autho- 
 r *ty ^ ^ ne ^* n S anc ^ f Parliament. Judges could be 
 removed at the royal pleasure, and if removed fell into the 
 ranks of ordinary life; but no bishop could be deprived 
 of his episcopal authority, and interference with him in 
 the enjoyment of his temporal possessions was not lightly 
 ventured upon. There was an outside power which might 
 be provoked to some terrible action, and the excommunica- 
 tion of a king by a bishop might be followed by the inter- 
 dict of a kingdom by a pope. All this has long since passed 
 away. In the present working of the constitution the most 
 important factor connected with the Church is the presence 
 of two archbishops and twenty-four bishops in the House 
 of Lords. 1 These would form a large proportion of the 
 active forces of that assembly if they were themselves active 
 in it ; and in matters specially affecting their own opinions 
 they often turn the scales and indeed keep the scales 
 turned ; but in the general work of Parliament they are 
 not prominent. The nomination to vacant bishoprics is 
 made by the Crown on the advice of the Prime Minister ; 
 but as has been intimated elsewhere it may occasionally 
 happen that the favour of the Sovereign has more influence 
 in such appointments than is common in relation to offices 
 of State. Deaneries and a large number of canonries are 
 filled up on the nomination of the Crown by the advice of the 
 
 1 Dioceses have of late been subdivided so that there are now more than 
 twenty-four bishops, but the number entitled to sit in the House of Lorda 
 has not been increased.
 
 ENGLISH CHURCH 203 
 
 Prime Minister, and a large number of livings as well as 
 some canonries are in the gift of the Lord Chancellor ; but, 
 while appointments are thus made by and with the advice 
 of the most eminent officers of State, the persons appointed 
 have no especial political privilege or function. 
 
 For the rest the whole kingdom may be said to be The 
 
 divided into parishes, the rector or vicar of each being a Ecclesiastical 
 
 . Parish. 
 corporation with a certain endowment. But except in 
 
 relation to these endowments these clergymen do not differ 
 from ordinary citizens, having now no special civil right 
 even within their parishes. It is their exclusive right to 
 conduct religious worship in their several churches ; but the 
 churchyards are open under regulations to burials by others ; 
 and since 1894 they are no longer ex officio chairmen of 
 parish vestries for civil business. The aggregation of 
 parishes into rural deaneries, and of rural deaneries into 
 archdeaconries, are matters of no political bearing. When 
 we pass from archdeaconries to bishoprics, we are again 
 in touch with a personage who has prospectively if not 
 immediately special political power. 
 
 Dioceses again are united into the two provinces of Convocation. 
 Canterbury and York, each with a Convocation of its own. 
 These are quasi-ecclesiastical Parliaments of two Houses, 
 the Upper consisting of the bishops of the province, and 
 the Lower of the very imperfectly organised representation 
 of the clergy. In 1852 these Convocations, which are 
 elected under royal authority, were permitted for the first 
 time since 1717 to meet together for discussion ; since 
 which they have met in annual sessions. Houses of Laymen 
 were constituted by voluntary association in 1886 and have 
 since held sittings simultaneously with the Convocations 
 to which they are attached. In 1898 a new departure was 
 taken when the two Convocations, without any royal man- 
 date, met together in plenary assembly ; but these meetings
 
 204 THE WORKING CONSTITUTION 
 
 Voluntary 
 Associa- 
 tions ; 
 Diocesan 
 Synods. 
 Church 
 Congress. 
 
 School 
 Associations. 
 
 whether convened by royal writ or otherwise may properly 
 be described as of purely domestic interest, and their con- 
 clusions have no authority save injoro conscientice. 1 Of late 
 years most, if not all, of the bishops have held annually 
 in their dioceses, conferences called Synods of their clergy 
 and of elected laymen ; and a Church Congress has met 
 annually at some centre chosen for the purpose the Synods 
 in Congress being occupied with discussions on matters of 
 ecclesiastical interest. Of these several gatherings it may 
 be said even more emphatically than of the provincial con- 
 vocations, that they have no coercive authority. They are 
 valued as illustrations of the life in and of a society which 
 in time past was co-extensive with the nation, but now 
 forms an undefined and even undefmable portion of it. 
 They are rudimentary attempts at organisation wanting in 
 legal validity. 
 
 This position has been recently illustrated in another 
 way. In 1897 Parliament passed an Act for the distribu- 
 tion, in aid of voluntary schools, of certain sums to be 
 annually voted, and authorised the Education Department 
 to hand over, to such associations of voluntary schools as 
 it might approve, the aggregate sum due to such schools, 
 to be distributed among them at the discretion of the 
 several associations. Diocesan and archdiaconal associa- 
 tions of Anglican schools were quickly formed, and have 
 received and distributed the sums allotted to them; but 
 the Wesleyan Methodists and the Roman Catholics have 
 also formed associations which have become intermediaries 
 distributing the monies accruing to their schools under the 
 Act of Parliament. All the associations so formed enjoy, 
 
 1 At the close of the session in 1900 a Bill was introduced in the House 
 of Commons for the reform of Convocation and the legal organisation of 
 Houses of Laymen, and generally for the development of the functions of 
 these bodies, with a reservation however of the authority of Parliament over 
 their acts and conclusions.
 
 ENGLISH LOCAL GOVERNMENT 205 
 
 for the time being, the recognition of the Education 
 Department; but they are all voluntary in character and 
 no one of them is really different from the rest. 
 
 Another important fact must be noted in any view of the Church Law. 
 status of the Anglican Church. Possessing endowments, 
 mainly if not exclusively, national in character, and having 
 its highest functionaries appointed by the chiefs of the 
 State, the rights and duties of its officers and members are 
 determined by a code of law sanctioned by Parliament and 
 alterable only under parliamentary authority. Any disputed 
 question arising under this body of law may incidentally 
 come before the ordinary civil tribunals but is more ap- 
 propriately within the province of special ecclesiastical 
 courts from which it may be carried by way of ultimate 
 appeal to the Queen in Council. 
 
 Local Organisation. 
 
 Allusion has been made to the division of the kingdom The Parish. 
 into parishes. The parishes were aggregated together in 
 'hundreds, 1 and the hundreds are divisions of counties. ' Hundreds. 
 But hundreds have ceased to have any real importance, 
 and attention may be directed to the parish and the 
 county, each of immemorial antiquity, though the boun- 
 daries of parishes and of counties may have undergone many 
 modifications. Less ancient than county or parish are 
 boroughs, most if not all of which can be traced to a 
 definite historical origin ; but boroughs may be named as 
 the third great organisation of local life apart from those 
 institutions, which within the present reign have been 
 brought into existence by Acts of Parliament. 
 
 The ancient parishes of the kingdom, numbering more than The Parish. 
 10,000, varied greatly in area and population. Differences in
 
 size have of course always existed; but contrasts of popula- 
 tion have been much aggravated during this century ; and 
 although by subdivisions and otherwise new civil parishes 
 have been created so that the aggregate now exceeds 
 14,000, the populations vary from below 300 to upwards 
 of 300,000. Each parish was in itself a complete unit of 
 local life. It had its church, its burial-ground, and its 
 parson attached to it as central facts of its existence. The 
 inhabitants met in vestry once a year at least (Easter), and 
 appointed one churchwarden while the parson nominated 
 the other. They also appointed their way-wardens to look 
 after the parish roads. A parish constable or parish con- 
 stables existed also from early times as officers of peace 
 and order. When, as often happened, gifts of land or 
 money were made for parish purposes, they were vested 
 in the parson and churchwardens, or in feoffees or trustees, 
 according to the instrument making the gift. 
 Poor Law of When the great Act of Elizabeth provided for the relief 
 
 1?1* K 4-1* 
 
 of the destitute, the parish was accepted as the unit of 
 administration ; and Overseers were called into existence 
 to look after the poor. The principle of rating was 
 laid down in the same statute for the collection of monies 
 necessary to meet the charges of the poor. As each parish 
 had charge of its own settled poor, it became an object on the 
 part of landowners and parochial authorities to move those 
 who were in danger of becoming paupers beyond the parish 
 boundaries, whilst successive cases in the law-courts 
 developed a code of law on the conditions of settlement. 
 As the labourer was thus pushed about and fought over, 
 rural life in England became inevitably degraded ; and 
 it was made worse by the well-meant action of magistrates 
 who enforced the care of the poor on overseers by making 
 grants supplementing the wages of labourers who appeared 
 to be insufficiently paid. The economic condition thus
 
 ENGLISH LOCAL GOVERNMENT 207 
 
 developed was arrested and in no small measure redeemed The Poor 
 by the great reconstruction of the principles of pauper Law of 1834< 
 relief in 1834. The new Poor Law joined the small parishes 
 together under the name of Unions for poor law relief; and 
 provided for the erection of a common workhouse in each 
 Union. A common charge was thus brought into existence ; 
 and subsequent legislation has so far superseded the principle 
 of separate parochial liability that the law of settlement has 
 almost disappeared. Another great reform was found in the 
 enforcement of the principle that no able-bodied pauper 
 should receive relief except as an inmate of one of the new 
 workhouses, thus putting an end to the practice of giving 
 relief in aid of wages. The administration of each Union was Guardians 
 confided to Guardians, composed partly of the magistrates f ^ e poor- 
 resident within it, and partly of the representatives of the 
 several parishes of the Union elected by ratepayers who had 
 additional votes as their rating increased. In 1894 these 
 plural votes were abolished, and ex officio Guardians were 
 also done away with, though a limited power was left 
 to elective Guardians to co-opt one or two additional 
 members. The Union thus superseded the parish in 
 many respects as a unit of administration ; but it was 
 unfortunate that the aggregation of parishes into Unions 
 was often made with a disregard of county boundaries; 
 and much trouble has attended later efforts to correct 
 this overlapping of the different grades of administrative 
 areas. 
 
 The Act of 1894 already mentioned contained further pro- Parish 
 visions for bringing County and Union boundaries into line, Councils, 
 and it also did something to revive the parish as a living unit 
 by establishing in each parish an elective council to manage 
 its affairs, except in the smallest parishes, where a periodic 
 parish meeting was charged with these duties. Already how- 
 ever much has been done to stimulate and support local
 
 208 THE WORKING CONSTITUTION 
 
 Sanitary action in respect to sanitation, water-supply, road-making, 
 Districts. e ^ c ^j^ bigger parishes had been organised as urban 
 sanitary districts with elected boards invested with the 
 power to execute works and levy appropriate rates ; and 
 elsewhere the organisation of the Poor Law Unions was 
 seized upon for the discharge of similar functions. In this 
 way Sanitary Districts, sometimes coincident with the Union 
 areas, sometimes separate parishes, and sometimes the Union 
 areas less the parishes separately provided for, cover the 
 land exclusive of the boroughs; and it has recently been 
 provided that the chairmen of the Boards of these Districts 
 shall be ex officio county magistrates. 
 
 Highways. The duty of maintaining highways from footpath up 
 to carriage-way fell by common law on the parish, not 
 however always coincident with the ordinary parish ; while 
 that of maintaining the principal bridges and their ap- 
 proaches fell upon counties. The provision for roads thus 
 secured became quite insufficient as the internal commerce 
 of the country developed ; and turnpike roads were formed 
 under local Acts of Parliament by which trustees were 
 enabled to make such roads and collect tolls to repay the 
 cost of construction and the expense of maintenance. Even 
 turnpike roads did not supply all that was wanted, and 
 Highway Districts were formed, often comprising new 
 combinations of parishes, in which the care of roads 
 was entrusted to bodies consisting of resident justices 
 and elected ratepayers. As, however, the collection of 
 revenue was expensive, and the amount sometimes in- 
 sufficient, turnpike roads were at first gradually and 
 then en bloc handed over to the local road authorities. 
 The whole of the organisation thus described was, how- 
 ever, superseded by the Local Government Acts of 1888 
 and 1894, under which County Councils (the origin and 
 constitution of which will be presently explained) are
 
 ENGLISH LOCAL GOVERNMENT 209 
 
 charged with the maintenance of main roads and bridges, 
 whilst all other roads are put under the District Councils, 
 urban and rural, of the areas in which they lie. Parish 
 Councils have indeed a concurrent power of maintaining 
 footpaths, and they have the means of calling upon the 
 District Councils to fulfil their duties, and if necessary 
 they can appeal to County Councils to correct the negli- 
 gence of District Councils. County Councils may more- 
 over delegate the maintenance of main roads to District 
 Councils on condition of repayment, and may also con- 
 tribute to the maintenance by District Councils of ordinary 
 highways. 
 
 The parish may be described as an independent popular The County, 
 unit, but the early institutions of the County were almost 
 all associated with the Crown. It has been already noticed 
 how the King's judges visited every county twice a year 
 to examine and try prisoners. Within each county exists 
 an officer, the Sheriff, whose duty it is to receive the The Sheriff. 
 King's judges, to provide all necessary appointments for 
 the trials, and to execute the judgments that may be 
 pronounced. He represents the Crown before the County 
 and the County before the Crown. As the head of the 
 County he is responsible for the Court- House, and was 
 formerly responsible for prisons. 1 He summons jurymen, 
 and he must provide a hangman or discharge the office 
 himself. It is possible that the election of a Sheriff by 
 the citizens of London is a relic of what was more general 
 in a distant past. But from early times the sheriffs of 
 each county have been appointed annually by the Crown 
 in Council, except in Cornwall where he is appointed by 
 the Duke of Cornwall, in Lancaster where he is appointed 
 by the Council of the Duchy, and in Westmoreland 
 where the office of sheriff was hereditary in the family of 
 1 Since 1877 taken over by the Government.
 
 210 THE WORKING CONSTITUTION 
 
 Lord 
 Lieutenant. 
 
 County ad- 
 ministration 
 up to 1888. 
 
 the Earls of Thanet till its extinction some half-century 
 since. 
 
 The Sheriff is not only the agent of the Crown in 
 connection with the visitations of the Judges. He was 
 formerly the chief revenue-officer of the county, and the 
 Chancellor of the Exchequer still assists at the nomination 
 of sheriffs in Council. It was his duty to levy fines, to 
 receive quit-rents, to look after feudal dues, to hold 
 inquisitiones post mortem, and in every other way to safe- 
 guard and maintain the privileges of the Crown ; a survival 
 of which is found in the inquiry into escheats when 
 land lapses to the Crown for want of heirs. Once more, 
 it is as representative of the Crown that he raises the 
 posse comitatus to maintain order and secure peace within 
 the shire. The institution of the office of Lord Lieutenant 
 in each county by Henry vm. was in some degree an 
 interference with the unique position of the Sheriff. The 
 Lord Lieutenant is practically appointed for life, and his 
 peculiar function in recommending persons to be magis- 
 trates has already been noticed. The militia of his county 
 was until 1871 largely under his control, and he still retains 
 a limited right of nominating to first commissions. 
 
 As far as regards local administration, the original 
 functions of the county were very limited. A shire hall 
 and a county prison were necessary, and the expense of 
 obtaining them had to be met. There were few or no 
 county roads, and the main county charge in respect of 
 communications was the construction and maintenance of 
 the more important bridges. There was no county police, 
 although a few persons acting mainly in collection of the 
 small rate that might be leviable to defray county expenses, 
 were called constables. Although the Sheriff was charged with 
 the conduct of parliamentary elections, there was not up to 
 1832 a list of county voters for parliamentary purposes. Such
 
 ENGLISH LOCAL GOVERNMENT 211 
 
 work as there was to do in matters of county administration 
 was performed by the county magistrates attending the 
 county Quarter Sessions for the trial of prisoners and the 
 discharge of county business. But the quantity of county 
 business and the amount of expense attendant thereon 
 largely increased in the present reign, and led up to the 
 great change in county government in 1888. County 
 asylums were provided for the reception of the insane, 
 and their management has been continuously improved 
 by county committees helped and directed by periodical 
 visits of Lunacy Commissioners. The organisation of 
 county jails underwent similar development up to the 
 time when, as already stated, they were taken over by the 
 central government. A county police was set up in many 
 counties much after the model of the Metropolitan Police, 
 which had been established by Sir Robert Peel in London 
 in 1829 the action of county magistrates in establishing 
 such a force being stimulated by a subvention from the 
 central government of half the cost of pay and clothing, 
 subject to the condition that the force was kept up to 
 the standard required by the inspectors of constabulary 
 visiting each county as agents of the central government. 
 The police forces, voluntarily established in the first place, 
 were made compulsory and universal by Act of Parliament 
 in 1856. 
 
 This growth of county administration led to a demand County 
 for representative government in counties, and in 1 888 an ^? s ' 
 Act was passed establishing within each county a County 
 Council elected practically by ratepayers male and female in 
 single-member districts for a term of three years, with an 
 added number of aldermen co-opted by the elected members 
 for six years to the extent of one-third of the elected 
 councillors. To this body all the administrative work of 
 the county justices was transferred, except in respect to the
 
 212 THE WORKING CONSTITUTION 
 
 police, which was placed under a joint- committee equally 
 representing the justices and the County Council. Other 
 work was added, and the functions of the County Council 
 have since received and may be expected to receive con- 
 tinuously large additions. Boroughs lying geographically 
 within a county, having a population of 50,000 or more, 
 are however exempted from these organisations. They 
 have been styled county boroughs, and their councils, to 
 which attention must now immediately be given, have been 
 invested with all the powers of County Councils so far as 
 they did not already possess them. 
 
 The Borough. The original boroughs were towns which received the 
 privileges of self-government by the grant of a charter from 
 How the Crown. In a few cases these boroughs were taken 
 
 governed wholly out of the county in which they lay, and were made 
 counties of themselves. In a larger number of cases, but 
 still in the minority of the whole, the charters contained 
 provisions for the appointment of recorders holding Quarter 
 Sessions for the trial of prisoners. In all cases a corpora- 
 tion was created for the ordinary purposes of local govern- 
 ment, though the form of the corporation varied considerably. 
 Generally the original charter contained the names of the 
 first members sometimes called mayor and councillors, 
 sometimes mayor and burgesses, sometimes mayor and 
 aldermen, and the power was given of co-option to fill up 
 vacancies. The members of the corporation elected their 
 mayor annually, and they were commonly authorised to 
 fill up the office of recorder when vacant. When the 
 privilege of electing members of Parliament was also 
 given, the right was very commonly vested in the members 
 of the corporation, and the consequences of vesting such a 
 privilege in a small number of persons renewing themselves 
 by co-option have been already described. In every case 
 the governing corporation tended to become a narrow
 
 ENGLISH LOCAL GOVERNMENT 213 
 
 limited class; and the area under its jurisdiction was often 
 no more than the nucleus of what had become a large 
 town, while the administration of the endowments and 
 property of the corporation was appropriated to this re- 
 stricted area. 
 
 The parliamentary reform of 1832 was followed by the Municipal 
 Municipal Reform Act of 1835, which applied to every ^ rm Act > 
 borough except the city of London and some very small 
 boroughs with an insignificant population. In all cases 
 where necessary the borough was enlarged so as to 
 take in its outside population, and this process has been 
 frequently repeated by private Acts of Parliament dealing 
 with particular boroughs. For the rest, every borough 
 large enough for the purpose was divided into wards, so 
 that the borough itself and every ward, where there were 
 wards, should be represented by a number of councillors 
 divisible by three ; and it was provided that one-third of 
 the whole number of councillors should go out of office 
 every year. In addition to these elected councillors a 
 number of aldermen one-third the number of councillors 
 were co-opted for six years, and aldermen as well as coun- 
 cillors could join in co-opting for aldermanic vacancies. 
 The aldermen and councillors elect a mayor every year, 
 and their choice, originally restricted to their own body, is 
 now extended to outside persons qualified to be elected as 
 councillors. Where boroughs had recorders, their appoint- 
 ment was transferred to the Crown and was in the patronage 
 of the Home Secretary. The election of councillors was 
 given by the Act of 1835 to male ratepayers; but in 1869 this 
 privilege was extended to women ratepayers also. Very large 
 powers of self-government were given to the corporations so 
 reformed, extending in all important boroughs to the creation 
 and maintenance of a police force ; and it has been already 
 noted that boroughs of 50,000 and upwards have been styled
 
 214 THE WORKING CONSTITUTION 
 
 County Boroughs and invested with all the privileges of the 
 County Council, from whose jurisdiction they are wholly 
 exempt. 
 
 The fact has also been mentioned that every borough 
 except those of the smallest class has a separate commission 
 of the peace, of which the mayor and the retiring mayor 
 (for one yeaz') are ex officio members. 
 
 Municipal Among the other duties of borough councils is that of 
 Trading, seeing that the communities are adequately supplied with 
 lighting and water. Gas and water works were however 
 in most cases originally undertaken by private companies 
 under local Acts of Parliament, and are indeed in many 
 cases still so promoted. Newer systems of electric lighting 
 have often, perhaps generally, been started under licences 
 from local authorities for a term of years. Most of the 
 larger boroughs have however taken over and extended the 
 gas and water works supplying their areas, and some have 
 started electric lighting. There is a clear tendency on the 
 part of municipalities to undertake these functions for them- 
 selves, applying at least some of the profits that may be 
 realised in diminution of rates. Another enterprise, that 
 of tramways, has frequently been sanctioned by municipal 
 bodie& under the authority of a general Act of Parliament, 
 which provides that the municipality shall have the power 
 to take over tramways at the end of twenty-one years at a 
 price representing the cost at which such undertakings could 
 be constructed at the time they were taken over. Some 
 municipalities have undertaken to work the tramways which 
 have thus come into their possession ; but others are content 
 to lease them to the companies to whem they belong for a 
 fresh term of years upon agreed rentals. These are examples 
 of a process known as the extension of municipal trading, 
 the policy of which is still in debate. It is possible that 
 under an Act of 1899 telephonic supply may be undertaken
 
 ENGLISH LOCAL GOVERNMENT 215 
 
 by some municipalities, and there are signs that the pro- 
 vision of electric power may in appropriate places come 
 within the range of municipal enterprise. One ground of 
 opposition to this movement is found in the apprehension 
 that popularly-elected bodies may work their undertakings 
 in the interests of working men voters rather than on com- 
 mercial principles ; but so far it cannot be said that 
 experience has proved this danger to be substantial. 
 
 Large powers with respect to water and light are also 
 vested in district councils, and indeed it is imperative on 
 rural district councils to provide a sufficient supply of water, 
 whilst the duty of lighting roads is more stringent on urban 
 district councils. In connection with these functions atten- Housing of 
 tion must be directed to the duty cast upon all councils to Working 
 see to the sanitation of houses within their areas. This 
 has gradually extended in its scope until the duty has 
 come to be supplemented by powers to erect dwellings for 
 the lower classes of ratepayers. The most recent Act 
 (1900) has even empowered councils to acquire land to build 
 houses outside their own areas, but powers of building 
 can be exercised by the Rural District Council only with 
 the consent of the County Council, which latter authority 
 can indeed act for itself if satisfied that the rural district 
 council is neglecting to do its duty in this respect. Some 
 of the larger municipalities have promoted, under private 
 Acts of Parliament, considerable improvement schemes 
 for the demolition of insanitary houses and the erection of 
 improved dwellings in their stead; and although care has 
 ' been taken that the rentals of the new houses should yield 
 a suitable return to their cost, much anxiety has been 
 expressed as to the possible abuse of this form of municipal 
 activity. 
 
 In 1870 new organisations were called into existence in School 
 many parts of England and Wales for the purposes of primary
 
 216 THE WORKING CONSTITUTION 
 
 education under the name of School Boards. Up to that time 
 the State had limited its action in this regard to the making 
 of grants in aid of such schools as satisfied certain conditions 
 of efficiency tested by inspectors appointed to visit the 
 schools. But the voluntary schools thus supported did not 
 cover the whole country, and frequently attained only a low 
 standard. Under this Act, boroughs and parishes were 
 empowered, and, where the school supply was very defective, 
 were required, to elect School Boards to which were given 
 large powers of building schools and maintaining them at the 
 expense of their several localities. Male and female rate- 
 payers were electors of these Boards, on which women 
 whether married or single were qualified to sit, and a 
 peculiar machinery was adopted under which a voter in any 
 district had as many votes as there were persons to be 
 elected, and could accumulate them on one or distribute 
 them among several candidates at his pleasure the object 
 being to obtain on the Board a representation in due pro- 
 portion of the opinions held among the electorate. These 
 Boards now occupy areas comprising more than two-thirds of 
 the population of England and Wales, though by no means 
 one-third of the separate areas of town or parish. Voluntary 
 schools however survive within School Board districts as well 
 as outside them, and Parliament votes them, in addition to 
 the former national grants, a special grant-in-aid at the rate 
 of five shillings per head of the children in the schools ; but, 
 as observed elsewhere, these schools may join together under 
 certain conditions in associations which have the power of 
 distributing the total sum due among the schools at their 
 discretion. It only remains to add that under the Act of 
 1870 and subsequent Acts, every child under the age of 
 and* free 01 ^ twelve must, unless otherwise satisfactorily educated, be in 
 attendance at some elementary school ; that every parent is 
 entitled to find a place for his child free of school fees at 
 
 Voluntary 
 Schools. 
 
 Education
 
 ENGLISH LOCAL GOVERNMENT 217 
 
 some school within a reasonable distance ; that no child can 
 be required to attend religious instruction if his parent 
 objects, and that in the Board Schools no catechism or 
 distinctive formulary of any religious body can form part 
 of the teaching. 
 
 Among the earliest duties of the parish was that of pro- Burial 
 viding a place for the burial of the dead ; and by common Boards - 
 law the parish churchyard is such a place where any person 
 dying in the parish, and any parishioner dying out of the 
 parish, may be brought to be buried provided the deceased 
 was baptized, not excommunicated, and not felo de se. 
 These common law facilities often became quite inadequate 
 as population increased, and cemetery companies laid out 
 cemeteries under private Acts, whilst a series of public Acts 
 promoted the formation of Burial Boards sometimes for 
 parishes, sometimes for a combination of parishes, sometimes 
 for parts of parishes. The public organisation of burial- 
 grounds under the common law, and the overlapping of 
 company Acts and public Acts, still remains most confused 
 and unsatisfactory, and it would be idle to enter into an 
 examination of provisions which must soon be consolidated 
 and amended. We may look forward to a time when every 
 parish will have a burial-ground of its own or be joined 
 with one or more other parishes making up the whole as 
 a defined part of the area of a District Council, with a 
 common burial-ground for their service. 
 
 The Metropolis. 
 
 The government of London has been largely re-organised The City. 
 in recent years, and it is unnecessary to describe at length 
 what previously existed. It has been already stated that 
 the ancient city of London was not dealt with by the 
 Municipal Corporations Act of 1835, nor has it in any
 
 substantial way been since changed. The City is divided 
 into twenty-six wards, the ratepayers of which annually 
 elect common councilmen in varying numbers having some 
 rough relation to their size. The whole body of common 
 councilmen is thus re-elected every year, and each ratepayer 
 can give one vote to as many candidates as there are 
 members to be elected. Each ward moreover elects an 
 alderman for life, subject however to a power very 
 rarely used on the part of the existing aldermen to veto 
 the choice of the ward. 1 The liverymen of the different 
 city guilds, who are not all necessarily ratepayers, meet 
 annually in the Guildhall and choose two out of the 
 aldermen, one of whom is appointed by the Court of 
 Aldermen as Lord Mayor. The alderman so selected is 
 subsequently presented to the Lord Chancellor to receive 
 the formal sanction of the Crown. 2 The Lord Mayor, 
 the aldermen, and the common councilmen make up the 
 governing body of the City. For rare purposes the 
 aldermen sit apart, constituting what is called the Court 
 of Aldermen. The City has civil and criminal courts of 
 its own, and a Small Debt Court corresponding to an 
 ordinary County Court, and judges were formerly elected 
 by the City, a Recorder by the Court of Aldermen, and a 
 Common Sergeant and Commissioner (Debt Court) by the 
 Common Council ; but the two last are now appointed by 
 the Crown, and the Recorder, though still chosen by the 
 aldermen, must be approved by the Crown before entering 
 upon his functions. 
 
 Around the City, with a constitution practically unchanged 
 for centuries, Greater London grew up almost entirely under 
 
 1 There is another alderman elected by his brother-aldermen, the senior 
 being usually chosen, to represent the nominal ward of Bridge Without. 
 
 2 As a matter of fact, the position of Lord Mayor passes in regular course 
 through the aldermen by seniority.
 
 ENGLISH LOCAL GOVERNMENT 219 
 
 parochial conditions, until for purposes of main drainage and London 
 
 similar undertakings a Metropolitan Board of Works was ount y. 
 . , ,. , , . ,o^^ f a.- a. j Council, 
 
 established in 1855 consisting of representatives appointed 
 
 by parish vestries and by the City of London. In 1888, 
 under the Act establishing County Councils throughout the 
 kingdom, the area of the Metropolitan Board of Works was 
 made an administrative county with elected councillors and 
 aldermen, differing only from other counties in that the 
 City and the parliamentary boroughs within it were adopted 
 as its electoral divisions, the City returning four and each 
 borough two members to the Council, whilst the number of 
 aldermen co-opted by the councillors was made one-sixth 
 instead of one-third of their number. To the County 
 Council thus created were transferred all the functions of 
 the Metropolitan Board of Works, the administrative duties 
 of the county justices and sundry local duties up to that 
 time discharged by the Government departments, thus 
 giving it a much greater authority within the county of 
 London than is possessed by County Councils elsewhere ; 
 though the separate organisation of the City and the 
 autonomous administration of the separate parishes by their 
 vestries remained respected. Another step was taken in 1899 New London 
 by the passing of an Act under which the County of London Borou g hs - 
 outside the City is now divided into subordinate boroughs 
 each with its mayor, aldermen, and councillors on the pattern 
 of municipal corporations ; but in reality taking over only 
 the function of the pre-existing vestries, the parochial areas of 
 which will in many cases be conterminous with those of the 
 new boroughs. The proximate settlement of the adminis- 
 tration of London is thus apparent. A superior authority 
 the County Council possesses powers some of which run even 
 within the ancient city, but in their fullest measure extend 
 only throughout the rest of the administrative county, 
 whilst subordinate boroughs will undertake more strictly
 
 220 THE WORKING CONSTITUTION 
 
 Poor Law 
 in London. 
 
 London 
 Police. 
 
 London 
 Water, 
 Gas, etc. 
 
 London 
 
 School 
 
 Board. 
 
 limited functions within their respective areas, some of 
 which will contain two or more parishes each keeping its 
 separate existence in respect of ecclesiastical affairs and for 
 the administration of local trusts. The organisation of the 
 county in respect of the relief of the poor remains under 
 the Guardians of Unions and is thus disconnected from the 
 new creations. Above these Guardians there exists another 
 Board, partly elected by them and partly nominated by the 
 Local Government Board, charged with the administration 
 of metropolitan asylums for pauper imbeciles and lunatics 
 and of hospitals for infectious deseases. 
 
 The city of London maintains a police force of its own 
 receiving no contribution towards its cost from the Treasury, 
 but the county of London and indeed a larger area without 
 it are served by a Metropolitan Police Force under the 
 exclusive administration of the Home Secretary, though 
 nearly one-half of its cost is met by a rate charged on the 
 Metropolitan Police area. 
 
 The water and gas supplies of London are in the charge 
 of private companies under several Acts of Parliament, and 
 the County Council has failed in obtaining parliamentary 
 sanction for the organisation of either gas or water works. 
 On the other hand, several lines of tramways have through 
 effluxion of time been acquired by the powers of expropria- 
 tion, and are directly worked by the County Council. The 
 electric lighting of the metropolis is almost entirely in the 
 hands of private companies under licences for the statutory 
 term from the several vestries. 
 
 The School Board of London is elected for the entire 
 county, and its members are returned under the cumulative 
 vote for divisions corresponding with the parliamentary divi- 
 sions of London at the time of the Education Act of 1870. 1 
 
 1 Lambeth has however since been divided for School Board Elections 
 into two districts, East and West Lambeth.
 
 ENGLISH LAND SYSTEM 221 
 
 This chapter may fitly conclude with a reference to other English Land 
 fundamental institutions forming part of the chain of cir- ^ s em * 
 cumstances besetting the action of Parliament. The adult 
 male citizen has long had an absolute testamentary power Law of 
 over his property in the selection of the objects of his good- Succession - 
 will, and so has the unmarried or widowed woman ; while 
 more recently the married woman has been given by the 
 Legislature similar power over her separate property. There 
 is no obligation in our law to remember children or any 
 other dependants in making a will, and as no child need be 
 remembered, no child has a share or portion which must 
 descend upon it. Where the owner of property does not 
 make a will, the law divides his estate and makes a distinc- 
 tion between property in land, other than land held for a 
 term of years, and property in moveables. Landed pro- 
 perty or real estate descends to the eldest son, or, if he is 
 dead without leaving issue, to the next eldest son, and it is 
 only when there are no sons or representatives of sons that 
 it passes to a daughter, in which case, if there is more than 
 one, it is divided equally between them. The widow accord- 
 ing to the old law is entitled to one-third of the rents of 
 her husband's real estate during her life, but this provision 
 is generally avoided by the arts of conveyancers, who deal 
 with it, as an encumbrance on title. Where there are no 
 children, landed property passes to a man's father as his 
 heir, and through him to such person or persons as may be 
 entitled to succeed him under his will, or by heirship if 
 there is no will. Moveables, or as they are called ' personal 
 property," pass in case of intestacy as to one-third to the 
 widow, and as to the remaining two-thirds equally among 
 the children ; or if there be no children, as to one-half to 
 the widow, and the other half to what are called the next- 
 of-kin, ascertained according to definite rules of succession. 
 A recent statute provides that where there are no children
 
 222 THE WORKING CONSTITUTION 
 
 the widow shall have the first claim up to 500. Proposals 
 have been often made to assimilate the law of succession 
 to real property to that of succession to personal property, 
 but hitherto without effect, partly because intestacy is 
 exceptional, but still more because the practice of settle- 
 ment to which reference must presently be made supports 
 and is supported by the law of primogeniture. No practical 
 suggestion has ever been made in favour of compulsory 
 division of any part of a man's estate, and testamentary 
 liberty in this respect may be regarded as rooted and fixed 
 in our habits. The law however very definitely prescribes 
 the limits of time and descent within which a man's will 
 may run. A man may make a will providing for the 
 devolution of property as long as any designated life or 
 lives in being at the time of his death should survive, and 
 for twenty-one years after. 1 
 
 A settlement extending to a like series of successions may 
 also be effected by deed between living parties. Under 
 this power of prolonged limitations lands are habitually 
 settled in families so as to be maintained with little 
 difficulty intact from generation to generation for the 
 endowment of the successive heads of the family ; and 
 personal property can be bequeathed either with express 
 Family direction for investment in land to form part of the family 
 
 settlements estate, or with a direction that its income shall be paid to 
 ' the person who would be entitled to the rents of the land. 
 If a man who is one of the makers of fortunes has acquired 
 by purchase large landed property, he can thus make a will, 
 giving his eldest son an interest or estate for life ; with succes- 
 sion to the son's son, if born, for life ; and, if unborn, for an 
 
 1 A man can leave personal property to a charity as defined by law with- 
 out limit of time, but he cannot give lands to a charity by will. Any 
 benevolent intention of this kind must be irrevocably effected by deed at 
 least six months before his death.
 
 ENGLISH LAND SYSTEM 223 
 
 estate over which, such son would have a limited command 
 on attaining the age of twenty-one with further successions 
 over other sons of the testator. In this way a * county 
 family 1 is founded with some promise of permanence. In 
 the will would be inserted provisions for raising portions 
 for younger children, for giving a jointure to a son's 
 widow, and a general Act now enables a person entitled 
 for life to land thus settled to give leases and to effect 
 sales on condition of re-investment of the proceeds of the 
 sale ; the object of all such provisions being that the owner 
 for life may exercise all useful control in the management 
 of property whilst safeguards are taken that its corpus shall 
 be undiminished. Under a scheme of settlement such as 
 described, the time will probably come when some one will 
 be in possession of the property for life with an eldest son 
 who has attained the age of twenty-one, upon whom the 
 property will devolve if he survives his father, but who 
 meanwhile is entirely dependent upon his parent for support ; 
 and it is under such circumstances that a transaction is 
 effected between the father and son under which the latter, 
 in consideration of an immediate fixed income, and perhaps 
 of provisions enabling him to marry and give his widow a 
 fixed income, joins his father in resettling the property, so 
 that it is carried on to another generation in favour of his 
 unborn son, who may be expected in due time to join in an- 
 other resettlement. It would be difficult to exaggerate the Their in- 
 tenacity with which this system has driven its roots into flu u . c n 
 English society, and the importance of its influence over the 
 working of the constitution. Profoundly conservative forces 
 abide and flourish under it. Although the institution of 
 County Councils and the reform of District Councils have 
 taken away many of the administrative functions of county 
 magistrates, their judicial influence is practically intact, and 
 it is from the owners of land that the magistrates are mainly
 
 224 THE WORKING CONSTITUTION 
 
 recruited. What has been called the squirearchy is thus 
 maintained over great parts of England, and an order has 
 been established, entrance into which is an object of am- 
 bition to members of the commercial and industrial classes 
 as they grow wealthier, and continuance in which is jealously 
 guarded on the part of those who have been born into it. 
 The power of keeping together and handing down from 
 father to son a sufficient endowment of property is almost a 
 necessary accompaniment of the existence of any hereditary 
 honours ; and the security of the House of Lords, in which 
 legislative privileges are hereditary along with titles of 
 honour would be seriously menaced if it were not buttressed 
 by the influences derived from the possession of large estates 
 spread throughout the country. It must however be added 
 that the immunity of family estates from dilapidation is not 
 perfect. It has been said that in wills and settlements 
 power is generally reserved of raising portions for younger 
 children. Sometimes too it happens that, on resettlements 
 by a father and his expectant son, it is found convenient for 
 How family reasons to raise money for immediate use. A succes- 
 
 broken up. s j on o f thriftless heads in a family may thus accumulate 
 charges resulting in a breaking up of the estate. Again, it 
 may happen that a father may die leaving a son of tender 
 years who comes into absolute possession of the property 
 on attaining the age of twenty-one, and if the latter is a 
 wastrel, he may dissipate his inheritance, if he is not checked 
 by the limitations of a new settlement which would be the 
 natural accompaniment of his marriage. These dispersions 
 of estates may be regretted in the interests of family descent, 
 but if they did not happen and so enable new accumu- 
 lations to be effected, powers of settlement could scarcely 
 have remained unmodified. As it is, they constitute a strong 
 bulwark to the present organisation of English society ; and 
 though often attacked in argument no definite proposal for
 
 ENGLISH LAND SYSTEM 225 
 
 reducing their scope has now for long years been mooted in 
 Parliament. Steps have been frequently taken in adjust- 
 ments of the legal relation of landlord and tenant and in 
 facilitating the sales and exchanges by life-owners to recon- 
 cile the existence of settlements with the fullest agricultural 
 use of land and with the satisfaction of those demands for 
 the acquisition of land for building and industrial purposes 
 which naturally arise in growing communities ; but no step 
 has been taken or even suggested for a reduction of powers 
 of settlement themselves. It has been otherwise in the Unknown in 
 colonies founded by emigrants from home. Into these, as colonies, 
 into the United States, the law of England in respect of 
 land was originally carried, but the law of primogeniture 
 has been everywhere abolished, and the power of settling 
 land on unborn persons has almost as universally been taken 
 away, and it is understood that in the few cases in which 
 this last power has not been destroyed it is very rarely 
 exercised. In these newer communities without hereditary 
 honours and hereditary privileges, hereditary estates, even 
 where permitted, have hardly come into existence, and the 
 sentiment against their creation will probably make them 
 continue in scarceness.
 
 226 THE WORKING CONSTITUTION 
 
 CHAPTER II 
 
 SCOTLAND I CHURCH, LAW, LOCAL ORGANISATION 
 
 Scottish PARLIAMENT cannot be less respectful of Scottish than of 
 
 Institutions English institutions. When the two crowns became united, 
 
 respected by . 
 
 Parliament, there was no question ot the independence 01 each or the 
 
 other. The Act of Union, which brought the two Parlia- 
 ments into one, was a treaty between two independent 
 powers containing mutual covenants affecting to give to 
 certain institutions an eternal inviolability, which in the 
 nature of things cannot be maintained. As has already 
 been observed with respect to the Irish Act, both Parlia- 
 ments committed the fortunes of Great Britain to a United 
 Parliament which has no legal superior and from whose 
 statutes there can be no appeal other than a revolutionary 
 recourse to arms. But the spirit of the agreement required 
 that the utmost respect should be paid to the exceptional 
 institutions of the two kingdoms ; and this respect has in 
 fact been observed. It is probably true that no one of the 
 fundamental institutions of Scotland has been changed by 
 the United Parliament without the assent of a majority of 
 the Scottish representatives in the House of Commons, if not 
 also of the representative peers. It may indeed be said 
 that, in respect of Scottish affairs, Parliament has not only 
 refrained from positive action in opposition to what ap- 
 peared to be the will of Scotland ; it has paid respect 
 to that will in consenting to legislation demanded by
 
 SCOTTISH ADMINISTRATION 227 
 
 it, which otherwise the majority might have been slow to 
 approve. 
 
 Scotland greatly increased in population and prosperity Central ad- 
 
 in the earlier years of this century ; and its parliamentary ministration 
 
 ... , f TO , .. f .1 .1 . f of Scottish 
 
 position before 1832 was even less satisfactory than that of a fl- a i rs 
 
 England. We need not however go behind the Reform Act 
 of that year which extended the same principles of enfran- 
 chisement to both kingdoms, and approximately redressed 
 inequalities of representation. The Minister primarily formerly 
 responsible for the government of Scotland was, and re- vested in 
 mained down to 1885, the Home Secretary. Upon him Secretary 
 had descended the functions of the whilom sole Secretary 
 of State, and he had the charge of the government of Scot- 
 land, as he had at one time of that of Ireland also. In the 
 discharge of his parliamentary responsibilities he was assisted with assist- 
 by the Lord Advocate, the principal law-officer of the { "\ ce of Lord 
 Crown in Scotland, to whom a seat in Parliament was a 
 necessity. This functionary, in subordination, often little 
 more than nominal, to the Secretary of State, conducted 
 the parliamentary business of the North; and practically 
 administered much of its patronage. As the functions of 
 government developed, and new offices were created, the 
 heads of the departments thus called into being carried 
 their work throughout Great Britain. Public education in 
 Scotland thus came to be under the same Minister as public 
 education in England ; and similar examples might be cited. 
 In 1885 however a new departure was made. A special in 1885 
 
 office was created, that of a Secretary for Scotland, and to transferred 
 .,/.. . ., i i i ij i j- 4. to Secretary 
 
 this functionary was given the work which had been distn- f or Scotland. 
 
 buted over many departments, the Home Office, the Local 
 Government Board, the Education Department, etc.; whilst 
 the Lord Advocate was subordinated to the new Minister. 
 The Secretary is not, it must be observed, a Secretary of 
 State ; and he is only occasionally a member of the Cabinet.
 
 228 THE WORKING CONSTITUTION 
 
 The Church 
 of Scotland ; 
 
 its organisa- 
 tion 
 
 and General 
 Assembly. 
 
 But he collects together and particularises Scottish business 
 at the risk of a possible divergence between the streams of 
 development in England and in Scotland ; and as experience 
 will suggest not to the enhancement of the office of Lord 
 Advocate. It may however be expected that the change 
 will not diminish the degree of regard paid by the Imperial 
 Parliament to the maintenance of existing Scottish institu- 
 tions. 
 
 The most important of these institutions, safeguarded 
 by the Act of Union, was the Presbyterian Church. Every 
 succeeding sovereign is sworn to maintain its organisation, 
 and the Confession of Faith to which its officers are required 
 to adhere is of statutory obligation. This Confession, with 
 the Larger and the Shorter Catechism, contains the doctrine 
 of the Church, whilst its government is entrusted to a series 
 of bodies rising, if the word may be permitted, in a hierarchy 
 one above the other. In each parish the minister and a 
 varying number of elders constitute the kirk-session. For a 
 group of parishes the minister with one elder from each con- 
 stitute the presbytery. A group of presbyteries constitute 
 a synod ; and above the synods is the General Assembly, to 
 which each presbytery sends ministers and elders in propor- 
 tion to its size. Each of the Royal Burghs sends an elder ; 
 and each of the Universities sends, as it chooses, a minister 
 or an elder. A Lord High Commissioner nominated by the 
 Crown opens the Assembly and attends its sittings ; but 
 the working head is a Moderator, chosen by the Assembly 
 at the end of each session to preside at the next session. 
 The struggle which was waged three centuries ago between 
 Crown and Assembly has found a solution in the indepen- 
 dent announcement, at the close of each session by the Lord 
 High Commissioner and by the Moderator, of the date of 
 the next meeting of the Assembly. Given the permanence 
 of its doctrinal symbols and of its organisation, the govern-
 
 SCOTTISH CHURCH 229 
 
 ment of the Scottish Church may be said to be purely 
 
 democratic. This was indeed formerly qualified by the 
 
 rights of patrons to nominate ministers in certain parishes ; 
 
 and the decision of the law-courts, affirmed in the last resort 
 
 by the House of Lords, that the Assembly could not invest 
 
 a congregation with a power to veto such an appointment, 
 
 led to a great disruption in 1843, as a result of which a Free Free Church 
 
 Church of Scotland was established possessing the same 
 
 standards of doctrine and the same organisation as the 
 
 original Church and differing from it only in the fact that 
 
 its property and income are derived from voluntary offerings to secure the 
 
 of deceased and living members, and that no right of ch . 01 . c ^ of 
 p ' 3 . ministers 
 
 patronage interferes with the free choice of congregations, by congre- 
 
 There had been previous secessions from the Established gations. 
 
 Church of several bodies which ultimately united under the 
 
 name of United Presbyterians as a purely voluntary body 
 
 apart from the state ; and in 1900 this association and 
 
 the Free Church joined together under the title of the 
 
 United Free Church. To return to the Established Church 
 
 the cause of the controversy which led to the disruption 
 
 in 1843 was removed in 1874 by an Act abolishing patronage This choice 
 
 and vesting the choice of ministers in parochial communicants f? ve ^ *, 
 
 ,, . r , . , Established 
 
 and adherents. Save in the possession or a limited national church 1874. 
 
 endowment of manses and teinds, there is now little to dis- 
 tinguish the Established from the Free Church. In freedom 
 of internal life it occupies before the law precisely the same 
 position as the unestablished religious communities, whether 
 of England or Scotland, the administration of whose trusts 
 may become the subject of an appeal to the judgment of 
 courts of law. 
 
 The judicial system of Scotland has differed widely in origin Judicial 
 and history from that of England, and it still shows large differ- 
 ences of form, though not of principle. The Supreme Court 
 consists of thirteen judges, and is called the Court of Session
 
 230 THE WORKING CONSTITUTION 
 
 Court of 
 Session is 
 Supreme 
 Court. 
 
 Sheriffs. 
 
 on its civil, and the Court of Justiciary on its criminal side. 
 From its civil j udgments appeals go to the House of Lords ; 
 but its action is final in criminal matters. It is divided into 
 two Houses ; the Lord President and three judges ; the Lord 
 Justice-Clerk and three judges (forming together the Inner 
 House); and five other judges, who are the Lords Ordinary 
 of the Outer House. The two first divisions are mainly 
 Courts of Appeal from the Outer House, and the Lords 
 Ordinary pass by seniority to fill vacancies in them. All 
 the members of the Court are appointed by the Crown, and 
 hold office ad vitam aut culpam ; what constitutes culpa being 
 apparently left without strict definition; but it seems to 
 be assumed that judges in Scotland are removable, as in 
 England, on an address from the two Houses of Parliament. 
 Probate and Divorce causes form part of the general work of 
 the Court of Session, and the law of Scotland has never known 
 the separation of Law and Equity which till lately prevailed 
 in England. The members of the Court of Justiciary go on 
 circuit as in England for the trial of criminal cases. 
 
 Scotland is divided into Sheriffdoms, sometimes including 
 more than one county, each with a sheriff under whom is 
 one or more sheriff-substitutes. Both sheriffs and sheriff- 
 substitutes are appointed by the Crown ad vitam aut culpam, 
 but they are removable by the Secretary for Scotland on report 
 of culpa by the Lord Justice-General and Lord Justice-Clerk 
 subject to the proviso in case of sheriff's that such reports lie 
 a certain time before Parliament. The Sheriff-substitute is 
 a judge of first instance while the Sheriff" is mainly an 
 appellate judge though bound to hold a certain number of 
 original sittings every year. Their civil jurisdiction is 
 limited in respect of realty, and murder and treason are 
 excluded on the criminal side. Appeals are carried from 
 sheriffs and in some cases from sheriff-substitutes direct to 
 the Court of Session. Sheriffs are always, and sheriff-
 
 SCOTS LAW 231 
 
 substitutes generally, advocates, and a sheriff can practice 
 outside his sheriffdom. The Procurator-Fiscal appointed Procurator- 
 by the Sheriff ad vitam aut culpam 1 has no parallel in English Fi ^ ca l 
 organisation. He is the Public Prosecutor in the sheriff- Prosecutor 
 court and under the direction of the Lord Advocate is the 
 conducting agent in prosecutions in the High Court and 
 Circuit Courts. A person aggrieved by an alleged crime 
 can himself prosecute where the Lord Advocate directs the 
 Procurator-Fiscal to concur or the High Court gives leave. 
 The 'Fiscal 1 moreover has the duty of enquiring into all 
 doubtful cases of death and of outrage to person or property, and as 
 He conducts these enquiries privately, holding no court and Coroner, 
 not taking evidence on oath. Memoranda of evidence thus 
 got together are called precognitions ; and it is only when a 
 charge is formulated before a court that witnesses are sworn. 
 Justices of the Peace are appointed by the Crown for divisions Justices of 
 of counties but they differ from English Justices in having tne Peace - 
 little important work except that of licensing. In burghs 
 the Provost or head of the municipality is always included 
 in the Commission of the Peace. 
 
 The law of juries in Scotland differs materially from that Juries in 
 of England. In criminal proceedings, not conducted under crim i" a l 
 statute by way of summary procedure, a jury is associated 
 with a j udge or sheriff, though there are some exceptions, 
 and there were formerly more in cases of light offences, 
 tried by the sheriff. A jury consists of fifteen persons, and 
 a verdict of a majority suffices. 2 A verdict may be either 
 ' guilty ' or ' not guilty ' or ' not proven ' ; and a verdict of 
 ' not proven ' is as final as any other. 
 
 In civil causes trial by jury had for centuries entirely in civil cases, 
 disappeared in Scotland until partially introduced in 1815. 
 
 1 He is removable only by the Secretary of State upon adverse report of 
 the Lord President or Lord Justice-Clerk. 
 
 2 In cases of treason the jury is twelve and the verdict must be unanimous.
 
 232 THE WORKING CONSTITUTION 
 
 Advocates 
 and Law- 
 Agents. 
 
 Peculiarities 
 of Scots 
 Law. 
 
 Marriage 
 requires no 
 ceremony. 
 
 It has since been extended, and juries are now obligatory in 
 much the same class of cases as in England, whilst in other 
 cases they may be used to try subsidiary issues. A jury 
 in a civil cause consists of twelve persons, and a verdict of 
 a majority is sufficient after a jury has been withdrawn three 
 hours in deliberation. 
 
 The administration of the law in Scotland is completed 
 by the existence of advocates and law-agents. The former, 
 corresponding to English barristers, constitute a society or 
 College of Advocates which is self-governing, with an elected 
 Dean of Faculty at its head. Persons desiring to be ad- 
 mitted to the position of advocate petition the Court of 
 Session, which remits the application to the College, by 
 whom the applicant is approved after satisfying the 
 following conditions : (1) passing an entrance examination 
 attesting a liberal education ; (2) attendance on prescribed 
 lectures and training for twelve months ; (3) passing specific 
 examinations in legal knowledge. The law-officers of the 
 Crown, the Lord Advocate and Solicitor-General, are 
 necessarily advocates. The law-agents correspond to the 
 English solicitors, and comprise the classes known as writers 
 to the signet, solicitors of the Court of Session, and pro- 
 curators of the sheriff-court. They are admitted on petition 
 to the Supreme Courts on conditions (1) of having served 
 five years 1 apprenticeship (reducible in case of University 
 graduates to three) to a law-agent ; and (2) of passing ex- 
 aminations either by recognised bodies such as the Writers 
 to the Signet or by examiners appointed by the Court itself. 
 
 It will not be out of place to add a few notes on some 
 cardinal differences between the law of Scotland and that of 
 England. One of the most important is that marriage in 
 Scotland requires no special form or ceremony to give it 
 validity. The maxim consensus facit matrimonium is fully 
 recogniied. All that is required is evidence of consent, and
 
 SCOTS LAW 233 
 
 this may not only be supplied by a declaration of the 
 parties, 1 but may be inferred from ' habit and repute ' of their 
 mutual life. Marriage moreover has the effect of conferring 
 legitimacy on children born to the parents before the status 
 of marriage was established, provided the parents could 
 have been lawfully married at the time of the birth of the 
 child. The law of Scotland is moreover markedly different 
 from that of England in respect of moveable property of 
 married persons. Apart from recent legislation, recognising 
 and establishing the separate property of married women 
 under similar conditions in both countries, Scots law gives Succession 
 rights of succession to moveable property held during to mo ^ eabl( 
 marriage. Formerly it was held in accordance with foreign 
 jurists that husband and wife had a community in such 
 property, but inasmuch as the husband as administrator 
 could sell or dispose of it at his own will this title of 
 community was always shadowy and has of late been dis- 
 carded. In the absence however of ante-nuptial agreement 
 whatever moveables the husband may possess at the time of 
 his death are divisible, if there be children, into three parts, 
 one for the widow, one for the children, and one disposable 
 according to his will ; and if there be no children, into 
 equal shares, one for the widow and one in his disposition. 2 
 The law respecting immoveables or real estate has practically Real Estate. 
 become the same in the two kingdoms. It was not how- 
 ever until 1868 that the absolute owner of real estate in 
 Scotland could dispose of it by testamentary disposition. 
 He had power whilst alive to dispose of it by deed ; but 
 this did not extend to gifts by will as in England. In 
 connection with this it must also be observed that it Avas 
 
 1 One at least must have been resident in Scotland for a qualifying 
 period. 
 
 3 The title of the representatives of a predeceased wife to the third or a 
 half share, as the case might be at the time of her death, was abolished in
 
 234 THE WORKING CONSTITUTION 
 
 Entails. not till 1848 that the power of terminating an entail of 
 
 landed property was subjected to the same principles in 
 Scotland as in England, and identical conditions of freedom 
 of barring entails were not established until 1875. Finally 
 by statute in 1882 an entail in Scotland may be cut off by 
 concurrence of the heir-in-possession and the heir-apparent, 
 or of the three next heirs if there be no heir-apparent; 
 or the heir-in-possession may disentail by paying out suc- 
 ceeding interests. 
 
 Local The ancient divisions of Scotland for the purposes of 
 
 Government administration were the County and the Parish, to which 
 may be added the burghs called into existence by royal 
 charter. The parishes of Scotland exhibit similar variations 
 in size and population to those of England, but the average 
 size is much greater, as may be inferred from the fact that 
 there are only 886 in Scotland as against 14,896 in England 
 and Wales. Many of the largest in size or population have 
 been divided for ecclesiastical purposes into quoad sacra 
 parishes, and these divisions are treated as separate parishes 
 in the educational organisation of Scotland, but for ordinary 
 civil purposes the sub-division is disregarded. Each parish 
 had separate care of its poor, its church, manse, etc., and its 
 roads. The cost of the ecclesiastical provision was thrown 
 upon the heritors or landed proprietors, that of the poor 
 upon the heritors with the assistance of an assessment made 
 by the kirk-session, whilst the roads were maintained by 
 corvte or forced labour of residents, to which came to be 
 added assessments of proprietors not contributing labour, 
 and subsequently tolls, called the Causeway Mail, at certain 
 fixed points. Local Acts developed the principle of assess- 
 ment, and the Central Government intervened to make some 
 main highways chiefly in the North, and intended as military 
 roads. Where assessments were made in parishes these were 
 imposed in equal parts on owner and occupier.
 
 Parochial functions have not been much changed in School 
 respect of church matters except so far as education may Boards, 
 have been regarded as church work, but otherwise they 
 have been largely developed. In respect to education the 
 parish was from the sixteenth century charged with the 
 duty of maintaining a school, which formed a peculiar 
 distinction of Scotland, but in 1872 an Act was passed 
 under which School Boards are made universal throughout 
 Scotland. Smaller parishes may join together, but subject 
 to this, every parish has its School Board elected by the 
 ratepayers with a cumulative vote. The Boards took over 
 at once the parish schools, and have taken over many of the 
 other existing schools, especially those of the Free Church. 
 Education in the schools provided by the Boards is safe- 
 guarded by a * conscience clause ' in the interest of children 
 whose parents do not desire them to receive special religious 
 instruction ; but otherwise religious teaching is free from 
 the limitations imposed in England, the Shorter Catechism 
 of the Scotch Church being habitually taught in them. The 
 abolition of fees in England was anticipated in Scotland, 
 and education has in fact become gratuitous and compulsory 
 but not secular. 
 
 In the management of the poor relief an Act of 1845 Parochial 
 created a Parochial Board in every parish, and encouraged ^ oar( | s and 
 parishes to join together for the erection of poorhouses. Councils. 
 These Parochial Boards were however superseded in 1894 by 
 Parish Councils, elected by the widest suffrage male and 
 female, and on which women can sit, the Councils having 
 also additional powers of parish administration. The same 
 Act established a Local Government Board consisting of the 
 Secretary for Scotland as President, the Solicitor-General, 
 and the Under-Secretary and three paid members, one 
 legal and one medical. The Board took over the functions 
 of the Board of Supervision which had been established in
 
 236 THE WORKING CONSTITUTION 
 
 1845 to superintend Poor Law Administration. The cost 
 of the administration of the poor relief is in most parishes 
 defrayed by a rate paid half by occupiers, half by owners ; 
 but the Parish Councils seem to have inherited the power, 
 with the consent of the Local Government Board, to adopt 
 other rules of assessment. 
 
 Police. The organisation of police force for the maintenance 
 
 of order has followed much the same lines in Scotland 
 as in England. The old local guardians of the peace, 
 however designated, were always imperfect and sometimes 
 quite illusory as maintainers of order; and in 1839 a 
 permissive Act enabled counties and boroughs to establish 
 forces of an improved character. The permissive Act 
 became imperative in 1857, and under it a force was 
 established in every county including the burghs within 
 it that had not already created forces for themselves. 
 These county forces were placed under the adminis- 
 tration of the Commissioners of Supply to whom reference 
 will presently be made, but since the formation of 
 County Councils have been made subject to Joint-Com- 
 mittees of the Commissioners and of the County Council. 
 The imperial treasury contributes the same proportion 
 (a moiety) of the expense of these forces in Scotland as 
 in England ; subject to like condition of efficiency certified 
 by inspectors formerly appointed by the Home Secretary, 
 now by the Secretary for Scotland. 
 
 Commis- Turning now to the organisation of counties, the im- 
 sioners of portant functions of sheriffs as judicial officers already 
 noticed may be recalled to memory. Sheriffs were also 
 invested with many administrative duties, which they con- 
 tinue to discharge. The institution of Justices of the Peace 
 has also been mentioned, but the government of counties 
 was until recently the work of Commissioners of Supply 
 apart from the functions of the Sheriff, the Commissioners
 
 SCOTTISH LOCAL GOVERNMENT 237 
 
 being mainly the same persons as Justices of the Peace. 
 Their earliest duty was to assist the Sheriff in the collection 
 of the revenues of the Crown, and they still have to collect 
 the land-tax. Gradually however the work of the Com- 
 missioners of Supply became much the same as that of 
 county magistrates in England in Quarter Sessions, though 
 their legal obligation did not extend beyond one meeting 
 a year. In this way they became charged as already 
 noticed with the control of a county police, the care of 
 lunatic asylums, etc., and the chief notable difference 
 between them and the Quarter Sessions authorities of 
 England was that the burden of the rates was thrown upon 
 owners only except rates under the Roads and Bridges Act 
 (see below) which were divided equally between the owner 
 and occupier of the properties assessed. The creation 
 of County Councils in England in 1888 was followed by Comity 
 the establishment of similar bodies in Scotland in 1889, Councils, 
 and was accompanied by a similar transfer of administrative 
 functions. Scottish County Councils differ however from 
 those of England in having no co-opted aldermen added to 
 their elected members, and a limitation of a novel character 
 was imposed. The Act creates a joint police committee as 
 in England half chosen by the Commissioners of Supply 
 and half by the County Council with the addition however 
 of the Sheriff, and goes on to provide that no capital ex- 
 penditure (meaning expenditure on roads, bridges, buildings, 
 land purchase, etc.) shall be incurred without the consent 
 in writing of such standing joint-committee. 
 
 The establishment of County Councils was accompanied by 
 a final settlement of the question of road management. 
 The earliest system of supporting roads by statute labour 
 and by tolls has been mentioned, and also the creation 
 of road districts under separate local Acts ; to which must 
 be added the formation of turnpike roads on the same
 
 238 THE WORKING CONSTITUTION 
 
 system as in England. All these roads came more or less 
 under the control of the Commissioners of Supply, to whom 
 in 1863 the Central Government transferred the mainten- 
 ance of the main military roads also previously mentioned. 
 The gradual extinction of turnpike trusts and the increased 
 powers of Commissioners of Supply led to a demand for 
 an association of the representatives of ratepayers with 
 the Commissioners, and in 1878 a Roads and Bridges Act 
 was passed creating in every county a mixed authority 
 consisting of the Commissioners of Supply and elected 
 representatives of the ratepayers in each parish. On the 
 formation of County Councils the functions of these bodies 
 were naturally transferred to the new authorities in whom 
 the other administrative duties of the county had been 
 collected, and it was arranged that the average amount of 
 rates borne in the past by owners should continue to be 
 borne by them whilst additional sums that might be required 
 should be thrown equally upon owners and occupiers. 
 Burghs. Burghs in Scotland as in England had their origin in 
 
 charters from the Crown. A large number of existing 
 burghs are still specially denominated Royal Burghs. Their 
 constitutions exhibited great varieties of organisation ; but 
 in 1833 a new and uniform method of popular election 
 was introduced. Burgh councillors are now elected, in 
 wards if the size of the burgh requires it, by ratepayers 
 male and female and parliamentary electors, for a term 
 of three years, and one-third goes out of office every year. 
 The elected councillors choose out of themselves a 
 Provost (Mayor) and bailies, the latter varying in number 
 according to the size of the burgh. The provost and 
 bailies are magistrates for the burgh, and the provost 
 is ex afficio the Commissioner of Supply for the county. 
 The provost holds office for three years, but the bailies 
 get no extension of tenure through their election, and
 
 SCOTTISH LOCAL GOVERNMENT 239 
 
 go out of office when they retire as councillors. In the 
 larger burghs a separate police force is maintained, and 
 Glasgow is served by a stipendiary as well as other magis- 
 trates. In smaller burghs the police is part of the force 
 of the county. Burgh Councils have much the same 
 functions in Scotland as in England. Their resources 
 are known by the name of the ' Common Good, 1 and are 
 supplied by rents, with not unfrequently octroi duties or Owner and 
 tolls and rates specially levied. The burden of the rates is Occupier, 
 thrown upon occupiers, although in the case of holdings of 
 *4 and under the owner is required to pay them in the 
 first instance. 
 
 A class called Police Burghs can be called into existence Police 
 in ' populous places ' under certain conditions by the Sheriff. J* ur g" s - 
 They have a complete municipal organisation with magis- 
 trates and a police court, and are sometimes considerable 
 towns. Royal Burghs have enjoyed for four hundred years 
 the privilege of electing Commissioners to meet in con- 
 vention at Edinburgh once a year to consider subjects 
 of 'common profite' in which representatives of other 
 burghs now join; but these meetings have no legislative 
 authority and are not regarded as important. In Edin- 
 burgh, Glasgow, Aberdeen, Dundee, and Perth magistrates 
 are found called Deans of Guild, survivals of similar Deans of 
 officers once existing in all burghs elected by merchants, Guild, 
 builders, and others forming what is called in Glasgow the 
 Merchants' House, and elsewhere the Guildry, and asso- 
 ciated with the common council. The special duty of 
 these deans is the regulation of buildings touching height, 
 structure, alignment, etc., and in general the enforcement 
 of such matters of police as have reference to building. 
 For these purposes they hold courts in which they are 
 assisted by their own procurators-fiscal.
 
 240 THE WORKING CONSTITUTION 
 
 CHAPTER III 
 
 Irish in- 
 stitutions 
 of foreign 
 origin. 
 
 IRELAND I LAW AND POLICE, RELIGION, 
 EDUCATION, LOCAL ORGANISATION 
 
 THE institutions of Ireland everywhere bear the impress 
 of its history. They have been largely imported from a 
 conquering country and imposed upon the conquered. 
 Some of them have by virtue of their own merits become 
 fairly rooted in the soil, but few or none have acquired that 
 overmastery of respect which fastens around the self-sown 
 customs and processes of nations. It is a natural conse- 
 quence of being less firmly planted that they should be 
 more lightly treated. The essential guarantees of liberty 
 and of law have been frequently suspended, and sometimes, 
 it is to be feared, without the justification of imperious 
 necessity. Changes are however in progress changes which 
 mean growth and there is some promise of a develop- 
 ment resulting in institutions possessing stability because 
 approved by the mind of the people among whom they are 
 established. 
 
 At the head of the administration of Ireland is the Lord 
 Lieutenant Lieutenant or Viceroy, who is the immediate representative 
 Secretary ^ ^ ne Crown, and discharges all the functions of sovereignty, 
 as he is environed with all the formalities of a court. All 
 appointments are made by him, and all administrative acts 
 are executed in his name. This position is however very 
 different from that of a Governor of a self-governing colony. 
 He has no Ministers to whose advice he must listen because 
 
 Lord
 
 IRISH ADMINISTRATION 241 
 
 they possess the confidence of a representative assembly. 
 He is himself one of a Ministry with whom he is directly 
 or indirectly in constant consultation and as whose dele- 
 gate he comes to Dublin. He is commonly, though not 
 of constitutional necessity, a member of the House of 
 Lords, and if he leaves Ireland he appoints Lords Justices 
 to execute his functions in his absence. He has a Chief 
 Secretary who represents him in the House of Commons, 
 and who is in truth his responsible Minister before that 
 Assembly. The separation of power between the Viceroy 
 and his Chief Secretary is not however absolutely deter- 
 mined. The salary of the Lord Lieutenant is charged 
 upon the Consolidated Fund, so that his acts do not 
 regularly come before the House of Commons in Com- 
 mittee of Supply, whilst the salary of the Chief Secretary, 
 which is voted annually, is always used as an opportunity 
 of criticising the policy of the Irish Government. In this 
 respect there is some approach to an analogy between the 
 rejations of the Lord Lieutenant and his Chief Secretary, 
 and those of the Crown and its Ministers ; and it has not 
 unfrequently happened that, whilst the Viceroy discharges 
 the ceremonial function of his office, the Chief Secretary 
 is a member of the Cabinet upon whom the real duty rests 
 of originating, if not determining, the Irish policy of the 
 Government. On the other hand the Lord Lieutenant may 
 be a member of the Cabinet, and his Chief Secretary the 
 executor of his policy. It must indeed be remembered that 
 the solidarity of the Cabinet in respect of Ireland as of all 
 other matters is complete ; and the point now insisted upon 
 is no more than this, that the representative in the Cabinet 
 of the Government of Ireland, who, as a member of the 
 Cabinet, leads and conducts its Irish policy, is sometimes 
 the Lord Lieutenant and sometimes the Chief Secretary. 
 It is not long since neither was a member of the Cabinet, 
 
 Q.
 
 242 THE WORKING CONSTITUTION 
 
 but it has in more recent years been found fitting if not 
 necessary that one of them should occupy that position, 
 and it is not unnatural that the Chief Secretary, as a 
 member of the House of Commons and always in touch 
 with it, should more frequently be the real Minister for 
 Ireland sitting in the Cabinet. There have however been 
 notable exceptions, both in Liberal and in Conservative 
 Administrations, and it might be hazardous to say what 
 will be the probable course of the future. In any case it 
 is indispensable that each should have the full confidence 
 of the other; and no Chief Secretary could now have to 
 complain, as was the case in the last administration of Sir 
 Robert Peel, that he had to defend in the House of 
 Commons a policy as to which he had not been consulted, 
 and appointments of which he had not been informed. The 
 abolition of the Lord Lieutenantcy has often been discussed, 
 and a bill for the purpose was introduced into the House 
 of Commons in 1850 ; but the change was resented by the 
 majority of Irish members, and the bill was abandoned. 
 The mere substitution of a Secretary of State for Ireland 
 for the Lord Lieutenant would have the effect of taking 
 away the pageantry of the office from Dublin, but would 
 not necessarily produce a vital change in the government 
 of Ireland. If the several branches of administration in 
 Ireland were attached to the corresponding branches in 
 England, there would be a movement to a real unification ; 
 but as between England and Scotland there has of late 
 been a tendency to disconnection, and it cannot be said 
 that there is at present any likelihood of soon drawing into 
 one the ordinary branches of administration in the United 
 Kingdom, in the way in which the administration of the 
 Post Office is unified. 
 
 Le#al System The legal system of Ireland is modelled on that of Eng- 
 of Ireland. land, the English conquerors having brought their Common
 
 IRISH LAW AND POLICE 243 
 
 Law with them and with it their modes of procedure. The 
 Lord Chancellor of Ireland appoints Justices of the Peace 
 in every county, and in those boroughs which have separate 
 commissions. The principle of nominating justices on the 
 recommendations of the Lords Lieutenants of counties has 
 also been followed, but of late has been more freely modified 
 by direct appointments at the discretion of the Chancellor. 
 In Ireland however it has been thought necessary to supple- 
 ment these unpaid magistrates by the appointment of paid 
 resident magistrates nominated by the Lord Lieutenant, 
 who were supposed to bring to the discharge of their duties 
 a larger knowledge of law, if not a more judicial temper, 
 than can always be found among country gentlemen. 
 These resident magistrates may be discharged from the 
 exercise of their functions by the Lord Lieutenant, and 
 in times of political excitement they are liable to become 
 the object of invidious attack as part of the Administration. 
 Before the magistrates, resident and otherwise, prisoners 
 apprehended under charge of crime are brought as in 
 England and dealt with summarily or committed for trial 
 at the Assizes or Quarter Sessions. The administration of 
 the criminal law differs however in this most material 
 respect, that whilst in England any one who alleges that 
 he has been wronged can institute and maintain a criminal 
 process, and prosecutions are thus habitually undertaken, Irish Police, 
 in Ireland the investigation and prosecution of crime are 
 left in practice exclusively to the police and the other 
 agents of the Government. In this way the agents of the 
 Government have attained something akin to the protection 
 which the droit administratif of most continental nations 
 throws over their police and magistrature. This compara- 
 tive immunity could be broken down by any 'village 
 Hampden/ but remains unshaken. Something of this is 
 perhaps due to the character of the police itself. It has
 
 244 THE WORKING CONSTITUTION 
 
 been seen that in England the parish constable has 
 developed into a County and Borough Constabulary, but 
 the organisation and control remain local, although the 
 central Government secures a uniformity of standard by 
 making a contribution to the cost of these forces on the 
 condition that they satisfy the requirements of itinerant 
 inspectors. The constabulary of Ireland has nothing of 
 this local character. It is everywhere recruited, organised, 
 and directed by the Irish Government, which determines the 
 numbers to be allotted to each county, and moves men and 
 officers freely to and fro at its discretion, making the con- 
 nection of the Administration with any county felt only 
 when the county is called upon to pay for an additional 
 force drafted into it in consequence of special local dis- 
 turbance. The higher the efficiency of a force so pervasive, 
 the greater must be its influence, and it is not surprising 
 that it should practically engross the conduct of prosecu- 
 tions. The relations between the resident magistrates and 
 the police tend at the same time to a confusion of adminis- 
 trative and judicial functions, and this does not allay that 
 suspicion of officialism intruding into the organisation of 
 justice which detracts from its authority in popular 
 estimation. 
 
 Criminal ad- The several stages of criminal administration in Ireland 
 ministration. c l ose ly follow those of England. Prisoners committed for 
 trial come before judges going circuit at the Assizes or 
 before the Courts of Quarter Sessions ; subject however to 
 the observation already made that the prosecutions are 
 always conducted by government officials. The choice of 
 juries moreover is by no means so simple. The right of 
 challenge by the Crown is freely exercised in times of 
 political excitement with the avowed intention of obtaining 
 jurors who may be trusted to give true and unbiassed 
 verdicts ; but the process easily lends itself to the accusa-
 
 IRISH LAW AND POLICE 245 
 
 tion of packing juries with jurors who may be trusted to 
 convict. The necessity of such a sifting is odious, but 
 very few deny it. Jurors who are habitually told that 
 they cannot be trusted are not likely to develop the sense 
 of responsibility ; and in the long-run it is better to trust 
 juries too much than too little. The same considerations 
 that have led to the appointment of resident magistrates 
 to assist unpaid magistrates in Petty Sessions have led to 
 the appointment of paid Chairmen of Quarter Sessions. 
 These latter gentlemen are also the judges of County 
 Courts. Above all these there exists a High Court of The High 
 Justice in Dublin just as in England. As the Common Court. 
 Law was imported into Ireland, a Court of Chancery duly 
 followed with its larger principles of equity ; and Common 
 Law Courts and Chancery Courts existed side by side until 
 in 1877 following the precedent set in England four years 
 before, they were united in one Court administering the 
 same system of jurisprudence, though for more convenience 
 of business separated into Divisions to which different kinds 
 of work are appropriated. The Common Law Division, 
 when it assumes its final shape will consist of the Lord 
 Chief- Justice and nine other puisne judges ; and the 
 Chancery Division of the Lord Chancellor, the Master 
 of the Rolls, and one other. The Court of Appeal 
 will consist of the Lord Chancellor, the Lord Chief- 
 Justice and the Master of the Rolls (though these two 
 rarely sit) and two Lords Justices. From the Court of 
 Appeal cases go to the House of Lords as in England. 
 Something must be said of the Land Judge, who has no Land Judge, 
 absolute parallel in the English system. Many of the land- 
 owners of Ireland, perhaps most of them, had encumbered 
 their properties with mortgages and second mortgages 
 which, with or without additional charges for jointures and 
 portions, sometimes left little or no margin for the nominal
 
 246 THE WORKING CONSTITUTION 
 
 proprietors ; and the potato famine of 1846, involving as it 
 did an enormous depreciation in the values of estates, brought 
 about over large breadths of the island something like a 
 dislocation of the system of landownership. An ' Encum- 
 bered Estates Court ' was set up, under the j urisdiction of 
 which lands thus entangled in title were bought and sold. 
 The new purchasers took them freed from all encumbrances 
 and possible claims of the past, while the purchase-money 
 was dealt with by the court according to the titles of those 
 who were interested in it. Large areas thus passed into the 
 free and unencumbered ownership of new proprietors, but it 
 sometimes happened that sales were not found possible, at 
 least upon reasonable terms, and the estates remained under 
 the jurisdiction of the court which administered them much 
 in the same way as the Court of Chancery administered 
 trusts under its supervision. The Encumbered Estates 
 Court, without any radical change of functions, became the 
 Landed Estates Court, and when the superior courts were 
 united into one, this was incorporated into the Chancery 
 Division. 
 
 Landlord The reference to the history of the Encumbered Estates 
 
 ami Tenant. C our t naturally leads to another institution peculiar to 
 Ireland. The Encumbered Estates Court arose out of com- 
 plications between owners and mortgagees, but the relations 
 between landlords and tenants have been equally difficult 
 and equally provocative of special legislation. The law 
 gave the Irish landlord the same powers as those of his 
 English brother, including the right when not limited by 
 contract to terminate a tenancy at short notice, and to evict 
 the tenant from his holding. But the exercise of this right 
 was tempered in England by habit and custom. The land- 
 lord everywhere accepted it as part of his duty to let the 
 land so that it could be immediately cultivated, providing 
 therefor necessary houses and buildings. If the land was
 
 IRISH LAW AND POLICE 247 
 
 not in this condition special terms were arranged with the 
 tenant at the commencement of his occupancy ; and, whilst 
 the farmer was thus fairly set going, local customs frequently 
 provided that on giving up his tenancy he should be com- 
 pensated for outlay respecting his crops, the benefit of which 
 he had not exhausted. These customs, which were legally 
 binding, were embodiments of guiding principles usually 
 observed by landlord and tenant. In Ireland this kind of 
 co-operation did not prevail. Land was let more or less 
 bare of furniture, and when a tenancy was terminated there 
 was no recognised obligation of compensation to the out- 
 going tenant. In the province of Ulster a custom prevailed, Ulster 
 though even there it was not legally binding, of allowing a tenant- 
 tenant to obtain from a new tenant, under the form of a sale 
 of ' tenant-right,' something which was understood to be 
 compensation for improvements, the newcomer again being 
 protected from loss by another understanding that the rent 
 should not be arbitrarily raised upon him. In the best- 
 managed estates the transaction was arranged between the 
 old tenant, the new tenant, and the landowner's agent, 
 though disputes often arose as to the amount that could be 
 recognised by the agent as purchase-money. Such a system 
 even in its best form in Ulster is unfavourable to agriculture, 
 whilst large and reckless evictions elsewhere produced the 
 greatest social dissatisfaction. In 1870 an Act was passed Land Bill, 
 giving legal validity to the Ulster custom, and providing 
 throughout Ireland a scale of compensation to be paid by 
 a landlord to a tenant when the latter was arbitrarily dis- 
 turbed, that is to say, was evicted for other than a reasonable 
 cause as specified in the Act. This did not however solve 
 the agrarian question. A series of bad harvests caused 
 great distress and frequent inability to pay the rent that 
 had been agreed upon. Under the Act of 1870 a failure 
 to pay rent released the landlord from the payment of com-
 
 248 THE WORKING CONSTITUTION 
 
 Land Com- 
 mission. 
 
 Land 
 Purchase. 
 
 Religion. 
 Protestant 
 Episcopal 
 Church. 
 
 pensation for disturbance or eviction, and some landlords 
 seized the opportunity of relieving themselves from claims 
 they had always resented. Agitation naturally followed 
 upon the distress, and another Act in 1881 provided for the 
 establishment of a court to which tenants might resort for 
 the settlement of the rents of their holdings for fixed terms. 
 Such applications became very numerous, and have involved 
 an amount of labour and expense from which in later years 
 an escape has been sought. The authors of the Act did not 
 indeed regard the system they established as permanent. 
 They looked for a time when tenants would naturally pass 
 out of it, and revert under better conditions to the system 
 of contract to regulate their holdings. There has been 
 little prospect of the fulfilment of these expectations, 
 but another solution of the difficulty has been invoked. 
 This last is found in facilitating the sale of farms from 
 landlords to tenants by advances of public money to be 
 paid to the landlords on sales being effected, and to be 
 repaid to the State by the tenants through annuities running 
 over terms of years. More than twenty millions of money 
 have been thus advanced and over two million acres have 
 been sold, 1 and so far the plan has worked with a large 
 measure of satisfaction to the parties immediately concerned, 
 and with the most insignificant loss to the State. But it 
 can scarcely be said that a time of trial has been reached, 
 and although hopes may be maintained that its success will 
 be permanent, the possibility of a period of embarrassment 
 cannot be disregarded. 
 
 The Reformation of the sixteenth century extended in form, 
 but not in substance, to Ireland. The mass of the people re- 
 mained in communion with the Church of Rome. The priests 
 and bishops fulfilled the offices, and administered the sacra- 
 
 1 The above figures include however lands formerly part of the endowment 
 of the Irish Church which have been sold under the Church Acts.
 
 RELIGION AND EDUCATION 249 
 
 ments of that Church under the severest difficulties of persecu- 
 tion and proscription. What the power of England was able 
 to accomplish was the appropriation of buildings and endow- 
 ments to a reformed order served by those who renounced 
 the authority and repudiated some of the doctrine of Rome. 
 It is not intended here to trace what followed, but in 1869 
 the status of the Protestant Church in Ireland was reduced 
 to that of a voluntary organisation, and whilst its possession 
 of its buildings was left undisturbed, its endowments, sub- 
 ject to the vested interests of the clergy in possession, were 
 withdrawn and converted into a fund which has been applied, 
 and is still in process of application, towards many Irish 
 uses. The Protestant Episcopal Church in Ireland has 
 been organised much on the same lines as the sister churches 
 in Canada or Australia or the United States. As a volun- 
 tary association it has no special privileges, and calls for no 
 special notice. Much the same may be said of the Presby- 
 terian Church which has a large number of adherents in 
 Ulster, and as a free society looks to the Church of Scotland 
 much as the disestablished Irish Church looks to the Church 
 of England. 
 
 As has already been intimated, the mass of the people Roman 
 remained and remain in communion with the Church of 
 Rome, and in the eye of the law this is also a vast volun- 
 tary society. There is no concordat between the State and 
 the Pope. If any communications pass between the Govern- 
 ment and the Papacy, they are obscure and circuitous. A 
 particular Pope may wish to choose bishops who shall be 
 personce gratce to the Government, and another Pope may 
 make his selection with total disregard of this principle. 
 The Roman Church has indeed no public endowments or 
 privileges that wolild justify any pretension on the part of 
 the Ministers of the Crown to make any representation 
 of their wishes to the Holy See. There is a law to facilitate
 
 250 THE WORKING CONSTITUTION 
 
 Education. 
 Maynooth. 
 
 Primary 
 Education. 
 
 the acquisition of sites for churches and presbyteries, but it 
 contains no trace of favour. There is another law touching 
 the administration of religious gifts. This is also of a 
 general character. The one subject on which the State 
 comes into connection, if not into collision, with the 
 Church of Rome is education. Under the influence of Mr. 
 Pitt large grants were made subsequently augmented by 
 Sir Robert Peel for the establishment of a college for the 
 education of youths destined for orders in the Church of 
 Rome, partly as a set-off against the Protestant establish- 
 ment ; and when the Protestant Church was disestablished 
 and disendowed, a capital sum was assigned for the future 
 maintenance of this college which was left entirely free, as 
 it had been free before, from State interference and control. 
 This provision for the education of priests seems to have 
 been so far satisfactory that little or no complaint is heard 
 respecting it. It is over primary education and the higher 
 University Education that controversies have arisen. As 
 regards the former, a system of national education was 
 established in 1833, wholly at the public expense, in a 
 form intended to admit the children of parents of all 
 creeds. Roman Catholic and Protestant prelates joined to 
 promote this system, and a Board of Education was estab- 
 lished half Catholic and half Protestant, on which they sat 
 side by side. Class-books of reading and instruction were 
 drawn up with common agreement. Jealousies however 
 arose of the sufficiency of the religious education thus pro- 
 vided, and accusations were made that the system was 
 abused in the interests of Protestantism. New reading-books 
 have been adopted, and many modifications made in the 
 national system generally in the direction of sectarianism, 
 but it has not been found possible to secure a succession of 
 Roman Catholic prelates on the Board, although Roman 
 Catholic laymen continue to be members. As at present
 
 organised the great majority of the schools in Ireland are 
 under the management of the priests of the parishes where 
 they are found, and the fullest liberty of religious teaching 
 is allowed, subject to the proviso that it takes place in 
 definite hours according to a fixed time-table. The children 
 of Protestants are allowed to withdraw during this period 
 when instruction is supplemented by a display of symbols 
 on the walls. Two conditions still insisted upon are the 
 satisfaction by the teachers of certain standards of efficiency 
 and the non-sectarian character of the instruction except 
 during the hours of religious teaching. These two conditions 
 prevent any State recognition of the work of the Christian 
 Brethren, and may perhaps hinder the appearance of other 
 teaching orders. The system of national education as it 
 has been modified by successive changes appears to be fairly 
 satisfactory. The organisation of University education is University 
 the subject of bitterer controversy. Elizabeth established Education 
 a University in Dublin, and Trinity College within it, as 
 purely Protestant institutions, and University and College 
 so remained with teaching and endowments available for 
 Protestants only, down to the end of the last century, when 
 Mr. Pitt made the teaching but not the endowment ac- 
 cessible to Catholic students. A small number of the sons 
 of Catholic laymen entered Trinity College, but the College 
 and the University remained exclusively under Protestant 
 control and the proportion of Catholic students is insignifi- 
 cant. As years went by it showed no tendency to increase, 
 and Sir Robert Peel in 1845 established three Queen's 
 Colleges at Belfast, Cork, and Galway, and united them in 
 a University called the Queen's University. Appropriate 
 buildings and a complete organisation of professors were 
 provided. The instruction comprised all the curriculum of 
 a University education except that of a Divinity School, 
 and the different religious bodies were invited to set up
 
 252 THE WORKING CONSTITUTION 
 
 Halls of residence in each college where students might live 
 and receive the special teaching of their churches under the 
 superintendence of Deans appointed by the several bodies. 
 The establishment of these colleges was hailed at the time 
 with satisfaction by a majority of the Roman Catholic 
 prelates, and Roman Catholic students entered at Cork 
 and Galway, and in a smaller proportion at Belfast. But 
 the conception of mixed education was denounced from the 
 first as godless by at least one Roman Catholic archbishop, 
 and the antagonism grew with the increased activity of 
 sectarian feeling which has characterised the latter half 
 of the nineteenth century. In 1873 Mr. Gladstone at- 
 tempted to reconstruct the University system of Ireland, 
 but his Bill was defeated in the House of Commons, and 
 the immediate result of his undertaking was the passing 
 of an Act brought in by Mr. Fawcett, throwing open the 
 scholarships and fellowships of Trinity College to all, 
 irrespective of creed. The Disestablishment Act of 1869 
 had already made a separate provision for the Divinity 
 School of the University, although it remained locally 
 connected with Trinity College, and the effect of Mr. 
 Fawcett's Act following on the previous legislation was to 
 open Trinity College absolutely to students of all kinds, 
 so that its future character depended upon the character 
 of the students and graduates who might capture it. There 
 remained however an immediate predominance to the in- 
 fluence of which all incoming students must be subjected, 
 and the process of conversion, necessarily slow and difficult, 
 was not rendered less so by the refusal of the Catholic 
 hierarchy to countenance the entrance of Catholic students. 
 Royal Further legislation was passed in 1877, when the Queen's 
 Uuivereity. University was reorganised under the name of the Royal 
 University so as to admit to its degrees students outside 
 the Queen's Colleges, and was endowed with fellowships
 
 IRISH LOCAL GOVERNMENT 253 
 
 tenable at other institutions so as to be available for the 
 assistance of teachers in purely Roman Catholic seminaries. 
 This legislation cannot however be regarded as other than 
 a makeshift, for what may follow is most uncertain. A 
 demand for the establishment of a Roman Catholic 
 University has with some vagueness as to its meaning 
 been supported in Parliament by men of different parties, 
 but currents and countercurrents, denominational and un- 
 denominational, rage around the subject; and there is as 
 yet no promise of an issue from their eddies. 
 
 Ireland, like the rest of the kingdom, is divided into Local 
 
 parishes and counties, but except as an area of ecclesiastical Government 
 
 .m Ireland 
 
 organisation the parish seems never to have had any im- 
 portance. It is little more than a geographical expression, 
 like those provinces into which the counties of Ireland 
 are aggregated. The counties are however divided into 
 baronies, which have been taxable units with modified 
 powers of self- taxation. The administrative power within 
 each county has been the Grand Jury a body correspond- 
 ing to the magistrates in Quarter Sessions in England; 
 and within each barony Presentment Sessions have been 
 held, attended by the magistrates and a sprinkling of 
 the largest ratepayers in the barony, which had the power 
 of making assessments, and of pledging the baronial rates 
 for baronial purposes. 
 
 A Poor Law was brought into existence in 1838. Poor 
 Law areas were marked out and Union Workhouses built 
 and placed under the administration of elected and ex officio 
 
 * **/ 
 
 Guardians much as in England, except that it was provided 
 that the ex officio Guardians should be one- third (afterwards 
 increased to one-half) of the whole number. It was also 
 provided that no poor rate should be levied on holdings 
 under <*4, and that the rates levied should be equally 
 divided between occupier and owner. The general ad-
 
 254 THE WORKING CONSTITUTION 
 
 ministration of the poor law was subject to the control 
 of a Board in Dublin, which had power to supersede the 
 local Board of Guardians, if persistent in maladministration, 
 and to appoint paid officials (Vice-Guardians) to discharge 
 their functions. A few ancient boroughs existed, but most 
 of the smaller towns were organised under Acts passed in 
 1840 and 1854, and were governed by elected Town 
 Commissioners, 
 newly All these organisations have undergone radical changes, if 
 
 the ? have not been entirel y swe pt awa y b y the Act of 1898 - 
 
 Under it elected County Councils have taken the place of 
 the Grand Jury in the government of counties which, how- 
 ever, are divided into districts returning two councillors 
 apiece instead of one as in England. District Councils have 
 been established, and in the constitution of Boards of 
 Guardians ex officio members have disappeared, and plural 
 voting has been abolished in the election of ordinary 
 members. The household franchise has been established 
 in the boroughs, and the towns under Town Commissioners 
 have been organised as boroughs. It has been left to the 
 boroughs themselves to determine whether the members of 
 their councils shall be elected altogether every third year 
 or shall be elected in thirds every year. The local govern- 
 ment of Ireland has thus been reconstructed on the most 
 democratic basis. Another provision connected with the 
 change must be noticed. It has been mentioned that the 
 poor-rate was divided equally between the occupier and 
 the owner. A grant was made by the Imperial Parliament 
 of an amount equal to the average that had been paid by 
 landowners in the three years preceding the Act ; and this 
 sum became a kind of endowment for the use of the rating 
 authorities of the future, whilst the landlords were relieved 
 from their obligation to repay half the rates levied. It was 
 thought that this change, which practically imposed upon
 
 IRISH LOCAL GOVERNMENT 255 
 
 those who levied the rates the burden of paying them, 
 would check any disposition towards extravagance on the 
 part of popularly-elected bodies who are thus debarred from 
 throwing upon others the obligation of providing for their 
 wants.
 
 PART III 
 
 PARLIAMENT 
 
 IN RELATION TO THE EMPIRE 
 AND TO FOREIGN POWERS
 
 CHAPTER I 
 
 ANCIENT CROWN POSSESSIONS I (1) CHANNEL 
 ISLANDS, (2) ISLE OF MAN 
 
 THE Channel Islands differ from all other possessions of the Historical 
 
 i f 
 
 Crown outside the United Kingdom in this that they were re* atlon t 
 not attached to it by conquest or occupation but belonged islands to 
 to the Conqueror as part of the Duchy of Normandy when English 
 he established by conquest his title to the Kingdom of 
 England. They were brought into connection with England 
 as being under the same head, but were not made subject 
 or subordinate to it, and the rule of the islands as of the 
 rest of the Duchy long remained apart from the rule of 
 England. In respect therefore to the original circumstances 
 of the connection, the islands show some parallelism to 
 Hanover from the accession of George i. to the accession 
 of the Queen. For more than a century our kings were at 
 first Electors and then Kings of Hanover by a title wholly 
 distinct from their title to the British Crown ; and the 
 principles, method, and conduct of the government of the 
 two dominions were wholly separate. The Elector of 
 Hanover might be at peace with a power with whom the 
 King of Great Britain and Ireland was at war and vice 
 versa ; although experience showed how easy it was for each 
 to become embroiled in the quarrels of the other. But 
 though the Channel Islands are an independent possession 
 of the wearer of the Crown they were never treated other-
 
 260 THE WORKING CONSTITUTION 
 
 Its results 
 on their 
 form of 
 
 wise than as sharers of England's fortunes. In the earlier 
 centuries the will of the one-man ruler was the prime 
 factor of government both in Kingdom and Duchy, and 
 those who were at war with him attacked indiscriminately 
 all his possessions. Later on, while parliamentary power 
 was growing, the Norman possessions of the Crown dwindled 
 to the islands of the Channel, and though a feeble attempt 
 was made under Edward iv. with the papal sanction to give 
 these islands the immunity of free ports, the claim to neutrality 
 was never effective and gradually vanished. Nevertheless the 
 Channel Islands have always occupied a peculiar position as 
 government, dependent upon the Crown rather than upon Parliament; 
 and such authority as Parliament has obtained is exercised 
 through the Crown behind which it stands. The con- 
 stitutional position seems to be that the Crown as inheritor 
 of the Duchy governs the islands through the organisation 
 to be immediately described ; but the autocratic functions 
 which the Duke once discharged at his personal discretion 
 are now directed and inspired by the Administration which, 
 through its possession of the confidence of Parliament, 
 conducts the government of the United Kingdom. Parlia- 
 mentary government has been very slightly developed in 
 the island. Responsible Ministers are not found within 
 them. The limitations of the power of their ruler have 
 altered but little in form or in substance. The change 
 which has occurred lies in the substitution of a parliamentary 
 mind for the mind of an autocrat. The orders that are 
 accepted and obeyed come from a different spring of in- 
 spiration ; and it must be counted as proof of the singular 
 discretion which has inspired them that they have excited 
 so little resentment or dissatisfaction. 
 
 Jersey has a Legislature, but its work is rather that of 
 registering than of making laws. It consists of the 
 members of the Royal Court, who as such have special 
 
 Legislature 
 of Jersey.
 
 ANCIENT CROWN POSSESSIONS 261 
 
 duties, and of twenty-four other members ; and the whole Its corn- 
 Assembly is called the States. position 
 
 The Royal Court consists of the Bailiff appointed by the 
 Crown who is, under the Lieutenant- Governor, the head of 
 the Executive of the island, and of ^twelve jurats elected for 
 life by the ratepayers, one for each parish in the island. 
 The remaining twenty-four members of the States are the 
 rectors of the twelve parishes which make up Jersey and 
 the constable for each parish elected by its chief property- 
 holders. When an Act affecting Jersey is passed by the and powers. 
 Imperial Parliament it is communicated by the Home 
 Secretary as Minister of the Crown for registration by the 
 Royal Court ; but the Crown in Council can by order apply 
 any Act to Jersey, and can even make an independent Order 
 in Council affecting the island, and such orders, whether 
 applying Acts of Parliament or original in their nature, are 
 also transmitted for registration by the Royal Court. It 
 is laid down that this registration is not necessary to make 
 such Acts and Orders operative in Jersey ; and this amounts 
 to a declaration that it is within the prerogative of the 
 Crown as inheriting the Duchy to make a law for the 
 island ; in accordance with which view it may be held that 
 an Act of Parliament naming Jersey binds it, not as 
 something to which King, Lords and Commons have agreed, 
 but as an order adopted by the Crown and enforced by its 
 prerogative. Registration is moreover so much a matter 
 of course that the question of its importance is scarcely 
 practical, and a general contentment admits of almost 
 complete autocracy. The States can also pass statutes for 
 submission to and adoption by the Crown in Council, which 
 indeed, unless expressly disallowed, are valid for a period 
 of three years even without such submission and adoption. 
 It remains to add that, apart from such laws as are enacted 
 in the manner already detailed, the Common Law of the
 
 262 THE WORKING CONSTITUTION 
 
 island is the old feudal law of Normandy, and that the 
 Judicature Royal Court already mentioned is the High Court of 
 sey ' Judicature of the island before which all causes civil and 
 criminal can be taken. For the despatch of business it is 
 divided into five chambers, and the Bailiff and two jurats 
 suffice to make a chamber, though a party to a dispute 
 brought before such a tribunal can insist upon its being 
 carried to a chamber with not less than seven jurats. From 
 a final decision of the Royal Court an appeal can be carried 
 to the Queen in Council. The Bailiff collects the decision 
 of the jurats and although bound to pronounce it has no 
 voice in the judgment unless the jurats are equally divided. 
 Each parish in the island has its court presided over by its 
 Constable, and criminal proceedings are held before the 
 Constable and his officers, numbering twelve, seven of whom 
 must concur in a verdict of guilty, but an accused person 
 can appeal from this finding to a fresh trial before the 
 Constable and a jury of twenty-four non-officials, and he is 
 acquitted if as many as five out of the twenty -four pronounce 
 in his favour. 
 
 It will be seen that while the laws of Jersey may be 
 modified and new laws enacted by a purely external 
 authority and the States can only formulate provisional 
 statutes having force for a limited term unless approved 
 and ratified by the same external authority, the judges of 
 the island are elected to their offices and the administration 
 of justice qualifies what would otherwise appear to be an 
 irresponsible government. The revenues of the island 
 derived from greater tithes, seigneural dues, rents and tolls, 
 and a few Customs duties suffice to meet the ordinary 
 charges of administration so that no difficulties are provoked 
 by resort to taxation, and in connection with this it must 
 be observed that the cost of the military force in the island 
 is defrayed out of the war budget of the United Kingdom.
 
 ANCIENT CROWN POSSESSIONS 263 
 
 The constitution of Guernsey is fundamentally much the Guernsey, 
 same as that of Jersey, but the jurats composing the ' Chefs 
 Plaids' corresponding to the Royal Court are not elected 
 directly by the ratepayers but by process of double election. 
 The persons associated with them in making up the legis- 
 lative States are also indirectly elected and are no more 
 than fifteen in number. The ' Chefs Plaids, 1 unlike the 
 Royal Court of Jersey, have a power of making bylaws 
 or * Ordonnances ' of themselves, and they submit to the 
 members associated with them other projects of law and, 
 within defined limits, of taxation, which on being approved 
 by the latter are again submitted tp the Crown in Council. 
 There is thus even less direct popular representation in 
 Guernsey than in Jersey, and the power of law-making is 
 more restricted. The basis of the Common Law is the same 
 throughout the Channel Islands, and the judicature in 
 Guernsey is also the same as that of Jersey although it is 
 somewhat differently divided into particular chambers. 
 
 The Isle of Man differs in the circumstances of its history Isle of Man. 
 from the Channel Islands, and its present organisation shows Its history. 
 a more considerable parliamentary development. By the end 
 of the fourteenth century the King of England had success- 
 fully asserted his feudal superiority, but the island remained 
 a fief held of the English Crown without any interference on 
 the part of the king in its internal government till 1765. 
 For the greater part of this period the house of Stanley 
 were its Lords, from whom it descended to the Dukes of 
 Athole, until in the year just named it was surrendered by 
 the then Duke by way of sale to the King. The power of 
 government of the mesne-lord thus became vested directly Transferred 
 in the English Crown, a change consummated in 1825 by J * ^ to 
 the sale of the Duke's manorial and other rights, including Crown, 
 those of patronage. The constitution of the island has 
 been radically changed in recent years, but substantial
 
 264 THE WORKING CONSTITUTION 
 
 Settlement 
 of Revenue. 
 
 Court of 
 Tynwald 
 transferred 
 into a local 
 Parliament 
 
 traces of the old feudal relations still exist. The Lords of 
 Man exercised an unqualified right of imposing Customs 
 duties, which had in fact been so moderate as to make the 
 island a smuggling depot to the injury of the British 
 revenue, a circumstance which furnished a motive for its 
 acquisition by purchase. As the right to impose these 
 duties passed to the Crown it became vested in Parliament, 
 though it has not been used without remonstrances and 
 protests on the part of the islanders. 
 
 These remonstrances have had their influence in the 
 settlement which now prevails, under which alterations 
 of duties are in fact mutually agreed upon, the Manx 
 Legislature having been of late invited to take the 
 initiative. Under this settlement the cost of the govern- 
 ment of the island is made a first charge on the Customs 
 revenue, and it will be seen that the islanders have 
 some voice in determining this cost. Sundry charges for 
 definite public works follow, and then comes the payment 
 of <*10,000 to the Imperial Exchequer, and any balance 
 remaining after this payment must be applied to the benefit 
 of the island. The sum of .^10,000 historically represents 
 the net revenue enjoyed by the Lords of Man ; but it 
 must rather be defended as a contribution on the part of 
 the island to the cost of the Imperial protection. The 
 income from Customs duties forms practically the bulk of 
 the public revenue of the island, and the fact that these 
 duties have always been settled by superior authority has 
 markedly influenced the constitutional development of the 
 island. A democratic leaven has however made its way in 
 'Man. 1 Under its feudal organisation laws seem to have 
 been made by the Lord, though they were registered and 
 promulgated in the Tynwald or some branch of it an 
 ancient body with judicial rather than legislative functions. 
 The Lord's right to make laws naturally passed to Parlia-
 
 ANCIENT CROWN POSSESSIONS 265 
 
 ment, and is still vested in it ; but, though never renounced, 
 it is not now directly exercised save in respect of Customs 
 duties, harbour dues and like matters. The Tynwald has 
 been transformed into a local Parliament, and laws are 
 practically made by it; though before being finally pro- 
 mulgated by this body they receive the assent of the Crown 
 in Council. The actual government is vested in a Lieu- 
 tenant-Governor appointed by the Crown. The Tynwald 
 consists of two branches. In the first or Council the Council. 
 Governor himself sits, and the other members are the 
 Bishop, two Deemsters or Judges, the Archdeacon, and 
 four other officials, all appointed by the Crown except 
 one appointed by the Bishop. It will be seen that this 
 body is wholly official, but half its members do not hold 
 office at the pleasure of the Crown, and its votes are 
 habitually given free from any suggestion of official obliga- 
 tion. The second branch of the Tynwald or House of House of 
 Keys consists of twenty-four members, twelve elected three 
 apiece by four ' sheadings ' (county constituencies) and 
 four two apiece by two sheadings ; five by the town of 
 Douglas divided into two constituencies, one returning two 
 and the other three members ; and the remaining three, one 
 apiece by three other towns. The qualification is 4i 
 ownership or occupation whether in town or sheading, and 
 unmarried women and widows possess the franchise like men. 
 
 Bills can be introduced into either branch of the Legis- Procedure, 
 lature, but it appears that in fact they generally originate 
 in the Council as Government proposals. In the event of 
 a disagreement between the two branches a conference is 
 held in the Council Chamber which some half-dozen members 
 of the House of Keys attend ; and it is said that after a 
 discussion between the Governor on the one side and the 
 representatives of the Keys on the other an agreement is 
 generally effected. A Bill as passed by both branches is
 
 266 THE WORKING CONSTITUTION 
 
 transmitted to the Home Secretary, and after approval by 
 the Crown in Council is promulgated at an open-air meet- 
 ing of the Tynwald, annually held with every traditional 
 ceremonial solemnity on the 5th of July. 1 
 
 In some In addition to the legislative work thus described, the 
 
 cases the Tynwald has other duties in the discharge of which the 
 together. members of its two branches sit together. The first stage 
 of what is known in the Imperial Parliament as Private 
 Bill legislation is generally thus discharged in full Tynwald, 
 otherwise the Tynwald Court. When application is made 
 to proceed with a Bill of this kind, the Court hears the 
 application in the first place, and if it approves of further 
 progress, the Governor orders in which House the Bill shall 
 be introduced. What is more important, all financial 
 proposals must be discussed in the Tynwald Court. No 
 motion for increased expenditure can be made without the 
 consent of the Governor, and when made it must be dis- 
 cussed by Council and Keys sitting together, though when 
 the question is put to the vote each branch expresses its 
 judgment separately. 
 No minis- It will be seen that nothing resembling the principle of 
 
 tenal re- ministerial responsibility exists in the Isle of Man. The 
 sponsibihty. * 
 
 Parliament of the United Kingdom regulates its Customs 
 
 tariff and thus lays the foundation of its financial adminis- 
 tration. No expenditure can be incurred except on the 
 initiation of the Governor who is the nominee of the Crown, 
 and almost all the legislation of the island originates with 
 him and his legal adviser. He has moreover a relatively 
 extensive and irresponsible exercise of patronage. The 
 general effect of the government is in many respects similar 
 to that which is found in the Colonies to which we shall 
 presently refer as Crown Colonies ; but its organisation 
 differs from that of most, if not of all, in the existence of 
 
 1 Midsummer day before the change of style in the last century.
 
 ANCIENT CROWN POSSESSIONS 267 
 
 a Second Chamber which is purely representative and elective. 
 It is no small proof of the intelligence and sympathy with 
 which the government of the Isle of Man has been adminis- 
 tered on the one side, and of the moderation and good 
 temper of the governed on the other, that a system which 
 suggests a possibility of many difficulties has in fact been 
 productive of few or none. It may almost be said that as 
 far as the Imperial Parliament is concerned the Isle of Man 
 possesses the coveted advantage of having no history.
 
 268 THE WORKING CONSTITUTION 
 
 CHAPTER II 
 
 Bases of 
 British 
 authority 
 in the 
 Colonies. 
 
 CROWN COLONIES 
 
 THE Channel Islands were brought into connection with 
 England in the train of the Conqueror, and their political 
 situation retains strong traces of this historical fact. If 
 they cannot be said to be now connected with the United 
 Kingdom only by the link of the Crown it must be because 
 Parliament, having absorbed the direction of the functions 
 of the Crown, has, through the inheritors of the Duchy 
 whom it directs, made the islands subordinate to its own 
 authority by way of substitution for the authority of the 
 Duke. All the other colonies and dependencies of the 
 United Kingdom have a different origin. They have been 
 won by the power of Britain as the result of war or of 
 discovery, and home-born subjects of the Crown have passed 
 into them, so that sometimes they and their descendants 
 become practically the exclusive occupants of the land, and 
 sometimes so that they are dwellers transitory or permanent 
 with strange races among whom they move as the repre- 
 sentatives, or even as the agents, of the governing power. 
 These outlying possessions, when acquired by discovery, 
 have either been claimed by recognised officers of the 
 Crown, or else by subjects who, without any express com- 
 mission, have formally declared that the new-discovered 
 lands had become British territory. But the proclamation 
 of dominion, whether made officially or otherwise, can be
 
 CROWN COLONIES 269 
 
 repudiated by the Crown if so advised. Occasions have 
 not been wanting when the addition of new territories 
 has been refused from home, as the sovereignty of Sarawak 
 was rejected and the premature annexation of New 
 Guinea repudiated. At the same time the old doctrine 
 nemo potest exuere patriam prevailed in our law down to 
 the passage of the Naturalisation Act, 1870 ; and as it 
 was impossible for British subjects to renounce their allegi- 
 ance to the Crown even when they passed into foreign 
 states it was a fortiori impossible for British subjects 
 settling in an unoccupied land to keep it independent of 
 the British Empire. It was on this ground that we 
 insisted, even to the length of waging war to enforce our 
 claims, that emigrant Dutch farmers from the Cape could 
 not by migration elsewhere set up an independent com- 
 munity of their own. The necessity of recognising the 
 movements of modern life, especially that under which 
 so many of the Queen's subjects entered the United States 
 and accepted there the status of citizenship, compelled the 
 abandonment of the old maxim ; and it must now be 
 admitted that British sovereignty is not carried everywhere 
 and for ever by British-born subjects. 
 
 The old doctrine that a Briton could in no way divest Rights of 
 
 himself of his nationality was sometimes found connected British 
 
 settlers 
 with a correlative principle that wherever he went he 
 
 carried his privileges with him, and that the fundamental 
 safeguards of British law and the right to British institu- 
 tions accompany the settler everywhere. 
 
 Under this doctrine a Briton could always claim trial by 
 jury and freedom from arbitrary arrest ; but its interpreta- 
 tion was carried much further than this, for it was asserted 
 that Britons were entitled to the protection of a repre- 
 sentative government. The assertion can pass only through 
 some confusion of the claims that may be sustained in a
 
 270 THE WORKING CONSTITUTION 
 
 moral enquiry with the privileges that can be enforced by 
 legal process, and a strict analysis requires us to dismiss 
 it as historically unsound and misleading. When it is 
 remembered what was the character of representative 
 government in Great Britain itself at the time this view 
 was propounded, its boldness becomes evident ; and in 
 truth it is not supported by any tenable reading of the 
 history of British colonisation. 1 When colonisation first 
 began, British possessions over-seas were held to be within 
 the regulating power of the Crown, at that time scarcely 
 hampered at home by parliamentary limitation, and were 
 in practice necessarily treated in accordance with that view. 
 At a later time, when every act of the Crown was effected 
 under the advice of Ministers, and Ministers became 
 responsible to Parliament, British possessions over-seas 
 naturally came within the regulating power of Parliament, 
 and even where no Act of Parliament specifically ordained 
 the form of the constitution of a particular possession, 
 its government was not the less approved and maintained 
 with parliamentary sanction. Even now, when so many 
 of our colonies have all the privileges of self-government, 
 and the number of those so emancipated and the degree 
 of their emancipation must be expected to increase con- 
 tinuously, it would be a misuse of words to say that British 
 colonists carry with them the right to representative govern- 
 ment. Wherever it is established, it is set up by the 
 express authority of the Parliament at home clothed in 
 an Act, and although Parliament would not, and it may 
 be said, could not, withhold representative government 
 where fit conditions exist, it is the formal duty of Parlia- 
 ment itself to recognise the fitness of the conditions and 
 thereupon to legislate. It may be argued that if Parliament 
 
 1 See Lord Mansfield's judgment in Campbell v. Hall (1774) in Lofffs 
 Reports or Howell's State Trials, vol. xx.
 
 CROWN COLONIES 271 
 
 could not withhold its sanction to the institution of repre- 
 sentative government within any colony, that colony has 
 a right to receive it ; just as a son has a right to liberty 
 where the father could not refuse it. But the analogy 
 is imperfect since there is no legal authority to overrule 
 the relation of Parliament and Colony, as there is to over- 
 rule the relation of father and son. The phrase may 
 however be allowed to pass, if its looseness is clearly 
 understood ; but it will be seen how wide removed it is 
 when properly interpreted from the broad assertion that 
 British colonists have everywhere the right to representative 
 government. 
 
 It has been said that at the outset the colonies were Original ad- 
 within the regulation of the Crown. The Atlantic States ministration 
 t 4-u A TT 4-u of Colonies. 
 
 oi the American Union were in their origin so many 
 
 colonies created by and organised under charters of suc- 
 cessive kings and queens. Our earliest possessions in the 
 West Indian islands, though acquired by conquest and not 
 by settlement, were similarly administered under a royal 
 charter. There were many variations between the several 
 constitutions, but the general type was that of a Governor 
 sent from England with a Council of officials set about 
 him, and an Assembly or even two Houses of Assembly 
 most variously constituted, and generally containing some 
 popular element to assist the Government in law-making. 
 Elsewhere, in colonies which may perhaps be roughly dis- 
 criminated as colonies of adventure rather than of settle- 
 ment, charters were given to Companies to trade and to 
 explore, and to govern so far as government was required 
 to complete their enterprises. 
 
 It is not intended to review here the several stages of Government 
 development through which the present colonial system f Crown 
 has grown out of the past. Some historical references 
 may be fitting and necessary when cases are separately
 
 272 THE WORKING CONSTITUTION 
 
 dealt with. It is enough now to say that existing colonies 
 may be divided into two groups : (1) that of the self- 
 governing colonies with representative legislatures and 
 Ministers responsible to them ; (2) that of Crown Colonies 
 which are governed directly by the Crown (under the 
 advice that is of the responsible Minister, the Secretary 
 of State for the Colonies), acting through some agency 
 the details of which^vary from colony to colony. A large 
 number the largest number of these Crown Colonies lie 
 within or near the Tropics, and are inhabited by masses 
 of natives of different races from our own with a sprinkling 
 of persons of British origin. In the majority of cases 
 these latter have come for a few years of energetic strength 
 to superintend local trades and industries without any 
 intention of remaining, still less of leaving their families 
 to succeed them, but in a few instances, notably in the 
 West Indian islands, British immigrants remained and have 
 left descendants through several generations. The difficulty 
 of erecting representative institutions where the British 
 element in the population, whether temporary or permanent, 
 is but a handful is obvious. Other cases of Crown Colonies 
 such as those to be immediately noticed are really military 
 stations where representative institutions are equally in- 
 applicable, though for different reasons. 
 
 Gibraltar. Gibraltar is the first of the colonies to which reference 
 has just been made. Its Governor, who is also the Com- 
 mander of the troops stationed there, is the Government 
 in himself. He is the head of every branch of the adminis- 
 tration, and he makes ordinances which are laws. It is a 
 great military station and a calling-place for ships trading 
 to the Mediterranean and the East, and it has no other 
 interests and no other population than such as these two 
 facts would suggest. Any other inhabitants beside the 
 military forces and those who live by supplying the wants
 
 CROWN COLONIES 273 
 
 of passing ships are those who, stimulated by the fact 
 that Gibraltar is a free port, make it a station for a 
 smuggling trade into Spain. The government of such a 
 population is not difficult, especially in view of its easy 
 communications with England ; and in fact no more serious 
 question ever arises than some dispute over the policy 
 of a police or sanitary regulation. 
 
 Malta is a station different from Gibraltar in having a Malta, 
 fairly large independent population, of a very mixed breed 
 in the rural districts, where their tongue, a bastard Arabic, 
 attests the mixture ; and of Italians speaking Italian in the 
 towns. The inhabitants however, apart from the British 
 military forces and some Jews and Greeks who have come 
 there for trading purposes, are united in their Catholic 
 character with a completely organised hierarchy; whilst a 
 curious order of nobility largely of papal origin is found 
 among the laymen of the professional and landowning classes. 
 It is evident that in the government of such a population 
 difficulties may easily arise, although the necessity of 
 maintaining the supremacy of the military authority in the 
 island may sometimes afford a rough-and-ready solution of 
 them. The Governor, the head of the military forces as at 
 Gibraltar, has an Executive Council composed of his chief 
 officials, and a Legislative Council, partly of nominated 
 official and partly of elected members. The latter if united 
 can easily outvote the former, but the Queen in Council can 
 exercise reserve powers, issuing an Order which has the force 
 of law in the island, and by this means the action of the 
 representative council may be completely overridden. The 
 disputes which have arisen have mainly turned on matters 
 of education, marriage, etc., where ecclesiastical ideals were 
 in conflict with the predominant principles of British policy ; 
 but a financial dispute of some bitterness prevailed for many 
 years over a corn-tax in which the Government supported 
 
 s
 
 274 THE WORKING CONSTITUTION 
 
 by the landowners was in conflict with the more popular 
 elements. Still more recently the elected members of the 
 Legislative Council hesitated to sanction, if they did not 
 refuse, the taxes asked for by the Government to meet the 
 estimates of expenditure, and recourse was had (in 1899) to 
 the power of the Queen in Council to issue an Order impos- 
 ing these taxes. Difficulties have also from time to time 
 arisen in relation to language. Italian only was at one time 
 employed in the primary schools ; but the bastard Arabic 
 referred to as the vernacular of the rural population has 
 been more recently permitted as a vehicle of instruction. 
 The struggle between English and Italian in the law-courts 
 has finally resulted in a proclamation declaring that English 
 shall be substituted for Italian after an interval of fifteen 
 years, but a declaration of intention so long beforehand 
 suggests the proverbial chances between the cup and the 
 lip. 
 
 Cyprus. Cyprus is a third illustration of a Crown Colony which 
 was intended, when first ta*ken, to be constituted a military 
 station like Gibraltar and Malta ; but this design was never 
 fulfilled, and may be described as set aside, though not per- 
 haps as permanently abandoned. It differs from other 
 possessions in being held under a kind of terminable lease 
 from the Sultan of Turkey ; but it may be assumed that the 
 Sultan will never be allowed to resume possession of it. 
 There is however a rental attached to the lease of more 
 than 90,000 a year ; that amount being taken at the time 
 when the lease was agreed upon as the average tribute paid 
 by the Cypriotes to the Sultan. It is only in very prosper- 
 ous years that such a tax can be raised in the island in excess 
 of necessary expenditure ; and the payment of the tribute 
 has involved frequent subvention from the British Treasury 
 amounting on an average to one-third of the total. It has 
 been argued that the Sultan had no moral claim to so large
 
 CROWN COLONIES 275 
 
 a tribute, and that we are under no moral obligation to pay 
 it, 1 and indeed that we should be parties to an immoral 
 claim in exacting it. But there is a clear contract to pay 
 the total whilst we remain in possession ; and no one suggests 
 giving up possession as a way of escaping the burden. The 
 subventions we make are rather part of the price we pay as 
 the cost of the transaction than any act of grace and favour 
 to the Cypriotes. Another incident connected with the 
 taking over of Cyprus may be noticed. As in the other 
 Turkish dominions the Conventions ran within it giving 
 foreign powers consular jurisdictions on behalf of their 
 subjects; but when we took possession these consular juris- 
 dictions silently disappeared. The precedent has been since 
 followed by the French in Tunis; but it seems to have 
 raised a new question of international law, which cannot 
 yet be recognised as settled. Different powers have acquired 
 leases of portions of China, and it is not agreed how far the 
 treaty obligations of China are suspended or superseded in 
 the places within these treaties. The political problem in- 
 volved in the government of Cyprus is that of inducing peace 
 if not co-operation between Moslems and Christians, Turks 
 and Greeks. The Governor is assisted by an Executive 
 Council composed of his chief officials, and there is also a 
 consultative Assembly of eighteen members in which repre- 
 sentation of the two populations of the island is secured by 
 allowing the Christians to elect nine members and the 
 Mohammedans three, the remaining six being official, an 
 arrangement under which the official members in combina- 
 tion with the Mohammedan representatives can check any 
 
 1 In fact it is not paid to the Sultan. It is applied to meet the charge on 
 a loan to Turkey which France and England guaranteed during the Crimean 
 War, the duty of meeting which the Sultan has for many years neglected. 
 When that debt is extinguished a serious question may arise as to the policy 
 of withholding from the Sultan such part of the tribute as seems unjusti- 
 fiable.
 
 276 THE WORKING CONSTITUTION 
 
 tendency to injustice on the part of the majority. The 
 Greek element of the population is politically the more 
 active, and complaints are occasionally heard from it of the 
 amount of revenue raised and the little work done ; but in 
 fact much has been effected in improving the material con- 
 ditions of life especially as regards sanitation, road-making, 
 and the mitigation of plagues of locusts to which the island 
 is subject, while justice and order are secured by a British 
 magistracy and an organised police. 
 
 West African The Crown Colonies of Europe are military stations. 
 
 dependencies. Those of the West Coast of Africa are trade stations under 
 the control of Governors assisted by Executive Councils 
 without any suggestion of representative institutions, which 
 indeed the circumstances of the territories make impossible. 
 Most of these settlements were originally made in the 
 interests of the slave-trade, and after the abolition of that 
 traffic their commerce was so unsatisfactory and their 
 development so unpromising that little more than thirty 
 years ago a strong Committee of the House of Commons 
 unanimously recommended their abandonment. Different 
 views have of late prevailed, and vast possibilities are pro- 
 mised of commerce with the interior; but the political 
 organisation of the coast stations remains unchanged. An 
 
 Royal Niger interesting experiment has been tried on the Niger which 
 
 Company. mav p rove a precedent elsewhere. In 1886 a Company was 
 chartered with powers of settlement, trading, and govern- 
 ment on the Niger Coast and Hinterland which at some 
 expense reduced a considerable region to order under its 
 administration, and developed a trade returning a moderate 
 steady rate of profit on the capital appropriated to that 
 part of its enterprise. In 1899 the pioneering work of the 
 Company was regarded as completed, and its powers of 
 administration and government withdrawn, whilst it was 
 left to carry on its trade without any special privileges.
 
 CROWN COLONIES 277 
 
 Compensation was made to it for the expenditure which it 
 had incurred in bringing the country under a settled ad- 
 ministration. Whether the result is worth its cost is a 
 question that has been disputed; but the history is an 
 illustration of one of the last experiments in colonisation 
 through Chartered Companies. 
 
 Another example of the same process is presented in South Africa 
 South Africa, where a Company was chartered in 1889 with Company, 
 powers of organisation and government over a very extended 
 area. This charter, like that of the Niger Company, was 
 granted subject to modifications or revocation at the will 
 of the Crown, instead of for a fixed term of years, as in older 
 examples, and it has already been modified by the intro- 
 duction on one side of stricter control by a Crown officer 
 and on the other by the introduction of an elementary con- 
 sultative Assembly elected by white colonists. The future 
 of this experiment depends upon economic conditions which Use of 
 are as yet uncertain, but procedure by way of a Chartered Chartered 
 Company is defended, and possibly justified, because (1) 
 white adventurers will swarm over the frontiers of settled 
 colonies in any case ; (2) such adventurers when isolated 
 are too few and too scattered to organise any ad- 
 ministration of their own, and individuals have no sense 
 of responsibility overruling their acts by reference to 
 others ; (3) the attempt to follow up such adventurers 
 by an administration organised from at home would be 
 very costly and yet would be apt to break down through 
 the difficulty of finding officers that could be trusted for 
 such work, while the adjacent colony beyond whose frontiers 
 adventurers roam would not undertake the expense of 
 following them ; and lastly (4), delegation of powers of 
 government to a Chartered Company willing to accept 
 the trust, though not free from peril of abuse, yet offers 
 as good a chance as any other, since it fastens upon a
 
 278 THE WORKING CONSTITUTION 
 
 definite number of known persons responsibilities they 
 cannot ignore. 
 
 Crown Another class of Crown Colonies consists of countries 
 
 Colonies fully peopled with native races wholly occupied in the 
 civilised pursuits of industry and commerce, and so far possibly at- 
 native races, taining a high degree of civilisation ; but from differences 
 of race or character not recognised as qualified to co-operate, 
 except perhaps in subordinate capacities, in the functions 
 of government. Of these, Ceylon is the largest ; but others 
 are the Mauritius, Hong Kong, Straits Settlements, Fiji, 
 Demarara (British Guiana) and the West Indies; though 
 Mauritius, Demarara and the West Indies may be differ- 
 entiated from the others as possessing a limited white 
 population resident from generation to generation. The 
 Ceylon presence of this white element in the population has in so 
 represents far affected the constitutions of these colonies that it is 
 convenient to consider them separately, and to direct at- 
 tention first to the type of which Ceylon is the most 
 important example. In this class a Governor appointed by 
 the Crown is assisted by an Executive Council mainly if not 
 wholly consisting of official members, and the will of the 
 Governor and the Council (which latter through the 
 Governor's control of official members is but another expres- 
 sion of his own will) is supreme throughout the colony. A 
 Judiciary is indeed generally found supplying some elements 
 of independence, and so far exercising, perhaps insensibly, a 
 check upon a power otherwise autocratic. Another check is 
 indeed intended to be furnished by the Legislative Council 
 where it exists, but this is always dominated by the official 
 members, and the others, the nominated members, though 
 chosen to represent important local interests, are generally 
 docile instruments of the Governor's policy. The person- 
 ality of the Governor is an element of importance in these 
 colonies : much depends on his vigour or supineness ; but
 
 CROWN COLONIES 279 
 
 he is directed in his principal acts by the Secretary of State 
 at home, in whose bureau the records of former Governors 
 are stored and who, subject to his responsibility to Parlia- 
 ment, really governs the colony. White officials are at the 
 head of the several departments of administration. Sub- 
 ordinate appointments are frequently filled by natives, and 
 in Ceylon natives have been advanced to the judicial bench. 
 In the case of Ceylon too, the size of the island makes 
 necessary a numerous civil service ; and this is recruited by 
 successful candidates in competitive examinations at home. 
 The general result - is an administration, of which the 
 Governor is the managing director, which occupies itself 
 with all that concerns the moral and material well-being of 
 the inhabitants. Special local work may be delegated to 
 local Commissions, constituted for the purpose; but in 
 general, harbours, railways, roads, irrigation, immigration, 
 sanitation and education, are all looked after by the Govern- 
 ment. The co-operation of natives may receive further 
 development in the future. It exists at present on a small 
 scale in the organisation of the Civil Service, and in the 
 constitution of the local Commissions to which reference has 
 been made. 1 
 
 The colonies Mauritius, Demarara and the West Indian Crown 
 
 islands, especially Jamaica and Barbados, where there are c ?l mes 
 
 , . . i . . W1 th repre- 
 
 white populations resident from generation to generation, sentative 
 
 are Crown Colonies like those already noticed, in that they institutions. 
 are governed by a Governor with an Executive Council 
 whose authority is supreme, and who is inspired and 
 directed by the Secretary of State. But the Governors 
 were from early times associated with representative in- 
 stitutions which control the making of laws, and sometimes 
 claim to control the taxation of the colonies. Had the 
 latter claim been ever effectually established, responsible 
 1 See post, on the Government of India.
 
 280 THE WORKING CONSTITUTION 
 
 government must have followed ; but the executive officers 
 of the Governor have always remained independent of 
 these local Assemblies, and when it has been found im- 
 possible to overcome the latter by other means, they have 
 been suppressed by the authority of the Imperial Parlia- 
 ment. It must be remembered that, when the several 
 constitutions of the West Indian islands were called into 
 existence in the second half of the seventeenth century, 
 the rights and privileges of the House of Commons were 
 not established as they are to-day, and the representative 
 Assemblies then created remained down to the abolition 
 of negro slavery in 1834 strictly oligarchical in their 
 character. The same limitation of class applied to the 
 peculiar consultative bodies which originated in Demarara 
 when a Dutch possession, and were maintained after it 
 became a British dependency. High property qualifications 
 helped to preserve the predominance of whites after negro 
 enfranchisement, and to this, Demarara, Barbados, and the 
 Bahamas owe the present existence of their several con- 
 Jamaica, an stitutions. Jamaica has been the most conspicuous example 
 example. o f fae breakdown of an original constitution. In 1838 the 
 position became so desperate that Lord Melbourne's govern- 
 ment submitted a Bill to the Imperial Parliament for the 
 suspension of the constitution of Jamaica. The Bill was 
 so ill-supported as to provoke a ministerial crisis resulting 
 in Lord Melbourne's resignation. Though the difficulty 
 both at home and in the island was for the time sur- 
 mounted, the Jamaica constitution broke down again in 
 1866, and on this occasion was entirely superseded. In 
 the distraction of that time the representative Assembly 
 consented to its own supersession, and for some sixteen 
 years after Jamaica was governed by a Governor and 
 a nominated Council. Under the colonial administra- 
 tion of Lord Derby a mixed system was established with
 
 CROWN COLONIES 281 
 
 a Legislative Assembly containing a majority of elected 
 members, but there was no admission of the principle 
 of ministerial responsibility and the actual government 
 remained that of a Crown Colony. Another period of 
 sixteen years passed in which, despite some minor changes, 
 the same system was maintained of Crown government 
 under the direction of the Colonial Office checked by the 
 presence of the majority of elected members in the Assembly. 
 This period closed in financial embarrassment which was 
 perhaps an inevitable result of the economic condition 
 of the island ; but the colonial government and the elected 
 members in mutual recrimination threw the blame on each 
 other, and in 1899-1900 Mr. Chamberlain resolved to take 
 a new departure and place the nominated members of the 
 Assembly in a majority. The controversy cannot be said 
 to be closed, and the vicissitudes of government in Jamaica 
 remain an illustrative study of the difficulties of a situation 
 where the character of the mass of the population forbids 
 the establishment of thoroughly democratic principles and 
 the determination of authority oscillates between govern- 
 ment from at home and government by a privileged and 
 practically racial minority of the inhabitants of the island. 
 
 The existing political organisation of the rest of the Political 
 West Indian islands cannot be regarded as permanent 
 any more than that of Jamaica. Circumstances almost 
 accidental have produced great variations among these 
 dependencies of the Crown ; but everywhere we find that 
 the real power is vested in the Governor as representative 
 of the Secretary of State, although his authority may 
 apparently be tempered by the existence of Assemblies 
 independent in character. Some movement must be ex- 
 pected throughout the West Indies either to a clearer 
 establishment of the irresponsible authority of the delegate 
 of the Crown, or towards fresh experiments in responsible
 
 282 THE WORKING CONSTITUTION 
 
 government. But the grave economic embarrassments of 
 the islands will not at present encourage any tendency in 
 the latter direction, which is already sufficiently restrained 
 by a sense of the predominance in numbers of uneducated 
 masses of black population. The experiences of San 
 Domingo are generally regarded as a warning, but the 
 experiments that may be expected in the government of 
 Cuba and Puerto Rico may afford some help in the solution 
 of a problem confessedly difficult.
 
 SELF-GOVERNING COLONIES 283 
 
 CHAPTER III 
 SELF-GOVERNING COLONIES 
 
 IT has been seen how the autocratical character of a Crown Self-govern- 
 
 colonv may be modified by the introduction of a consulta- e . nt } n the 
 .. ". ',, , ,, _j. 11 i u j j -i u c l mes 
 
 tive Assembly wholly or partially elected ; and it can be 
 
 easily understood by what processes of gradual and tentative 
 change the transformation is carried on until the colony is 
 endowed with the amplest freedom of responsible govern- 
 ment. This has been attained in many colonies; indeed 
 in all those where the population is practically of exclusive 
 European origin. But the result has nowhere been reached 
 all at once. The authority of a local Parliament and the 
 responsibility of Ministers to it have followed intermediate 
 stages, and even when these have been established, certain 
 subjects of legislation and of administration have been 
 often reserved from parliamentary control, and only sub- 
 sequently brought under it. The government of aboriginal 
 inhabitants where they exist in any number has often been 
 thus reserved under the direct care of the Governor acting 
 under the direction of the Secretary of State, and assisted 
 by a department specially organised for the purpose. Such 
 restrictions have sooner or later disappeared and self- 
 governing colonies are, so far as their own areas are con- 
 cerned, completely emancipated. The Governor as the 
 representative of the Crown has a right of veto, but this 
 may almost be said to have passed into desuetude. He has
 
 284 THE WORKING CONSTITUTION 
 
 also the power of reserving his assent to a statute until 
 it has been sent home for the consideration of the Secretary 
 of State ; and he is instructed to exercise this power where- 
 ever any proposed legislation appears to extend beyond the 
 limits of the colony or to affect imperial relations. Amend- 
 ments of the law of marriage were at one time thus reserved, 
 but have not been so treated for a generation. 
 
 derives its Every step however in the development of a colony has 
 
 sanction from b een made directly or indirectly under the sanction of the 
 Parliament Imperial Parliament. The authorisation of its constitution 
 has been effected by an Act of Parliament. Where its 
 provisions have been modified, and where the control from 
 home has been relaxed, such modifications and relaxations 
 have been effected with the express or tacit assent of the 
 Secretary of State acting under his responsibility to the Im- 
 perial Parliament. Graver changes, such as the federation 
 of separate colonies, though originating in the colonies them- 
 selves, are carried into effect by Imperial Acts. Legally 
 all colonial constitutions derive their origin from Parlia- 
 ment, and live and move with its permission. An Act 
 of Parliament, if so expressed, runs everywhere within the 
 dominions of the Crown ; and reference has already been 
 made to the fact that the West Indian constitutions have 
 been suspended and abrogated by Acts of Parliament. This 
 supremacy must however be understood as largely limited 
 in fact if not in theory. It is inconceivable that any change 
 should be made by Parliament in the constitution of the 
 Canadian Dominion or in the constitutions of the Australian 
 colonies, except at the express desire of the colonies them- 
 selves. The Acts of Parliament which do run everywhere 
 are so passed from considerations of general convenience, 
 and are supported by general concurrence. Recent history 
 rather exhibits the spectacle of the home Government 
 yielding to colonial wishes than of colonial Governments
 
 SELF-GOVERNING COLONIES 285 
 
 yielding to home policy. The Crown is under treaty which defers 
 
 obligations with the Emperor of China to allow freedom however to 
 
 col om cil 
 of immigration and of trade to Chinese subjects. But the opinion, 
 
 Australian legislatures have passed Acts, to which the royal 
 assent has after some demur been given, restricting or even 
 prohibiting the entrance of Chinese within their territories. 
 Natal has a considerable population of Indian coolies, origi- 
 nally immigrant labourers, and now settled and prosperous 
 as agriculturists and tradesmen. Under the laws of Natal 
 these subjects of the Crown would have been prima facie 
 entitled to the local franchises ; but they have been dis- 
 abled by statute as persons who would have had no franchise 
 in their country of origin, and the statute has not been 
 disallowed by the Crown. Every colony has the control of especially in 
 
 its own tariff, but was formerly bound by the treaties the regard to 
 
 i/>. . ,. fiscal policy. 
 
 Crown had made with foreign powers, providing that no 
 
 discriminating duties should be imposed on the produce 
 of the countries of such powers imported into any part 
 of Her Majesty's dominions. Some colonies wished to be 
 relieved from the obligation, and in deference to them the 
 treaties containing it were in 1897 denounced, so that the 
 colonies are enabled to impose differential duties where 
 the United Kingdom is bound to abstain from them. 
 Almost every colony has, in exercising its independence, 
 established tariffs hostile to the United Kingdom as to the 
 rest of the world ; and the new power of imposing differential 
 duties has been used by Canada for a reduction of 25 per 
 cent, (since increased to 33 per cent.) on the duties on 
 commodities from the United Kingdom and from other 
 colonies or countries giving Canada freedom of trade equal 
 to that accorded by the United Kingdom. In other cases 
 the power has been used as a means of negotiating treaties 
 of reciprocity ; but in no case has a treaty yet been sanc- 
 tioned imposing higher duties on the importation of British
 
 286 THE WORKING CONSTITUTION 
 
 than of foreign goods. Proposals to that effect were agreed 
 upon between delegates from Jamaica and the Government 
 of the United States, but they have not been approved. 
 No formal treaty can be made except by the Crown, and 
 it may be expected that the Home Government will be 
 slow to advise Her Majesty to become party to a treaty 
 which would give greater benefits in one of her colonies 
 to foreign than to British trade ; but with the conceptions 
 of fiscal policy which prevail in most of the colonies 
 the difficulty thus suggested may have to receive serious 
 consideration. 
 
 Colonial It is not intended to review the details of the constitu- 
 
 Constitutions tions of the several self-governing colonies. All of them 
 are so far organised after the home model as to include a 
 Legislature of two Houses a together with a Governor repre- 
 senting the Crown, and the main differences between them 
 turn on the composition and authority of the second House. 
 In the Dominion of Canada the Senate, and in New Zea- 
 land, Queensland, and New South Wales the Legislative 
 Council consists of nominated members, originally nominated 
 for life, but in New Zealand recent nominations have been 
 made for terms of seven years, and it is intended that this 
 system should gradually extend to the whole Council. In the 
 other Australasian colonies, in the Cape Colony and Natal 
 the Councils are all elected, sometimes for larger areas, 
 sometimes with a higher qualification on the part of electors 
 and of members than obtain in respect of the Legislative 
 Assemblies, and the Councillor is elected for a fixed term ; 
 but provisions are sometimes added for the renewal of the 
 Council by the periodic vacation of seats by a certain pro- 
 portion of members. Reference has already been made to 
 the struggles that have occurred between Councils and 
 
 1 British Columbia and Ontario as provinces of the Dominion of Canada 
 have each only one Assembly. 
 
 differ in 
 regard to 
 Second 
 Chamber.
 
 SELF-GOVERNING COLONIES 287 
 
 Assemblies on the subject of financial control. These 
 have happened chiefly in Australia, and it cannot be said 
 that they have yet reached a final settlement. On the whole 
 the claims of Assemblies have gained strength with the 
 lapse of time, and the example of the House of Commons 
 furnishes a standard inevitably influencing opinion ; but 
 Councils, especially when elected, exercise an authority to 
 which the Lords can make no pretension, and it is not 
 likely that they will be reduced to mere impotence in 
 relation to finance. 
 
 A new departure of the greatest interest in the constitu- Federation 
 tional government of the colonies was consummated in 
 Canada in 1867. The North American dominions of the 
 Crown consisted of the self-governing colonies Canada, 
 Nova Scotia, New Brunswick, Newfoundland, and Prince 
 Edward Island ; of the vast territory under the authority 
 of the Hudson Bay Company, a Chartered Company dating 
 from the times of Charles n. ; and of British Columbia, 
 which had then recently passed out of the status of a Crown 
 Colony. Canada proper contained two provinces, Lower 
 and Upper Canada, very dissimilar from one another in 
 character the first almost wholly French and Catholic, 
 the second mainly of English and Scotch origin and Pro- 
 testant. The colony was organised on the principle of 
 equal representation of the two provinces, and the result 
 had been for some time a succession of Ministries with very 
 small majorities and feeble in power ; whilst the inhabitants 
 of each province resented the ties strictly binding them 
 together. An issue to what threatened to be a deadlock 
 was found in the willingness of Nova Scotia and New 
 Brunswick to be united with the two Canadas as four 
 provinces of one Federated Dominion. After much negotia- 
 tion between the leaders of parties throughout the four, 
 a scheme of Union was drawn up which, being approved
 
 288 THE WORKING CONSTITUTION 
 
 by the Colonial Office, was incorporated in an Act of Parlia- 
 ment of 1867 creating the Dominion of Canada. It may 
 be noted that the question of Federation was not discussed 
 in General Elections throughout the Provinces nor was there 
 anywhere a reference of the proposed union to anything in the 
 nature of a plebiscite ; and it was indeed asserted at the time 
 that a majority of the inhabitants of Nova Scotia opposed the 
 project. Under the Act of 1867 a Dominion Parliament 
 was constituted consisting of a House of Commons and a 
 Senate. In the House of Commons, Lower Canada, hence- 
 forth called the Province of Quebec, was always to have sixty- 
 five members, whilst the other Provinces were to be 
 represented by a number of members bearing the same 
 proportion to sixty-five that their population might bear 
 to the population of Quebec, the allotment of members 
 being revised every ten years after the Dominion census 
 was taken. The Act provides for a General Election every 
 five years unless anticipated by an earlier dissolution. The 
 Senate was to consist of seventy-two members nominated 
 as already stated for life, twenty-four each for Quebec and 
 Ontario, and twelve each for Nova Scotia and New Bruns- 
 wick ; and there is a provision also for an increased number 
 of members not exceeding six to facilitate overcoming any 
 possible deadlock. The provinces Quebec, Ontario (the 
 new name for Upper Canada), Nova Scotia and New 
 Brunswick retained, or were endowed with, local legisla- 
 tures (in the case of Ontario with a single chamber), and 
 were placed under the administration of Lieutenant- 
 Governors, to be nominated by the Governor-General of 
 the Dominion on the advice of his Ministers ; the Governor- 
 General himself being nominated by the Crown. The Act 
 partitioned legislative powers between the Dominion and 
 the Provinces, giving however concurrent powers in relation 
 to some specific subjects, but providing that whatever was
 
 SELF-GOVEKNING COLONIES 289 
 
 not specially assigned to the Provinces should be reserved 
 to the Dominion ; and in Dominion and Provinces alike 
 Responsible Government was established. The Provinces 
 were placed under the Dominion much as colonies in general 
 are under the home authority. The Governors-General for 
 example have a veto on provincial legislation ; and it is 
 now established, though at first doubted, that this veto 
 must be exercised under the advice of their responsible 
 Ministers. The interpretation of the Act lies within the 
 competency of any Canadian Court, when raised in a case 
 coming before it ; and appeals from the decisions of such 
 Courts may ultimately be carried to the Judicial Committee 
 of the Privy Council ; but there is also a special provision for 
 submitting to this Committee original questions concerning 
 the interpretation of the Act. 
 
 The Dominion Act gave to the Dominion Parliament 
 exclusive powers of raising Customs and Excise duties 
 within the Dominion, and as the federated provinces had, 
 whilst independent colonies, largely relied upon these duties 
 for the means of meeting their current expenditure and the 
 charges of their several debts, it became necessary that the 
 Act should contain a financial transaction providing some 
 aid for the provinces in the future. Under it the existing 
 debts were fused into one Dominion debt, and to compensate 
 for the inequalities of the relief thus given and to provide 
 funds in help of provincial expenditures, it was enacted that 
 subvention should be made from the Dominion Treasury to 
 the several provinces, partly of fixed annual payments and 
 partly of an aUowance according to population, which latter 
 would also on certain conditions become fixed annual pay- 
 ments. To New Brunswick a special additional subvention 
 was given for a term of ten years. The financial provisions 
 of the Act of 1867 have however been often readjusted, and 
 the admission of every fresh province has involved new
 
 290 THE WORKING CONSTITUTION 
 
 financial provisions relative to it. In all these changes the 
 principle of Dominion subvention to provincial treasuries 
 has gained strength. It remains to notice briefly the new 
 provinces which have been incorporated into the Dominion. 
 The rights of administration and of government of the 
 Hudson Bay Company were acquired by agreement leaving 
 the Company as a trading Corporation, and out of this 
 region the Province of Manitoba was in 1870 created with 
 a legislature of its own, and a representation in the 
 Dominion Parliament, and a special financial arrangement, 
 so that Manitoba should stand on the same footing as the 
 other four provinces of the Dominion. The possessions of 
 the Hudson Bay Company outside Manitoba remained as 
 territory under the direct authority of the Dominion govern- 
 ment, and in course of time new provinces may be carved 
 out of it. In 1871 British Columbia joined the Dominion 
 under conditions similar in character, and this was followed 
 by Prince Edward Island in 1873. 
 
 Newfoundland is the only colony in North America now 
 outside the Dominion, and negotiations have several times 
 been commenced with a view to its incorporation, but for 
 special reasons the prospect of its Union with Canada has 
 of late years rather receded than advanced. 
 
 Australian More recently steps have been taken to bring about a 
 Federation. f eo | era tion of the Australian colonies, and a plan for this 
 purpose is now being put into execution. Originally drafted 
 and re-drafted, corrected, and revised in Australia, it there 
 received parliamentary and plebiscitary sanction in New 
 South Wales, Victoria, South Australia, and Tasmania ; and 
 was forwarded home as a scheme for the union of these four 
 older colonies. Queensland however came into the plan before 
 it was ratified by the Imperial Parliament, and the adhesion 
 of Western Australia has also been secured, so that the 
 federation may now be described as comprising all Australia.
 
 SELF-GOVERNING COLONIES 291 
 
 This new constitution differs in many respects from its 
 Canadian predecessor. The separate colonies retain a larger 
 measure of independent existence, although it would be 
 competent for them to become more and more incorporated 
 in, and subordinated to the Commonwealth, as the union 
 is to be henceforth entitled. Each state will for example 
 continue to receive a Governor nominated by the Queen on 
 the advice of the Imperial Ministers, and the legislation 
 of each state, within the limits of its authority, is not 
 subject to the Government of the Commonwealth. It 
 would seem also that, according to the true reading of the 
 Commonwealth Act, the existing right of appeal from a 
 State High Court direct to the Queen in Council would 
 exist concurrently with the right of appeal to the Federal 
 High Court until otherwise enacted by the state legislature. 1 
 The powers of legislation conferred on the Commonwealth 
 Parliament are specifically mentioned, and the State Parlia- 
 ments enjoy general reservation of powers not transferred. 
 The separate state is thus left in a position of independence 
 which has no parallel in the Canadian constitution. The 
 main matters handed over to the Commonwealth Parlia- 
 ment are trade and commerce and the imposition of customs 
 and excise duties (so that trade shall be absolutely free 
 throughout the Commonwealth), the currency, banking and 
 railway laws in respect of banks and railways extending 
 beyond the limits of single states, postal services, marriage 
 and divorce, and the organisation of the defensive forces of 
 the Commonwealth. 
 
 The Commonwealth will have at its head a Governor- Constitution 
 General appointed by the Crown who will act under the f Common- 
 advice of Ministers responsible to the Commonwealth 
 Parliament ; and this will consist of a Senate in which each 
 
 1 The question of an ultimate appeal to the Queen in Council through the 
 Federal High Court is not here dealt with.
 
 292 THE WORKING CONSTITUTION 
 
 state will have six members, and a House of Representatives 
 containing approximately twice as many members as the 
 Senate allotted among the states in proportion to their 
 population as shown at each decennial census. The senators 
 are to be chosen for a term of six years, one-half retiring 
 every third year, and are to be elected in each state by the 
 electors for the House of Representatives ; but in the election 
 of senators each state is to be treated as one undivided con- 
 stituency except perhaps Queensland, where subdivision is 
 possible. The House of Representatives is to be chosen 
 for three years by the same persons who are voters for the 
 House of Representatives in each separate state. The 
 Legislature of each state may ordain the electoral divisions 
 of the state, until the Parliament of the Commonwealth 
 takes this matter into its own hands ; and in the absence 
 of provision by the Legislature of the state or Common- 
 wealth the state is to be one constituency for the election 
 of its representatives. Both Senate and House may be 
 simultaneously dissolved. In the division of functions 
 between Senate and House the latter has the initiation 
 of all financial legislation, and the Senate is debarred from 
 amending tax bills, but it is empowered to return such 
 bills to the House with suggestions of amendment submitted 
 for consideration. There are provisions against the abuse 
 of the exclusive powers of the House on matters of finance ; 
 nothing must be tacked to an Appropriation Bill ; Custom 
 duties must be dealt with in a Bill by themselves ; Excise 
 duties must be similarly isolated. It is indeed provided 
 that a Tax Bill shall deal with one subject of taxation 
 only, and foreign matter introduced in any taxing bill is of 
 no effect. The prohibition of tacking extraneous enact- 
 ments to a Finance Bill is but a formal expression of 
 the principle tacitly observed at home, but the severe 
 separation of taxing proposals from one another and the
 
 SELF-GOVERNING COLONIES 293 
 
 liberty allowed to the Senate of suggesting amendments to 
 Finance Bills are limitations of the unqualified supremacy 
 insisted upon by our own House of Commons. 
 
 In Australia as in Canada the transfer of Customs and Financial 
 Excise duties to the federated Parliament has necessitated sett l ement - 
 the establishment of financial relations between the Common- 
 wealth and the states. There is no pooling of state debts 
 at the outset ; but it is suggested as possible, and meanwhile 
 accounts will be kept of the shares of the revenue of Customs 
 and Excise duties attributable to the consumption of the 
 articles subject to them within each state, and against the 
 credit thus established is debited the share of the cost of 
 Commonwealth government due from each state in pro- 
 portion to its population, and the balance is paid over to 
 the state. There is no provision in case of a balance against 
 the state, and it appears to be assumed that these indirect 
 taxes will always be maintained high enough to ensure a 
 surplus. 
 
 The Commonwealth constitution contains many transitory Provision for 
 provisions which have not been noticed in the foregoing a deadlock . 
 sketch, but there remain two other matters which require to 
 be mentioned. The first is the provision for the solution 
 of a deadlock between the Senate and the House of Repre- 
 sentatives. When a measure insisted upon by the House 
 of Representatives has been rejected twice in the same or 
 in two consecutive sessions by the Senate, the Governor- 
 General is empowered to dissolve both Houses simultaneously 
 so that an appeal may be made to the constituencies. If 
 the newly-elected Houses still fail to come to an agreement 
 the Governor- General may convene a joint sitting, at which 
 an absolute majority of the members of both Houses voting 
 together shall decide the question at issue. 
 
 The second matter to be noticed is the provision for the 
 amendment of the constitution. Many important clauses in
 
 294 THE WORKING CONSTITUTION 
 
 Amendment the Commonwealth Act are expressly subjected to altera- 
 ofConstitu- tj on by the legislative authority of the Commonwealth 
 Parliament; but the Parliament is not made omnipotent 
 like the Imperial Parliament at home. The machinery 
 for constitutional amendment is elaborate, requiring time 
 and a concurrence of voting forces to set it in effective 
 motion. The amendment must first be passed by both 
 Senate and House, but the Governor-General of the 
 Commonwealth may take up an amendment twice passed 
 by an absolute majority of one House with or without 
 alterations suggested by the other House, and the amend- 
 ment so taken up by the Governor-General is then dealt 
 with as if it had passed both Houses : that is, it is 
 submitted to a plebiscitary vote of the electors in each 
 state for the House of Representatives. If approved by 
 a majority of states and by a majority of the electors 
 voting throughout the Commonwealth, it returns to the 
 Governor-General for the Queen's assent. 
 
 The Appeal A word must be added on the only subject of controversy 
 to the Queen that arose in connection with the constitution of the 
 
 Commonwealth. The Bill as settled in Australia and sent 
 home contained a clause prohibiting appeals to the Queen 
 in Council on any question involving the interpretation of 
 the constitution of the Commonwealth or of a state unless 
 the public interest of some other part of the Queen's 
 dominions was involved ; and to this solitary provision the 
 Imperial Government objected as touching a matter extend- 
 ing beyond what may be called the domestic interests of 
 Australia. Ultimately the difficulty was settled by the 
 deletion of the provision and the reservation of all rights 
 of appeal to the Queen in Council, subject to any future 
 legislation on the subject by the Commonwealth Parlia- 
 ment which must be specially held over, if passed, for the 
 sanction of the Crown. It may be doubted whether the
 
 SELF-GOVERNING COLONIES 295 
 
 point is of the importance attributed to it in the height 
 of the controversy, and it may be left to the public judg- 
 ment of the future in Australia and at home. 
 
 Although the framers of the Commonwealth Bill in some 
 important points copied the precedent of the United States 
 rather than that of the Dominion, the success of the 
 Canadian Federation doubtless stimulated their enterprise. 
 A similar situation is attended with similar wants, and gives 
 promise that corresponding advantages will follow legislation 
 of the same character. Freedom of trade between federated 
 colonies in Australia will probably be as beneficial as 
 freedom of trade between the provinces of the Dominion. 
 The movement towards Australian Federation has in any 
 case originated in Australia itself, and the Parliament at 
 Westminster was asked to sanction a Bill which had been 
 worked out after many conferences between Australian 
 statesmen, and was recommended by approving votes either 
 of colonial parliaments or of the electors of the colony 
 taken by way of plebiscite. If Federation is to extend South African 
 elsewhere it must be amid similar circumstances. In 1877 federation, 
 the Imperial Parliament passed an Act for the Federation 
 of the Queen's Dominions in South Africa. The Colonial 
 Secretary for the time was the same person that held the 
 seals of the Colonial Office when the Canadian Act was 
 introduced and passed in 1867. He seems to have thought 
 that that which had grown in North America might be 
 transplanted to South Africa. The Act became law after 
 much opposition with an amendment limiting its operation 
 to five years, at the end of which it expired without anything 
 having been done or even attempted under its provisions. 
 Another South African confederation is anticipated by 
 many as the ultimate sequel of the war now (1900) being 
 waged in South Africa, but it must be left to history to 
 reveal the final solution of the contest.
 
 296 THE WORKING CONSTITUTION 
 
 CHAPTER IV 
 
 INDIA 
 
 The East REFERENCES have already been made to the experiences 
 India Com- o f Chartered Companies in the Niger region, in South 
 16oo. Africa, and in the territories of the Hudson Bay Com- 
 
 pany ; but the greatest illustration of the power and 
 development of a Chartered Company is found in British 
 India. The history of the East India Company lies out- 
 side the scope of this book. It originated in a charter 
 granted in the last year of Elizabeth incorporating certain 
 merchants, and giving them exclusive powers of trade, 
 administration, and settlement in the East. This Com- 
 pany, at first started in opposition to the Dutch East 
 India Company, and subsequently struggling fiercely with 
 French competitors for ascendancy, rapidly grew in power. 
 Before the seventeenth century had elapsed it had secured 
 the three main positions of Fort St. George in Madras, the 
 island of Bombay, and Fort William in Bengal ; and before 
 the end of the eighteenth century it had practically ousted 
 all European rivals from Hindustan. It carried on trade. 
 At first the agent, it became the master of princes. It 
 fought and conquered with an army and navy of its own, 
 and auxiliary forces hired from the Crown. It established 
 a network of collectors with multifarious functions, many 
 of whom, far removed from home control, launched boldly 
 into enterprise relying on the principle that if their action
 
 INDIA 297 
 
 were successful it would be approved. The original charter 
 granted for fifteen years had been subsequently prolonged 
 indefinitely subject to a power of revocation under which it 
 had been from time to time modified ; and as the eighteenth 
 century advanced to a close, it became more and more 
 apparent that the administration of such great and far- 
 reaching functions by a Company whose primary duty was 
 to secure good dividends for the shareholders must be 
 radically revised. The history of Mr. Fox's Bill has been 
 already noticed in connection with the action of the King. 
 Mr. Pitt's Act, which followed in 1784, whilst it left to Pitt's India 
 the Company all its trading privileges and its vast sub- Act > 1 ' 84> 
 ordinate patronage, placed the civil and military control 
 of its possessions under the orders of the Crown. The 
 appointment of its highest functionaries remained indeed 
 in the hands of the Directors, though subject to the assent 
 of the Crown, which could at any time be withdrawn. 
 This Act created a Board of Control, the President of The Board 
 which became in reality the Minister for India. His of Contro1 - 
 associates on the Board being Ministers with other engrossing 
 duties were never called upon to take any part in his action. 
 He was in this respect like the President of the Board of 
 Trade, who has associated with him in name persons of the 
 highest distinction who not improbably are ignorant that 
 they are his colleagues. The Act further required that the 
 Court of Directors of the Company should choose three of 
 their number as a Secret Committee, and whilst the Court 
 could issue no order touching civil or military administra- 
 tion without the assent of the Board of Control, this Secret 
 Committee was bound to transmit every order it received 
 from the Board. The Board thus knew everything that 
 was done, and could give and did give orders of its own. 
 It was the supreme authority, checked however by the 
 fact that the Directors could without recourse to the
 
 298 THE WORKING CONSTITUTION 
 
 Government 
 of India 
 transferred 
 to Crown, 
 1858. 
 
 Crown recall a Govern or- General, and that all the sub- 
 ordinate administration was under their patronage. Under 
 this somewhat anomalous constitution British India con- 
 tinually advanced. Its frontiers extended under every 
 Viceroy. The authority of native princes was reduced 
 where it was not extinguished, and the policy became 
 more and more favoured of superseding them altogether by 
 direct British rule. At the same time the extension of the 
 frontier was an extension of the area of peace. Within 
 it the worst native customs were gradually abolished, and 
 the organisation of the British administration, judicial and 
 executive, so improved that justice was everywhere secured 
 and the suspicion of corruption disappeared. The Directors 
 established a college at Haileybury for the education of their 
 civil servants before sending them to their posts, and one 
 of their last acts was to renounce altogether the patronage 
 of appointing these civil servants by throwing their posts 
 open to competitive examination. The Company had 
 already, upon one of the periodical renewals of its charter 
 in 1833, been deprived of its exclusive privilege of trade, 
 and it remained a body with great and stately traditions 
 of authority, but with a power gradually reduced to that 
 of patronage. In 1857 occurred the Great Mutiny, and 
 this produced the final change transferring the whole 
 administration of India directly to the Crown. This was 
 consummated by the Act of 1858. 
 
 The Government of India remains to-day practically as 
 it was organised under this last-named statute. On the 
 1st January 1877 a proclamation at a Durbar or a gathering 
 of vassal-princes announced that the Queen had assumed 
 the title of Empress of India, but declared that this made 
 no change in the standing policy of governing India so as 
 to promote the welfare of its inhabitants. The assumption 
 was in fact a mere change of title leaving the real course
 
 INDIA 299 
 
 of administration undisturbed. The Act of 1858 created Secretary of 
 a Secretary of State for India, a member of the Cabinet ^ t * t . e for 
 which in its solidarity joins in his counsels and shares his ^{ s Council, 
 responsibilities. The Act, however, associated with him a 
 special Council of fifteen paid members appointed at first 
 for life and now for a term of ten years with power of 
 extending the period. The members of this Council were 
 at first a few of the directors of the old Company associated 
 with men who had returned home after having served in 
 civil and military capacities in India. It is now, with 
 the exception of a member or two chosen for their com- 
 mercial knowledge and occasionally a retired Indian judge, 
 confined to retired Indian officials, civil and military. The 
 whole government of India is subordinate to the Secretary 
 of State and his Council much as the government of a Crown 
 Colony is under the Colonial Secretary, though the vastly 
 greater sphere of its operations compels the relinquishment 
 of details and the allowance of a greater discretion in higher 
 matters to the Government in India. No charge can be 
 imposed upon the revenues of India except by the authority 
 of the Secretary of State in Council, though it is claimed 
 that in matters of urgent necessity the Secretary of State 
 can issue his orders without the concurrence of his Council. 
 The Act moreover provides that no military expenditure 
 shall be incurred at the cost of India outside the frontiers 
 except on the authority of express votes of both Houses 
 of Parliament. 1 Nor can additions be made to the debt of The Viceroy. 
 India except under Act of Parliament. In India itself the Executive 
 supreme authority is vested in a Governor-General who 
 is assisted by an Executive Council of seven members (the 
 usual term of the Governor-General and of each member 
 being five years), one of whom, the law member, is commonly, 
 
 1 This provision seems however to have been overlooked on at least one 
 occasion, the Perak expedition of 1875.
 
 300 THE WORKING CONSTITUTION 
 
 whilst another, the finance member, is occasionally, appointed 
 from home ; and the rest, with the occasional exception of 
 the Commander-in-Chief, are civil servants, who have become 
 heads of departments. The Governor- General, who at least 
 at the commencement of his term is the express depository 
 of the policy of the Government at home, generally dominates 
 his Executive Council, though power is reserved for any 
 one to record his dissent from any act of administration 
 in a minute which must be sent by the Governor- General 
 Legislative to the Secretary of State. Next to the Executive must 
 Council. k e named the Legislative Council composed, as in Crown 
 Colonies, of official and non-official members, the former 
 being the members of the Executive Council, whilst the 
 latter consist of natives of high rank and Europeans of 
 commercial importance. Some non-official members are 
 selected by the Viceroy and others recommended by pro- 
 vincial and other bodies so as to enjoy some representative 
 character; but no member is elected and all require the 
 Viceroy's approval. The non-official may exceed the number 
 of the official members, so that in theory the latter might be 
 outvoted. In practice this never happens, for in truth it 
 is rare that an indocile member appears among the 
 nominated non-officials. No law can be passed nor tax 
 imposed without the assent of the Legislative Council, but 
 with respect to many matters of the highest importance its 
 members have no initiative power ; no question can be put 
 if permission is refused, nor in the absence of any change 
 of taxation is any vote taken on the annual Budget. A law 
 passed by the Council and approved by the Viceroy might 
 yet be set aside by the Secretary of State ; but inasmuch 
 as the Viceroy practically controls legislation at every 
 stage, and is moreover in constant communication with 
 the Secretary of State whose organ he is, the disallowance 
 of a statute is impossible without a change of Government.
 
 INDIA 301 
 
 It could happen only if the House of Commons passed an 
 address for its disallowance which would in fact be a vote of 
 censure on the Secretary of State. Underneath the Viceroy 
 and his Councils India is parcelled out into the Presidencies The Presi- 
 of Madras and Bombay ; the Lieutenant-Governorships dencies > etc - 
 of Bengal, the North-West Provinces, the Punjab and 
 Burma; the Commissionerships of the Central Provinces 
 and Assam ; and a large number of Protected States left 
 under native administration. ' Residents ' are attached to 
 the chief States, and the rest are grouped under ' Political 
 Agents,' the influence of such officers varying from extreme 
 control to modest suggestions of advice. Bombay and 
 Madras are under Governors usually sent from home, and 
 they have associated with them Executive and Legislative 
 Councils for local purposes organised on the same principles 
 as those of the Viceroy. Bengal, the Punjab, North- West 
 Provinces, and Burma have also Legislative Councils, 
 and it may be added that the cities of Calcutta, Madras, 
 and Bombay have municipalities containing elected elements. 
 Bengal, Madras, Bombay, the North- West Provinces, and 
 the Punjab have separate judicial organisations; some 
 members of the High Court in each of the first four being 
 trained lawyers appointed from England, with whom are 
 associated a member who has risen from the Civil Service, 
 and lawyers, native and European, distinguished by their 
 practice in the courts. A crowd of inferior courts occupies 
 the country. The methods of supplying the higher civil 
 servants of India established by the Court of Directors in 
 their last years has been continued under the direct adminis- 
 tration of the Crown. The young men who succeed in the The Indian 
 competitive examinations at home, among whom some few C* v " Service, 
 natives are generally found, are assigned on their arrival in 
 India to different posts of local administration, such as 
 assistant-collectorships of revenue, from which they rise to
 
 302 THE WORKING CONSTITUTION 
 
 collectorships, to magisterial appointments and judgeships of 
 local courts, to commissionerships, lieutenant-governorships, 
 and membership of the High Courts of Judicature or of 
 Executive Councils, as has been already mentioned. It is a 
 hierarchy, entrance into which is the result of examination, 
 and promotion in which depends upon recognition from 
 grade to grade by those above, ending in recognition of 
 fitness for the highest offices by the Secretary of State. 
 The pay and pension of these officers is secured on good 
 behaviour, and they constitute what, by tradition of the 
 original indentures of appointment by the Company, is 
 known as the ' Covenanted Service.' To special services 
 now much localised and largely supplied by natives separate 
 appointments are made, and it still happens that some who 
 have gone to serve as officers in the Indian Army are 
 diverted to civil employment, and so remain permanently 
 
 Indian occupied. The army in India is composed of one-third of 
 
 army. British troops, paid for by the Indian Government, and 
 
 two-thirds of native troops, and as it has been already noted 
 that no charge can be imposed on the revenue of India 
 for expeditions outside it except under the authority of 
 both Houses of Parliament, it follows that Indian troops 
 cannot without such a vote be employed out of India at 
 Indian expense. 
 
 The revenue A word must be said about the revenue of India. 
 
 of India. Customs duties are few, and till recently were free from 
 any element of 'Protection.' There is a revenue from 
 stamps, and an excise tax on liquors and another on salt ; 
 and a considerable though diminishing amount is annually 
 realised by the profits of monopolised cultivation of opium. 
 The largest item of revenue is however due to rent. In 
 a great part of India the principle prevails that land is 
 the property of the State, and that the rent which in the 
 West goes to a private owner should go in the East into
 
 INDIA 303 
 
 the State coffers. Under Mogul princes an intermediate 
 class existed (zemindar) which paid variable rents to the 
 Emperor or his deputy, and received in turn variable rents 
 from the ryots or actual peasant cultivators. Whether 
 zemindars were proprietors or mere collectors is disputed, 
 but Lord Cornwallis a century ago permanently fixed inThe'per- 
 Bengal the rents paid by this class to the State, with a ma " en f 
 view of creating an independent middle-class in that pro- 
 vince. 1 The rent revenue in Bengal is therefore fixed. Else- 
 where it has remained variable, but it is in fact assessed 
 for different terms, generally about thirty years, by civil 
 servants called Settlement Officers to whom the duty is 
 assigned. These men pervade their respective areas sum- 
 moning before them the headmen, officers, and peasants of 
 the several villages, and determining as the result of this 
 inquisition the rent to be paid for another term. The 
 task is one requiring great discretion, as it is obvious that 
 any revision of a local inquiry must be extremely difficult ; 
 but it may be presumed that their work is generally fairly 
 done as complaints are very rarely heard ; at least of 
 harshness or injustice on the part of individual officers. 
 The position of the State as landlord enforces duties which ' Paternal 
 must in any case have been admitted, having regard to Government 
 the other circumstances of India. The great peril of the 
 country is an insufficient supply or distribution of water, 
 and large irrigation works (tanks, canals, etc.) have long 
 been the care of Indian rulers. Much has been done to 
 extend the system of irrigation throughout the peninsula, 
 but the great work of the British Government during the 
 last half-century has been the construction of railroads. 
 Trunk and branch lines have been made in all directions, 
 
 1 He left unsettled the rents to be paid by the ryots to the zemindars, and 
 it has been part of the legislative labour of the last generation to protect the 
 Bengal ryot by some regulation of his rental.
 
 304 THE WORKING CONSTITUTION 
 
 partly for purposes of military organisation, but on a 
 still greater scale for the promotion by easy transport 
 of industry and commerce ; and partly again to overcome 
 the famine consequences of partial or even extensive 
 droughts by the establishment of facilities for moving 
 supplies of food into distressed districts. The Government, 
 in these as in so many other matters, occupies a kind of 
 paternal position toward the great mass of the population ; 
 The political but at the same time the education and ideas of European 
 
 problem of cu lture are permeating what may be called the professional 
 India sfuture. r J r 
 
 classes ol India ; and a way has yet to be round 01 reconcil- 
 ing the desire thus begotten to be associated with the 
 government of the country with that condition of untrained 
 submissiveness which characterises the bulk of the in- 
 habitants of India. Natives find employment in commerce 
 and in the courts of law. They attend University classes 
 and obtain degrees. They enter the professions. They 
 fill subordinate posts in the Civil Service. They may 
 as successful candidates in competitive examinations be 
 found in the Covenanted Service. They sit on the 
 bench in the High Courts. Whilst thus discharging a 
 multiplicity of functions of various grades of importance 
 in British India proper, they see in the Protected States 
 an administration entirely in the hands of fellow- Indians, 
 though more or less controlled by English Residents. It 
 is not surprising that aspiration should exist for a larger 
 and more independent share in the government of India, 
 and these aspirations have found vent in self-constituted 
 national Congresses, which have met annually to discuss 
 Indian affairs and to pass resolutions in favour of changes 
 tending towards representative institutions. The authority 
 of these Congresses has been questioned and their experience 
 has been chequered, but their existence is not resented by 
 those who are seriously occupied with the problem of the
 
 INDIA 305 
 
 government of India. Before the Mutiny annexation and 
 absorption under direct British administration was the 
 policy of Lord Dalhousie. More lately the desire to 
 foster and strengthen the existence of Native States has 
 been developed, but it cannot be said that a definite end 
 is discernible as the goal of either course. Tentative steps 
 may be expected in the direction of decentralisation, in 
 experiments in representative co-operation, and generally 
 in extending the sphere of responsible association of natives 
 and Europeans in Indian government, but there is no 
 immediate prospect of any great change of that remarkable 
 system under which public opinion as expressed through the 
 Imperial Parliament, under checks and limitations devised 
 with its assent and existing by its permission, overrules the 
 bureaucratic government of the great Indian peninsula. 
 
 India is under the immediate administration of the Supremacy 
 Govern or- General and his Council, but these are appointed of the 
 from home, and if the Governor- General felt disposed to Parliament, 
 differ from the policy of the Secretary of State (which has 
 very rarely happened) he must yield up his private opinion 
 or resign. The Secretary of State again is a member of 
 the Cabinet which must possess the confidence of Parlia- 
 ment, especially of the House of Commons. It has never- 
 theless been part of the overruling mind which has shaped 
 the organisation of Indian government to make it not too 
 responsive to the varying temper of the House of Commons. 
 In the end the national will must have its way here as 
 elsewhere ; but checks and obstacles are interposed which, 
 perhaps insensibly, moderate its force. No part of the 
 expense involved in the government of India comes before 
 the House of Commons in Committee of Supply. The 
 salary of the Colonial Secretary is voted by Parliament, and 
 there is thus a possibility of annually reviewing his policy 
 in the full activity of the parliamentary session. The 
 
 u
 
 306 THE WORKING CONSTITUTION 
 
 The Indian 
 Debate. 
 
 An illustra- 
 tion : The 
 Currency 
 question. 
 
 salary of the Indian Secretary of State is paid by India 
 and never comes before the House of Commons. At the 
 end of the session, generally after the Appropriation Bill 
 has been read a second time, the Indian budget is sub- 
 mitted ; and this consists of the review of the financial 
 situation in India followed after a desultory discussion by 
 a resolution simply affirming that the Indian Accounts show 
 certain totals of income and of expenditure. It may be 
 doubted whether this does not betray too great a jealousy 
 of the House of Commons. If the salary of the Indian 
 Secretary were submitted like that of the Colonial Secretary 
 to a vote, the opportunity for a real debate would be given 
 which, experience suggests, would be used rather than abused. 
 This chapter may close with an illustration, not without 
 interest in itself, of the way in which India is governed. 
 The currency of India has long been silver, the Indian 
 mints being freely opened to the coinage of that metal 
 into rupees. Between silver and gold there was a steady 
 relation, the value of the rupee being practically one-tenth 
 of a sovereign. This remained up to 1873, when the free 
 coinage of silver was suspended in the Latin Union and in 
 Germany and soon after in the United States ; and there- 
 upon followed a rapid and almost continuous decline in the 
 relation of the rupee to the sovereign. Whether this was 
 due to an increased value in gold itself, or to a decreased 
 value in silver, or to both movements, is disputed ; but 
 the result was that the rupee fell till, instead of one-tenth, 
 it was more like one-eighteenth of a sovereign. This 
 imposed great difficulties on Indian Finance Ministers, 
 since India had incurred a large debt in gold, and was 
 under the obligation of paying not only the interest of 
 this debt but many salaries and pensions in the same 
 metal. The Government in India became alarmed, and in 
 1878 appealed to the Secretary of State for permission to
 
 INDIA 307 
 
 close Indian mints to silver. But the Secretary of State, 
 after consulting a committee of experts, did not see his 
 way to approve this step. The depreciation continued, and 
 in 1892 the Indian Government again appealed, and the 
 Secretary of State, having consulted another committee 
 of experts, was encouraged in 1894 to grant the appeal on 
 the condition that enough would be done if the rupee rose 
 to one-fifteenth of a sovereign. An Indian Act was im- 
 mediately passed embodying this resolution, and with the 
 stoppage of coinage the rupee gradually rose to the level 
 of one-fifteenth. But whilst the Indian Government was 
 always ready to supply rupees for sovereigns at this rate, 
 it was under no obligation to supply sovereigns for rupees ; 
 and many proposals for establishing this latter obligation 
 having been made in India the Secretary of State was 
 again solicited in 1898 to adopt one of them. He referred 
 the matter to a third committee, which recommended the 
 rejection of all these proposals and the maintenance of the 
 status quo. This recommendation he has adopted, and 
 subsequent experience seems to have proved its wisdom. 
 Throughout all this period the action of the Indian 
 Government and of the successive Secretaries of State has 
 been canvassed out of doors both in India and in Great 
 Britain, and has been the subject of repeated debates in 
 the House of Commons. Nor could the resolutions of the 
 Secretaries of State have been maintained, if they had not 
 received implicitly or explicitly the approval of the House 
 of Commons. The Indian Government, public discussion, 
 committees of experts, and Secretaries of State all work 
 together to produce a result which Parliament sanctions. 
 The problem of the currency is an illustration not differing 
 in the method of its solution from other problems which 
 have from time to time to be determined in fulfilment 
 of the duty of governing India.
 
 308 THE WORKING CONSTITUTION 
 
 CHAPTER V 
 
 FOREIGN RELATIONS 
 
 THE Crown represents the nation in all relations with 
 
 foreign powers. It sends its Ambassadors and Ministers 
 
 Foreign abroad, and receives in turn Ambassadors and Ministers 
 
 relations in accredited to its court. Every agreement made with a 
 the hands of . . . . J . , . , , 
 
 the Crown foreign power in times ol peace is made in the name 01 the 
 
 Crown. Every declaration of war is a declaration in the 
 same name. It is indeed true that many agreements are 
 formally made subject to their fulfilment by Parliament. 
 Any agreement for example to guarantee a loan, to make a 
 subsidy, or to change customs duties require the concur- 
 rence of Parliament to become effective ; and the necessity 
 for such a concurrence is always reserved in the treaty. 
 Treaties of peace very commonly, though not necessarily, 
 involve articles which must be invalid without parliamentary 
 support. Whether a cession of territory requires such 
 sanction is disputed. There are decisions of the Privy 
 Council pointing to a negative conclusion ; but the cession 
 of Heligoland in 1890 was incorporated in a Bill submitted 
 to Parliament. It has often been argued that the power of 
 the Crown to declare war should be limited by the necessity 
 of direct parliamentary sanction ; and the provision in the 
 Constitution of the United States requiring the concurrence 
 of the Senate in such a case has been quoted to support the 
 argument. It may however be remembered in the first
 
 FOREIGN RELATIONS 309 
 
 place that a declaration of war, like every other act of the 
 Crown, can only be made on the responsibility of a Minister ; 
 and no Minister would advise such a step without being 
 well assured of parliamentary support greater confidence 
 may perhaps be placed in the sense of responsibility of a as repre- 
 Minister who has to recommend than of an Assembly which sented by 
 has to concur ; and in the second place that a declaration Ministers. 
 of war necessarily involves a demand for money to meet the 
 expenditure of war, and Parliament must be immediately 
 summoned and asked for the necessary supplies. This 
 doubtless comes after the fatal step has been taken, and it 
 may be urged that some members of the House of Commons 
 might be found to oppose a declaration of war who would 
 not oppose a grant of supplies after war had been declared ; 
 but this is doubtful. Wars have been rarely or never under- 
 taken upon such narrow balances of opinion, and although 
 Ministers have been known to inflame the public mind, it 
 has perhaps oftener happened that the nation has pushed 
 on reluctant Ministers. 
 
 The reliance which thinkers of a former generation were 
 disposed to put on the sobriety of national j udgment can 
 hardly be said to have been justified by the experience of 
 those countries in which democratic institutions have been 
 most developed. We could not indeed introduce into our 
 constitution any limitation like that existing in the 
 American States without creating some new and unexampled 
 Power among us. The senators of the United States possess 
 an authority to which the House of Lords cannot pretend? 
 and an independence of transitory popular passions not to 
 be found in the House of Commons. There is yet one 
 more observation to be made. Although the causes of a 
 war may be long maturing, the necessity which compels its 
 outbreak may come too suddenly to allow a reference to a 
 consultative authority. Even in the United States the
 
 310 THE WORKING CONSTITUTION 
 
 Foreign 
 Minister 
 incurs full 
 responsibility 
 
 though he 
 must con- 
 sult the 
 Sovereign. 
 
 Government has practically found itself at war with a 
 foreign power without time to ask the concurrence of the 
 Senate, and the difficulty has been disguised rather than 
 overcome by describing what was war as military operations. 
 On the whole we must believe that the power of declaring 
 war will continue part of the prerogative of the Crown 
 exercised on the advice of responsible Ministers. 
 
 It has been sometimes suggested that this proposition, i.e. 
 that every act of the Crown is undertaken on the responsi- 
 bility of a Minister, must be qualified in relation to the 
 conduct of foreign affairs. Ministers, it is said, come and 
 go whilst the Sovereign remains. Reference has already 
 been made to the weight due to the prolonged ex- 
 perience of the Sovereign coupled with a personal 
 knowledge of foreign princes and potentates, all which 
 it is urged may make it fitting that the Sovereign should 
 guide rather than follow. But whilst it is' true that this 
 influence must be weighty, it must be repeated that this 
 cannot affect the reality of the constitutional maxim. The 
 Minister may follow the suggestion of the Sovereign, but 
 only by making it his own. However august the authority 
 with which it is clothed, it must not be ranked higher than 
 the advice that may be taken from some private Nestor to 
 whom the Minister may listen without abating one jot of 
 his own responsibility. Nothing can be allowed to impair 
 the authority of the paramount principle that every act of 
 the State rests upon ministerial advice. It would however 
 be a perversion of this doctrine to infer that, because a 
 Minister must advise and be responsible for his advice, he 
 may act without consulting his Sovereign ; who is invested 
 with the power of rejecting ministerial counsels, provided 
 other Ministers are willing to accept the responsibility of 
 such rejection. Lord Palmerston was dismissed from the 
 Foreign Office in the autumn of 1851 because he acted
 
 FOREIGN RELATIONS 311 
 
 without submitting his proposed action to the Crown, 
 and though there was perhaps a tendency at that time 
 unduly to subordinate a Minister, the justification of 
 his dismissal was substantially as well as theoretically 
 complete. 
 
 Notice must be taken of another doctrine occasionally Continuity 
 advanced. It is said that continuity of policy must be P 1C ^' 
 observed in the conduct of foreign affairs. As long as this 
 is confined to a protest against an unnecessary extension of 
 the insincerities of parliamentary life, it may be allowed to 
 pass. It not unfrequently happens in domestic affairs that 
 a strenuous battle is fought over something comparatively 
 insignificant, and a change of ministry brings about a change 
 in the form rather than in the substance of policy. It is 
 certainly undesirable that our relations with foreign powers 
 should be affected by such barren controversies ; but there 
 are real and substantial issues of foreign policy which 
 necessitate a discontinuity of method whenever the nation 
 determines on a change. Such new departures have happened 
 in the past and must happen again whenever the expression 
 of the national will requires a substantial change in the 
 course of foreign policy. The claim to continuity as 
 sometimes advanced is an attempt to set up a bureaucratic 
 independence destructive of the root principle of parlia- 
 mentary government. 
 
 The organisation of the Civil Service has already Organisation 
 been described ; but something additional must be said of Foreign 
 of the department of the Foreign Office. The principle 
 of unrestricted competition does not obtain within it. 
 The department has two branches, more or less dis- 
 tinct, for home and diplomatic service, though men 
 occasionally pass from one to the other. Each Foreign 
 Secretary has a list of candidates made up of persons 
 recommended to him in a manner presumably satisfactory ;
 
 312 THE WORKING CONSTITUTION 
 
 and when vacancies occur he selects from his list about three 
 times as many candidates as there are vacancies to be filled, 
 and a competitive examination is held of the selected candi- 
 dates. They are all young men (under twenty-three), and 
 a great number of them have been specially trained for the 
 competition by a well-known tutor. The successful youths 
 pass with little or no further experience to the lowest posts 
 abroad, and out of recruits so obtained Secretaries of 
 
 and of Legations, Ministers and Ambassadors are duly evolved. 
 
 Diplomatic They pass after short intervals from court to court becoming 
 fairly well acquainted with the society of the courts to 
 which they are attached; but not necessarily better ac- 
 quainted with the conditions of political life abroad than 
 at home. It is scarcely remarkable that it is at times found 
 desirable to appoint to the highest diplomatic posts persons 
 who have not passed through these grooves of change, but 
 who do bring to the discharge of their functions some 
 touch of closer connection with the realities of political 
 life. The temptations of a permanent Civil Service, which 
 have been noted at home, are evidently less checked abroad ; 
 and the State is from time to time in danger of finding 
 itself served by a class trained under such extraneous 
 influences that its dead weight is unconsciously thrown in 
 a direction adverse to the policy of the chiefs whose agent 
 it should be. It is perhaps true that the problem of the 
 diplomatic service can never be perfectly solved. Recruiting 
 by limited competition has certainly produced a personnel 
 better prepared for the work than came from the chance 
 appointments by favour of former generations, whilst the 
 occasional introduction of new men into the higher posts 
 supplies deficiencies that might otherwise be severely felt. 
 The results of an entirely different method may be seen 
 in the conduct of American diplomacy, where men without 
 any special preparation are appointed straight from civil
 
 FOREIGN RELATIONS 313 
 
 life in the United States as Ambassadors and Ministers in 
 every continent. 
 
 Besides the diplomatic service already spoken of, there 
 exists a large staff of Consuls and Vice-consuls scattered Consuls, 
 over the world in the ports and places frequented by 
 the subjects of the Crown. Their primary duty is to 
 facilitate the transaction of business by these subjects 
 abroad, and the Vice-consuls are commonly foreign subjects 
 themselves, who from character and station are qualified 
 to give the assistance required. The Consuls (chosen by 
 favour of the Foreign Secretary) are almost universally 
 British, and are sometimes moved from place to place 
 by way of promotion. In some rare cases a Consul-General 
 or Consular Agent is found who is really a diplomat and, 
 it may be as in Egypt, a diplomat of great responsibility. 
 His subordinate title indicates that the potentate in whose 
 territory he resides is not, or has not always been, a 
 Sovereign Prince. 
 
 In addition to what may be called the normal diplomatic Extra- 
 organisation of the United Kingdom, other agencies are 
 called into existence on special occasions. The negociation 
 of a treaty touching some matter of supreme importance 
 is often effected under the headship of some special Am- 
 bassador-extraordinary accredited for the purpose. This 
 is naturally the case when the treaty is between this country 
 and more than one foreign power, such as commonly happens 
 at the close of some great war or in the development of 
 some extended international agreement. In this last con- Conferences. 
 nection Conferences or Congresses are frequently called 
 together to draw up a European or International Pact. 
 The series of treaties governing the relations of the great 
 European Powers towards Turkey are of this character; 
 as are also the treaties under which the greater Powers 
 have under different conditions extended their guarantees
 
 314 THE WORKING CONSTITUTION 
 
 Treaties 
 bind the 
 nation, 
 though made 
 without 
 consent of 
 Parliament, 
 
 but not un- 
 less they are 
 published. 
 
 to some minor states. A treaty will naturally close the 
 transactions of the Conference at The Hague held in 1899 
 on the invitation ot the Czar for the better security of 
 international peace. In the making of all these treaties 
 whether at Vienna or Paris, Berlin or The Hague, special 
 Ambassadors have been sent to represent the United 
 Kingdom, and the Foreign Secretary himself has been often 
 so deputed, or even, as in the case of the Congress of Berlin, 
 the Prime Minister and the Foreign Secretary have been 
 jointly charged with this transcendent duty. 
 
 The references in the last paragraph recall a question 
 of considerable importance. All the treaties named were 
 in due time published for the information of the country ; 
 but, being made under the advice of responsible Ministers 
 by the royal prerogative, they have not commonly required 
 the express assent of Parliament, since they contained no 
 obligation the immediate fulfilment of which demanded the 
 concurrence of Parliament. It is not the less true that 
 a treaty so made and published is as binding upon the 
 nation as any treaty can be, and the obligation to fulfil 
 it is no less valid than it would have been had it been 
 formally approved by the nation in Parliament. No treaty 
 indeed can be said to be binding for ever. Its obligations 
 depend upon conditions and circumstances, and it is one 
 of the most difficult and delicate problems of international 
 casuistry to determine when it may be claimed that the 
 covenants of a treaty have become obsolete. But apart 
 from this standing qualification, it must be repeated that 
 a treaty made and published in the way suggested is binding 
 on the nation without formal sanction by the representatives 
 of the nation. The question arises how far such a treaty 
 would be binding if it were not published. Secret treaties 
 were made in former centuries to which the Kings of Great 
 Britain and Ireland were parties; and in our own time
 
 FOREIGN RELATIONS 315 
 
 treaties have been concluded between Foreign Powers, 
 such as the Drei Kaiser Bund, the Triple Alliance and the 
 Dual Alliance, sometimes without any notification of their 
 existence, sometimes with an announcement that they had 
 been contracted but without any precise statement of their 
 contents. It is not known that any secret treaty has been 
 thus made in this century by the British Crown. The 
 invitation to enter the Holy Alliance was rather private 
 and personal than secret, but Lord Castlereagh met it by the 
 statement that the Constitution of the United Kingdom 
 debarred the Crown from entering upon such engagements 
 as were proposed. It has more recently been categorically 
 asserted by persons affecting to speak with knowledge and 
 authority that the United Kingdom had been pledged by 
 treaty to take a definite action in relation to Italy in 
 certain contingencies, but it is not believed that these 
 statements are exact if they have any foundation whatever. 
 At most they could be no more than the expression of 
 intention on the part of a particular Minister, and there- 
 fore limited by his power ; but could such a thing have 
 happened as the making and ratifying of a formal treaty 
 without communicating it to Parliament, it must be held 
 that it would in no way bind the nation, which would be 
 free to accept or repudiate its proposed obligations when- 
 ever they should be made public. It seems contrary to 
 the fundamental principles of a parliamentary constitution 
 that a nation should be bound by obligations, upon the 
 policy or impolicy of which its representatives have had 
 no power of pronouncing an opinion, since they have been 
 kept in absolute ignorance of their existence.
 
 316 THE WORKING CONSTITUTION 
 
 CHAPTER VI 
 
 The present 
 constitution 
 of the Empire 
 not perma- 
 nent. 
 
 Rule of 
 Home 
 
 Government 
 imperceptible 
 during peace. 
 
 FUTURE GROWTH OF THE CONSTITUTION 
 
 IT has appeared that the Government of the United 
 Kingdom is in a very real and direct sense discharged by 
 Ministers advising the Crown, and possessing the confidence 
 and support of Parliament which embodies the national 
 will. An attempt has been made to explain the provisions 
 intended to secure the identity of mind of the nation, of 
 Parliament, and of Ministers ; and further suggestions have 
 been made as to the influences brought to bear upon the 
 development and manifestations of this identical mind in 
 which power is seen to reside. All this makes up the 
 practical government of the United Kingdom. The same 
 authority, no less really, though apparently with not quite 
 the same directness, rules over the Crown Colonies and 
 Dependencies, including the great Dependency of India. 
 Over the Self-Governing Colonies its authority remains 
 technically supreme; but is in truth much more limited. 
 Each of them is now perfectly free to make laws for its 
 internal government, to impose tariffs, and to negociate 
 commercial treaties at its discretion, and proposals have 
 even been discussed for differentiating in a hostile manner 
 against the imposts of the United Kingdom. The real over- 
 ruling authority of the Home Government is in respect of 
 peace or war, since other foreign relations are scarcely con- 
 trolled ; and even in respect of peace or war its authority
 
 GROWTH OF THE CONSTITUTION 317 
 
 may be said to have been for a long time dormant since it 
 has made only for peace. Difficulty can scarcely arise 
 except in case of war when it may prove real, and the 
 apprehension of it at the outbreak of the war with the 
 Boer Republics produced the startling suggestion that in 
 that conflict the Cape Colony would be neutral. During 
 years of peace there is no pressure of coercive authority. 
 It is only in a season of war that a colony is subjected to 
 pressure, through restraint on trade, acts of hostility on 
 the part of the enemy, and the penalties which may befall 
 those who find themselves belligerents. The contributions 
 in men and money that may be asked for, if not levied, 
 form another part of the possible consequences of war. In 
 view however of these contingencies, it must not be for- 
 gotten that if the conduct of foreign affairs, upon which 
 issues of peace and war depend, remain in the hands of the 
 Government of the United Kingdom, it is also true that 
 the whole cost of government in its relation to foreign 
 powers and of the Army and Navy, with a comparatively 
 small deduction, is borne by the Parliament of the United 
 Kingdom. Quite recently Australia and the Cape Colony 
 have undertaken certain naval charges ; but the amounts 
 thus contributed, though betokening a spirit that deserves 
 recognition, are in themselves comparatively insignificant. 
 
 The organisation of the Empire described in the last Movement 
 
 paragraph cannot be regarded as in itself full of the Awards 
 
 & . j . Federation, 
 
 promise or permanence ; and it is not unnatural that 
 
 many persons have been led to study the question of the 
 possibility of improving it. The difficulty revealed but 
 not developed in South Africa might break out in a more 
 serious form elsewhere. The Ministers at the Cape stood 
 alone among colonial governments in their attitude of 
 hesitation or of opposition, but in other circumstances the 
 self-governing Dominion of Canada at one time and the
 
 318 THE WORKING CONSTITUTION 
 
 Commonwealth of Australia at another, might be found 
 protesting against a war in which the Imperial Government 
 threatened to involve the Empire. Such a contingency may 
 not be probable; but we cannot be certain that the policy 
 of the Government will always command colonial approval, 
 and it is not surprising that many should seek a develop- 
 ment that would afford some security of the imperial unity 
 of purpose under all chances. Many other circumstances 
 have tended to foster a desire for some new form of Imperial 
 organisation. The enquiry has been stimulated in recent 
 years by the success of the federation of the Canadian 
 Provinces. It has been already seen how this Federation 
 has grown in British North America, and how its example 
 has inspired the politicians of Australia to undertake the 
 formation of a Federation of the Australian Colonies. It 
 is asked why the lesson should not be carried further and 
 extend to a Federation of the British Empire. Associations 
 have been formed for the promotion of this great object, 
 but it cannot be said that they have as yet produced any 
 practical result. Some difficulties are obvious. The 
 Difficulties Canadian Dominion is, and the Australian Commonwealth 
 
 of a Customs W JQ be, a Customs and Excise Union. This is comparatively 
 easy in each case, for if the Canadian provinces do not 
 exactly lie within a ring-fence, they are so nearly adjacent 
 that the organisation of a common Customs has not been 
 difficult ; and for similar reasons it may be expected to work 
 with ease in Australia. The contiguity of the provinces of 
 the Colonies brings also into clearest light the advantages 
 of destroying all barriers to trade between them. If 
 however the mind passes to the conception of a common 
 Customs tariff and common Excise duties for Australia and 
 Canada, we feel at once the difficulties involved in such a 
 proposition. There can be no constant interchange of 
 persons and things between the two units such as prevails
 
 GROWTH OF THE CONSTITUTION 319 
 
 between the component parts of each, and whilst the physical 
 conditions of the problem are thus different, there is an 
 added difficulty in conceiving the process by which common 
 duties could be agreed upon and the distribution of the 
 accruing revenue regulated. It has not been found easy 
 to bring Cuba and Puerto Rico, near as they are to the 
 American continent, within the tariff of the United States. 
 The difficulty of organising like duties throughout the whole 
 Empire would scarcely be less than that of establishing a 
 partnership between Australia and Canada. The partial 
 consideration of the case thus given will have suggested 
 another difficulty. The Canadian Dominion is a Federation 
 of Provinces each of which already possessed self-government. 
 The same is true of the Australian Commonwealth. Each 
 is an example of the partnership of equals. If Federation 
 were to proceed on these lines it would be a Federation of 
 the United Kingdom and the Self- Governing Colonies only, 
 whilst the Crown Colonies and Dependencies of the Crown 
 would pass under the control of the Parliament of the new 
 Federation, just as they now lie under the control of the 
 Parliament of the United Kingdom. This limitation of 
 the application of the idea would not do away with it 
 would scarcely diminish the difficulty of setting up a 
 common tariff. The foregoing considerations would ap- 
 parently lead to the conclusion that, if any steps are 
 taken towards Imperial Federation, no attempts should at 
 first be made to establish common trade duties. A Union Federation 
 of the self-governing elements of the Empire might be for Imperial 
 entertained for the limited purpose of establishing a 
 common Army, a common Navy, a common government 
 of dependencies and a common control of foreign relations ; 
 but it must not be concealed that even this limited federa- 
 tion would have difficulties of its own. If the charge of 
 the Army and Navy is to become imperial, and no imperial
 
 320 THE WORKING CONSTITUTION 
 
 A Federal 
 Parliament. 
 
 The Second 
 Chamber 
 the main 
 difficulty. 
 
 system of Customs and Excise duties is practicable, con- 
 tributions would have to be levied in some prescribed 
 ratios from the component parts of the Empire, and such 
 contributions would require revision at stated periods. 
 But above and beyond this lies the construction of the 
 common Government. The first thought is naturally to 
 follow the precedent of the existing Parliament of the 
 United Kingdom as it has been followed in Canada, and 
 with some variations in Australia. Proceeding from this 
 principle, a House of Commons would be established in 
 which the different parts of the Empire would be repre- 
 sented in proportion to their population ; in which case 
 the representation of the United Kingdom would out- 
 number, and if united could defeat, the combination of 
 all the rest. This should not be alarming since, in relation 
 to the matters that would come under the common Federated 
 Parliament, the predominant party of the existing Home 
 Parliament overrules the whole Empire. If a majority at 
 Westminster can now determine issues of peace and war 
 affecting the colonies of the farthest West and South there 
 would be a diminution and not an aggravation of the 
 influence of the United Kingdom in a change which would 
 associate a mixed representation of it with the repre- 
 sentatives of the Self- Governing Colonies. It is in the task 
 of constructing the Second Chamber that the greatest, 
 perhaps the insuperable, difficulty lies. Very few would be 
 prepared to dispense with a Second Chamber altogether, 
 and these few would probably suggest as a substitute some 
 internal method of controlling the action of the single 
 House, which would bring its own difficulties. Those who 
 desire Imperial Federation in any shape must face the con- 
 struction of the Senate. Here unfortunately precedents do 
 not help us. The House of Lords discharges its functions 
 as a branch of the Parliament of the United Kingdom, but
 
 GROWTH OF THE CONSTITUTION 321 
 
 no one has seen the possibility of reproducing it elsewhere. 
 In different colonies different experiments have been tried, 
 and with the results of their experience before them the 
 framers of the Canadian constitution have adopted one 
 principle, and the framers of the Australian constitution 
 another. The latter, which gives each colony equal repre- 
 sentation in the second House, cannot be entertained as a 
 practicable suggestion towards Imperial Federation, whilst 
 the former, allowing life-senators to be nominated on the 
 advice of the Ministers of the day, has not proved a 
 commanding success. The separate Parliaments of the 
 federated elements might be authorised to elect senators 
 not of an equal number as in the United States but in 
 some proportion to their contributions to the common cost 
 of the Federation ; but if an attempt is made to follow out 
 this suggestion in detail by considering how such senators 
 should be chosen, what should be their tenure of office, and 
 whether the body should be recruited in parts or altogether, 
 it must be soon felt that speculation is proceeding far ahead 
 of the point to which the common sense of the Empire is 
 prepared to follow. It would not be wonderful if the 
 glimpses of such a novel and strange machinery should 
 produce a recoil, and lead to the conclusion either that 
 Imperial Federation must be given up altogether or that 
 it would be better in the first place to be content with A more 
 
 constitutional delegations from each self-governing part of m , est 
 
 scncmG. 
 
 the Empire, to which the Ministers for Foreign Affairs, for 
 the Dependencies, and for the Army and Navy should make 
 account and be responsible. This suggestion raises again 
 the question of the relative numbers of such delegations, 
 and if this difficulty were overcome practical men would ask 
 whether the experience of Austria-Hungary was to be 
 regarded as the recommendation of the proposed system, 
 and whether apart from this it was conceivable that the
 
 322 THE WORKING CONSTITUTION 
 
 Any change 
 must be 
 tentative. 
 
 Parliament of the United Kingdom should be prepared to 
 hand over its highest functions to a combination in which 
 it would indeed have a voice, but whose character and 
 future action no man could pretend to foresee. The con- 
 clusion would be that on the whole we had better wait. 
 The government of the Empire has been slowly developed 
 out of the past. It has grown to be what it is. It will 
 probably continue to grow, adapting itself to new circum- 
 stances and satisfying new necessities. The subordinate 
 Federations which have come and are coming into being are 
 part, but only part, of this movement. In the fulness of 
 time they have come into being, and it is not yet known 
 what they will be. Still less can it be discerned how the 
 evolution of the problem of the government of subject- 
 races will result in an association of the governing and the 
 governed an incorporation of the latter in a new citizen- 
 ship, select perhaps at first but widening with time as tried 
 and tested by experience. We may wait and watch what 
 will follow, not altogether stumbling in darkness, but 
 conscious that we can peer but a little forward on the 
 path which we may hope will preserve in the future the 
 continuity of the past.
 
 INDEX 
 
 ABBOTS summoned to Parliament, 94, 
 
 96. 
 
 Aberdeen, 239. 
 
 Abolition of House of Lords, 96. 
 Account, votes on, 160. 
 Act of Settlement, no, 194. 
 Address, debate on the, 160. 
 Addresses, election, 144. 
 Adjournment of House of Commons, 
 
 174. 
 
 Adjutant-General, 124. 
 Administration, criticism of, 164. 
 Admiral, Lord High, 126. 
 Admiralty, 126. 
 Admiralty, First Lord of, 1 1 6, 1 20, 
 
 123, 126. 
 
 Secretary of, 127. 
 
 Division of High Court, 198. 
 
 Advocate, Lord, 227. 
 Advocates, Scotch, 232. 
 Affirmation in Parliament, 84. 
 Africa, South, 277, 295, 317. 
 
 West, 276. 
 
 Aldermen, 212-13, 218-19. 
 
 Ambassadors, 311, 315. 
 
 Amendment of Australian Constitution, 
 
 294. 
 
 Amendments to Address, 160. 
 America, discovery of^43. 
 American colonies, 271. 
 
 party convention, 145. 
 
 War of Independence, 68. 
 
 Anne, Queen, 114. 
 
 Annexation, 269. 
 
 Appeal, Court of, English, 200. 
 
 Irish, 245. 
 
 Scotch, 103. 
 
 to High Court, 198. 
 
 to House of Lords, 103, 200. 
 
 to Judicial Committee of Privy 
 
 Council, 119, 289, 294. 
 
 Appropriation Bill, 26, 171. 
 
 in Australian Parliament, 292 
 
 in Victoria, 28. 
 
 Archbishops, 202. 
 
 Archdeaconries, 203. 
 
 Army estimates, 118, 161. 
 
 Army, its dependence on Parliament, 
 
 120. 
 
 its organisation, 123. 
 
 Indian, 124, 302. 
 
 Arrest, law of, 193, 195. 
 
 freedom from, 87, 269. 
 
 Articles, Lords of, 60, 63. 
 
 Five, 62. 
 
 of War, 121. 
 
 Arundel, Earl of, 96. 
 
 Ashby, case of, 89. 
 
 Assembly, Legislative : 
 
 in self-governing Colonies, 
 
 9, 27, 286. 
 
 at Cyprus, 275. 
 
 in West Indies, 280. 
 
 Assizes, 193, 198, 230, 243. 
 
 Associations of voluntary schools, 204. 
 
 Athole, Dukes of, 263. 
 
 Attorneys, 201. 
 
 Austria-Hungary, 326. 
 
 Australian Colonies, 27, 285, 286, 290. 
 
 Federation, 290-94, 318. 
 
 Aylesbury case, 89. 
 
 BAILIE, 238. 
 
 Bailiff in Jersey, 261, 262. 
 Balfour, Mr., his rule, 166. 
 Ballot Act, 84. 
 
 for time of Parliament, 167. 
 
 Bank of England, 117. 
 Bankruptcy in County Courts, 197. 
 
 of a peer, 105. 
 
 Barbados, 279. 
 Baronies, Irish, 253. 
 
 323
 
 324 THE WORKING CONSTITUTION 
 
 Barristers, 201. 
 
 Beach, Sir M. H., 24, 32. 
 
 Beaconsfield, Earl of, 144. See Disraeli. 
 
 ' Bedchamber ' difficulty, 1 1 1. 
 
 Belfast College, 251. 
 
 Belgium, proportional representation 
 
 in, 155- 
 
 Bengal, 296, 301, 303. 
 Berlin Congress, 317. 
 Bill of Rights, 45. 
 Bills, Government, 164, 167. 
 
 private member's, 164, 168. 
 
 course of, through Parliament, 168. 
 
 Birmingham, 80, 81, 83. 
 
 Bishops summoned to Parliament, 94, 
 
 96,97- 
 
 excluded from Parliament, 96. 
 
 irremovable by King, 202. 
 
 in House of Lords, 202. 
 
 appointment of, 202. 
 
 in Convocation, 203. 
 
 Scotch, 59-63. 
 
 Board of Trade, 179, 182, 184. 
 
 of Control (Indian), 297. 
 
 Bombay, 296, 301. 
 Borough Councils, 213, 238. 
 
 Magistrates, 194. 
 
 Members, 52, 56. 
 
 Borough-mongers, 47, 69, 74, 80-81. 
 Boroughs, County, 214. 
 
 increased by Tudors, 42, 53, 80. 
 
 representation of, 52, 56, 80-83, 
 
 85. 
 
 rotten, 13, 47, 69, 71, 80-8 1. 
 
 Boundaries, confusion of, 207. 
 Bradlaugh, Mr., 84. 
 Brand, Speaker, 85, 158. 
 Bridges, maintenance of, 210, 237. 
 Bridge Without, ward of, 218. 
 Bright, Mr., on adjournment, 174. 
 Bristol, 80, 83. 
 
 Earl of, 96, 98. 
 
 British Columbia, 286, 287, 290. 
 
 Guiana, 278, 280. 
 
 settlers, rights of, 269. 
 Brooke, Rajah, 269. 
 Buckhurst peerage, 95. 
 Budget, the, 117, 118, 165. 
 
 Indian, 300. # 
 
 Burgesses, 212. 
 Burghs, Royal, 60. 
 Burial Boards, 217. 
 
 Burke, 80. 
 
 Burma, 301. 
 
 Business in Parliament, 157-177. 
 
 CABAL, the, 114. 
 Cabinet Council 
 
 Use of the, 1 14. 
 
 Formation of a, 115. 
 
 Solidarity and secrecy of the, 1 1 6. 
 
 Meetings of, 118. 
 
 Committee of the, 118. 
 Cambridge University, 52, 86. 
 Campbell v. Hall, 270. 
 Canada, Dominion of, 285-288, 318. 
 
 Lower and Upper, 287. 
 
 Canadian Federation, 288, 295. 
 
 House of Commons, 288. 
 
 Candidates, selection of, 146. 
 
 expenses of, 147. 
 
 Canning, 80. 
 
 Canonries, 202. 
 
 Canterbury, Province of, 203. 
 
 Cape Colony, u. 
 
 ' Carpet-baggers,' 147. 
 
 Castlereagh, Lord, 318. 
 
 Catholic disabilities, 55-57. 
 
 in Ireland, 71, 73, 79. 
 
 Emancipation, 55, 79. 
 
 Education in Ireland, 250. 
 
 Catholics in Canada, 287. 
 
 in Malta, 273. 
 
 Causeway mail, 234. 
 
 Cemeteries, 217. 
 
 Central Provinces of India, 301. 
 
 Ceylon, 278. 
 
 Chairman of Committees, 172. 
 
 of Quarter-Sessions, Irish, 245. 
 
 Chamberlain, Mr., 281. 
 
 Chancellor of the Exchequer, 115-16, 
 
 163, 210. 
 Chancellor, Lord, 96, 100, 195, 196, 
 
 197, 200, 203, 218. 
 Irish, 245. 
 
 Chancery Division, England, 199. 
 
 Ireland, 245. 
 
 Master of, III. 
 
 Settled Estates in, 178. 
 
 Channel Islands, 259-63. 
 Charity Commission, 185. 
 Charles I., 43, 96, no. 
 
 n. 55. 57, 64- 
 
 Chartered Companies, 271, 277.
 
 INDEX 
 
 325 
 
 Charters of boroughs, 52, 57, 108. 
 
 Chatham, Lord, 69. 
 
 'Chefs Plaids,' Guernsey, 263. 
 
 Chester, 53. 
 
 Chief Justice, 198, 200, 245. 
 
 China, leases from, 275. 
 
 treaties with, 285. 
 
 Christian Brethren, 251. 
 
 Church of England, 40, 55, 57, 202-4. 
 
 its Congresses, 204. 
 
 in Convocation, 203. 
 
 and Education, 204. 
 
 Law of, 205. 
 
 Patronage in, 202. 
 
 Church, Irish, 248-49. 
 
 Scottish, 61-62, 228. 
 
 Committee, 140. 
 
 Churchwarden, 206. 
 
 Churchyard, 203, 217. 
 
 Circuit, Judges on, 193, 198, 230, 243. 
 
 City of London, 217. 
 
 Civil Law, 197. 
 
 List, 24. 
 
 Service Estimates, 161. 
 
 Commission, 130. 
 
 Home, 128. 
 
 Indian, 298, 301, 304. 
 
 Clare election, 79. 
 
 Clergy excluded from Commons, 78. 
 
 Closure, 172. 
 
 Cockburn, Chief-Justice, 88. 
 
 Collectors of East India Company, 296. 
 
 in Indian Civil Service, 301. 
 
 Colonial Constitutions, 8, 27, 271-72, 
 
 283, 286. 
 
 Governors, 8, 112, 128, 271. 
 
 Judiciary, 31. 
 
 Parliaments, 8, 27. 
 
 Secretary, 28-32, 122, 272, 279, 
 
 284. 
 
 Tariffs, 285. 
 
 Colonies, Crown, 268. 
 
 Self-governing, 8, 283. 
 
 Columbia, British, 286. 
 Commander-in-chief, 123. 
 Commission of the Peace, 194. 
 Commission (Parliamentary), 184-90. 
 
 Charity, 185. 
 
 Civil Service, 130. 
 
 Ecclesiastical, 187. 
 
 Election, 184. 
 
 Endowed Schools, 186. 
 
 Commission, Parnell, 188. 
 
 Poor Law, 186. 
 
 Railway and Canal, 187. 
 
 Commission (Royal), 134-36. 
 
 on Poor Law, 136. 
 
 on Real Property, 136. 
 
 Standing, 136. 
 
 Commissioner of Debt Court, 218. 
 Commissioners of Supply, 236. 
 Committee of Cabinet, 118. 
 
 Church, 140. 
 
 Departmental, 135. 
 
 on Indian Currency, 307. 
 
 of National Defence, 123. 
 
 Service, 140. 
 
 Committees of Commons 
 
 Grand, 169. 
 
 Hybrid, 181. 
 
 Of Law and Trade, 169. 
 
 Of Petitions, 175. 
 
 Police and Sanitary, 181. 
 
 Private Bill, 180. 
 
 Select, 169. 
 
 Of Selection, 170, 180. 
 
 Standing, 170. 
 
 Committees of Lords, 170, 180. 
 Common Law, 193. 
 
 Division, England, 198. 
 
 Ireland, 245. 
 in Jersey, 261. 
 
 Common Sergeant of City, 218. 
 Commons, House of 
 Its composition, 5. 
 Its claim to predominance, 6. 
 Ministers must possess its confidence, 
 
 6, 7 ; and must retain it, 8. 
 The prime organ of the national will, 
 
 12. 
 Changes in its composition, 12, 51-58, 
 
 66-69, 75-86. 
 Its present inadequacy to represent 
 
 the nation, 17, 141, 149. 
 Claims to control taxation, 21. 
 Sanctions expenditure in detail, 24. 
 May be resisted by Crown or Lords, 
 
 36. 
 
 Its history 
 
 Originally summoned to grant sup- 
 plies, 40. 
 
 Definitely constituted by Elizabeth's 
 reign, 42.
 
 326 THE WORKING CONSTITUTION 
 
 Commons, House of (continued). Its 
 
 history 
 
 Its struggle with the Stuarts, 43. 
 Its position at the Revolution, 45. 
 Largely influenced by Lords in 
 
 eighteenth century, 46. 
 Its supremacy since the Reform Bill, 
 
 50. 
 
 Its composition in early times, 51. 
 Tudor additions to, 53. 
 Early management of elections to, 54. 
 Religious disabilities in, 55, 57, 84. 
 Its composition under the Stuarts, 
 
 55- 
 
 Passes Triennial Bill, 58. 
 
 Passes Septennial Bill, 66. 
 
 Property qualification for its member- 
 ship, 66, 83. 
 
 Excludes placemen and pensioners, 
 67. 
 
 Disqualifies Government contractors, 
 67. 
 
 Unsuccessful attempts to reform, 68. 
 
 Excludes clergymen, 78. 
 
 Admits Roman Catholics, 79. 
 
 Its composition before 1832, 79. 
 
 Reform Acts of 1832, 1867, 1884, 
 81-86. 
 
 Allows affirmation instead of oath, 84. 
 
 Its privileges 
 Freedom from arrest, 87. 
 Freedom of speech ; reports, 88. 
 Examination of witnesses, 88. 
 Testing of election returns, 82. 
 Parties and groups in, 137-41. 
 Present mode of election of, 143-50. 
 Possible reform in election of, 151-56. 
 
 Course of Business in, 157-77. 
 
 Its sessions, ordinary and extra- 
 ordinary, 157. 
 
 Election of Speaker, 158. 
 
 Debates on the Address, 160. 
 
 Estimates ; votes on account, 160. 
 
 Supplementary Estimates, 161. 
 
 Votes of money moved by Ministers, 
 162. 
 
 The Budget, 163. 
 
 The Opposition, 164. 
 
 Initiative of private members, 164. 
 
 Allocation of time of the House, 165. 
 
 Nights reserved for Supply, 166. 
 
 Commons, House of (continued). 
 
 Course of Business in 
 Obstacles to a private member's Bill. 
 
 1 68. 
 
 Ordinary course of a Bill, 169. 
 Committees of the House, 169, 181. 
 Exceptions to the usual Order, 171. 
 Obstruction, 171. 
 Closure, 172. 
 Questions, 173. 
 Adjournment, 174. 
 Petitions, 175. 
 General Survey, 176. 
 
 Private Bill Legislation in, 178-83. 
 
 Provisional Orders, 179. 
 
 Railway Bills, 179. 
 
 Committee of Selection, 180. 
 
 Private Bill Committees, 181. 
 
 Attempts to expedite procedure, 182. 
 
 Special Committee of Inquiry, 189. 
 Commonwealth, Australian, 291. 
 Conference, Peace, 313. 
 Confession of Faith, 228. 
 Confidence, vote of, 7. 
 Congress of Powers, 313. 
 Congress, Church, 204. 
 Conqueror, the, 259. 
 Conscience clause, 217. 
 Conservative Party, 142. 
 Consolidated Fund, 200. 
 Constable in Jersey, 262. 
 Constables, 195. 
 Constabulary, Irish, 243. 
 Constituencies, single member, 85. 
 Constitution, growth of, I, 316. 
 Consular service, 313. 
 Contempt of Court, 197. 
 Contractors, Government, 67. 
 Convention of Royal Burghs, 239. 
 Conventions, Party, 145. 
 Convocations of York and Canterbury, 
 
 203. 
 
 Copyholders, 82. 
 Cork College, 251. 
 Corn Laws, 23. 
 Cornwall, Duchy of, 53, 209. 
 
 boroughs in, 53. 
 
 Cornwallis, 303. 
 Coroner's inquest, 196, 231. 
 Corporations of Boroughs, 212. 
 Corruption, Parliamentary, 57.
 
 INDEX 
 
 327 
 
 Council of Colonial Governors, 27 1 . 
 
 Great, 94, 109. 
 
 Indian, 299. 
 
 of Isle of Man, 265. 
 
 Councillors, Privy, 113, 116, 119. 
 
 Town, 213. 
 
 County, the, 209. 
 
 Boroughs, 214. 
 
 Councils, 195, 196, 208, 211, 215, 
 
 219, 237, 254. 
 
 Court, 197. 
 
 Police, 211, 236. 
 
 organisation, English, 210. 
 
 Irish, 254. 
 
 Scotch, 236. 
 
 representation, 51,55, 80, 82, 84, 85. 
 
 Court of Appeal, 200. 
 
 County, 197. 
 
 Encumbered Estates, 246. 
 
 High, 198. 
 
 Land, 248. 
 
 Police, 194. 
 
 Small Debt, 218. 
 
 Courts of Law in Crown Colonies, 278. 
 
 in India, 301. 
 
 in Ireland, 242. 
 
 in Jersey, 262. 
 
 in Scotland, 230. 
 
 Covenanted Service, 302. 
 Crimean War, 275. 
 Crimes Act, 172. 
 Cromwell, Oliver, 64, 97. 
 Crown 
 
 An estate of Parliament, 4. 
 
 And the power of dissolution, 8. 
 
 And the dismissal of Ministers, 9, 36. 
 
 Summons Houses of Parliament, 40. 
 
 Demise of, 40, 45, 83, 109, 113, 189. 
 
 Its income derived from land, 41. 
 
 Increase of its financial needs, 43. 
 
 Its struggles with the Commons, 44. 
 
 Becomes the creature of Parliament, 
 46. 
 
 Creates new boroughs, 53. 
 
 Interferes in elections, 57. 
 
 Purchases rotten boroughs, 69. 
 
 Its grants of peerages, 95. 
 
 Its writ of summons to peers, 94, 98, 
 107. 
 
 Original power of, 109. 
 
 Descent of, 109. 
 
 Disposal of, by Parliament, I IO. 
 
 Crown (continued). 
 Acts now through Ministers, no. 
 Survivals of its personal influence, 
 
 in. 
 
 In Council, 1 1 3, 26 1 -62, 273, 289, 294. 
 Its nominal command of Army and 
 
 Navy, 1 20. 
 
 Assisted by Royal Commissions, 134. 
 Judges independent of, 46, 194. 
 May influence clerical preferment, 
 
 202. 
 Association of county institutions 
 
 with, 209. 
 Its peculiar relation to Channel 
 
 Islands, 259. 
 Takes over the lordship of Isle of 
 
 Man, 263. 
 Government of India transferred to, 
 
 298. 
 
 Its control of foreign affairs, 308. 
 Declares war, 308. 
 Crown Colonies, 268-82. 
 Cuba, 281, 319. 
 Curzon, Baron, 99. 
 Customs and Excise Duties, 163, 311, 
 
 3i8. 
 
 Customs and Inland Revenue, 24, 163. 
 Customs Duties in Isle of Man, 264. 
 
 in Canada, 289, 318. 
 
 in Australia, 292-93, 318. 
 
 Customs Union, 318. 
 Cyprus, 274. 
 
 DARLING, SIR C., in Victoria, 28. 
 Deadlock in Australian Parliament, 293. 
 Deaneries, 202. 
 Deans of Guild, 239. 
 Death duties, 24. 
 Debate on Address, 160. 
 
 on Estimates, 161. 
 
 Debates, reports of, 88. 
 
 Debt Court, London, 218. 
 
 Debt, National, 24. 
 
 Debtors imprisoned for contempt, 197. 
 
 Declaration of Rights, 45. 
 
 of war, 159, 308. 
 
 Deemsters in Isle of Man, 265. 
 Defence, Committee of National, 123. 
 
 Imperial, 319. 
 
 Deficit, 163. 
 
 De la Warre, Earl, 95. 
 
 Demerara, 278, 280.
 
 328 THE WORKING CONSTITUTION 
 
 Demesne, Royal, 41. 
 Demise of Crown, 45, 83. 
 Department of Civil Service, 109, 113, 
 
 128. 
 
 Departmental Committee, 135. 
 Derby, Lord, 280. 
 Descent of Crown, 109. 
 
 of peerages, 94-95. 
 
 Differential duties, 285. 
 Diocesan Conference, 204. 
 Diocese, 203. 
 Diplomatic Service, 314. 
 Directors as M.P.'s, 68. 
 
 Court of (Indian), 297. 
 
 Discipline in Army and Navy, 128. 
 Disestablishment of Irish Church, 7, 
 
 78, 101, 112, 250. 
 Dismissal of Ministers, 9. 
 Dispensing power, 45. 
 Disraeli, 7, 51, 112, 158. 
 Dissolution, 8, 44, 146, 157. 
 District Councils, 195, 209, 215, 217. 
 Divisions of High Court, 198, 245. 
 Divorce by Act of Parliament, 178. 
 
 Division of High Court, 198. 
 
 Dockyard constituencies, 133. 
 Dominion of Canada, 285-88, 318. 
 Douglas, Isle of Man, 265. 
 Drei Kaiser Bund, 315. 
 Drogheda, 70. 
 Droit administratift 243. 
 Dual Alliance, 315. 
 Dublin University, 86, 251. 
 Duchy of Cornwall, 53, 209. 
 
 of Lancaster, 209. 
 
 of Normandy, 259. 
 
 Dundee, 239. 
 Durbar of 1877, 298. 
 Durham, 55. 
 Dutch, Cape, 269. 
 
 East India Company, 296. 
 
 Dynamite outrages, 171. 
 
 EAST INDIA COMPANY, 296. 
 Ecclesiastical Commission, 184. 
 
 Courts, 205. 
 
 Organisation, 202. 
 
 Economy of time in Parliament, 165. 
 
 Edinburgh, 81. 
 
 Education, Board of, 204, 227. 
 
 in England, 204, 215. 
 in Ireland, 250. 
 
 Education in London, 220. 
 
 in Scotland, 235. 
 
 in India, 302, 304. 
 Egypt, 316- 
 Elders, 228. 
 Eldon, Lord, in. 
 Election addresses, 144. 
 
 returns, testing of, 89-92. 
 
 General, authority of, 5, 27, 
 
 35, 
 
 143 ; limits of its authority, 36 ; be- 
 fore 1832, 12, 80; Lords defer to, 
 5 ; how managed, 54, 140, 143'S 6 - 
 
 Elections in early times, 51, 54. 
 
 expenditure at, 147. 
 
 under Proportional Representa- 
 tion, 154. 
 
 Elector of Hanover, 259. 
 
 Electoral Reform, 13. 
 
 System, defects of, 17. 
 
 Electress Sophia, no. 
 
 Electric Lighting, 215. 
 
 Elizabeth, Queen, 42, 43, 53, 54, 55, 
 113, 206, 251. 
 
 Embassies extraordinary, 313. 
 
 Empire, future of the, 316. 
 
 growth of the, 268. 
 
 Parliament and the, 315. 
 
 Empress of India, 298. 
 
 Encumbered Estates Court, 246. 
 
 Endowed Schools Commission, 186. 
 
 Enlistment, 124-25, 128. 
 
 Entail in England, 222. 
 in Scotland, 234. 
 
 Episcopacy in Scotland, 62-65. 
 Equity, 197, 199. 
 Escheats, 210. 
 Estates, settled, 178. 
 Estimates, 160. 
 
 Supplementary, 161. 
 
 Evicted Tenants (Ireland) Bill, 173. 
 Evidence before Commissions, 135. 
 Examinations, Civil Service, 130. 
 Exchequer, Chancellor of, 115-16, 163, 
 
 210. 
 Executive. See Crown, Cabinet. 
 
 Council in Crown Colonies, 278. 
 
 of Indian Viceroy, 299. 
 
 Expenditure controlled by House of 
 
 Commons, 24. 
 
 once met by Royal Estate, 41. 
 
 unforeseen, 159, 161. 
 
 Expense of candidature, 147, 156.
 
 INDEX 
 
 329 
 
 Expropriation of land, 182. 
 Expulsion of members, 91. 
 
 FAMILY SETTLEMENTS, 222. 
 
 Fawcett, Mr., 252. 
 
 Federation of Australia, 290, 318. 
 
 of Canada, 288, 295, 318. 
 
 Imperial, 319. 
 
 of South Africa, 295. 
 
 Feudal tenures abolished, 45. 
 
 monarchy, 41. 
 
 Fiji, 278. 
 Finance Bill, 24. 
 
 Indian, 305. 
 
 Financial arrangement in Australia, 293. 
 
 in Canada, 289. 
 
 in Cyprus, 275. 
 
 in Isle of Man, 264. 
 
 year, 160. 
 
 Fines, 41. 
 
 First Lord of Treasury, 115. 
 
 of Admiralty, 116, I2O, 123, 
 
 126. 
 
 First Reading, 169. 
 Fiscal policy of Colonies, 285, 318. 
 
 problems of Federation, 319. 
 
 Fitzgerald, Vesey, 79. 
 Foreign Office, 311. 
 
 Policy, responsibility for, 112, 310. 
 
 continuity of, 311. 
 
 Powers, relation to, 308. 
 
 Secretary, 115, 123, 311. 
 
 Forfeiture of a peerage, 96, 98. 
 Fort William, 296. 
 
 St. George, 296. 
 
 Forty-shilling freeholders, 52. 
 Fox on the Regency Bill, 1 10. 
 Fox's India Bill, 48, 297. 
 Franchise in boroughs, 54, 56, 80-83, 85. 
 
 in counties, 52, 80-83, 85. 
 
 extension of, 81-83, 85. 
 
 in Natal, 285. 
 
 woman, 1 6. 
 
 Franco-German War, 123. 
 French in Canada, 287. 
 
 in India, 296. 
 
 in Tunis, 275. 
 
 Freedom from arrest of M.P.'s, 87. 
 
 of speech of M. P. 's, 88. 
 
 Freeholders before 1832, 80. 
 Freemen of boroughs, 54i 80. 
 Frere, Sir Bartle, II. 
 
 Fusion of Equity at Common Law, 199. 
 
 GALWAY COLLEGE, 251. 
 
 Gasworks, 179, 214, 220. 
 
 General Assembly (Scotch), 61, 228. 
 
 General Election, 5, 27, 35, 140, 143- 
 156. 
 
 General Warrants, 194. 
 
 George in., his exercise of patronage, 
 in; Fox's India Bill, 48 ; purchase 
 of seats under, 69; and Catholic 
 emancipation, 174; incapacitation of, 
 no. 
 
 George iv., in. 
 
 Germany, gold standard of, 306. 
 
 Gibraltar, 272. 
 
 Gladstone, 7, 22, 112, 115, 117, 252. 
 
 Glasgow, 8 1, 83, 239. 
 
 Government Bills, "1 1 8, 164. 
 
 Days in Commons, 166. 
 
 Governor of Gibraltar, 272. 
 
 of Isle of Man, 265. 
 
 Governor-General of Australia, 291. 
 
 of Canada, 288. 
 
 of India, 298-300, 305. 
 
 Governors of Colonies, their powers, 
 10, 271, 283. 
 
 Graham, Sir J., 117. 
 
 Grand Committee, 169. 
 
 Great Britain, Parliament of, 58, 65. 
 
 its union with Ireland, 74-78. 
 
 Great Council, 94. 
 
 Greeks in Cyprus, 275. 
 
 Groups in Parliament, 139. 
 
 at elections, 147. 
 
 Guardians of the Poor, England, 207. 
 
 Ireland, 253. 
 
 London, 220. 
 
 Guernsey, constitution of, 263. 
 
 Guiana, British (Demerara), 278, 280. 
 
 Guilds of London, 220. 
 
 Guillotine, 172. 
 
 Gully, Mr. Speaker, 158. 
 
 ' HABEAS CORPUS ' Act, 45, 194. 
 
 (Irish), 73. 
 
 Hague Conference, 314. 
 Haileybury College, 298. 
 Hanover, Electorate of, 259. 
 Hanoverian Succession, 66. 
 Hansard, 88. 
 Harcourt, Sir W., 24.
 
 330 THE WORKING CONSTITUTION 
 
 Hare, Mr., his scheme of representa- 
 tion, 151. 
 
 Hastings, Warren, 106. 
 
 Heligoland, 308. 
 
 Henry vi., Statute regulating elections, 
 52. 
 
 vii., 53, 109. 
 
 viii., 53, 1 10, 210. 
 
 Hereditary descent of Crown, 109. 
 
 Heriots, 41. 
 
 Heritors, 234. 
 
 High Court of Justice, Australia, 288. 
 
 Canada, 291. 
 
 England, 24, 197-200. 
 
 India, 301. 
 
 Ireland, 243. 
 
 Scotland, 229. 
 
 Highlands of Scotland, 59. 
 
 Highway Districts, England, 208. 
 
 Scotland, 237. 
 
 Hobart Town, 155. 
 
 Holy Alliance, 318. 
 
 Home Office, 179, 227. 
 
 Rule Bill, 148, 173. 
 
 Secretary, 195, 213, 220, 227, 
 
 265. 
 
 Hong Kong, 278. 
 
 ' Honours,' 94. 
 
 House of Commons. See Commons. 
 
 Keys, 265. 
 
 Laymen, 203. 
 
 Lords. See Lords. 
 
 Household Franchise, 82, 84, 85. 
 
 Royal, appointments to, 67, ill. 
 
 expenses of, 41. 
 
 Housing of the working classes, 215. 
 
 Hudson Bay Company, 287, 290. 
 
 Hundred, the, 205. 
 
 Hybrid Committee, 181. 
 
 IMPEACHMENT, 106. 
 
 Imperial control of Colonies, 270, 284, 
 
 316. 
 
 defence, 120, 317, 319. 
 
 Federation, 317. , 
 
 Parliament defers to Colonial 
 
 opinion, 285. 
 
 Improvements, Public, 179. 
 Income Tax, 22. 
 India, 296 ; conquest of, 296 ; Mr. 
 
 Pitt's Bill, 297 ; extension of frontier, 
 
 2 98 5 government of, transferred to 
 
 Crown, 298 ; Secretary of State for, 
 299, 305 ; Governor-General of, 299, 
 305 ; division of, 301 ; future of, 304. 
 
 Indian Army, 124, 302. 
 
 Budget, 300. 
 
 Civil Service, 298, 301. 
 
 Congresses, 304. 
 
 Council, 299. 
 
 Currency, 306. 
 
 Debate, 306. 
 
 Debt, 306. 
 
 Finance, 306. 
 
 Government, 305, 307. 
 
 Judicial organisation, 301. 
 
 Land system, 302. 
 
 Municipalities, 301. 
 
 Mutiny, 298. 
 Revenue, 302. 
 
 Indians in Natal, 285. 
 
 Inner House, 230. 
 
 Inquisitiones post mortem, 210. 
 
 Intestacy, 221, 233. 
 
 Ireland, its Parliament under Poyning's 
 Law, 70; the Reformation in, 71 ; 
 its political condition in eighteenth 
 century, 72 ; under an independent 
 Parliament, 73 ; is united to Great 
 Britain, 74 ; its financial position 
 within the Union, 78. 
 
 Ireland, Chief Secretary for, 240. 
 
 Lord-Chancellor of, 243. 
 
 Lord-Lieutenant of, 240. 
 
 Irish Administration, 240. 
 
 Baronies, 253. 
 
 Church, 7, 72, 78. 
 
 Colleges, 250. 
 
 Education, 250-52. 
 
 High Court, 245. 
 
 Home Rule, 148, 173. 
 
 House of Lords, 72. 
 
 Juries, 244. 
 
 Land Acts, 247. 
 
 Court, 245. 
 
 System, 245-48. 
 
 Legal system, 242. 
 
 Parliament, 70-74. 
 
 Peers, 74, 99- 
 
 Police, 243. 
 
 Presbyterian Church, 249. 
 
 Roman Catholic Church, 249. 
 
 Universities, 251. 
 
 Irrigation in India, 303.
 
 INDEX 
 
 331 
 
 Isle of Man, 263-67. 
 Isle of Wight, 53. 
 Italians in Malta, 273. 
 Italy, agreement with, 315. 
 
 JAMAICA, constitution of, 280. 
 
 and United States, 286. 
 
 James i., 55, 61, no. 
 
 ".,45, 57- 
 
 vi. of Scotland, 61. 
 
 Jersey, constitution of, 260. 
 Jewish disabilities, 37, 38, 83. 
 Joint Committee, 181. 
 Johnson, President, 106. 
 Judge, Land, 245. 
 Judges, appointment of, 200. 
 
 remarkable address by, 45-46. 
 
 salaries of, 24, 201. 
 
 Judicature of Channel Islands, 262-63. 
 
 of Crown Colonies, 278. 
 
 of England, 193. 
 
 of India, 301. 
 
 of Ireland, 245. 
 
 of Scotland, 229. 
 
 Judicial Committee of Privy Council, 
 
 119, 289, 294. 
 Judiciary, independence of, 46, 194. 
 
 in Crown Colonies, 268-282. 
 
 in India, 300. 
 
 Jurats in Jersey, 261. 
 Jury, 193. 
 
 in County Courts, 197. 
 
 in Ireland, 244. 
 
 in Scotland, 231. 
 
 summoned by Sheriff, 209. 
 
 trial by, 193, 269. 
 
 Justices of Peace, England, 194, 196. 
 
 Ireland, 243. 
 
 Scotland, 231. 
 
 KEEPER, Lord, 96. 
 King. See Crown, Sovereign. 
 Kings of Scotland, 59. 
 Kirk Session, 228, 234. 
 Knights of Shire, 51, 56. 
 
 LABOUR PARTY, 140. 
 Lancaster, Duchy of, 209. 
 Land Acts, 247. 
 Land, expropriation of, 179, 182. 
 
 purchase, 248. 
 
 system of, England, 221-25. 
 
 Land system of India, 303. 
 
 Ireland, 245-48. 
 
 Landed Estate Court, 246. 
 Lands, Crown, 41. 
 Latin Union, 306. 
 Launceston, Tasmania, 155. 
 Law of arrest, 195. 
 
 of Church, 205. 
 
 Land, 221, 234, 245-48. 
 
 Marriage, 233. 
 
 of Scotland, 232. 
 
 of Settlement, 206. 
 
 of Succession, 220, 233. 
 
 Agents, 232. 
 
 Lords, 100, 1 02. 
 
 Laymen, House of, 203. 
 Leader of House, 118. 
 Leaders of Parties, 144. 
 Lease of Cyprus, 275. 
 Leaseholders, 82. 
 Leeds, 80, 81, 83. 
 Legal profession, 201. 
 Legislation in Australia, 292. 
 
 in Canada, 288. 
 
 in Guernsey, 263. 
 
 in India, 300. 
 
 in Isle of Man, 265. 
 
 in Jersey, 261. 
 
 in United Kingdom, 1 60. 
 
 Legislative Assemblies, 27, 281, 287. 
 
 Legislative Council of Ceylon, 278. 
 
 of India, 300. 
 
 of Malta, 273. 
 
 of self-governing Colonies, 
 
 27, 286. 
 
 Liberal Party, 142. 
 
 Lieutenant-Governor of Canadian Pro- 
 vinces, 288. 
 
 of Indian Provinces, 301. 
 
 of Isle of Man, 265. 
 
 of Jersey, 261. 
 
 Light Railway Act, 182. 
 
 List system of voting, 155. 
 
 Liverpool, 80, 83. 
 
 Liverymen, 218. 
 
 Local Acts, 179. 
 
 Local Government Board, 179, 227. 
 
 Act, 182, 208. 
 
 Local Government in England and 
 Wales, 205-20. 
 
 in Scotland, 234-39. 
 
 in Ireland, 253-55.
 
 332 THE WORKING CONSTITUTION 
 
 London Borough, 219. 
 London County Council, 219. 
 
 Police, 220. 
 
 School Board, 220. 
 
 representation, 80, 83, 85. 
 
 Long Parliament, 44, 56. 
 
 Lord Advocate, 227. 
 
 Chancellor, 96, 100, 195, 196, 
 
 197, 200, 203, 218. 
 
 Chief- Justice, 198, 200. 
 
 High Commissioner, 228. 
 
 High Steward, 107. 
 
 Justice-Clerk, 230. 
 
 Justice-General, 230. 
 
 Justices of Appeal, 200. 
 
 Keeper, 96. 
 
 Lieutenant of Ireland, 241. 
 
 Lieutenants of Counties, 125, 196, 
 
 210. 
 
 of the Manor, 41. 
 
 Mayor, 113, 218. 
 
 President, 115. 
 
 Privy Seal, 115. 
 
 Lords of Articles, 60. 
 Lords, House of 
 
 Its composition, 5. 
 
 Must give way ultimately to Com- 
 mons, 5. 
 
 Cannot originate or alter supply bills, 
 
 21. 
 
 Resists abolition of paper duty, 23. 
 
 Its concurrence in taxation neces- 
 sary, 26. 
 
 Its latent powers illustrated by action 
 of Colonial Second Chamber, 27-33. 
 
 Extent of its right to resist Commons, 
 
 36. 
 
 Summoned by writs from Crown, 40. 
 Its influence on Commons till 1832, 
 
 47. 
 
 Rejects Fox's India Bill, 48. 
 Its ascendency destroyed by Reform 
 
 Act, 49. 
 
 Members disabled if Catholics, 57. 
 Its origin, 94. 
 
 Becomes independent of Crown, 95. 
 Tenure and descent of peerage, 95-96. 
 Lords' privileges attacked by Charles 
 
 I., 96. 
 
 Is abolished and restored, 96-97. 
 Cromwell's House of Lords, 97. 
 Attempt to limit its numbers, 98. 
 
 Lords, House of (continued). 
 
 Changes on Union with Scotland, 
 
 58, 97- 
 
 with Ireland, 74, 99. 
 
 Representative peers, 65, 74, 97, 100. 
 Passes Reform Bill, 1832, 101. 
 Submits to Irish disestablishment, 
 
 101. 
 
 Its future possibilities, 101-2. 
 Resists increase by life-peerages, 102. 
 Its appellate jurisdiction, 103, 200. 
 Its quorum, 104. 
 Proxies abolished, 104. 
 Proposals for its reform, 105. 
 As a Court of Impeachment, 106. 
 Its criminal jurisdiction over peers, 
 
 106-7. 
 
 Obligation to accept a seat in, 107. 
 Influence of its members on elections, 
 
 144. 
 Stages of legislative procedure in, 
 
 170. 
 
 Committees of, 170, 180. 
 Questions in, 173. 
 Petitions to, 175. 
 Private bill procedure in, 180. 
 Close connection of Lords with land 
 
 system, 224. 
 
 Lords, Irish House of, 72. 
 Lower Canada, 287. 
 Lunacy Commissioners, 21 1. 
 Lyndhurst, Lord, 103. 
 
 MADRAS, 296, 301. 
 Magistrates in Ireland, 243. 
 
 in Petty Sessions, 194. 
 
 in Quarter Sessions, 196. 
 
 Stipendiary, 195. 
 
 Malta, 272. 
 Manchester, 80, 81, 83. 
 
 School, 139. 
 
 Manitoba, 290. 
 Marines, 128. 
 
 Marlborough, Duke of, 144. 
 Marriage, Scotch, 232. 
 Master of the Rolls, 200. 
 
 Ireland, 245. 
 
 Mauritius, 278. 
 
 Mayors, 195, 212-13, 219. 
 
 Lord, 113, 218. 
 
 Maynooth Grant, 139, 250. 
 Meetings, political, 140.
 
 INDEX 
 
 333 
 
 Melbourne, Lord, 10, 280. 
 Merchants' House, 239. 
 Metropolis, 217. 
 Metropolitan Board of Works, 219. 
 
 Police, 211, 220. 
 
 Military law, 122. 
 
 organisation, 123. 
 
 stations, 272. 
 
 Militia, 125. 
 Mill, J. S., 151. 
 Ministers 
 
 Must possess confidence of Commons, 
 7 ; and must retain it, 8. 
 
 Dismissal of, 9-11. 
 
 Their relation to Colonial Governor, 
 28. 
 
 Responsible for policy of Crown, 46, 
 112, 312. 
 
 Their solidarity in Cabinet, 1 16. 
 
 Appeal to General Election, 143. 
 
 Their control of Parliament, 177. 
 Ministers of religion as M.P.'s, 78. 
 
 Scottish, 228. 
 
 Moderator of Scotch Church, 62, 228. 
 Moguls in India, 303. 
 Moltens, Mr., n. 
 Money Bills, 21. 
 
 in Colonies, 27. 
 
 Monmouth, 53. 
 
 Moslems in Cyprus, 275. 
 
 Municipal Corporation Act, 213, 217. 
 
 Government in England, 212-14. 
 
 in India, 301. 
 
 in Ireland, 254. 
 
 in London, 217-20. 
 
 in Scotland, 238. 
 
 Improvements, 179. 
 
 Trading, 214. 
 
 Mutiny Act, 122. 
 Indian, 298. 
 
 NATAL, 285. 
 National Debt, 24. 
 
 organisation of parties, 140. 
 
 Native races in Colonies, 278. 
 
 Princes in India, 298, 301. 
 
 Naturalisation, 178. 
 
 Act 1870, 269. 
 
 Naval Lords, 126. 
 
 officers, 127. 
 
 Navy, parliamentary control of, 120, 
 126. 
 
 Navy, organisation of, 126. 
 
 Estimates, 118, 161. 
 
 discipline in, 128. 
 
 Nelson, 100. 
 
 Newark, 55. 
 
 New Brunswick, 10, 287-89. 
 
 Newfoundland, 287, 290. 
 
 New Guinea, 269. 
 
 New South Wales, 286, 290. 
 
 Newspaper Libel Act, 88. 
 
 New Zealand, 286. 
 
 Niger Company, 276. 
 
 Nights reserved for supply, 166. 
 
 Norman kings, 94. 
 
 Normandy, Duchy of, 259. 
 
 North, Lord, 69. 
 
 North-West Provinces of India, 301. 
 
 Nova Scotia, 287-88. 
 
 OATH, Parliamentary, 55. 
 Oath of Supremacy, 55. 
 Obstruction, 91, 171. 
 O'Connell, 79, 103, 139. 
 Officers, Army, 124. 
 
 Naval, 127. 
 
 One man one vote, 15. 
 One vote one value, 16. 
 Ontario, 286, 288. 
 Opium trade, 302. 
 Opposition, 138, 164, 172. 
 Order in Council, 261. 
 Orders, Holy, renunciation of, 78. 
 Standing, 162, 179. 
 
 4 Ordonnances ' of Guernsey, 263. 
 
 Organisation of party, 140. 
 
 Outdoor relief, 206. 
 
 Outer House, 230. 
 
 Owner and occupier, 237, 254. 
 
 Oxford, University of, 55, 86. 
 
 PALATINATE, refugees from, 72. 
 
 Pale, the, 70. 
 
 Palmerston, 310. 
 
 Paper Duty, 23. 
 
 Parish, English, 203, 205-7. 
 
 Scotch, 234-35. 
 
 Constable, 206. 
 
 Councils, 207. 
 
 Overseer, 206. 
 
 Parke, Sir James, 102. 
 Parliament 
 Supremacy of, 4, 46, 270.
 
 334 THE WORKING CONSTITUTION 
 
 Parliament (continued). 
 Dissolution of, 8. 
 Its struggle with the Crown, 44. 
 Alters descent of Crown, 45, no. 
 Dependence of Army and Navy on, 
 
 1 20. 
 
 Course of business in, 157-77. 
 Delegates powers to Commissions, 
 
 184. 
 Practical limitations of its power, 
 
 193- 
 
 Its authority in Channel Islands, 
 260. 
 
 Regulates Customs of Isle of Man, 
 266. 
 
 Its authority in Colonies, 270. 
 
 Sanctions self-government in Colo- 
 nies, 284. 
 
 Its control of Indian affairs, 305. 
 
 Need not consent to treaties, 314. 
 
 Its relation to the Empire, 316. 
 See Commons, Crown, Lords. 
 Parliament of Australian Common- 
 wealth, 291. 
 
 Irish, 70-74. 
 
 Scots, 59-65. 
 
 Parliamentary Commissions, 1 84. 
 
 Procedure, 168-83. 
 
 Parnell Commission, 188. 
 Parochial Board, 235. 
 Parties, the, 137-42. 
 
 Groups within the, 139. 
 
 Party Conventions, 145. 
 
 Government, 137. 
 
 Leaders, 141, 144. 
 
 Organisation, 140. 
 
 Programmes, 145. 
 
 System and its results, 148-50. 
 
 Paternal government in India, 303. 
 Patronage of Crown, 202. 
 
 in Post Office, 132. 
 
 Payment of Members in Victoria, 31. 
 Peace, Treaties of, 308. 
 
 Conference of 1899, 313. 
 
 Peel, Mr. Speaker, 85. 
 
 Sir R., 10, 22, 23, 103, in, 117, 
 
 139, 144, 2ii, 242, 250, 251. 
 Peerages of Great Britain, 98. 
 
 Life, 102. 
 
 Peers. See Lords. 
 
 Pensioners disqualified as M.P.'s, 67. 
 
 Perak, 299. 
 
 Permanent Settlement, 303. 
 Perth, 239. 
 
 Articles of, 62. 
 
 Petition of Right, 44. 
 Petitions, Election, 90. 
 
 to Parliament, 175. 
 Petty Sessions, 194. 
 Philosophical Radicals, 139. 
 Pitt, 49, 73, 99, 115, 251. 
 
 on the Regency, 73, 1 10. 
 
 and Union with Ireland, 74. 
 
 Pitt's India Bill, 297. 
 
 Plans of Reform, 64. 
 
 Proposals of Free Trade, 73. 
 
 Placemen and pensioners, 67, 132. 
 
 Plantagenet Kings, 94. 
 
 Plenipotentiaries, 313. 
 
 Plural Voting, 16. 
 
 Police in England, 195, 211, 213, 220. 
 
 in Ireland, 243. 
 
 in Scotland, 236. 
 
 and Sanitary Committee, 181. 
 
 Poor Law, reform of, 136, 207. 
 
 Administration, England, 
 
 207. 
 
 London, 220. 
 
 Scotland, 235. 
 
 Ireland, 253. 
 
 Commission, 136, 186. 
 
 Unions, 207, 208, 253. 
 
 Poor Law of Elizabeth, 206. 
 
 Poor Rate, 207, 235. 
 
 Pope, the, 249. 
 
 Posse Comitatus, 210. 
 
 Postmaster-General, 132. 
 
 Post Office, 131. 
 
 Potwallopers, 80. 
 
 Poyning's Law, 70, 73. 
 
 Presbyterian Church of Scotland, 61- 
 
 65, 228. 
 
 Presbytery, 228. 
 President of Privy Council, 115. 
 Presidential Election in United States, 
 
 145- 
 
 Preston, 80. 
 
 Prime Minister, 115, 117, 200, 202, 314. 
 Primogeniture, 221. 
 Prince Edward Island, 287, 290. 
 Prince of Wales, 1 10. 
 Private Legislation Procedure Act 
 
 (Scotland), 182. 
 Private Members' Bills, 164, 168.
 
 INDEX 
 
 335 
 
 Private Bill Legislation, 178-83. 
 
 Committees, 180. 
 
 in Tynwald, 266. 
 
 Privilege, 87-93. 
 
 Privy Council, 73, 113, 116, 311. 
 
 Judicial Committee of, 289, 
 
 291. 
 
 Probate, Divorce, and Admiralty Divi- 
 sions, 198. 
 
 Procedure, Parliamentary, 168-70. 
 
 in Private Bills, 180-83. 
 
 exceptions to usual, 171. 
 
 Procurator-Fiscal, 231. 
 
 Programme, Party, 145. 
 
 Property qualification for M. P. , 66. 
 
 abolished, 83. 
 
 for voters, 52, 82. 
 
 Proportional Representation, 151-56. 
 
 its practical working, 154. 
 
 in Switzerland and Belgium, 
 
 155- 
 
 in Tasmania, 155. 
 
 Prorogation of Parliament, 140. 
 Protected States, 301, 304. 
 Protectionists, 139. 
 Protection in Colonies, 285. 
 Protectorate Peerage, 97. 
 Protestant Church in Ireland, 72, 248. 
 
 Education in Ireland, 
 
 Provinces of Canada, 287. 
 
 Ecclesiastical, 203. 
 
 of India, 301. 
 
 Provisional Orders, 179. 
 
 Provost, 238. 
 
 Proxies in House of Lords, 104. 
 
 Public Opinion, 13. 
 
 Puerto Rico, 282, 319. 
 
 Punjab, 301. 
 
 QUAKERS in Parliament, 84. 
 Qualifications of voters, 52, 80-85. 
 
 of Members of Parliament, 66, 83. 
 
 Quartermaster-General, 125. 
 
 Quarter Sessions, 196, 201, 211, 212, 
 
 243- 
 
 Quebec, 288. 
 Queen's Speech, 159. 
 
 Bench Divisions, 198. 
 
 University in Ireland, 251. 
 
 Queensland, 286, 290, 292. 
 Questions in Parliament, 173. 
 Quoad sacra parishes, 234. 
 
 Quorum of Lords, 104. 
 
 Committee, 170. 
 
 Quo warranto, 57. 
 
 RAILWAY BILLS, 179. 
 
 Railways, Light (Act of 1896), 182. 
 
 Railway and Canal Commission, 187. 
 
 Railways in India, 303. 
 
 Rate, Poor, 207. 
 
 Rates, Local, 208, 214, 216, 234, 237- 
 
 39, 254. 
 Reading, First, 169, 179. 
 
 Second, 169, 180. 
 
 Third, 170. 
 
 Real Estate, succession to, 221, 233. 
 
 Rebellion, Great, 44. 
 
 Northern, 43. 
 
 Recorder, 196, 212-13, 218. 
 
 Recruiters, 56. 
 
 Rectors of parishes, 203. 
 
 (Jersey), 
 
 Reform Act of 1832, 13, 27, 47, 81, 
 101, 139. 
 
 1867, 83, 112. 
 
 1884, 85. 
 
 Reform, abortive projects of, 68. 
 
 of Constitution, 14, 150, 316. 
 
 of House of Lords, 104-6. 
 
 Reforms carried by private members, 
 165. 
 
 of representation, 68, 81, 83, 85. 
 
 Reformation in Ireland, 248. 
 
 in Scotland, 61. 
 
 Regency Bill, no. 
 
 Religious disabilities, 55, 57, 85. 
 
 Religious instruction, England, 217. 
 
 Ireland, 250. 
 
 Scotland, 235. 
 
 Repealers, the, 139. 
 
 Report stage, 169, 170. 
 
 Reports of debates, 88. 
 
 of Royal Commissions, 136. 
 
 Representation before 1832, 12, 80-81 ; 
 of counties, 51,80-83, 85; ofboroughs, 
 52, 80-83, 8 5 5 of Ireland, 77, 82 ; an 
 .ideal of, 19; proportional, 18, 152- 
 56 ; inadequate under Party System, 
 149; Hare's scheme of, 151; in 
 Canadian Federation, 288 ; in Aus- 
 tralian Federation, 292. 
 
 Representative Government, right to, 
 269.
 
 336 THE WORKING CONSTITUTION 
 
 Representative Peers, 65, 74, 97. 
 Representatives, Australian House of, 
 
 292. 
 Representative Government in West 
 
 Indies, 279. 
 
 Reserve forces, 123, 125. 
 Residents at Indian Courts, 301, 304. 
 Resignation of Ministers, 7, 116. 
 Responsibility of Ministers, 46, III, 
 
 312. 
 
 Restoration, 44, 57, 97, no. 
 Returning Officers, 54. 
 Revenue, 210. 
 
 Indian, 302. 
 
 of Isle of Man, 264. 
 
 of Jersey, 262. 
 
 Revolution of 1688, 45, 64, HO, 121. 
 Richmond, Duke of, 69. 
 Roads in England, 210. 
 
 in Scotland, 237. 
 
 Robinson, Mr., 69. 
 
 Roman Catholic Church in Ireland, 249. 
 
 Disabilities, 55-57, 71, 73, 79. 
 
 Schools in England, 204. 
 
 in Ireland, 250. 
 
 Rosebery, Lord, 144. 
 Roses, Wars of, 42. 
 Royal Commissions, 134. 
 
 Court of Jersey, 260. 
 
 Irish University, 252. 
 
 Niger Company, 275. 
 
 Rural Deaneries, 203. 
 
 District Council, 215- 
 
 Russell, Lord J., 144. 
 Rupee, 306. 
 Ryot, Indian, 303. 
 
 SALISBURY, LORD, 36, 115, 144. 
 
 Salt tax in India, 302. 
 
 San Domingo, 282. 
 
 Sanitary districts, 208. 
 
 Sarawak, 269. 
 
 School Associations, 204. 
 
 Boards, 215, 220, 235. 
 
 Schools, Voluntary, 204, 215. 
 
 Irish, 250. 
 
 Scot and lot voters, 80. 
 
 Scotland, union with, 58, 226 ; early 
 political condition of, 59 ; weakness 
 of Parliaments in, 60 ; power of Lords 
 of Articles in, 60; influence of General 
 Assembly, 61 ; James vi. restores 
 
 Episcopacy in, 62 ; policy of Charles I. 
 in, 63 ; under Cromwell, 63-64 ; 
 degradation of, under Charles II., 64 ; 
 the Revolution in, 64; union with 
 English Parliament, 65, 97 ; repre- 
 sentation in, before 1832, 69, 81 ; 
 private bill legislation, 183 ; Lord 
 Advocate of, 226 ; Secretary for, 227. 
 
 Scottish Burghs, 238. 
 
 Established Church, 228. 
 
 Free Church, 229. 
 
 Judiciary, 229. 
 
 Law, 232. 
 
 Local Government, 234. 
 
 Second Chamber in the Colonies, 27, 
 
 286. 
 
 in Canadian Federation, 288. 
 
 in Australian Federation, 29 1 . 
 
 in Imperial Federation, 320. 
 
 Second Division Clerks, 130. 
 
 Second Reading, 169, 180. 
 
 Secret Indian Committee, 297. 
 
 Secretaries, Under, 131. 
 
 Secretary of Admiralty, 127. 
 
 Secretary (of State), 115. 
 
 for Colonies, 28, 122, 272, 
 
 279, 284. 
 Home, 195, 213, 220, 227, 
 
 265. 
 
 for India, 299, 305. 
 
 for Ireland, 240. 
 
 for Scotland, 227. 
 
 for War, 120, 122. 
 
 Select Committee, 169. 
 Selection, Committee of, 170, 180. 
 Self-governing Colonies, 283. 
 Senate of Australian Commonwealth, 
 
 292. 
 
 of Canadian Dominion, 288. 
 
 French, 106. 
 
 United States, 106, 311. 
 Separation in blood, 109. 
 Septennial Act, 66. 
 
 (Ireland), 73. 
 
 Service Committee, 140. 
 Session of Parliament, 157. 
 Session, Court of, 230. 
 Sessions, Petty, 194, 254. 
 
 Quarter, 196, 201, 211, 212, 254. 
 
 Settlement, Act of, no. 
 
 Law of, 206. 
 
 Permanent (India), 303.
 
 INDEX 
 
 337 
 
 Settlement Officers, 303. 
 Settlers, rights of British, 269. 
 Shareholders as M.P.'s, 68. 
 Sheadings (Isle of Man), 265. 
 Sheriff, 51, 54, 209, 230, 236. 
 
 Depute, 230. 
 
 Ship-money, 43. 
 Silver currency of India, 306. 
 Single member constituencies, 15, 85. 
 Solicitors, 201. 
 Sophia, the Electress, no. 
 South Africa, 277, 295, 317. 
 South African War, 159, 317. 
 Committee, if 
 
 Company, 277. 
 
 South Australia, 290. 
 
 Sovereign, personal influence of, in, 
 
 202,313. See Crown. 
 Speaker, powers of, 88-92, 173. 
 
 election of, 1 58. 
 
 Standing Army, 121. 
 
 Orders, 162, 179. 
 
 Stanhope, Lord, 83. 
 
 Stanley, House of, 263. 
 
 Star Chamber, 44. 
 
 States of Jersey, 261. 
 
 Statute of elections, 52. 
 
 Statutes, obsolete, 136. 
 
 Stipendiary Magistrates, 195. 
 
 Straits Settlements, 278. 
 
 Stuarts and Parliament, 57. 
 
 Succession to the Crown, English law 
 
 of, 221. 
 
 Scotch law of, 233. 
 
 to a peerage, 95-107. 
 
 Sultan of Turkey, 274. 
 
 Summons of Parliament, 40, 44, 90. 
 
 Supervision, Board of, 235. 
 
 Supplementary estimates, 161. 
 
 Supply, 24 et seq., 166. 
 
 Supremacy of Parliament in the United 
 
 Kingdom, 4. 
 
 in the Empire, 270-316. 
 
 Surplus, 163. 
 Suspension of M.P.'s, 91. 
 Switzerland, 155. 
 Synods, 62, 204, 228. 
 
 TACKING clauses to Bills, 23, 28, 32, 
 
 47, 292. 
 
 Tarn worth manifesto, 144. 
 Tariffs, Colonial, 285. 
 
 Tasmania, proportional representation 
 
 in, 155- 
 Tasmania and Australian Federation, 
 
 290. 
 Taxation, control of Commons over, 
 
 21,44- 
 
 Tea, duty on, 22. 
 
 Telegraph service, 131. 
 
 Telephone service, 131, 214. 
 
 Temple, Lord, 48. 
 
 Tenant right in Ulster, 247. 
 
 Tenants of Crown, 60. 
 
 Ten-pound franchise, 82. 
 
 Territory, cession of, 311. 
 
 Thanet, Earl of, 2IO. 
 
 Third Reading, 170. 
 
 Three-cornered constituencies, 83. 
 
 Time of Parliament, 165. 
 
 Tory Party, 139. 
 
 Town Commissioners, 254. 
 
 Councils, 213, 219, 238, 254. 
 
 Trade, Board of, 179, 182, 184. 
 
 Committee of, 169. 
 
 Tramways, Municipal, 214. 
 
 Treasury, 162. 
 
 Treaties made by Crown, 311, 314. 
 
 Secret, 314. 
 
 Trevelyan, Sir G., 157. 
 
 Trial by Jury, 193, 231, 244, 269. 
 
 Tribute of Cyprus, 275. 
 
 Triennial Act, 58, 66. 
 
 Trinity College, Dublin, 251. 
 
 Triple Alliance, 317. 
 
 Trustees and Chancery, 199. 
 
 Tudors, House of Commons under, 42, 
 
 53, 56. 
 
 House of Lords under, 95. 
 
 Tuesdays in Commons, 167. 
 Tunis, French in, 275. 
 Turkey, Sultan of, 275. 
 Turnpike roads, 208. 
 Tynwald, Court of, 264. 
 
 ULSTER, tenant right in, 247. 
 Union with Ireland, 69, 74, 76, 99. 
 
 with Scotland, 58, 97. 
 
 Unions, Poor Law, 207, 253. 
 United Parliament, 56, 75. 
 United States, 271. 
 
 and Jamaica, 286. 
 
 and silver coinage, 306. 
 
 Senate of, 311. 
 
 Y
 
 338 THE WORKING CONSTITUTION 
 
 Universities, representation of, 55, 86. 
 University Commissions, 185. 
 
 Queen's, 251. 
 
 Royal Irish, 252. 
 
 Upper Canada, 287. 
 Upper Division Clerkships, 130. 
 Urban District Councils, 209, 215. 
 Utrecht, Treaty of, 47, 50. 
 
 VESTRIES, Parish, 203. 
 
 London, 219. 
 
 Veto of House of Lords, 36. 
 
 of Colonial Governor, 283. 
 
 Vicars of parishes, 203. 
 
 Viceroy of India, 298-300, 305. 
 
 of Ireland, 240. 
 
 Victoria, Colony of, 290. 
 
 deadlocks in, 28, 31. 
 
 Voluntary schools, 204. 
 
 Volunteers, 125. 
 
 Vote, one man one, 15. 
 
 single transferable, 152. 
 
 Vote of money moved by a Minister, 
 25, 102. 
 
 Vote on account, 161. 
 
 Voters, lists of, 54. 
 
 Votes in Supply, discussions on, 166. 
 
 Voting, method of, 84. 
 
 Voting under Proportional Representa- 
 tion, 154. 
 
 WAGES of Members, 52, 56. 
 Wales, representation of, 53. 
 War, articles of, 121. 
 
 Crimean, 122. 
 
 declaration of, 159, 311. 
 
 War Office, 120. 
 
 Secretary for, 1 20, 122. 
 
 supplies voted for, 159, 161. 
 
 Warrants, 194. 
 Warren Hastings, 106. 
 Wars of Roses, 109. 
 Waterworks, 179, 214, 220. 
 Wednesdays in Commons, 167. 
 Wensleydale, Baron, 102. 
 Wesleyan schools, 204. 
 West, Mr. Sackville, 95. 
 West African possessions, 276. 
 
 Australia, 290. 
 
 Indies, 271, 278. 
 
 Westminster election, 80. 
 
 Westmoreland, 209. 
 
 Whigs, 139. 
 
 White-Ridley, Sir M., 158. 
 
 Wilkes, Mr., 69. 
 
 William III., 46, 58, 64, 66, 121. 
 
 iv., 9. 
 
 Wills, 198. 
 
 Witnesses before Commons, 88. 
 
 Woman suffrage, 16. 
 
 Writs summoning Parliament, 40, 44, 
 
 51- 
 
 issued by Speaker, 90. 
 
 for election of peers, 98. 
 
 summoning peers, 94-96, 98, 107. 
 
 YEOMANRY, the, 125. 
 York, Province of, 203. 
 
 Convention of, 203. 
 
 Yorkshire, 8 1. 
 
 ZEMINDARS, 303. 
 
 Printed by T. and A. CONSTABLE, (late) Printers to Her Majesty 
 at the Edinburgh University Press

 
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