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 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
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 purchas^ 
 
 by H.M.S.O. 
 for SX). 8 
 
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 THE TEMPLE PRIMERS 
 
 THE WORKING CONSTITUTION OF 
 
 THE UNITED KINGDOM 
 
 AND ITS OUTGROWTHS 
 
 By LEONARD COURTNEY 
 (LORD COURTNEY OF PENWITH)
 
 All rights reserved
 
 TheWORKlHG 
 COnSTiTuTiOR 
 
 KIDGDOm 
 
 ■asj A.nD • ITS'®® 
 OUTGROWTHS 
 
 BYLEOns^.RD 
 COURTriEY 
 
 1916 * BEDFORD ' STREET / T4DON
 
 First Edition 
 Reprinted . 
 
 • 1905 
 
 1909, 1911, 1916 
 
 ^
 
 C88uj' 
 
 PREFACE 
 
 ^ This primer is an adaptation of a work bearing the same 
 „ title published in 1901. The necessary reduction in size 
 % has been achieved by the omission of the historical portions, 
 a and of the account given of local government, the land laws, 
 "* education, etc., in Part 11. of the larger book. One or two 
 chapters have been somewhat condensed, whilst, on the other 
 hand, the portions dealing with the Civil Departments, and 
 J with Protectorates, and Chartered Companies, have been 
 3 expanded. As a consequence of these changes the order 
 H of the chapters has undergone considerable rearrangement, 
 \ but in all other respects the text of the primer is substantially 
 * that of the larger edition. 
 
 The labour thus described has been effected by Mr. 
 
 George Unwin, to whose assistance I was so much indebted 
 
 in the preparation of the original work ; and Mr. Unwin 
 
 ^owes a number of valuable suggestions to the kindness of 
 
 SMr. Graham Wallas. 
 
 S Leonard Courtney. 
 
 C/telsea, 
 
 Afril I, 1905. 
 
 ;j<jj.-9~'
 
 CONTENTS 
 
 CHAP. 
 I. 
 II. 
 III. 
 IV. 
 V. 
 
 PART I 
 
 THE LEGISLATURE 
 
 THE NATION AND THE HOUSE OF COMMONS 
 THE ELECTORATE ..... 
 THE PARTIES ..... 
 
 GENERAL ELECTION .... 
 
 THE SANCTION OF THE AUTHORITY OF THE HOUSE 
 
 OF COMMONS ..... 
 HOW THE AUTHORITY OF THE HOUSE OF COM 
 
 MONS MAY BE CONTESTED . 
 PRIVILEGES OF THE HOUSE OF COMMONS . 
 THE HOUSE OF LORDS .... 
 COURSE OF BUSINESS IN PARLIAMENT 
 PRIVATE BILL LEGISLATION 
 PARLIAMENTARY COMMISSIONS . 
 
 PAGE 
 I 
 
 9 
 
 20 
 29 
 
 38 
 4' 
 47 
 55 
 74 
 79 
 
 PART II 
 
 THE EXECUTIVE 
 PRIVY COUNCIL : CABINET 
 
 I. THE CROWN 
 
 II. JUDICIARY 
 
 III. THE ESTABLISHED CHURCHES 
 
 IV. THE ARMY AND NAVY . 
 V. THE CIVIL DEPARTMENTS 
 
 83 
 
 93 
 105 
 107 
 114
 
 Vlll 
 
 CONTENTS 
 
 CHAP. 
 
 VI. SCOTCH AND IRISH ADMINISTRATION 
 VII. INDIA AND COLONIAL OFFICES . 
 VIII. FOREIGN RELATIONS 
 IX. ROYAL COMMISSIONS, ETC. 
 
 PART III 
 
 THE EMPIRE 
 
 I. ANCIENT CROWN POSSESSIONS . 
 
 11. CHARTERED COMPANIES AND PROTECTORATES 
 
 III. INDIA ...... 
 
 IV. CROWN COLONIES .... 
 V. SELF-GOVERNING COLONIES 
 
 VI. FUTURE GROWTH OF THE CONSTITUTION 
 INDEX .....
 
 THE WORKING CONSTITUTION 
 
 OF THE UNITED KINGDOM 
 
 AND ITS OUTGROWTHS 
 
 PART I 
 THE LEGISLATURE 
 
 CHAPTER I 
 
 The Nation and the House of Commons 
 
 Flexibility of the Constitution. The Constitution 
 of the United Kingdom has been rightly described as that of 
 a republic veiled in monarchical forms, and containing in its 
 organisation large survivals of aristocratic privilege. It has 
 not, like the constitutions of the United States, Germany, 
 France, etc., a fixed and definite shape, originally 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
 
 » THE WORKING CONSTITUTION 
 
 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 operative towards the production of the further 
 changes which we know will in due course be developed. 
 
 Supremacy of Parliament. The fundamental fact 
 of our Constitution is the absolutely unqualified 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 administra- 
 tion 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 two 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 be withheld. The influence of the 
 Crown, as must be explained hereafter, is now exercised in
 
 THE NATION AND HOUSE OF COMMONS 3 
 
 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 them- 
 selves ; and the question arises how such differences are in 
 fact settled. An agreement may be established by one of 
 the two giving way to the other. The House of Lords 
 consists of some five hundred and eighty noblemen, to whom 
 additions are constantly made, whose legislative privileges 
 descend exclusively through males, except in a few cases in 
 which they pass through females to male 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 authori- 
 tative 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 House* 
 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. 
 
 The National Will. This conclusion is founded upon 
 the principle that the will of the nation finds its most absolute
 
 4 THE WORKING CONSTITUTION 
 
 expression in the judgment of the House of Commons elected 
 for the purpose of ascertaining its will upon some definite 
 issue ; and 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," or 
 " that the great majority of the nation is in its favour," or 
 " that the constituencies throughout 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 issuing from a General Election is the 
 most authoritative expression of the will of the nation, is 
 vitally connected with 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 responsible to Parliament 
 for the conduct of them, are Ministers whose tenure of office 
 must depend upon their command of the confidence of the
 
 THE NATION AND HOUSE OF COMMONS 5 
 
 House of Commons. These high functionaries, styled 
 Ministers of the Crown, are nominally appointed by the 
 Crown, but each of them is, as a rule, a member of one 
 of the two Houses, and they must, as a whole, possess the 
 confidence of the Commons. This system of government 
 presents a marked contrast to that adopted in the United 
 States which rests to an equal extent on constant appeals to 
 the national will. The chief officers of the American Govern- 
 ment are elected independently by the people, and having a 
 fixed tenure of office, do not require to be in harmony with 
 either branch of the Legislature. 
 
 Change of Alinistry. 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 disendowment 
 of the Irish Church was the issue submitted to the constitu- 
 encies, 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 precedents were not followed in 
 1892, when the Ministers who were defeated reverted to the 
 older practice, and retained office till the House of Commons
 
 6 THE WORKING CONSTITUTION 
 
 met and passed an adverse vote ; the majority against them 
 being indeed much less decisive than those on the former 
 occasions. But the convenience 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. 
 
 Resignation of Ministry. The accord between the 
 House of Commons and the 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 House 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 consequences. A Ministry, conscious of 
 growing divergence between itself and the House of Commons, 
 or embarrassed by other difficulties in the conduct of administra- 
 tion 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 
 dissolve Parliament. The Crown has never, during the 
 present or the previous reign, refused to act upon such advice, 
 but it would 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 
 home, the advice to dissolve the Assembly corresponding
 
 THE NATION AND HOUSE OF COMMONS 7 
 
 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 for such a long period so acted may 
 be due to the fact 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 remam in office without 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. 
 
 Dissolution by the Crown. A principal correlative 
 to that just enunciated may here be examined. Ministers 
 must enjoy the confidence of the House of Commons to 
 remain in office ; and we have seen 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 the autumn of 1834, he dismissed Lord Melbourne's 
 Government, 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.
 
 8 THE WORKING CONSTITUTION 
 
 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's 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's dismissal was not the spontaneous and unprompted 
 act of the King. This case, strictly examined, is scarcely 
 an exception to the rule which has prevailed throughout the 
 whole period of the L^nited Kingdom, that the Crown does 
 not of its own mere motion dismiss a Ministry possessing the 
 confidence of the House of Commons. 
 
 Precedents from the Colonies. The records of 
 colonial history furnish us with a couple of cases — apparently 
 only a couple — in which a Governor claimed and exercised 
 the right not used by the Crown. In 1855 ^^'^ Governor of 
 New Brunswick dissolved the Legislature against the advice 
 of the Ministry in order to obtain an expression of public 
 opinion as to a recently passed prohibitory liquor law which 
 was said to be working badly ; and the newly-elected 
 Legislature justified his action by immediately repealing the 
 law. The second case is that of the dismissal of Mr. 
 Molteno and his colleagues in Cape Colony in 1877 ^Y ^''" 
 Bartle Frere, who differed from them as to the conduct of 
 military operations then in progress. In this case, however, 
 a decisive majority of the existing House of Assen)bly was 
 found to support Sir Bartle Frere's new ministry, and the 
 necessity did not therefore arise of appealing to the electorate. 
 These acts of colonial Governors are illustrations of what 
 might conceivably be done by the Crown ; but they have no 
 parallel in our histery during this century.
 
 CHAPTER II 
 The Electorate 
 
 Prime Authority of the Commons. The result of 
 an analysis of the present working of the 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 underlying principle finds expres- 
 sion in a hundred forms of familiar speech. In the election 
 of a new House of Commons 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 seriously 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. 
 
 Extension of ttie Electorate. These principles have 
 guided the action of all parties for more than a century, and 
 it is to be noted that the same 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 dis- 
 contents of some or even of a large number in former 
 generations concerning the distribution 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 privilege of voting was restricted 
 
 5
 
 10 THE WORKING CONSTITUTION 
 
 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 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 
 greatchange of 1 832 there was a disfranchisement of thesmallest 
 boroughs, an enfranchisement 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 ;^io 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 
 occasioned 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, conferring 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- 
 mission. 
 
 Influence of Public Opinion. This continuity in 
 the regard paid to the House of Commons has sometimes led 
 to the suggestion that the changes which have been made in 
 the processes of its election 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
 
 THE ELECTORATE xi 
 
 some open boroughs with large masses of voters ; and the 
 voting in counties, though confined to owners of real property, 
 was free ; and the manifestation 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 repre- 
 sentatives of privileged voters, producing once again, it is 
 urged, a trustworthy presentment of the sense of the country. 
 There is some ground for this reasoning ; but if it be true, 
 as suggested, that the opinion of outsiders influences the 
 possessors 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. 
 
 Single-member Constituencies. 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 embar- 
 rassing 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 proceeded on the plan of subdividing counties and 
 the larger towns into constituencies, each returning one 
 member, 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 
 population rather than area) of constituencies, although, out
 
 12 THE WORKING CONSTITUTION 
 
 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 comparison 
 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 divisions, and a subdivision of 
 larger boroughs now returning two members. 
 
 Equality of Voting Power. Reverting to the rights 
 of voters and the suggested possibility that a voter might be 
 entitled to vote for more places than one, it may now be 
 stated that a voter is 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 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," and the strength of the prin- 
 ciple underlying this formula is confessed and insisted upon 
 rather than contradicted by those who would add to it the 
 words " and every vote an equal value." 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 ascer- 
 taining the form in which it should be realised. 
 
 Woman Franctiise. A direct claim for the enfran-
 
 THE ELECTORATE 13 
 
 chisement of women, possessing 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. The 
 argument that women have large, material, and sufficient 
 influence without voting, is such as has always been used with 
 respect to unenfranchised classes, but has been found in- 
 efl^ective to stem successive demands for the enfranchisement 
 of men. 
 
 Defects of Electoral Machinery. The accuracy of 
 the fundamental assumption, so universally made, that the 
 House of Commons, on the morrow of a General Election, 
 is an indisputable exponent of the 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 represented 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 univer- 
 sally 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 con- 
 stituencies 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 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
 
 14 THE WORKING CONSTITUTION 
 
 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 pre- 
 sentment of collected opinion. Owing to this unevenness of 
 distribution of opinion throughout 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 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 1 5,000 in all, and a choice between A and B being 
 presented to the three constituencies, the first declared 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 representation shown in this 
 example arises from the fact that the force of the party A is 
 congested in the first constituency, and it would have been 
 possible to have parcelled out the constituencies differently, so 
 that the party A 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
 
 THE ELECTORATE 15 
 
 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, enabhng 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 con- 
 stituencies 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 arrangement is not somewhat lop-sided, 
 tending now to exaggerate the victory, and now to lessen the 
 defeat, of one party. 
 
 CHAPTER III 
 
 The Parties 
 
 How Party Government arises. If every act 
 of the Crown must be supported by the responsibility of a 
 Minister, and Ministers must possess the confidence of the 
 House of Commons as the exponent of national judgment, 
 it must be the continual care of Ministers to keep in agree- 
 ment with that judgment. This 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 along- 
 side of it, and partly by capturing and moulding that opinion, 
 so that it shall support the actions of the Ministry. It must 
 be their ambition to keep the House of Commons and the
 
 i6 THE WORKING CONSTITUTION 
 
 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. 
 
 The Two=Party System. At a time when the House 
 of Commons was in a predominant degree under the control 
 of men of wealth, these reserves not unfrequently appeared as 
 combinations of men brought together by family connections 
 or accidental intimacy, 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 readiness to entertain 
 plans for their amendment. Names change, but Whigs and 
 Tories, Liberals and Conservatives, Radicals and Consti- 
 tutionalists are only different ways of describing the same 
 essential divisions. Adherence to things as they are may
 
 THE PARTIES 17 
 
 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 involves the assumption of new 
 positions. Every new proposal of far-reaching change pro- 
 vokes a similar shifting. The objects of controversy are 
 altered, the combatants pass to and fro, and still the two 
 armies confront one another. 
 
 Groups within the Parties. It may even be said 
 that year by year the two great divisions are more highly 
 organised, and this development 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 disturbed 
 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 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 independ- 
 ence than heretofore ; but groups of a similar character have 
 long been known and have perhaps exercised as much in- 
 fluence in the past as in the present on parliamentary life. 
 
 c
 
 i8 THE WORKING CONSTITUTION 
 
 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 parlia- 
 mentary hosts in conflict. 
 
 Party Organisation. There can be no doubt as to 
 the increased energy with which the two great parties are 
 worked. The increase of railway and postal facilities, the 
 comparative cheapness of paper and printing, the multiplica- 
 tion 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 transformation 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 are 
 established in almost every constituency, 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 un- 
 known. To these meetings the leading political personages are 
 drafted for the purpose of keeping up the fire of party zeal in 
 every 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 Par- 
 liament 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 provincial audiences the 
 merits of their own party and the demerits of their opponents.
 
 THE PARTIES 19 
 
 Existing Evils and ttieir Remedies. The em- 
 ployment of the machinery thus kept in constant work cannot 
 be said to be altogether free from evil effects. 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 discontinuity, an uninterrupted 
 flow for mere gush and check. If national life is so organised 
 that its manifestations are habitually characterised by dis- 
 continuity 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 
 policy. If it were possible to organise the representation of 
 national life so that it should be habitually embodied in some- 
 thing reproducing this central line of movement, we should 
 be spared the falsity and the waste resulting from an organisa- 
 tion always producing more or less serious misrepresentations. 
 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
 
 ao THE WORKING CONSTITUTION 
 
 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. 
 
 CHAPTER IV 
 
 General Election 
 
 The Appeal to the Country. The supreme import- 
 ance of a General Election has been frequently stated. Its 
 verdict upon the question immediately at issue is accepted by 
 all as conclusive. Some controversy may indeed arise as to 
 the range of questions so decided. First, and most immedi- 
 ately 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 firm- 
 ness 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 pro- 
 pose legislation 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 sup- 
 port 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
 
 GENERAL ELECTION ii 
 
 some prime object of policy recommended by them should be 
 approved or condemned. 
 
 Election Addresses. There is generally no doubt as 
 to what this paramount proposal is, although it may not be 
 presented in the formal 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 addition 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 con- 
 ventions to draw up programmes 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 precedent which may be said to have 
 been set by Lord Beaconsfield in 18B0, 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.^ 
 
 Party Programmes. Such appeals from peers may 
 
 ^ 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.
 
 It THE WORKING CONSTITUTION 
 
 indeed be said to be novelties of form rather than of substance. 
 The formation of party programmes and party conventions 
 is quite new. The 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 Elec- 
 tion, 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 re- 
 garded as partaking in a minor degree of the same character. 
 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 sub- 
 mitted for their approval. Of late it has been found increas- 
 ingly difficult to move additions or amendments to them ; and 
 it may be assumed that at no time are any substantial altera- 
 tions 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 practically unanimous resolutions of the confer- 
 ences have been quietly set aside by party leaders. Up to 
 the present date the determination of the issues to be imme- 
 diately 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 gatherings 
 of these associations are supplemented by provincial confer- 
 ences 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. 
 
 Selection of Candidates. The date of an election is
 
 GENERAL ELECTION «3 
 
 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 constitu- 
 encies, and this seldom happens without suflacient signs of 
 warning. A General Election is, in fine, an event for which 
 preparations are commonly made. Candidates are sought for 
 beforehand, and no constituency lacks them where the result 
 of 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. There is a limit to the permitted expense of a 
 General Election varying 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 pre- 
 pared to accept unhesitatingly the party programme, he has a 
 fair chance ot being accepted as a suitable candidate, because 
 although he may excite some jealousies, neighbourly feelings 
 may give him more supporters.^ 
 
 Central supply of Candidates. It very often hap- 
 pens that no local candidate is forthcoming or that the local 
 committees cannot agree upon one, and in these cases recourse 
 is had to the central organisation, where a list is kept of men 
 ambitious to enter the House of Commons and serve their 
 party. Two or three names may be sent down. Possible 
 
 ^ In some cases, constituents subscribe to defray part, or even the 
 whole, of the election expenses of a candidate, and trade organisa- 
 tions and other bodies specially interested in a member representing 
 their views may provide an income for him whilst serving as 
 member.
 
 24 THE WORKING CONSTITUTION 
 
 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 constitu- 
 ency 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 seek- 
 ing the acquaintance of as many individual electors of promi- 
 nence 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 neutral voters. 
 
 Party character of contest. This kind of help 
 tends to develop what is already sufiiciently apparent. It 
 binds together all the contests in the several constituencies, 
 so as to make them portions of one campaign between two 
 opposing armies, and though here and the^e 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. 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 estab- 
 lished 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.
 
 GENERAL ELECTION 25 
 
 be then noted everywhere. What is to be observed is that 
 by every step of preparation, and by 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 demonstra- 
 tion of numbers on their behalf ; that those who are out- 
 numbered 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 preponder- 
 ance of the hour on the issue of the day. 
 
 Inadequacy of representation. Taking into con- 
 sideration 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 develo))ed 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 been pointed out, no certainty that 
 even on the prime issue of a General Election the majority 
 of the votes of persons elected will be on the same side as 
 the majority of the votes given by the electors ; but there 
 was at least an issue pronounced upon and decided within 
 each constituency, 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. 
 Whenever 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. 
 
 Harems scheme of represeritatr'on. The late Mr.
 
 a6 THE WORKING CONSTITUTION 
 
 Hare conceived a plan for making the House of Commons 
 an absolute representation of the electorate of the kingdom, 
 and his scheme received the enthusiastic approval of Mr. 
 John Stuart Mill, who saw in it " the greatest improvement 
 of which the system of representative government is suscept- 
 ible." ^ The idea of Mr. Hare was that if a certain definite 
 number of electors agreed together to choose one representa- 
 tive, 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 representa- 
 tive 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 individually, 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 con- 
 duct 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 too revolutionary in principle and too 
 intricate in machinery to be treated as within the range of 
 possible adoption. 
 
 A simpler proposal. It may be doubted whether any 
 one conversant with the 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 fulfilment of which slow and distant approaches 
 
 1 J. S. Mill's Autobiography, p. 258
 
 GENERAL ELECTION 17 
 
 might be made. It is not a practical proposal to fuse all the 
 constituencies into one, but it is open to discussion whether 
 some five or six constituencies contiguous to one another 
 might not be combined so as to obtain within their united 
 area a representation of all the elements of political life work- 
 ing in it. If, for example, Manchester were treated as one 
 constituency 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, predominant 
 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, attained. What 
 could be done for Manchester could be done for other great 
 crowded centres of population. The application within such 
 limited areas of a method of securing the total representation 
 of their electors cannot be condemned as impracticable, what- 
 ever 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 neces- 
 sary 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 repre- 
 sentation 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. 
 
 Advantages of this plan. As the division of parties
 
 28 THE WORKING CONSTITUTION 
 
 would be represented with fair accuracy in the membership of 
 each multiple constituency, the division would remain fairly 
 accurately represented in the aggregation 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 embodiments of the active and inde- 
 pendent 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 is the increase of independent thought 
 in the House of Commons, and the advantages and disad- 
 vantages of this result must be taken together. The draw- 
 backs of the composition 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 List System. The single transferable vote has 
 received most attention in England ; but another 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 the elections have been twice 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. As lists may be put forth indefinitely 
 this scheme gives great freedom of choice. But the single
 
 SANCTION OF THE HOUSE OF COMMONS 29 
 
 transferable vote appears to have secured still greater indi- 
 vidual freedom, and in considering the respective claims of 
 the single transferable 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. 
 
 CHAPTER V 
 
 The Sanction of the Authority of the House of 
 Commons 
 
 Control of the National Purse. The House of 
 Commons has been described as the prime organ of the 
 national will. Its authority is recognised as absolute when 
 issuing from a General Election, and it has a prima fade 
 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 expression 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 shares in this authority. The 
 House of Commons claims — and this claim is allowed by 
 the House of Lords — to originate all taxation. It claims 
 more than this. Whilst it admits the right of the House of 
 Lords to withhold its assent to any proposal ot taxation sent 
 up to it, it refuses to the Lords any power to modify or vary
 
 30 THE WORKING CONSTITUTION 
 
 such proposals, and though within the House of Lords this 
 hmitation of its power is denied, and action has been taken 
 from time to time as if it were free to aher 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. 
 Whatever 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. 
 
 Taxes granted annually. The power thus recog- 
 nised as vested exclusively in the House of Commons is 
 further supported by the practice of imposing a large pro- 
 portion 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. Glad- 
 stone in 1853 settled it for seven years; but this settlement 
 did not stand the strain of financial necessities, and ever since 
 the year i860 the tax has been imposed for twelve months 
 only and constantly renewed, often with variations of rate. 
 The duty on the importation of tea is an example of an in- 
 direct 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 
 Commons, and that the House of Lords practically confesses 
 that it cannot alter a Tax Bill constitute a strong, but far 
 from exclusive, illustration of the predominance of the House 
 of Commons. 
 
 Abolition of Taxes. Out of the chain of circum- 
 stances thus stated, a larger claim over taxation has been
 
 SANCTION OF THE HOUSE OF COMMONS V 
 
 established even in recent years. The House of Commons 
 has not only absolute mastery over necessary annual taxes ; it 
 has practically an absolute mastery every year over all ques- 
 tions of taxation, unless the House of Lords is prepared tc 
 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 i860 a Bill for abolishing the 
 then existing duties on paper was passed by the House of 
 Commons, but when sent up to 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 impos- 
 ing 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 modifying a tax to clauses for 
 the reimposition of absolutely 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 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.
 
 ji THE WORKING CONSTITUTION 
 
 The action of 1861 quietly effected a change now beyond 
 question. 
 
 Finance Bill. The policy of that action has indeed 
 been carried further by both the great parties of the State. 
 What used to be called the Customs and Inland Revenue 
 Bill received in 1894 the name of the Finance Bill, when 
 Sir William Harcourt embodied it in his extensive proposals 
 on Death Duties ; the Finance Bill being avowedly in- 
 tended 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. Until 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 which imposed a new check on a power they 
 might theoretically claim to exercise. 
 
 Control of expenditure- The House of Commons 
 controls the taxation of the country. It does more. It 
 has a power which may be pronounced even more effectual 
 in establishing its predominance. 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 deliberately set above the necessity of annual 
 approval — all which payments are ordered by standing Acts 
 of Parliament) except under special and separate votes desig- 
 nating 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
 
 SANCTION OF THE HOUSE OF COMMONS 33 
 
 against irresponsible proposals does not touch the fundamental 
 fact that the House of Commons gives its express sanction to 
 each vote in turn, and then sanctions the 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. More- 
 over, the sums thus voted are voted for the financial year 
 only, and whatever is left unspent at the end of the year 
 lapses and is withdrawn. Lastly, a special department, that 
 of the Comptroller and Auditor-General, 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 would come, at the end of every year, 
 to an abrupt suspension. 
 
 Concurrence of Lords. Every detail of national ex- 
 penditure 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 resolutiona 
 
 D
 
 34 THE WORKING CONSTITUTION 
 
 are gathered up in Bills from time to time during the parlia- 
 mentary Session, and finally at the close of the Session are 
 collected in an Appropriation Bill ; and these Bills are, like 
 other legislative proposals, sent to the Lords for their con- 
 currence. 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. 
 
 Latent power of rejection. 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 expenditure 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 circum- 
 stances could any of them be used, we may still remember 
 that no thought of using them has ever been entertained for 
 centuries. The suggestion has been made in words, if not 
 entertained as a near possibility, that the House of Commons 
 should stop Supplies. 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. 
 
 Colonial money Bills. The exclusive and conclusive 
 authority of the House of Commons over expenditure has 
 long been practically established in the United Kingdom. 
 This historic truth may however be qualified by the sug- 
 gestion 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. Col- 
 lisions have been prevented because there is a general under- 
 itanding as to the provinces of action of each branch of the
 
 SANCTION OF THE HOUSE OF COMMONS 35 
 
 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 amendment, 
 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 included. 
 
 Two Victorian crises. The colony of Victoria has 
 been richest in these experiences, and it may be instructive to 
 examine two cases in its history. In 1865 the Assembly was 
 bent on passing a protective 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 Govern- 
 ment and the payment thereout of the sums that had been 
 voted in the Appropriation Bill. Not only so, he sanctioned 
 the levy of duties as proposed in the rejected tariff. These 
 irregularities were immediately censured by the Colonial
 
 36 THE WORKING CONSTITUTION 
 
 Secretary, and the censure was quickly followed up by the 
 recall of Sir Charles Darling. The Victorian Government 
 thereupon resolved to make Lady Darling a grant of money 
 which, as the wife of a private citizen, she could accept 
 without breach of rules. The grant was voted by the 
 Assembly, and included in an Appropriation Bill which 
 was rejected by the Council. A long dispute lasting nearly 
 twelve months followed, in the course of which the Ministry 
 twice resigned and was twice recalled to office. At length, 
 when the deadlock between the Houses was becoming very 
 serious, Sir Charles Darling, who had been reinstated in the 
 public service, withdrew on behalf of himself and his wife 
 the acceptance of the grant, and the cause of the controversy 
 thus disappeared. A later Victorian case is of special interest 
 as having led to a pronouncement of constitutional doctrine 
 on the part of the Home Government. The members of 
 the Assembly receive payment for their services under a 
 temporary Act. In 1877 the Assembly passed a Bill to 
 continue such payment, and, to make assurance doubly sure, 
 votes were included in the Appropriation Bill to meet the 
 payment. The Council laid aside both Bills, and for some 
 time the government of the colony was left unsupported by 
 fresh supplies. The Governor was even driven to dismiss 
 a number of civil servants. After many months of extreme 
 agitation, the Council agreed to approve an Act continuing 
 the payment of members till 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. Subsequently, 
 however, the Ministry, having failed to pass measures which 
 provided for the eventual victory of the Assembly in case of 
 similar disputes in the future, sent a deputation to London 
 to induce the Imperial Government to pass an Act for this 
 purpose. 
 
 Sir Michael Hicks-Beach on the situation. 
 They did not succeed in this mission ; but Sir Michael 
 Hicits- Beach, then Colonial Secretary, who had been not a
 
 SANCTION OF THE HOUSE OF COMMONS 37 
 
 little embarrassed in some previous stages of the contest, sent 
 a composing despatch to the colony, recommending submis- 
 sion to the principles observed at home — more especially 
 ( I ) 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," and (3) "that the Council should so transact its 
 business that the wishes of the people as clearly and repeatedly 
 expressed should ultimately prevail " ; and Sir Michael Hicks- 
 Beach concluded the despatch with the 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." 
 
 Conclusions to be drawn. It will be seen that the 
 concluding observation of Sir Michael Hicks-Beach is limited 
 to legislation in respect 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 (i) 
 that the House of Commons should never tack to a money 
 Bill legislation foreign to it, (2) that the House of Lorda 
 should never reject a money Bill, properly framed, and (3) 
 that the House of Lords should defer to the authoritative 
 expression of the national will. A breach of the first principle
 
 3» THE WORKING CONSTITUTION 
 
 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 course exercises an un- 
 qualified 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 withholding 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. 
 
 CHAPTER VI 
 
 How the Authority of the House of Commons 
 may be contested 
 
 Authority of the Commons and its tests. It has 
 
 been seen that, according to the developed usage of our time, 
 the ultimate force of government is found in the will of the 
 nation expressed in a General Election. It is no doubt true 
 that the judgments of individual men, and even of masses of 
 men, are liable to considerable 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 
 3od more clearly appreciated than the chances of performance
 
 AUTHORITY OF THE HOUSE OF COMMONS 39 
 
 by any successors, 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) 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 Lords' appeal to the Country. 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 expressed 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 redistribution of seats could be 
 insisted upon as a necessary adjunct to an extension of the 
 franchise in counties, and Mr. Gladstone vehemently dis- 
 puted 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
 
 40 THE WORKING CONSTITUTION 
 
 that made by Lord Salisbury can be effectively met, as long 
 as it is made in good faith under conditions not outraging 
 the common judgment. If resorted to as a mere device of 
 obstruction, to stay the progress of legislation because it was 
 disliked, and with no real ground for thinking it might be 
 disapproved by the constituencies, it might provoke a strength 
 of resentment outside, that would support a Ministry pos- 
 sessing 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, 
 apprehension 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 excluding 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. 
 
 Obstruction in secondary issues. There are many 
 matters of considerable though second-rate importance which 
 could never become the primary ground of a national appeal ; 
 and there are other subjects on which a dispassionate judge 
 might hold that the nation had spoken in its main decision, 
 even though this was honestly doubted by a reluctant House 
 of Lords. An illustration from past, though not distant, 
 history may make the nature of the problem somewhat plainer. 
 The eligibility of Jews to sit in the House of Commons was 
 for many years a subject of contest between the two branches 
 of the Legislature. Jews had been elected in more than one 
 instance, so that the question was one of a practical character. 
 The House of Commons again and again sent up Bills to the 
 Lords to remove the disabilities of the Jews, which were as
 
 AUTHORITY OF THE HOUSE OF COMMONS 4x 
 
 often rejected by the Upper House, and the fact that suc- 
 cessive Houses, however varying in their composition, main- 
 tained 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 com- 
 plexion 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 illustrat- 
 ing the force of inertia which the Lords maintain in the 
 parliamentary system. There are doubtless other questions 
 now pending which remain unsolved 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. 
 
 CHAPTER VII 
 Privileges of the House of Commons 
 
 Freedom from Arrest, The building up of the 
 House of Commons has been traced through its several 
 stages, and the measure of its paramount 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
 
 42 THE WORKING CONSTITUTION 
 
 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 
 warrant of commitment of any one guilty of breach of it on 
 the other. 
 
 Freedom of Speech. Next to freedom from personal 
 molestation, freedom of 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. Till comparatively recent times any 
 member could enforce the 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 the question of their exclusion. To the same 
 sentiment of 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. 
 
 Examination of Witnesses. It is not one of the 
 privileges of the House of Commons to administer an oath
 
 PRIVILEGES OF THE HOUSE OF COMMONS 43 
 
 to any witness called to answer an examination before the 
 House or any of its committees ; but the statutory right 
 was in 187 1 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 inquiries are of a judicial character, and it is not believed 
 that a witness has ever been sworn before the House as a 
 whole. Although witnesses cannot under ordinary circum- 
 stances 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 Testing of Elections. The House of Commons 
 has always tried to enforce the independence of election of its 
 members. It declares every 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, when one Ashby 
 claiming to be an elector of Aylesbury brought an action at 
 law against the returning oflScer 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 prorogatioa got
 
 44 THE WORKING CONSTITUTION 
 
 rid of the dispute, neither side yielding its claim. The larger 
 privilege of the House to examine and determine the validity 
 of the 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 responsibility and partiality of such decisions 
 caused the passing of Grenville's Act in 1770 remitting the 
 inquiry into controverted returns to select committees of 
 fifteen. 
 
 Issue of Writs. 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 constituencies, 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. 
 
 Disqualification of Members. 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 ha^ been dispossessed,
 
 PRIVILEGES OF THE HOUSE OF COMMONS 45 
 
 and in the 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 con- 
 troversy 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 protesting 
 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. 
 
 Possible abuses of Privilege. What has been 
 written suggests certain cases in which the House of Commons, 
 if so disposed, might adopt arbitrary courses without being 
 checked. The House can declare a seat vacant, and a dis- 
 possessed 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 obstruction or other 
 disorderly conduct. No outside authority 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
 
 46 THE WORKING CONSTITUTION 
 
 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 
 counter-violence were permitted to run their course such 
 fatal extremes might be reached, and party feeling sometimes 
 runs high enough to occasion anxiety as to what will follow. 
 Parliamentary tradition and habit may however 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. 
 
 Committal by Speaker's Warrant. 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 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 committal 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.
 
 THE HOUSE OF LORDS 47 
 
 CHAPTER VIII 
 The House of Lords: Past and Present 
 
 Origin of tlie House of Lords. It is not within 
 the scope of this book to enter into an examination 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 sum- 
 moned after tlie 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 sug- 
 gestion 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. 
 
 Summons of a Peer. In earlier times the summons 
 was clearly dependent on the will of the king, although it 
 may be admitted that the king would not omit to summon 
 any of his greater 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
 
 48 THE WORKING CONSTITUTION 
 
 afresh to every peer at the commencement of every parlia- 
 ment, and on the death of a peer his successor presented a 
 petition for the issue of a writ to himself, until which applica- 
 tion he was not summoned. The question arose in 1897 
 whether a member of the House of Commons upon whom 
 an earldom had descended could continue to sit in the Lower 
 House by abstaining to apply for a writ. Although it appeared 
 that there was no obligation to make such an application, 
 the House decided that a person entitled to claim a peerage 
 was disabled from remaining one of its members. This 
 decision however does not prevent the reconsideration of the 
 question if it should again be raised. 
 
 Scottish Peerage. The Act of Union with Scotland, 
 passed in 1707, disabled the Crown from creating any more 
 peers of England or of Scotland. Thenceforward all peer- 
 ages 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 parlia- 
 ment. It is practically recognised 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 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 dis- 
 cretion, although no legal authority is entitled to enforce its 
 exercise.
 
 THE HOUSE OF LORDS 49 
 
 Irish Peerage. The Act of Union with Ireland 
 followed, with some 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. Any Irish 
 peer, not being a representative peer nor joining in the election 
 of representatives, 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 pro- 
 vided for a representation of the Irish archbishops and bishops 
 in the House of Lords, but this was abolished when the 
 Church of Ireland was disestablished. 
 
 Representative Peers. As the Irish representative 
 peers are elected for life, and 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 repre- 
 sentative 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 House of Lords since 1832. The peerage 
 thus described must be recognised as a body into which the 
 possessors of great wealth, especially of wealth in land, easily 
 found 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 
 
 £
 
 5© THE WORKING CONSTITUTION 
 
 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 successful lawyers attaining the 
 office of Lord Chancellor or other high judicial positions and 
 by naval and military commanders of distinction ("a peerage 
 or Westminster Abbey " was the aspiration of Nelson) ; but 
 these recruits were already sufficiently wealthy to belong to the 
 same class or w'ere 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 com- 
 munity working through such of the constituencies of the 
 Commons as were free, and overawing 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. It has 
 already been noted as now universally admitted, that the 
 House of Lords must 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 disestablish- 
 ment and disendowment of the Irish Church. This was a 
 change which would naturally be regarded with extreme dis- 
 favour by the Lords, and when in 1867 a preparatory Bill 
 was sent up from the Commons to prevent the creation of 
 any more vested interests in respect of ecclesiastical prefer- 
 ment 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 con- 
 stituencies, and the contest turned on details which admitted 
 accommodation, and were in fact settled with comparatively 
 little difficulty. 
 
 The House of Lords since 1332 has received additions 
 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,
 
 THE HOUSE OF LORDS 5« 
 
 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 attitude 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 originate legisla- 
 tion. Bills consolidating particular branches of the law, and 
 an administrative measure or two of a noncontentious character 
 may be introduced into the Lords ; but even these experi- 
 ments 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 however the barrier moderating 
 and obstructing movement ; and though discretion in the 
 exercise of its powers may keep them theoretically unim- 
 paired, it may not be amiss to inquire whether any change 
 can be detected as in progress, or can be anticipated as 
 probable if not inevitable. 
 
 Life Peerages. In the year 1856 the Crown was 
 advised to bestow a peerage for life on Sir 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 heredi- 
 tary peerage would consent quietly to an exercise of the 
 prerogative that had long since fallen into disuse, the employ- 
 ment 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 pre-
 
 52 THE WORKING CONSTITUTION 
 
 rogative 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 constituted this 
 Court of ultimate appeal for England up to 1707, for 
 England and Scotland up to 1801, when it became the 
 Court for the United Kingdom. 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 with- 
 drew from hearing and deciding appeals ; but it was not till 
 the year 1845 ^^^ ^^^ abstention of unlearned lords became 
 recognised as a moral obligation. In an appeal on the 
 validity of the convicfion 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 (Lynd- 
 hurst) 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 hereditary 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
 
 THE HOUSE OF LORDS S3 
 
 vote as legislators only as long as they were Lords of Appeal ; 
 but it has since been amended so as to preserve their legis- 
 lative functions after they had ceased to serve as Appeal 
 Judges. Life-peerages have thus been introduced, though on 
 a very limited scale, nor have suggestions been wanting for 
 adding to them. Bishops are life-peers and there might be 
 others neither legal nor clerical. 
 
 Non=attendance and remedies for it. The con- 
 tinuous growth of the House of Lords may be checked by 
 the increase in life-peerages. Life-peers pass away, but an 
 hereditary peerage may descend to a man who is quite unin- 
 terested 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 Legis- 
 lature. 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 Com- 
 mittees 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, ordinarily 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 recover the right by adequate attendance. The
 
 54 THE WORKING CONSTITUTION 
 
 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 nomin- 
 ated, and members lose their rights through non-attendance. 
 A precedent for disabling peers from exercising their legisla- 
 tive 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. 
 
 Other proposals of reform. Suggestions such as 
 have been glanced at might gradually modify the composition 
 of the House of Lords ; but, unless 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, and 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. 
 
 Impeachment. This form of trial 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 played
 
 THE HOUSE OF LORDS 5S 
 
 an important part in the seventeenth and even in the eighteenth 
 century ; but though copied and even enforced in other 
 constitutions it must be regarded as fallen into desuetude 
 among ourselves. The procedure is uncertain and dilatory 
 as was exemplified in the trial of Warren Hastings, and 
 there prevails to-day a strong and probably growing distrust 
 of the justice of a multitudinous tribunal. 
 
 Lord High Steward's Court. There is yet another 
 class of cases in which the peers have sat as a court of law 
 which 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 Parliament is sitting, his case according to past 
 custom would be 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. 
 
 CHAPTER IX 
 Course of Business in Parliament 
 
 The Ordinary Session of Parliament may now be 
 
 regarded as fixed to begin early in February and to end in 
 the middle of August. At the commencement of the century 
 and down to 1832 it was customary to assemble Parliament 
 a few weeks before Christmas, and the session was then 
 closed about June 4 (the birthday of George III.). Sug- 
 gestions 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 1 890 ; 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
 
 56 THE WORKING CONSTITUTION 
 
 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 
 sessions. Of these the most important is the first session of 
 a new parliament. A dissolution frequently interrupts the 
 business of the year before it is completed, and it is necessary 
 to call the new parliament together to complete the inter- 
 rupted work. A dissolution may produce a change of 
 Ministers, and in this case it is convenient to summon 
 Parliament, if only to provide for the issue of writs to fill up 
 vacancies caused by acceptance of office. 
 
 Choice of Speaker. In any case a Speaker must 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 Speaker- 
 ship 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 nomin- 
 ated 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
 
 COURSE OF BUSINESS IN PARLIAMENT 57 
 
 be regarded as binding by the new House. In the event, 
 there was an unparalleled overturn of parties, but if the inten- 
 tion 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 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. 
 
 Extraordinary Sessions. Besides the session at the 
 commencement of a new parliament another kind of extra- 
 ordinary session must be noticed. 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 unexpected 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.^ Another 
 extraordinary session — something of a survival — is that held 
 immediately on the demise of the Crown, when members 
 meet and swear allegiance to the sovereign. 
 
 The King's Speech and the Address. We may 
 now return to consider the course of a normal session. It is 
 
 ^ A short session of this character was necessitated by the 
 South African War in the autumn of 1899; and a similar session 
 was held in 1900, as the unexpected extension of the same war 
 had involved greater expenditure than had been provided for.
 
 58 THE WORKING CONSTITUTION 
 
 opened with a speech from the Throne, under cover of 
 which the Ministers of the Crown glance at foreign and 
 colonial relations, briefly note any national events of trans- 
 cendent importance, enumerate the chief proposals of legisla- 
 tion intended to be recommended by them, and invite the 
 House of Commons to vote the supplies submitted as neces- 
 sary 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 1 890 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 inconvenience, 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 March 3 1 . 
 It has been already explained that money voted for a 
 particular year and unspent, lapses, and is not carried for- 
 ward 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 
 March 31. 
 
 Estimates. Votes on Account. As soon as the 
 Address is agreed upon, the estimates for the coming year are
 
 COURSE OF BUSINESS IN PARLIAMENT 59 
 
 laid upon the table, and the House of Commons is asked to 
 sanction one or two votes for the 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 per- 
 haps 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 transacted before the 
 3 1st of March is not yet fully given. 
 
 Supplementary Estimates. This additional finan- 
 cial business is that of sanctioning supplementary estimates 
 for the year drawing to a close. It has been already men- 
 tioned that if any grave cause of additional expenditure arose 
 in the course of the year, such as that due to a war. Par- 
 liament 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 Par- 
 liament 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 be the end of the financial year. Parliament must 
 meet before it is reached in order to complete the service
 
 €o THE WORKING CONSTITUTION 
 
 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 pass- 
 ing 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 department 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 
 I St of January they may be in process of revision so as to be 
 ready for the forthcoming 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 moved except by a Minister. In the 
 fashion thus described, the whole financial organisation of the 
 country, so far at least as expenditure 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 is no danger of its being abrogated, although in- 
 dividual 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 produce 
 increased expenditure ; and Chancellors of the Exchequer
 
 COURSE OF BUSINESS IN PARLIAMENT 6i 
 
 often complain that the House stimulates extravagance and is 
 indifferent to economy, but the rule disabling private mem- 
 bers 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. 
 
 The Budget. It may here be noted that the Chancellor 
 of the Exchequer generally opens his Budget soon after the 
 commencement of the new financial year.^ Early in April 
 he reviews the income and expenditure of the year that has 
 just run out, comparing the results with those of the pre- 
 ceding 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 distributing what is not 
 wanted, or of raising what is required. At one time it was 
 supposed to be his duty to underestimate income and to over- 
 estimate 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 con- 
 demned, and is not to be suspected. 
 
 Other Work of Parliament. The financial work 
 that must be done between the opening of the session and the 
 I st 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 
 
 1 When however large additional taxation is imminent and in- 
 creases 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 under the lower duties. This occurred in March 1900.
 
 6» THE WORKING CONSTITUTION 
 
 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 of the Crown. It 
 contains an organised Opposition whose first 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 are private members with views and projects 
 which have not yet received 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 
 unnatural 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, many 
 of whom have been Ministers, would not very strenuously 
 resist the demands of the Government for additional time. 
 
 The Function of the Private Member. It is how- 
 ever confessed that in generations before our own, private 
 members have done work of 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 of religious disabilities, which would 
 have made slower progress 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 remains 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
 
 COURSE OF BUSINESS IN PARLIAMENT 63 
 
 is exhausted. It may be taken as certain that if Parliament, 
 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. 
 
 Allocation of time of Parliament. As at present 
 arranged the sittings of the House of Commons are limited to 
 Monday, Tuesday, Wednesday, and Thursday, from 2.45 
 p.m. to 1 1 p.m., after which unopposed business may be 
 taken till 11.30;^ and Friday afternoon from noon till 5, 
 and unopposed business till 5.30. Of these sittings Monday 
 and Thursday, and Tuesday and Wednesday till 8. 1 5, are 
 appropriated by the Government, whilst the remainder of 
 Tuesday and Wednesday, and the whole of Friday, 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' days in motions that are equivalent 
 to commands. In April the days of private members 
 may be left undisturbed, but they are soon again broken 
 in upon. 
 
 Nights reserved for Supply. It has been seen that 
 the detailed examination of the separate votes of Supply is 
 
 ^ A single opponent suffices, and sittings after 11 o'clock rarely 
 last ten minutes. The eleven o'clock rule may be suspended, if 
 notice is given beforehand.
 
 64 THE WORKING CONSTITUTION 
 
 generally wholly left till after the ist 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 I'P' 
 ill done. In 1 896 Mr. Balfour proposed a rule that twenty- 
 two nights, which might be extended by motion to twenty-- 
 four, should be set apart for Supply, and Thursday is the night 
 usually appropriated ; 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 without 
 finally passing them, thus leaving an undue number of votes to 
 the last hours of the allotted nights, when the rule requires 
 that they shall be voted without debate. But no possible 
 number of days would be sufficient for the examination 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 appre- 
 ciated. 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. Accordingly, 
 somewhere between Easter and Whitsuntide, the Government 
 obtain the addition of Tuesday and Wednesday evenings to 
 their days, and when Whitsuntide is over two or at most three 
 Fridays are left for private members, after which Fridays 
 also are appropriated by the Government. 
 
 Private Members' Bills. The time left for private
 
 COURSE OF BUSINESS IN PARLIAMENT 65 
 
 members is thus reduced to Tuesday and Wednesday evenings 
 up to about the middle of the session, and Friday afternoons 
 up to a fortnight after Whitsuntide. It cannot be said that 
 this reduced allotment is economically used. Tuesdays and 
 Wednesday evenings are reserved for motions made on sub- 
 jects 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 first 
 chosen is one of insignificant importance, and the member 
 proposing it not a person to attract attention. It therefore 
 not unfrequently happens that the attendance of members 
 dwindles, so that the absence of a sufficient quorum termin- 
 ates the sitting, if not before the first subject is ended, 
 before a second is seriously entered upon. It is an obvious 
 suggestion 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 regulations 
 for this purpose, and the ballot holds its own as giving a 
 chance all round. The disposition of Fridays is at least as 
 improvident. Fridays are given up to the Bills of private 
 members ; and at the commencement of the session the first 
 place in every possible Friday 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 ret down for 
 Friday 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 Fridays 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 Fridays, one, or
 
 66 THE WORKING CONSTITUTION 
 
 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. 
 
 Course of a Bill through the Commons. Refer- 
 ences 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 the House of 
 Commons a member gives notice that he proposes to intro- 
 duce a Bill on a particular subject, and at the appointed time 
 he makes his motion. This may be discussed and opposed ; 
 but except in connection with Bills of great importance 
 introduced by Ministers of the Crown the first motion (called 
 "the first reading ") passes with little or no debate and with- 
 out a division. A day is then fixed for the second reading, 
 before which the Bill is printed and circulated, and on which 
 a debate on its principle is taken if it is opposed. If it 
 passes this stage, it may be referred to a Select Committee, 
 but this happens only when it is thought expedient that its 
 provisions should be 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 respectively the Committees of Law and 
 of Trade. These Committees consist of eighty members 
 chosen so as to represent the House in miniature, to which 
 fifteen other 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 re- 
 quired careful and authoritative revision by a miniature House. 
 It must be noted that in all Committees, whether engaged in
 
 COURSE OF BUSINESS IN PARLIAMENT (yj 
 
 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 considered in detail with the 
 Speaker in the Chair, if any amendment has been made in 
 progress through Committee. If no amendment has been 
 made there is no Report stage, and the Third Reading is the 
 next taken, after passing which the Bill is carried to the 
 Lords. 
 
 Procedure in the Lords. A Bill brought from the 
 Lords proceeds at once to the second reading in the Com- 
 mons, 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 insti- 
 tution of Grand Committees ; that is to say, with or without 
 a reference to a Select Committee it passed through a Com- 
 mittee of the whole House, Report if an amendment had 
 been made, and Third Reading. In the year 1888 however 
 the Lords resolved upon introducing a change in their pro- 
 cedure, 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 
 remembered, being no more than three. After consideration
 
 68 THE WORKING CONSTITUTION 
 
 by the Standing Committee the Bill passes to the Report 
 stage if amended, and if unamended goes directly to the third 
 reading. 
 
 Suspension of this Procedure. All the formalities 
 of procedure in reference to Bills are within the control of 
 the House through which the Bill is passing. Each House 
 has exercised its discretion in varying 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. 
 
 Obstruction. The ordinary formalities of legislative 
 procedure in Parliament manifestly afford large opportunities 
 of debate ; and it cannot be surprising if in times of excite- 
 ment, when measures in progress are strenuously opposed, the 
 opportunities 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 for- 
 ward 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
 
 COURSE OF BUSINESS IN PARLIAMENT 69 
 
 nation may be unenlightened and its judgment unknown, a 
 repetition of hostile argument in debnte 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 privi- 
 leges 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. 
 
 Closure. Up to 1882 there was no parliamentary rule 
 under which debates could be compelled to come to a con- 
 clusion. In that year the principle of " Closure " 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 discretion 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 Com- 
 mittee 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. 
 In the case of the Crimes Act (Ireland) in 1887 the opposi- 
 tion 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 
 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
 
 70 THE WORKING CONSTITUTION 
 
 Rule Bill was, to use the phrase of the day, " guillotined," 
 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. 
 
 Questions. Another function of Parliament in relation 
 to public affairs must be noted.^ At the commencement of 
 public business, questions may be addressed to Ministers seek- 
 ing information with respect to the administration of their 
 several departments. Argumentative questions are not per- 
 mitted, 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 a hundred. This species 
 of control is often exercised in respect of very trifling matters, 
 where a member unambitious of publicity could obtain his 
 information by private inquiry, but the liberty of questioning 
 a Minister is of great value as a safeguard against possible 
 error. 
 
 Adjournment. It has been said that discussion cannot 
 
 1 The work of Parliament in respect of private bills will be 
 reviewed in a subsequent chapter
 
 COURSE OF BUSINESS IN PARLIAMENT 7» 
 
 follow a question ; but in former 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 discussing a particular specified question of " urgent public 
 importance " ; and if the House does not unanimously allow 
 the motion, it can still be made, if forty members rise in their 
 places to support the application. This species of interpella- 
 tion formerly set aside the appointed business of the day as 
 long as it lasted, but under a recent alteration, although the 
 leave to bring on the motion must be obtained after questions 
 are over in the afternoon, the debate is not allowed to begin 
 until the resumption of business at nine o'clock. The power 
 of starting a novel discussion is thus considerably hampered, 
 but it is also checked by a device of a very irregular character. 
 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 discussion on a future day, and by virtue of 
 such registered notice prevents its being brought on at once. 
 
 Petitions. Some surprise may be felt that nothing has 
 as yet been said of the ancient right of the people to petition 
 Parliament. 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 privi- 
 lege remains intact, and it is still possible for a member 
 presenting a petition to ask that it be read by the clerk at
 
 7* THE WORKING CONSTITUTION 
 
 the table ; but this is very rarely done, and if an attempt were 
 made to use this power 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 practice 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 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 conclusion. It may now be possible 
 to conceive the action of Parliament, and more especially of 
 the House of Commons, from day to day. Throughout the 
 session questions are constantly addressed to Ministers respect- 
 ing their administrative acts, and the Address in answer to 
 the royal speech at the commencement gives an opportunity 
 of formulating suggestions of policy. On a certain number 
 of Tuesdays and Wednesdays the opinion of the House may 
 be taken on motions or subjects of public interest ; and on a
 
 COURSE OF BUSINESS IN PARLIAMENT 73 
 
 larger number of consecutive Fridays 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 Sup- 
 ply, 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 political forces inside and outside Parliament thus 
 tend to converge to maintain it as a national resultant, /. 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," the detailed supervision of 
 the action of every department, 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.
 
 CHAPTER X 
 Private Bill Legislation 
 
 Former subjects of private legislation. The work 
 of Parliament so far noticed has been entirely 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 Parliament 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 circumstances 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 empowered to sanction the largest dealing with settled 
 estates. All these are examples of powers that have been 
 wholly or partially relinquished by Parliament. There re- 
 mains a very large class of cases in which local authorities 
 seek to obtain powers to expropriate land for purposes of 
 public improvement or the development of some public enter- 
 prise ; 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 expropriation on 
 the ground that it is in the public interest that they should 
 be granted. 
 
 Provisional Orders. The cases in which public bodies 
 74
 
 PRIVATE BILL LEGISLATION 75 
 
 seek for powers which apply to such things as street improve- 
 ments, municipal or 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 department of the Government (Home Office, 
 Board of Trade, Local Government Board, etc.), which sends 
 down an inspector to the locality to hold a public inquiry for 
 and against the application, and to report thereon. If the 
 result is favouiable, a Provisional Order is drawn up giving 
 the powers asked for, subject to such limitations and con- 
 ditions 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. 
 
 Railway Bills, etc. These are the applications made 
 by persons combining together to construct railways, etc. 
 Such persons are required to deposit plans of their under- 
 takings 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 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 
 opposition. 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. 
 
 Committee stage of private Bills. In any case 
 the issues involved in private Bills are such as require examina- 
 tion in detail by a special tribunal, and for this purpose such
 
 76 THE WORKING CONSTITUTION 
 
 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 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 proceeds with something ap- 
 proaching the strictness of a court of law. The report of 
 the committee if adverse (when it is declared that the pre- 
 amble 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 which are much dis- 
 couraged by the House. The procedure in 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 the practice of the House 
 of Commons. An important class of Bills consists of those 
 promoted by municipalities 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 Com- 
 mittee 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
 
 PRIVATE BILL LEGISLATION 77 
 
 appear against it ; and such Bills have been referred by the 
 House to what is called a hybrid Committee with instructions 
 to receive evidence and allow opposition from any quarter. 
 A hybrid Committee consists ot 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 lar spoken of are conducted 
 separately before the two Houses, and it sometimes happens 
 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 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. 
 Light Railways Act. 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 railways, 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
 
 78 THE WORKING CONSTITUTION 
 
 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 Administration bettered the precedent against 
 which its leading members contended two years before. In that 
 year the Light Railways Act was passed, under which a small 
 Commission was appointed for the local examination of pro- 
 posed 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. 
 
 Experiments in devolution. The experiment of the 
 Light Railways Act appears to have worked satisfactorily, 
 but it has not yet been extended in other directions. The 
 hindrances to small local improvements and to the develop- 
 ment of undertakings of public 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 ex- 
 pensive. 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 
 from Scotland, where there has appeared to be a strong 
 objection to the necessity of 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 session 
 of 1899 an Act was passed providing local machinery 
 for dealing with some Scottish Bills. The machinery was 
 changed and again changed during the passing 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
 
 PARLIAMENTARY COMMISSIONS 79 
 
 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 privilege, 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. 
 
 CHAPTER XI 
 Parliamentary Commissions 
 
 Functions of Commissions. In the preceding 
 chapter mention was made of the creation by Act of Parlia- 
 ment of a Commission charged with the duty of examining 
 applications for making light railways. Upon this Com- 
 mission 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 Parliamentary Commissions, vary- 
 ing very much among themselves, 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 execu- 
 tive, sometimes almost judicial, and sometimes have a mixed 
 character combining several elements. 
 
 The Ecclesiastical Commission. A conspicuous 
 example of a purely executive Commission is found in the 
 Ecclesiastical Commission. This was appointed 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 endowment of new sees designated by Parlia- 
 ment, in the subdivision of large populous parishes, in the
 
 8o THE WORKING CONSTITUTION 
 
 provision of funds to support the clergy of the new districts 
 cut off, 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 inde- 
 pendent 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 Chanty Commission. The Ecclesiastical Com- 
 mission 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 and their Colleges, and in 
 the fulfilment of these duties 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 found more extended use in connection 
 with the Charity Commission which, along with the Endowed 
 Schools Commission, is now incorporated in the Board of 
 Education. The Charity Commission, like the Ecclesiastical 
 Commission, relieved Charity trustees of the management of 
 their endowments, though only when these trustees so desired, 
 and it had other functions of visitation and inspection and, 
 subject to many limitations, of remodelling charitable trusts. 
 The work of the Endowed Schools Commission was 
 practically confined to the construction of new schemes for 
 the management of endowed schools.
 
 PARLIAMENTARY COMMISSIONS »i 
 
 Commissions absorbed in Departments. It 
 
 must be admitted, that though Parliament from time to time 
 creates Commissions intended to be in some measure inde- 
 pendent of itself, it is easily moved to interference by a 
 certain jealousy of the independence of bodies thus created. 
 The acts of such a Commission affect the interest or excite 
 the feelings of individuals whose complaints 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 administration. 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. 
 
 Railway and Canal Commission. Some elements 
 of a judicial character will have been observed in the 
 functions of the Charity Commission and allied Commissions. 
 They are found in greater prominence, though mixed with 
 administrative duties, in the work of the Railway and Canal 
 Commission established in 1873. "^^^ primary purpose of 
 this Commission was to secure to traders and the public 
 those facilities which the legislature 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 ot 
 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 discrimination, the removal of im- 
 pediments 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 Com- 
 mission has apparently been small, and complaints have been 
 raised of the inadequacy of its service, it is believed that it 
 
 G
 
 «2 THE WORKING CONSTITUTION 
 
 has been an efficient check upon neglect or abuse of powers 
 that otherwise would have been suffered ; and it may con- 
 fidently 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 wit- 
 nesses 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. 
 
 Election Commissions. There remain other Parlia- 
 mentary Commissions created for purpose of investigation, 
 strictly judicial in their character and attributes. It has 
 been already noticed that the validity of returns of members 
 to the House of Commons was at first determined by the 
 House itself voting as a multitudinous court, but was subse- 
 quently delegated to small committees which were in fact 
 Courts of Law giving final judgments. It was however 
 difficult for these committees 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 immediately 
 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 corruption 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. i 
 
 * 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 inquiry into alleged corrupt transac- 
 tions involving the Prime Minister of the Dominion in connection 
 with the recent General Election.
 
 / 
 
 PART II 
 THE EXECUTIVE 
 
 CHAPTER I 
 
 The Crown : Privy Council: Cabinet 
 
 Succession determined by Parliament. Lords 
 and Commons were originally called together by the will of 
 the King, as they are still in form summoned to Parliament 
 by writs from 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. His right 
 of descent was the predominant fact, in subordination to which 
 all powers and authorities existed. There 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 VII., who had 
 in himself no title to the throne ; but whether he ruled by 
 his relation to his mother or to his wife, the persistency 
 of the old principles of descent was strongly illustrated 
 under his successors. Henry VIII. 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 
 
 «3
 
 U THE WORKING CONSTITUTION 
 
 under Charles I.; but it reappeared under the Restoration 
 with every mark of recognition ; and it was not until the 
 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 III. 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. 
 
 Ministerial J^esponsibiJity. When Parliament, which 
 must here be understood to mean the two Houses, undertook 
 to regulate the descent of the Crown, the position of the 
 Sovereign in the Constitution underwent a natural change. 
 Something like a complete inversion has in fact been accom- 
 plished. The will of the Crown is now the will of the 
 Minister, and the Minister is a person possessing the confidence 
 of the House 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 advice. It does not follow that the personal 
 influence of the sovereign is entirely lost in the working of the 
 organisation of the State. In matters of appointment not 
 perhaps of first-rate importance, personal preferences may 
 prevail, though the allowance of such preference must depend
 
 THE CROWN: PRIVY COUNCIL: CABINET 85 
 
 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 
 this view of ministerial right that he declined to accept 
 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 III. 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 of 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 
 of long years and the intimacy that has been possible 
 with 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 • 
 to obscure in any degree the responsibility of the Minister 
 who 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.
 
 86 THE WORKING CONSTITUTION 
 
 He was completing, in respect of Scotland and Ireland, the 
 parliamentary reform he had carried 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 submit- 
 ting 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. 
 
 Growth of Privy Council. It is not intended to 
 retrace the process of transition by which the Crown, from 
 being almost autocratic, became the 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 Parlia- 
 ment. The danger may be traced to 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
 
 THE CROWN : PRIVY COUNCIL : CABINET 87 
 
 positions, or have otherwise been privileged to be called by 
 the Crown to the status and dignity.^ The Privy Council 
 is never summoned as a body except on the demise of the 
 Crown. It has no legislative authority. It may and does 
 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 Cabinet Although the Privy Council as 
 a whole is a mere registering 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 deliberation, the attendance was naturally 
 confined to the actual Ministers of the hour, and this con- 
 stituted the inner working committee of the larger body. It 
 was a step of great importance when the members of this com- 
 mittee 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. 
 In the reign of William III. another step of vital con- 
 
 1 Until recently no one was made a Privy Councillor who had 
 not filled some public office, but within the last ten years or so 
 members have been added without any distinct qualification of 
 this character.
 
 88 THE WORKING CONSTITUTION 
 
 sequence was taken. The Ministers thus deliberating 
 whether with or without the presence of the Sovereign came 
 to be confined to men sharing broadly the same political 
 convictions, and the committee consequently developed into a 
 party combination. Under Anne the absence of the Sovereign 
 from being frequent became customary, and the ignorance oi 
 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. 
 
 Formation of a Cabinet. When a statesman is 
 summoned by the Crown to form an administration, his first 
 duty is to invite others to fill 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 
 unquestioned 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 affectation. 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 convenience, and Lord 
 Salisbury has twice preferred as Prime Minister to fill the 
 office of Foreign Secretary.^ The men whom the Prime 
 
 1 Mr. Gladstone in 1880-81, 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, vacated in 1900 the office of Foreign 
 Secretary and accepted the dignified sinecure post of Lord Privy 
 Seal.
 
 THE CROWN: PRIVY COUNCIL: CABINET 89 
 
 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. As a matter of convenience they must all be 
 or become members of one of the Houses of Parliament, 
 although the qualification is not legally necessary, and on very 
 rare occasions a man has for a short interval been a Cabinet 
 Minister without possessing a seat in either House. The 
 names of those whom the Prime Minister 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 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 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 and secrecy of the Cabinet- Additions 
 may be made to the Cabinet from time to time by the 
 simple process of an invitation on the part of the Prime 
 Minister to the new member to attend ; and this body, the 
 cardinal importance of which, in the working of the con- 
 stitution, will hereafter appear, has no legal form or recogni- 
 tion, and might almost be described as a "fortuitous con- 
 course." 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
 
 90 THE WORKING CONSTITUTION 
 
 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 sometimes happens, a Minister resigns because he 
 differs from his colleagues, he commonly obtains, if Parlia- 
 ment is sitting, a release from the obligation of secrecy, so 
 that he may explain in his place the reason of his retirement. 
 Functions of the Prime Minister. It has been 
 suggested that in the larger Cabinets of later years unity and 
 the easy dispatch of business have been secured by the exist- 
 ence 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 Cabinet must vary with the different 
 idiosyncrasies of Ministers, and especially of the Prime 
 Minister. The memoirs of Sir Robert Peel sufficiently 
 reveal the course of business in his last Ministry. He him- 
 self 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
 
 THE CROWN: PRIVY COUNCIL: CABINET 91 
 
 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 how- 
 ever the relations between the Prime Minister 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 inter- 
 national 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. 
 
 Cabinet Councils. It is in the prosecution of such 
 matters that the members of the Cabinet are from time to 
 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 expendi- 
 ture 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
 
 91 THE WORKING CONSTITUTION 
 
 discussed with the Prime Minister and the Leader of the 
 House of Commons and then circulated, are formally con- 
 sidered at a Cabinet Council. 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. 
 
 Judicial Committee of Privy Council. Another 
 Committee of the Privy Council is that called the Judicial 
 Committee, which is practically a Court of Appeal from the 
 Ecclesiastical Courts in England and from 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 appointment 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 occasionally served, whilst any 
 Privy Councillors who have had judicial experience are 
 qualified to sit, and in the ecclesiastical 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 is the judgment of the majority 
 in which dissentient opinion, if it existed, finds no expression.
 
 CHAPTER II 
 Judiciary 
 
 Administrative Law. The rule or supremacy of law 
 has been said to form one of the main characteristics of the 
 English Constitution. The meaning of this phrase will be 
 made clearer by a comparison. In France or Germany a 
 state official cannot be made answerable in an ordinary court 
 for acts done in his official capacity. Any complaint against 
 him must be brought before special courts and dealt with by 
 what is called "administrative law." The state fears that 
 its necessary authority would be unduly weakened if its 
 officers were liable to be called to account in the same 
 manner as ordinary citizens. In England, on the other 
 hand, any official from the Prime Minister down to the 
 policeman may have the legality of his conduct questioned 
 in the ordinary courts. In 1866, for example, proceedings 
 were instituted against Governor Eyre by the ordinary 
 criminal process on the charge of having proclaimed martial 
 law and put British subjects to death without trial in Jamaica, 
 and were stopped only by the action of the Grand Jury. 
 This equality of the official and the ordinary citizen before 
 the law provides one of the strongest securities for individual 
 liberty. 
 
 Independence of Judges. This would not be the 
 case if the Judges stood in fear either of the violence of the 
 people or of the displeasure of the Government. Their 
 present independence has been slowly achieved. In the 
 great political trials of the seventeenth century, e. g. that of 
 John Hampden and that of the seven Bishops, it may be 
 seen in process of development. Half the Judges in one of 
 these trials and nearly half in the other had the courage 
 to decide against a Government which had the power to dis- 
 miss them. Lord Chief Justice Coke was actually dismissed 
 by James I. for refusing to admit that a Judge ought to consult 
 
 93
 
 94 THE WORKING CONSTITUTION 
 
 the King before deciding a case where the King's interests 
 were concerned. An important stage, therefore, in the history 
 of English law is marked by the clause in the Act of Settle- 
 ment of 1 701 which had the effect of preventing the dis- 
 missal of a Judge except upon an address from both Houses 
 of Parliament. 
 
 L^w of Arrest; Habeas Corpus. The independ- 
 ence of the Judges would not avail to protect the liberty of 
 the subject if the Government possessed unlimited powers of 
 arbitrary arrest and imprisonment. Important safeguards upon 
 the use of these powers have however been established, 
 based upon principles of the Common Law which were 
 subsequently strengthened and secured by statute. The first 
 of these safeguards is that the warrant for the 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 rein- 
 forced in the Long Parliament. At a later period "general 
 warrants" for the arrest of a person unnamed, though ac- 
 cused of definite offences, were declared illegal. The second 
 safeguard is the right of any one under detention or of any- 
 one in 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. This right was finally 
 rendered effective by the Habeas Corpus Act of 1678. 
 
 Justices of the Peace ; Juries ; Police. Such safe- 
 guards, however useful, are formal. A more vital guarantee 
 both of liberty and of order is to be found in the active share 
 which the nation at large has always taken in the administra- 
 tion of justice. The early establishment of a uniform Common 
 Law by the activity of the Judges sent from the King's Court 
 to hold assizes throughout the realm was no doubt of immense 
 importance in the development of the English constitution. 
 But it was scarcely of lesser importance that the authority of 
 the law has been more continuously presented in the persons 
 of the Justices of the Peace drawn from the gentry of each 
 neighbourhood, whose large share in local self-government
 
 JUDICIARY 95 
 
 will be discussed in a later chapter. A responsible part was 
 assigned to other classes by the institution of the Jury. 
 Originally introduced by the Norman kings for other pur- 
 poses, the jury gradually became an essential feature of 
 criminal justice. The principle that a man cannot be con- 
 victed of a crime except by the unanimous verdict of twelve 
 fellowmen is older than Parliament itself, and it has harmon- 
 ised so well with the spirit of our local self-government that 
 it has come to seem one of the most characteristic of English 
 institutions. Another factor in securing English liberty has 
 been the local control of the force which lies at the disposal 
 of the law. Autocratic government requires a centralised 
 police. The old English constable and his successor, the 
 modern policeman, with the important exception of the 
 metropolitan police, have always been under the direction of 
 local justices or local corporations. 
 
 The Magistrates in Petty Sessions. At the base 
 of the judicial hierarchy in relation to crime are the Justices 
 of the Peace. When not justices or magistrates ex officio they 
 are appointed for counties and for such boroughs as have 
 separate Commissions of the Peace. They are appointed by 
 the Lord Chancellor ; but in the case of counties, usually 
 though not necessarily, on the recommendation 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 ex- Mayor for one year after ceasing to be Mayor. 
 
 Any person seeing another committing a felony or one 
 of the graver offences, or who, knowing such offence to have 
 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
 
 96 THE WORKING CONSTITUTION 
 
 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 re- 
 quiring the alleged offender to appear before him, the second 
 directing an officer to arrest and bring him. Whatever 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' imprisonment, and 
 must, in graver doubtful cases, unless satisfied there is no evi- 
 dence to convict the prisoner, commit him for trial at Quarter 
 Sessions or Assizes. In addition to the magistrates so de- 
 scribed, there exist under statute in 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, 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. 
 
 Quarter Sessions. Next in rank above the magis- 
 trates sitting in Petty Sessions are the magistrates for the 
 county, with one of them chosen by themselves presiding 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 con- 
 victions in the inferior sessions, and they also try, with the 
 assistance of a jury, such prisoners as have been committed 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. 
 
 Coroner's inquest. Another most ancient method of 
 conducting inquiries 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 freeliolders of the district without regard to 
 the value of their holdings ; but they are now appointed by
 
 JUDICIARY 97 
 
 the County Councils. Their tenure is for life ; but they are 
 removable by the Lord Chancellor for inability or misbe- 
 haviour, 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 man- 
 slaughter 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 investigation 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 County Courts may be said to be at the base of 
 the civil administration of justice, though their jurisdiction is 
 strictly concurrent with that of the Judges of the High Court. 
 They are of comparatively modern origin, having been 
 created in 1846 to facilitate the recovery of small debts, to 
 take the place of petty local courts which had mostly become 
 quite inefficient. County 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. They 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 £^. 
 Where the sum exceeds ;^20, or by leave of the Judge for
 
 9S THE WORKING CONSTITUTION 
 
 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 com- 
 mittal 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 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. 
 
 The High Court of Justice as at present constituted 
 is the result of a fusion of courts which took place in 1875. 
 The divisions now existing, into King's Bench, Probate 
 Divorce and Admiralty, and Chancery are only maintained in 
 relation to the kind of business transacted in them. Each 
 Judge may move from one to the other, and wherever he sits 
 he applies the same law though the procedure may be dif- 
 ferent. Of these divisions the largest is the King's Bench 
 or 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 to- 
 gether and lorm a divisional court which hears appeals from 
 inferior courts and a])plications for a new trial, which may in 
 fact be appeals from other Judges of the court acting singly. 
 
 The Probate, Divorce and Admiralty Division has suc- 
 ceeded to the jurisdiction of courts orginally ecclesiastical. 
 The recognition of wills, the administration in simplest form 
 of the estates of intestates, the allowance of divorce, and the 
 settlement of claims originating in the high seas were matters
 
 JUDICIARY 99 
 
 unknown to the Common Law, and were first noticed and 
 cared for by the courts of bishops. The existing division of 
 the High Court consists of a President and one other Judge. 
 
 The Chancery Division consists of the Lord Chancellor 
 and six Judges. The jurisdiction of the Court of Chancery 
 arose in early times to supplement the deficiencies and correct 
 the injustice of a limited and rigid Common Law. The 
 court gave relief from penalties the exaction of which would 
 be unjust ; set aside agreements made fraudulently or at vari- 
 ance 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 
 by refusing to recognise left to the uncontrolled discretion of 
 the trustee. Since 1875, when the courts were fused into one, 
 every Judge of the High Court has the same power? and 
 administers the same principles ; but the simpler and directer 
 issues are tried in the Common Law Division, while the 
 more complicated and interwoven relations are investigated, 
 adjudicated upon, and administered in the Chancery Division. 
 It may be added that in the King's Bench the Judge tries the 
 case with the assistance of a jury, whilst in the Chancery 
 Division a jury is most rarely or never used. 
 
 Court of Appeal. Above the High Court thus con- 
 stituted in its three 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 Judges. The choice of members of the 
 High Court other than the Lord 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 fulfil-
 
 loo THE WORKING CONSTITUTION 
 
 ment 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 recommendation 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 untrammelled ; 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 Judge a less worthy person pressed on him by a Prime 
 Minister. 
 
 The judicial system of Scotland has differed widely 
 in origin and history from that of England, and it still shows 
 large differences of form, though not of principle. The 
 Supreme Court consists of thirteen Judges, and is called the 
 Court of Session on its civil, and the Court of Justiciary on 
 its criminal side. 
 
 Court of Session is Supreme Court. From its 
 civil judgments 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 first two 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 Eng- 
 land, 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
 
 JUDICIARY loi 
 
 prevailed in England. The members of the Court of Justiciary 
 go on circuit as in England for the trial of criminal cases. 
 
 , Sheriffs. Scotland is divided into Sheriffdoms, some- 
 times 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 v'ttam 
 aut culpam, but they are removable by the Secretary for Scot- 
 land on report of culpa by the Lord Justice- General and 
 Lord Justice-Clerk subject to the proviso in case of Sheriffs 
 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 frorn Sheriff-substitutes direct to 
 the Court of Session. Sheriffs are always, and Sheriff- 
 substitutes generally, advocates, and a Sheriff can practise 
 outside his sheriffdom. The Procurator-Fiscal appointed by 
 the Sheriff ad vitam aut culpam ^ has no parallel in English 
 organisation. He is the Public Prosecutor in the Sheriff- 
 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 " moreover has the duty of inquiring into all 
 doubtful cases of death and of outrage to person or property. 
 He conducts these inquiries privately, holding no court and 
 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 
 of counties, but they differ from English Justices in having 
 little important work except that of licensing. In burghs 
 
 1 He is removable only by the Secretary of State upon adverse 
 report of the Lord President or Lord Justice-Clerk
 
 102 THE WORKING CONSTITUTION 
 
 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 of England. In criminal proceedings, not conducted 
 under statute by way of summary procedure, a jury is associ- 
 ated with a Judge 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.^ 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 dis- 
 appeared in Scotland until partially introduced in 1815. 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. 
 
 Legal System of Ireland. The legal system of 
 Ireland is modelled on that of England, the English conquerors 
 having brought their Common 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 supplement 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 
 
 1 In cases of treason the jury is twelve and the verdict must be 
 fini^niqious.
 
 JUDICIARY i«3 
 
 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. 
 
 Administrative Law in Ireland. The adminis- 
 tration 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, 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 admlnistratif of most continental nations throws over 
 their police and magistrature. This comparative 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 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 disturbance. 
 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 prosecutions. The relations
 
 104 THE WORKING CONSTITUTION 
 
 between the resident magistrates and the police tend at the 
 same time to a confusion of administrative 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 Administration. Juries. The several 
 stages of criminal administration in Ireland closely 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 Govern- 
 ment 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 accusation 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 considera- 
 tions 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. 
 
 Irish High Court. Above all these there exists a 
 High Court of Justice in Dublin just as in England. As 
 the Common 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
 
 THE ESTABLISHED CHURCHES 105 
 
 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. 
 
 CHAPTER III 
 
 The Established Churches 
 
 The Church of England. In the early history of 
 England the organisation of the Church was the most power- 
 ful of all checks on the authority of the King and of 
 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 excommunication of a king by a bishop might 
 be followed by the interdict 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. ^ 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 ; 
 
 ^ Dioceses have of late been subdivided, so that there are now 
 more than twenty-four bishops, but the number entitled to sit io 
 the House of Lords has not been increased.
 
 io6 THE WORKING CONSTITUTION 
 
 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 
 Prime Minister, and a large number of livings a« 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 
 divided into parishes, the rector or vicar of each being a cor- 
 poration 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 1 894 
 they are no longer ex officio chairmen of parish vestries for 
 civil business. 
 
 The Church of Scotland. The existence of the 
 Church of Scotland is carefully safeguarded in the Act of 
 Union. 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. In each 
 parish the minister and elders constitute the kirk session. 
 For a group of parishes the minister with one elder from each 
 parish constitute the presbytery. A group of presbyteries 
 constitutes a synod ; and above the synod is the General 
 Assembly in which the presbyteries, the Royal Burghs and 
 the Universities are represented. Given the permanence of 
 its doctrinal symbols and of its organisation the government of 
 the Scottish Church may be said to be purely democratic. 
 This was indeed formerly qualilied 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
 
 THE ESTABLISHED CHURCHES 107 
 
 with a power to veto such an appointment, led to a great 
 disruption in 1843, ^^ a result of which a Free 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 of deceased and living 
 members, and that no right of patronage interferes with the 
 free choice of congregations. There had been previous 
 secessions from the Established Church of several bodies 
 which ultimately united under the name of the 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 ; but the 
 validity of this union was disallowed in 1904 by the House 
 of Lords as involving a departure from the principles upon 
 the bases of which the Free Church had been organised and 
 its property gathered together. To return to the Established 
 Church — the cause of the controversy which led to the dis- 
 ruption in 1843 was removed in 1874 by an Act abolishing 
 patronage and vesting the choice of ministers in parochial 
 communicants and adherents. Save in the possession of a 
 limited national endowment of manses and teinds, there is now 
 little to distinguish 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. 
 
 CHAPTER IV 
 
 The Army and Navy 
 
 Parliamentary Control. It results from what has 
 been already said, that the Array and Navy have become 
 strictly the creatures of Parliament. Men are recruited and
 
 io8 THE WORKING CONSTITUTION 
 
 officers are commissioned in the service of the Crown ; but in 
 this, as in every other connection, 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 confidence of Parliament. All this is attested 
 by the subordination 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. 
 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. 
 
 The Mutiny Act. The situation thus stated has been 
 gradually developed since the great Revolution of 1688. Up 
 to that time Parliament refused to recognise a standing army 
 in time of peace, and no law had been enacted for the govern- 
 ment 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
 
 THE ARMY AND NAVY 109 
 
 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 
 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. ^' 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 
 was effected in 1879. ■"■" ^h^*- Y^^^ ^^^ ^^^ provisions 
 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 War Secretary. The civil head 
 of the military organisation of the kingdom is the Secretary 
 of State for War. This unity of administration is of com- 
 paratively recent origin. Up to and during the earlier 
 years of the Crimean War, the Secretary of State for the 
 Colonies had the direction of military operations abroad, 
 whilst military organisation at home was under the control 
 of the Secretary at War. The experiences of that war 
 compelled a rearrangement of functions and the creation of 
 a new department. The War Secretary has under him all
 
 no THE WORKING CONSTITUTION 
 
 staff necessary to direct and register the movement of troops, 
 distribution of pay, and the provision of supplies ; and it is his 
 duty to select and recommend the fittest persons for high 
 appointments 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 
 by a sub-committee of the Cabinet, to which has been given 
 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 
 and other heads of the working army. He interferes in no 
 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 appointed 
 for the purpose, though the aims of their action are directed 
 by him, and he regularly receives reports of what they are 
 doing. 
 
 Military Organisation. The distinguishing char- 
 acteristic 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 differs in its length according to the 
 corps he joins. The fighting force is divided into regiments 
 of cavalry and infantry and batteries of artillery, and the 
 
 ^ By a new arrangement (1904) this committee inchidt* beside' 
 Cabinet Ministers representativet of the lervices.
 
 THE ARMY AND NAVY ni 
 
 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 com- 
 petitive examinations which are open to candidates satisfying 
 prescribed 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. 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 concerning 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. About one-third of the Army habitually serves in 
 India, and the whole cost of this portion is borne by the 
 Indian Government. 
 
 Auxiliary Forces. 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 volun- 
 tary, but an unused statutory power exists for supplying 
 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
 
 "2 THE WORKING CONSTITUTION 
 
 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 
 of from 10,000 to 12,000 men, and the Volunteers, number- 
 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 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. During the late war several 
 special corps were formed of volunteers who offered them- 
 selves for active service in South Africa. 
 
 Board of Admiralty. The civil administration which 
 governs the Navy presents at first sight a different appearance 
 from that governing the Army, since a Board of Admiralty 
 takes the place of the War 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 deter- 
 mined 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 appoint- 
 ments and promotions. The fourth Lord assists him in 
 Parliament under the title of Civil Lord, whilst the Secretary
 
 THE ARMY AND NAVY 113 
 
 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 Navy. The men who serve in the Navy are, like 
 those in the Army, divided into two classes, commissioned 
 officers and 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 disproportionate 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, torpeJo-work, etc., may obtain 
 relative appointments carrying with them additional rates of 
 pay, in which case an officer finds himself at a comparatively 
 early age with an income adequate to his expenditure. The 
 naval code under which discipline is maintained in the fleet, 
 and when necessary courts-martial held, is found in an Act 
 
 1
 
 114 THE WORKING CONSTITUTION 
 
 passed in the year 1 866 ; 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 con- 
 tinuously subject to its provisions without a special renewal. 
 
 CHAPTER V 
 The Civil Departments 
 
 Civil Service. Every Minister of the Crown has J 
 separate department with separate duties, but he is assisted 
 in the discharge of his special functions by an organised body 
 of servants whom he finds at work when he enters upon his 
 office, and most of whom will in all probability be left 
 remaining at the work after he has resigned his post. These 
 men, with stores of personal and inherited experience, main- 
 tain 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 worshi] ' 
 of routine, and from that setting up of the persons who servt 
 above the aims to be served, which are the besetting sins o);' 
 office. The Minister and his subordinates, 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 is generally accepted as a condition and as a guarantee 
 of 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
 
 THE CIVIL DEPARTMENTS "S 
 
 to depend upon years of service with little attention to the 
 character of the work performed ; but apart from the recog- 
 nition of merit, which is not wanting, zeal of office may 
 generally be trusted. One of the difficulties in the organisa- 
 tion of the departments is that in most of them there is a 
 great deal of work to do requiring no special qualiti cations 
 beyond regularity and fidelity in routine. It is in view of 
 this fact that two classes of clerks have been established, the 
 Upper and the Second Division. Until 1855 all clerks of 
 every class owed their first appointments to favour, but in 
 that year a method of competitive examinations was intro- 
 duced which has since been extended till it is now practically 
 universal. There are however a few appointments — the very 
 highest, such as Under Secretaryships — which may be filled, 
 and not unfrequently 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 Treasury owes its supremacy to the facts that all 
 the services for the raising and collecting of national revenue 
 are under its direct control, that the estimates of expenditure 
 by the several departments pass under its supervision before 
 being laid before the House of Commons, and that no new 
 branch of expenditure can be undertaken without its sanction. 
 The Chancellor of the Exchequer, the acting chief of the 
 Treasury, is charged with the duty of keej)ing the national 
 finances in order, and his action is directed to restraining 
 expenditure as much as to raising revenue. The Customs, 
 Inland Revenue (including direct taxes, stamps and excise), 
 the Post Office, the Crown Lands are all under the imme- 
 diate control of the Treasury, and though in the case of 
 the Army and Navy, the Chancellor of the Exchequer does
 
 ii6 THE WORKING CONSTITUTION 
 
 not so much check expenditure in detail as limit its total 
 amount, yet in respect of these departments as throughout 
 the Civil Service, the necessity for the Treasury's approval 
 secures similar forms of organisation and similar standards of 
 pay in all branches of the service. 
 
 The Home Office ranks after the Treasury in the 
 importance of its executive functions, from which indeed the 
 functions of the other departments have been successively 
 detached. It is the channel of communication between the 
 Crown and the subject. It is responsible for the preservation 
 of the King's peace, having the appointment of the stipendiary 
 magistrates, and exercising a large degree of supervision over 
 the unpaid magistrates. It is also charged with the proper 
 detention of prisoners, and the exercise of the royal preroga- 
 tive of pardon. This last duty involves the revision of 
 the evidence in practically all cases where a sentence of death 
 has been pronounced, and in a great number of others. The 
 Home Secretary has likewise under his care the administra- 
 tion of the metropolitan police which number about one-fourth 
 of the entire police force of the country. But in addition to 
 these important executive functions the expansion of local 
 government has laid extensive regulative duties upon the 
 shoulders of the department. The bodies of police now 
 universally established under the direct control of local 
 authorities in all the counties and in the larger boroughs have 
 to satisfy the inspection of the Home Office before they receive 
 the Government subsidy which amounts to one-half of their 
 cost. An entirely new sphere of activity has moreover been 
 created for the Home Office by assigning to it the administra- 
 tion of the numerous Acts passed for the protection of the 
 labourer in factory, workshop, or mine, which has entailed 
 the creation of a large staff of inspectors. 
 
 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
 
 THE CIVIL DEPARTMENTS 117 
 
 by the addition of the Telegraph Service. It may now be 
 assumed that telephonic communications will also be engrossed 
 by the Post Office. They have been judicially declared to 
 lie within the Post Office monopoly, and they are now con- 
 ducted 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 
 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 examinations 
 could have little to do with entrance into such a system, and 
 until recently the smaller postmasterships in the country 
 were in the gift of the local members of Parliament support- 
 ing the political party in power, or if there was no such 
 member, of some other person as nearly as possible corre- 
 sponding to him in station and supporting the Government. 
 This last relic of patronage was abandoned in 1896, and all 
 appointments to postmasterships and promotions 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 
 head-quarters ; 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.
 
 fi8 THE WORKING CONSTITUTION 
 
 The Board of Trade derives its origin from the attempts 
 of the Stuart Kings to regulate commerce in the supposed 
 interests of national welfare. A truer theory of trade has 
 discountenanced the spirit of ill-advised interference which 
 characterised that period, but a more useful side of its earlier 
 activities — the collection and diffusion of information — has 
 been preserved and widely extended in its Commercial, Labour 
 and Statistical Department, which yearly puts forth a great 
 mass of well-arranged information upon every aspect of home 
 and foreign trade, the conditions of labour, emigration, etc. 
 But besides its work as an intelligence department the Board 
 of Trade has acquired a number of important regulative 
 functions, most of them dating from the middle of the last 
 century. It possesses powers of inspection over the con- 
 struction and working of railways, canals and tramways, over 
 the shipping and personnel of the Mercantile Marine, over 
 harbours, lighthouses, pilotage, etc. It provides and main- 
 tains the standards of coinage and of weights and measures. 
 It keeps a register of joint stock companies and examines the 
 accounts of life-insurance companies. It is responsible for the 
 administration of the various Acts dealing with such matters 
 as bankruptcy, trade marks, copyright, the testing of gas and 
 petroleum. 
 
 The Board of Agriculture which was established in 
 1889 by drawing together a number of administrative functions 
 hitherto performed by the Privy Council, the Land Com- 
 missioners and the Commissioners of Works, is modelled 
 after the example of the Board of Trade. It has an Intelli- 
 gence Division for the collection of statistical and other 
 information relating to agriculture, for the better dissemination 
 of which it edits a quarterly Journal. The regulative side 
 of its work is comprised in two other divisions, one of which 
 is mainly concerned with the prevention and suppression of 
 contagious diseases amongst animals, and the other with the 
 working of the Tithe, Copyhold and Enclosure Acts. The 
 Board employs a chief agricultural analyst to investigate the 
 quality of fertilisers and feeding-stuffs, and the Ordnance
 
 THE CIVIL DEPARTMENTS 119 
 
 Survey and the Geological Survey are now carried on under 
 the Board's control. 
 
 The Local Government Board is of modern origin. 
 Its functions spring from the new administrative conditions 
 created by the series of reforms in central and local govern- 
 ment which commenced in 1^32. Each great achievement 
 of parliamentary reform effected during the last century was 
 closely followed by the reconstruction of local institutions 
 which was necessary to give the newly-enfranchised classes 
 a due share in local self-government. Until then, local 
 administration had been for many centuries very largely in the 
 hands of the Justices of the Peace. The justices had played 
 a not unworthy part in English political development. They 
 were nominated by the Crown, but they had to be chosen out 
 of the gentry resident in each county, and their services were 
 unpaid. Whilst, therefore, they represented the royal authority 
 in their several districts, their independence served to keep 
 the central government from ignoring or outraging local feel- 
 ing. In this way they provided a natural link, between the 
 Crown and the people, and their public spirit rendered im- 
 possible and unnecessary the growth of a large class of Crown 
 officials similar to that which grew up in France and Germany, 
 and which still has a large part of the local government of 
 those countries in its hands. 
 
 Poor Law Reform. The administration of the Acts 
 passed in Elizabeth's reign for the relief of the poor had been 
 placed in the hands of overseers chosen for each parish, and 
 only came indirectly under the control of the justices, but 
 subsequent legislation gradually rendered that control com- 
 plete. By the time of the first Reform Bill the question of 
 poor relief had, owing to the growth and increased mobility 
 of the population, become a matter of grave national concern ; 
 and the administration of the justices, guided as it too often 
 was by motives of mistaken benevolence or of local or private 
 interests, was leading to an enormous increase in pauperism. 
 An attempt was made to remedy these evils by the Poor 
 Law Amendment Act of 1834. A larger unit for poor law
 
 1*0 THE WORKING CONSTITUTION 
 
 purposes was created by joining together when necessary a 
 number of adjacent parishes to form a Union ; and the local 
 administration was transferred to a new body of Guardians 
 elected in part by the ratepayers, but of which the local 
 justices remained ex officio members till 1894. But the 
 most essential feature of the new arrangement was the estab- 
 lishment of a central department capable of exercising a 
 constant and effective control over the local administrators 
 of the poor law. The Board of Poor Law Commissioners 
 was empowered to prescribe very largely the methods to be 
 followed by the Guardians, to inspect, and, if necessary, 
 to dismiss their officers, and to audit their accounts twice a 
 year. This new central department served as a nucleus 
 around which the larger functions of the present Local 
 Government Board have gradually collected. 
 
 The Reform of Municipal Government which was 
 taken in hand a year later followed different lines. The 
 privileges granted to the towns by early kings had originally 
 served as bulwarks of freedom and self-government against 
 the oppressive feudalism that surrounded them. But as 
 feudalism decayed these privileges had passed into the hands 
 of small coteries of burgesses which were usually self-elective 
 and too often inefficient and corrupt. The Municipal Corpora- 
 tions Act of 1835 replaced these close corporations by the 
 town councils which still manage our municipal affairs and 
 in which the councillors are elected by the ratepayers for the 
 several wards, the aldermen are co-opted by the councillors, 
 and the mayor is chosen by councillors and aldermen. The 
 principle of representation as applied to local government 
 which had been adopted in poor law administration thus 
 received an important extension. But in one essential feature 
 the new town councils presented a striking contrast to the 
 new boards of guardians. With the exception of one or two 
 matters such as the raising of loans and the disposal of corporate 
 property, scarcely any provision was made for the interference 
 of the Central Government with the municipal bodies in the 
 sphere of activity assigned to them. Such control and
 
 THE CIVIL DEPARTMENTS 121 
 
 inspection as are now exercised by the Local Government 
 Board are mostly due to subsequent legislation, which has 
 expressed a growing need recognised by public opinion for 
 uniform regulation in certain matters which affect the \velfare 
 of the nation as a whole. 
 
 Sanitary Reform is one of the foremost of these 
 matters, since if it is left to local initiative, the more pro- 
 gressive districts are liable to suffer for the sins of their more 
 backward neighbours. For this reason the main efforts of 
 sanitary reformers were directed towards establishing a central 
 authority with power to insist on the maintenance of uniform 
 sanitary conditions. Their first great success was achieved 
 in the passing of the Public Health Act of 1848, by which 
 a Board of Health was set up after the example of the Poor 
 Law Board, but with much more limited powers. This 
 central board was to act in conjunction with elected local 
 boards which it could create at the request of the ratepayers, 
 or in case of specially unhealthy districts upon its own 
 initiative. The town councils by adopting the Act could 
 assume the position of the local authority in sanitary matters. 
 Many of them did so, and were thus brought into closer 
 relations with the Central Government. In the rural districts 
 the Boards of Guardians came in many cases to be invested 
 with the duties of the local sanitary authority. The central 
 Board of Health was dissolved in 1852, but most of its 
 functions were distributed amongst the other departments ; 
 and in 187 1 they were collected once more and placed 
 together with those of the Poor Law Board in the hands 
 of a new department to be known as the Local Government 
 Board. The laws relating to public health were soon after 
 revised and codified in the Public Health Act of 1875. 
 
 County Government. By the creation of separate, 
 partly elective bodies for the purposes of local sanitary and 
 poor law administration, and of similar bodies to administer 
 the highway rate, the original powers of justices of the peace 
 in county government had been gradually encroached upon ; 
 but it was not till 1888 that the remainder of those powers
 
 122 THE WORKING CONSTITUTION 
 
 was transferred to an elective body representing the county 
 as a whole. In that year an 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 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 continuously large additions. Boroughs 
 lying geographically within a county, having a population 
 of 50,000 or more, were however exempted from these 
 organisations. They were styled county boroughs, and their 
 councils were invested with all the powers of County Councils 
 so far as they did not already possess them. 
 
 In 1894 the framework of local self-government in the 
 counties was completed by the establishment in each parish 
 of an elective council to manage its affairs except in the 
 smallest parishes where a periodic parish meeting was charged 
 with these duties ; the existing urban and rural district 
 councils serving as an intermediate authority between the 
 parish and the county. 
 
 Relations of local to Central Government. 
 From the foregoing brief survey it will have been seen that 
 the functions of the Local Government Board have grownup 
 gradually as the natural counterpart of the extension of local 
 self-government on representative lines. They have not been 
 assigned to it on any uniform plan, but are the cumulative 
 result of a series of experiments, and consequently the 
 character of the relation between the central department and 
 the several classes of local authorities differs considerably in 
 each case. The amount of control exercised is greatest in 
 the administration of the poor law and of the laws relating 
 to public health. In these matters the department not only
 
 THE CIVIL DEPARTMENTS 113 
 
 maintains a constant inspection over the efficiency of the work 
 done by local bodies, but also frequently dictates the policy 
 to be pursued by them. In other departments of local 
 government the control exercised is of a more indirect 
 character and takes the form of a regular oversight of the 
 finance of local bodies other than town councils. Their 
 accounts are audited every half-year, and any undertaking 
 which involves the borrowing of money has to be sanctioned 
 by the Local Government Board — a control which extends 
 to town councils. This relative abstention of the Central 
 Government in England from direct interference with local 
 administration presents a marked contrast to the methods 
 followed in France and Germany where th% largest part of 
 provincial and municipal administration is in the hands of 
 officials appointed by the Central Government, and where the 
 locally elected bodies are mainly confined to consultative 
 functions. 
 
 The Board of Education, which in its present form is 
 the most recently constituted of all the departments, embraces 
 under one authority the regulation of primary, secondary and 
 higher education in so tar as this is undertaken by the 
 State. The present system has gradually grown up out of 
 ( I ) the provision of Government grants in aid of schools 
 carried on by voluntary effort and the consequent inspection 
 of such schools by Government officials; (2) the establish- 
 ment by means of local authorities empowered to raise a local 
 rate of new schools where voluntary effort proved inadequate. 
 An attempt was made to reduce this two-fold system to some 
 degree of unity by the Education Act of 1902. The local 
 school boards, which had since 1871 controlled a constantly 
 increasing proportion of primary education, were abolished, 
 and the direction of education, whether primary, secondary 
 or higher so far as supported from the local rates, was 
 placed in the hands of the County Councils for the counties 
 and of the Borough and Urban District Councils for the 
 towns. Voluntary schools were henceforward, like the publicly 
 provided schools, to receive support from the local rates as
 
 1*4 THE WORKING CONSTITUTION 
 
 well as from the Government grant, and their managers were 
 to retain possession of the buildings and the appointment of 
 the teachers. Secondary and technical schools may also be 
 provided out of the rates and receive a special grant from the 
 Government. The main function of the Board of Education 
 is to maintain a constant inspection of the schools both as to 
 the adequacy of their material equipment and as to efficiency 
 of their teaching, and to determine upon the bestowal or with- 
 drawal of the Government grant. But this involves a large 
 amount of positive direction such as the formulation of periodical 
 codes which necessarily impose a certain degree of uniformity 
 on all education supported by the State. The former Science 
 and Art Department, which had by its system of examinations 
 and the grant of certificates fostered the growth of a wide- 
 spread system of evening classes, is now incorporated in the 
 Board of Education. The Board also maintains an intelli- 
 gence department, whose special function it is to collect and 
 render accessible the latest information as to the educational 
 progress of other countries. 
 
 CHAPTER VI 
 
 Scotch and Irish Administration 
 
 Secretary for Scotland. The Minister primarily 
 responsible for the government of Scotland was, and remained 
 down to 1885, the Home Secretary. Upon him had 
 descended the functions of the whilom sole Secretary of 
 State, and he had the charge of the government of Scotland, 
 as he had at one time of that of Ireland also. In the dis- 
 charge of his parliamentary responsibilities he was assisted by 
 the Lord Advocate, the principal law-officer of the 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 parlia- 
 mentary business of the North ; and practically administered
 
 SCOTCH AND IRISH ADMINISTRATION 125 
 
 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 office was 
 created, that of a Secretary for Scotland, and to this function- 
 ary was given the work which had been distributed over 
 many departments, — the Home Office, the Local Govern- 
 ment 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. 
 Irish Administration. At the head of the adminis- 
 tration of Ireland is the Lord Lieutenant or Viceroy, who is 
 the immediate representative of the 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 they possess the confidence of 
 a representative assembly. He is himself one of a Ministry 
 with whom he is directly or indirectly in constant consulta- 
 tion and as whose delegate 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 
 determined. 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 Committee of Supply, 
 whilst the salary of the Chief Secretary, which is voted
 
 126 THE WORKING CONSTITUTION 
 
 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 relations 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 com- 
 plete ; 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 con- 
 ducts 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. 
 
 CHAPTER VII 
 
 India and Colonial Offices 
 
 The India Office. The Act of 1858 by which the 
 government of India was transferred from the East India 
 Company to the Crown created a Secretary of State for India, 
 a member of the Cabinet which in its solidarity joins in his 
 counsels and shares his responsibilites. 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
 
 INDIA AND COLONIAL OFFICES 117 
 
 commercial knowledge and occasionally a retired Indian 
 Judge, confined to retired Indian officials, civil and military. 
 The whole government of India is subordinate to the Secre- 
 tary 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 relinquish- 
 ment 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. Nor can additions be made to the 
 debt of India except under Act of Parliament. 
 
 Colonial Office. A word or two may be said about 
 the Secretary of State for the Colonies, although the nature 
 of his work can be best understood from a study of preced- 
 ing and subsequent chapters. The difference of his functions 
 in relation to Crown Colonies and to colonies possessing 
 responsible government, which is very striking, may however 
 be pointed out here. The Colonial Secretary governs the 
 Crown Colonies. Whilst their institutions differ in detail 
 they are all shaped to this end — that the Colonial Secretary, 
 either through the executive officers he nominates or by the 
 control he exercises over such representative institutions as 
 they may have through nominated members of them inspires, 
 and regulates the domestic administration of each colony, 
 determines the laws to be adopted in them, and overrules their 
 finances. As regards self-governing colonies the Colonial 
 Secretary does little more than watch their action. The 
 autonomy of such is complete as respects internal affairs, and 
 the most responsible duties of the Colonial Secretary are to 
 appoint governors from time to time to fill the functions of a 
 constitutional sovereign, and to take care that no legislative
 
 128 THE WORKING CONSTITUTION 
 
 or other action in the colony goes beyond the limit of its 
 jurisdiction so as to interfere with other parts of the Empire 
 or with the foreign relations of the Crown. Anew departure 
 of considerable importance was made by Lord Knutsford 
 calling a conference between himself as Colonial Secretary 
 and representatives of self-governing colonies, an experiment 
 which has since been repeated and will probably lead to 
 further developments. 
 
 CHAPTER VIII 
 Foreign Relations 
 
 The Crown represents the nation in all relations with 
 foreign powers. It sends its Ambassadors and Ministers 
 abroad, and receives in turn Ambassadors and Ministers 
 accredited to its court. Every agreement made with a 
 foreign power in times of peace is made in the name of 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 concurrence of Par- 
 liament 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 point- 
 ing to a negative conclusion ; but the cession of Heligoland 
 in 1890 was incorporated in a Bill submitted to Parliament, 
 and this precedent has been followed in the parliamentary 
 confirmation of the recent treaty with France. 
 
 Declaration of War. 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 pro-
 
 FOREIGN RELATIONS 129 
 
 vision in the Constitution of the United States requiring an 
 Act of Congress in such a case has been quoted to support the 
 argument. It may however be remembered, in the first 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 Minister who has to 
 recommend than of an Assembly which has to concur ; and, 
 in the second place, that a declaration of war necessarily in- 
 volves 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 declar- 
 ation of war who would not oppose a grant of supplies after 
 war had been declared ; but this is doubtful. VVars have 
 however been rarely or never undertaken 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 example of America. The reliance which 
 thinkers of a former generation were disposed to put on the 
 sobriety of national judgment can hardly be said to have been 
 justified by the experience of those countries in which demo- 
 cratic 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 ot 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 Government has practically found itself at war 
 
 K
 
 I30 THE WORKING CONSTITUTION 
 
 with a foreign power without time to ask for an Act of 
 Congress, 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. 
 
 Ministerial responsibility for Foreign Policy. 
 It has been sometimes suggested that this proposition, /'. 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 experience 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 sug- 
 gestion 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 re- 
 sponsible 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 185 1 
 because he acted 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 tlieoretically complete.
 
 FOREIGN RELATIONS 131 
 
 Continuity of Policy. Notice must be taken of 
 another doctrine occasionally advanced. It is said that contin- 
 uity of policy must be 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 some- 
 thing 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 hap- 
 pened 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 parliamentary 
 government. 
 
 The Foreign Office has two brandies, more or less 
 distinct, 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 recom- 
 mended to him in a manner presumably satisfactory ; 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 
 candidates. The successful youths pass with little or no 
 further experience to the lowest posts abroad, and out of 
 recruits so obtained Secretaries of Legations, Ministers and 
 Ambassadors are duly evolved. 
 
 There exists also a large staff of Consuls and Vice-Consuls 
 scattered 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 them-
 
 t32 THE WORKING CONSTITUTION 
 
 selves, 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 pro- 
 motion. 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. 
 
 Special Embassies. In addition to what may be 
 called the normal diplomatic organisation of the United 
 Kingdom, other agencies are called into existence on special 
 occasions. The negotiation of a treaty touching some matter 
 of supreme importance is often effected under the headship 
 of some special Ambassador-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 connection Conferences or Congresses are 
 frequently called together to draw up a European or Inter- 
 national 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 to some minor states. 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. 
 
 Secret Treaties — are they binding? The refer- 
 ences 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
 
 FOREIGN RELATIONS 133 
 
 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 fuliil it is no less valid than it would 
 have been had it been formally approved by the nation in 
 Parliament. 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 time treaties have 
 been concluded between Foreign Powers. It is not known 
 that any secret treaty has been thus made in this century 
 by the British Crown ; 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 most 
 doubtful whether it would bind the nation, which might 
 assert its freedom to accept or repudiate its proposed obliga- 
 tions whenever 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. 
 
 CHAPTER IX 
 Royal Commissions, etc. 
 
 Function of Royal Commissions. 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 authoritative is wanted than can be 
 evolved through these comparatively irresponsible agencies.
 
 134 THE WORKING CONSTITUTION 
 
 The matter may require a large knowledge of the details of 
 existing business, or a power of severe analysis and reasoning 
 not always the attribute of public life, or a collision of judg- 
 ments 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 examina- 
 tion 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 legislature, to which reference has been already made, 
 and which are generally appointed at later stages of an 
 enquiry, or in cases where it is not thought necessary to 
 resort to such bodies as are now in question. Extra- 
 parliamentary examination may be conducted by a Depart- 
 mental Committee, or by 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 Committee will ordinarily consist of some 
 person or persons 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. It is appointed 
 under a minute of a Minister desiring its assistance. 
 
 Their Composition and Powers. A Royal Com- 
 mission, as its name imports, is nominated by a commission 
 from the Crown. It generally consists of parliamentary, 
 official, and outside persons who from experience, training, 
 general knowledge and character may be classed as experts 
 in 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
 
 ROYAL COMMISSIONS, ETC. 13S 
 
 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 representing any interest con- 
 cerned 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 private, and, even when 
 they are public, professional assistance is rarely suggested and 
 still more rarely allowed. 
 
 Report. After the reception of evidence has been com- 
 pleted, the Commissioners 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 sub- 
 mitted to the Crown or Minister as the case may be, and 
 are usually printed and circulated for the information of 
 Parliament and the country. A report is not unusually a 
 preparation for legislation upon the lines suggested by it, 
 sometimes wholly in conformity with its recommendations. 
 Illustrations 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 
 Wales. 
 
 Standing Commissions. In addition to Commissions 
 such as have been described, Parliament is sometimes assisted 
 by others where what is wanted is an authority that can be 
 trusted in relation to matters about which the mind of Parlia- 
 ment 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
 
 ijS THE WORKING CONSTITUTION 
 
 Parliament, 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 recom- 
 mendations 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.
 
 PART III 
 THE EMPIRE 
 
 CHAPTER I 
 Ancient Crown Possessions 
 
 The Channel Islands belonged to William the Conqueror 
 as part of the Duchy of Normandy, and they have always 
 occupied a peculiar position as dependent upon the Crown 
 rather than upon Parliament. Such authority as Parliament 
 has obtained is exercised through the Crown behind which 
 it stands. In the islands themselves parliamentary govern- 
 ment has been very slightly developed. Responsible Ministers 
 are not to be found within them. 
 
 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 and of twenty-four other members, and 
 the whole assembly is called the States. The Royal Court, 
 which is the High Court of Judicature, consists of the Bailiff 
 appointed by the Crown and of twelve jurats elected for life 
 by the ratepayers, one for each parish. The Bailiff is, under 
 the Lieutenant-Governor, the head of the Executive. The 
 remaining members of the States are the rectors of the twelve 
 parishes and the constable for each parish elected by its chief 
 property holders. 
 
 When an Act affecting Jersey is passed by the 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 
 
 '37
 
 132 THE WORKING CONSTITUTION 
 
 affecting the island to be transmitted for registration-^ The 
 States can also pass statutes for submission to and adoption by 
 the Crown in Council, which indeed, unless expressly dis- 
 allowed, are valid for a period of three years even without 
 such submission and adoption. 
 
 The Common law of the island is the old feudal law of 
 Normandy, and each parish has its court, presided over by 
 its constable. The election by the islanders of the constables 
 and the jurats who administer justice, qualifies what would 
 otherwise appear to be an irresponsible government. The 
 revenues of the island, derived from greater tithes, feudal 
 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. The cost of 
 the military force is borne by the United Kingdom. 
 
 Guernsey. The constitution of Guernsey is funda- 
 mentally much the 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 legislative States are also indirectly 
 elected and are no more than fifteen in number. The " Chefs 
 Plaids," unlike the Royal Court of Jersey, have a power of 
 making by-laws 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 to 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. Until 1765 the Isle of Man was 
 governed without interference from England by the feudal 
 
 ' It is laid down that such Acts and Orders are operative in Jersey, 
 even without registration
 
 ANCIENT CROWN POSSESSIONS 139 
 
 lord who held it as a fief of the English Crown. In that 
 year he surrendered the greater part of his rights by way of 
 sale to the King, and they were transferred in 1825. 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. 
 
 Settlement of Revenue. 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 
 government 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 de- 
 fended 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. 
 
 Court of Tynwald, A democratic leaven has however 
 made its way in "Man." 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 Parliament, and is still vested in it ; buc, though never
 
 140 THE WORKING CONSTITUTION 
 
 renounced, it is not now directly exercised save in respect of 
 Customs duties, liarbour dues and like matters. The Tyn- 
 wald 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 Lieutenant- 
 Governor appointed by the Crown. The Tynwald consists 
 of two branches. In the first or Council the Governor 
 himself sits, and the other members are the Bishop, two 
 Deemsters or Judges, the Archdeacon, and four other 
 officials. The second branch of the Tynwald or House 
 of Keys consists of twenty-four members elected by the 
 constituencies of the island. Bills can be introduced into 
 either branch of the legislature, but as a rule they originate 
 in the Council as Government proposals. A Bill as passed 
 by both branches is transmitted to the Home Secretary, and 
 after approval by the Crown in Council is promulgated at 
 an open-air meeting of the Tynwald annually held with every 
 traditional solemnity on July 5. For certain purposes, such 
 as the first stage of " private bills " and the discussion of all 
 financial proposals, the Council and the House of Keys sit 
 together as the Tynwald Court. 
 
 No Ministerial Responsibility. It will be seen that 
 nothing resembling the principle of ministerial responsibility 
 exists in the Isle of Man. The Parliament of the United 
 Kingdom regulates its Customs tariff and thus lays the founda- 
 tion of its financial administration. 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 all, in the 
 existence of a second Chamber which is purely representative 
 and elcctiver
 
 CHAPTER II 
 
 Chartered Companies and Protectorates 
 
 Diversity of ttie Empire. The Channel Islands as 
 part of the Duchy of Normandy was brought into connection 
 with the Crown of England by the Conquest, but the great 
 mass of the external possessions of the Crown has been 
 acquired (i) by conquest, (2) by settlement and colonisation 
 of British subjects, ( 3 ) by the gradual acquisition of territorial 
 right by companies chartered by the Crown primarily for the 
 purposes of trading, and (4) by the development of protec- 
 torates assumed over semi-civilised or uncivilised races or 
 conceded by their chiefs and formally recognised by treaty or 
 admitted by silent consent of foreign powers. The character 
 of the political relations by which these numerous territories are 
 bound to the United Kingdom varies even more widely than 
 the mode in which they have been acquired. To begin with, 
 there are some territories commonly considered as part of the 
 British Empire in regard to which, strictly speaking, the 
 Crown possesses no sovereignty whatever either direct or 
 indirect, but merely exercises more or less political influence 
 by virtue of treaties with other powers. In other cases the 
 sovereign power has been delegated by the Crown to a chartered 
 company whose agents administer the government. In those 
 territories again over which the Crown has acquired a pro- 
 tectorate, a portion of the sovereignty, varying considerably in 
 amount from one case to another, is left in the hands of the 
 rulers found in possession. Finally, there are the British 
 possessions more properly so called which are directly 
 administered by Crown officials under the direction of the 
 Colonial, Foreign or India Office, or enjoy self-government 
 under constitutions created by the Imperial Parliament. This 
 last class, which embraces a great diversity of constitutional 
 forms, will be dealt with in the three following chapters. A 
 few words may here be said as to those territories whose 
 
 141
 
 142 THE WORKING CONSTITUTION 
 
 connection with the British Empire rests upon less complete 
 forms of sovereignty, or upon diplomatic engagements which 
 do not constitute sovereignty. 
 
 Spheres of Influence belong to the latter of these two 
 classes. When a Power, by virtue of an agreement with one 
 or more of the other Powers interested, includes a given 
 territory within the sphere of influence, the claim implied is 
 mainly a negative one — the exclusion of other Powers from 
 exercising political authority — and the degree of international 
 recognition by which such a claim is supported must very 
 often be a matter open to considerable doubt. This is 
 illustrated by the fluctuations of international opinion with 
 regard to the influence which the several great Powers claim 
 to exercise in China. On the other hand, the large spheres 
 of influence assigned to the various European Powers in 
 Africa by mutual arrangements during the last twenty years 
 have already, in most cases, been covered by the looser forms 
 of sovereignty about to be dealt with. 
 
 Chartered Companies had played a very large part in 
 the earlier commercial expansion of many European nations ; 
 but the commercial monopoly which was the original motive 
 of their activity having been gradually abolished, the political 
 powers which they had exercised had been resumed by the 
 States that had conferred them. Of late years the method 
 has been revived, though on somewhat different lines, to meet 
 the needs of a period of expansion more consciously political 
 in its character. The grant of a charter to a company of 
 private individuals as a means of realising control over new 
 territory is defended on the grounds that ( i ) white adven- 
 turers will in any case swarm over the frontier of settled 
 colonies; (2) such adventurers when isolated are restrained 
 by no sense of responsibility, and are too few and scattered 
 to form an administration of their own ; (3) any attempt of 
 the Imperial or Colonial Government to organise an adminis- 
 tration would be very costly and yet apt to break down for 
 want of competent officers ; and lastly, (4) delegation of 
 powers of government to a chartered company, though not
 
 CHARTERED COMPANIES i45 
 
 free from peril of abuse, fastens upon a definite number of 
 known persons responsibilities wJoich they cannot ignore. 
 
 The British North Borneo Compan)', founded in 1881, was 
 the first experiment in this direction, and it was followed by 
 the Roval Niger Company in 1886, the British East Africa 
 Company in 1888, and the South Africa Company in 1889. 
 The Niger Company reduced a considerable region to order 
 under its administration, and developed a trade returning a 
 moderate 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 
 government were withdrawn. Compensation was made to it 
 for the expenditure which it had incurred in bringing the 
 country under a settled administration, and it was left to 
 carry on its trade without any special privileges. The 
 territories under the control of the East Africa Company had 
 been turned over to the British Government upon similar 
 conditions after a much shorter period of the Company's 
 administration in 1894. The North Borneo Company con- 
 tinues in full exercise of the sovereignty which it had 
 acquired by agreement with native rulers, subject only to the 
 limitations expressed in the original charter granted by the 
 British Government. The similar powers granted to the 
 South Africa Company have, however, been modified by 
 the introduction of a resident commissioner to supervise the 
 Company's action on behalf of the Crown, and by the establish- 
 ment of an elementary consultative assembly elected by white 
 colonists. 
 
 Protectorates of one kind or another constitute a con- 
 siderable portion of the area of the British Empire, including 
 about one-third of India and over two million square miles 
 of Africa, exclusive of Egypt. Apart from the full control 
 of external relations which is undertaken in every case, the 
 nature and the extent of the sovereignty assumed by the 
 Imperial authority naturally varies according to the stage of 
 civilisation attained by the protected population and the fitness 
 of the existing Government to meet its needs and the degree
 
 144 THE WORKING CONSTITUTION 
 
 of interference which seems expedient. A broad distinction 
 may be made between a protectorate assumed over a territory 
 already governed by a single ruler, and a protectorate which 
 embraces within a single territory a population ruled by a 
 number of petty chiefs and not held together in any political 
 unity other than that supplied by the Imperial administra- 
 tion. To the former class belong the important native states 
 incorporated within the Indian Empire, the federated states 
 in the Malay peninsula, and the sultanates of Brunei in 
 Borneo and of Zanzibar. The latter class includes the pro- 
 tectorates which administer the affairs of the Pacific Islands and 
 of the immense newly-acquired territories of East Africa, 
 Nigeria and Uganda. The oversight of the protectorates, 
 apart from the Indian States, is divided between the Foreign 
 and the Colonial Offices, the Foreign Office controlling those 
 of East and Central Africa and the Colonial Office those of 
 West and South Africa and also the Malay and Borneo 
 protectorates. 
 
 Egypt. The relation of Egypt to the British Crown is 
 peculiar, and cannot be absolutely placed under any of the 
 preceding heads. Egypt remains part of the Ottoman 
 dominions, but the Khediviat is now hereditary in the family 
 of Mehemet Ali, and the right of the Sultan of Turkey 
 beyond that of receiving fixed yearly tribute is shadowy and 
 vague. Like the rest of the Ottoman Empire Egypt was 
 subjected to conventions giving the European Powers special 
 rights of protection over their subjects. These have now 
 been reduced by treaty to the maintenance of international 
 courts, absorbing the separate jurisdictions formerly exercised 
 by the Consuls of the Powers. Finally, the intervention of 
 the British forces in 1882 for the repression of internal dis- 
 order and even war, and subsequent occupation though in 
 reduced force, gave the British representative a directing 
 power over the domestic administration amounting to a pro- 
 tectorate which has since been strengthened by the re -conquest 
 under British command of the Soudan ; and this protectorate, 
 in which most of the European Powers acquiesced from the
 
 INDIA 145 
 
 beginning, has been tardily recognised by France in the 
 treaty of 1904. Great Britain thus " protects" an Egyptian 
 native administration subject to the privileges of the in- 
 ternational courts and the indeiinite remnant of Ottoman 
 sovereignty. 
 
 CHAPTER III 
 
 India 
 
 The East India Company. The history of the East 
 India Company lies outside 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 Company, 
 at first started in opposition to the Dutch East India Com- 
 pany, and subsequently struggling fiercely with French com- 
 petitors for ascendency, continually 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 con- 
 quered with an army and navy of its own, and auxiliary 
 forces borrowed 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 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 adminis- 
 
 L
 
 146 THE WORKING CONSTITUTION 
 
 tration of such great and far-reaching functions by a Com- 
 pany whose primary duty was to secure good dividends for 
 the shareholders must be radically revised. Mr. Pitt's Act, 
 which was passed in 1784, whilst it left to the Company all 
 its trading privileges and its vast subordinate patronage, placed 
 the civil and military control of its possessions under the 
 orders of the Crown. The appointment of its highest func- 
 tionaries remained indeed in the hands of the Directors, 
 though subject to the consent of the Crown, which could at 
 any time be withdrawn. This Act created a Board of 
 Control, the President of which became in reality the Minister 
 for India. His associates on the Board being Ministers with 
 other engrossing duties were never called upon to take any 
 part in his action. Under this somewhat anomalous con- 
 stitution British India continually advanced. Its frontiers 
 extended under successive Governors-General. 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 every- 
 where 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 last 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.
 
 INDIA 147 
 
 The Government of India remains to-day practic- 
 ally as it was organised under this Act. On the ist 
 January 1877 a proclamation at a Durbar or a gathering of 
 native 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 of 
 administration undisturbed. The powers conferred upon the 
 Secretary of State for India and his Council by the Act of 
 1858 have been already enumerated. In India itself the 
 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 com- 
 monly, whilst another, the finance member, is generally, 
 appointed from home ; and the rest, with the exception of the 
 Commander-in-Chief, and the military member, 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 to the Secretary of State, Next to the 
 Executive must be named the Legislative Council composed, 
 as in Crown Colonies, of official and non-official members, 
 ihe 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 out- 
 voted. In practice this never happens, for, in truth, it is rare 
 that an indocile member appears among the nominated non-
 
 148 THE WORKING CONSTITUTION 
 
 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 in 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. 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 Council India is parcelled 
 out into the Presidencies of Madras and Bombay ; the 
 Lieutenant-Governorships of Bengal, Eastern Bengal and 
 Assam, the United Provinces of Agra and Oudh, Punjab 
 and Burma ; the Central Provinces under a Chief Com- 
 missioner, and the North-West Frontier Province under an 
 Agent to the Governor- General ; and a large number of 
 Protected States left under native administration. " Re- 
 sidents " are attached to the chief States, and the rest are 
 grouped under "Political Agents," the influence of such 
 officers varying from extreme control to moderate 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, Eastern Bengal 
 and Assam, the United Provinces, the Punjab, and Burma 
 have also Legislative Councils, and it may be added that the 
 cities of Calcutta, Madras, and Bombay have municipalities con- 
 taining elected elements. Bengal, Madras, Bombay, the United 
 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 asso- 
 ciated a member who has risen from the Civil Service, and
 
 INDIA 149 
 
 lawyers, native and European, distinguished by their practice in 
 the courts. A crowd of inferior courts occupies the country. 
 
 Civil Service and Army. The methods of supplying 
 the higher civil servants of India established by the Court ot 
 Directors in their last years has been continued under the 
 direct administration of the Crown. The young men who 
 succeed in the competitive examinations at home, among 
 whom some few 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 collectorships, to magisterial appointments and judge- 
 ships 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 
 occupied. The army in India is composed of one-third of 
 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. 
 
 Tlie revenue of India. A word must be said about 
 the revenue of India. Custom duties are few, and till 
 recently were free from any element of " Protection."
 
 ISO THE WORKING CONSTITUTION 
 
 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 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 in Bengal the rents paid by this class to the State, with 
 a view of creating an independent middle-class in that 
 province.^ The rent revenue in Bengal is therefore fixed. 
 Elsewhere 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 summon- 
 ing before them the headmen, officers, and peasants of the 
 several villages, and determining as the result of this inquisi- 
 tion 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 com- 
 plaints — at least of harshness or injustice on the part of 
 individual officers — are very rarely heard. 
 
 Paternal Government. The position of the State as 
 landlord enforces duties which must in any case have been 
 admitted, having regard to 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. 
 
 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.
 
 INDIA 151 
 
 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 con- 
 struction of railroads. Trunk and branch lines have been 
 made in all directions, partly for purposes of military oiganis- 
 ation, 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 »o many other matters, occupies a kind of paternal 
 position toward the great mass of the population ; but, at 
 the same time, the education and ideas of European culture 
 are permeating what may be called the professional classes 
 of India ; and a way has yet to be found of reconciling 
 the desire thus begotten to be associated with the govern- 
 ment of the country with that condition of untrained sub- 
 missiveness which characterises the bulk of the inhabitants of 
 India. 
 
 Native aspirations. Natives find employment in com- 
 merce 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 ot 
 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 institu- 
 tions. The authority of these Congresses has been questioned 
 and their experience has been chequered, but their existence
 
 IS* THE WORKING CONSTITUTION 
 
 is not resented by those who are seriously occupied with the 
 problem of the 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 experi- 
 ments in representative co-operation, and generally in extend- 
 ing 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 bureau- 
 cratic government of the great Indian peninsula. 
 
 Parliamentary control. India is under the im- 
 mediate administration of the Governor-General and his 
 Council, but these are appointed at home, and if the Governor- 
 General felt disposed to differ from the policy of the Secre- 
 tary 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 Parliament, especially of the House of 
 Commons. It has nevertheless been part of the overruling 
 mind which has shaped the organisation of Indian govern- 
 ment 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 review- 
 ing his policy in the full activity of the parliamentary session. 
 The salary of the Indian Secretary of State is paid by India 
 and never comes before the House of Commons. At the
 
 CROWN COLONIES iS3 
 
 end of the session, generally after the Appropriation Bill has 
 been read a second time, the Indian budget is submitted ; 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 Com- 
 mons. 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. 
 
 CHAPTER IV 
 
 Crown Colonies 
 
 Qeneral Character. The British possessions which 
 still remain to be considered may be divided into two groups : 
 (i) 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
 
 154 THE WORKING CONSTITUTION 
 
 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 inapplicable, 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 
 Commander of the troops stationed there, is the Government 
 in himself. He is the head of every branch of the administra- 
 tion, 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 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 
 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. 
 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 King in Council can exercise
 
 CROWN COLONIES i5S 
 
 reserve powers, issuing an Order which has the force of law 
 in the island, and by this means the action of the representa- 
 tive council may be and in fact has been completely over- 
 ridden. 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 questions of taxation and the rivalry of 
 the Italian and English languages have lately led to disputes 
 of some bitterness. 
 
 Cyprus is a third illustration of a Crown Colony which 
 was intended, when first taken, 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 prosperous 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. The 
 political problem involved 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 representation of the two populations of the island is 
 secured by allowing the Christians to elect nine members and 
 the Mahommedans three, the remaining six being official, an 
 arrangement under which the official members in combination 
 with the Mohammedan representatives can check any tendency 
 to in justice on the part of tlie majority. 
 
 West African Colonies. The Crown Colonies of
 
 iS6 THE WORKING CONSTITUTION 
 
 Europe are military stations. 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 settle- 
 ments 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 promised of commerce with the interior ; 
 but the political organisation of the coast stations remains 
 unchanged. 
 
 Ceylon as a Type. Another class of Crown Colonies 
 consists of countries fully peopled with native races wholly 
 occupied in the pursuits of industry and commerce, and so 
 far possibly attaining 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, Demerara (British Guiana) and the West 
 Indies ; though Mauritius, Demerara and the West Indies 
 may be differentiated from the others as possessing a limited 
 white population resident from generation to generation. 
 The presence of this white element in the population has 
 in so far affected the constitutions of these colonies that it 
 is convenient to consider them separately, and to direct 
 attention 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 ex- 
 pression of his own will) is supreme throughout the colony. 
 A Judiciary is indeed generally found supplying some
 
 CROWN COLONIES i57 
 
 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 personality of the Governor is 
 an element of importance in these colonies : much depends 
 on his vigour or supineness ; but 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 Parliament, really governs 
 the colony. White officials are at the head of the several 
 departments of administration. Subordinate 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, consti- 
 tuted for the purpose ; but in general, harbours, railways, 
 roads, irrigation, immigration, sanitation and education, are 
 all looked after by the Government. 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.^ 
 
 The West Indian Type. The colonics Mauritius, 
 Demerara and the West Indian islands, especially Jamaica 
 and Barbados, where there are white populations resident 
 from generation to generation, are Crown Colonies like those 
 already noticed, in that they are governed by a Governor 
 1 See post, on the Government of India,
 
 158 THE WORKING CONSTITUTION 
 
 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 repre- 
 sentative institutions 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 
 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 impossible to 
 overcome the latter by other means, they have been sup- 
 pressed by the authority of the Imperial Parliament. 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 Demerara when a Dutch possession, and 
 were maintained after it became a British dependency. 
 High property qualifications helped to preserve the pre- 
 dominance of whites after negro enfranchisement, and to 
 this, Demerara, Barbados, and the Bahamas owe the present 
 existence of their several constitutions. 
 
 Jamaica has been the most conspicuous example of the 
 breakdown of an original constitution. A serious crisis 
 which occurred in 1838 was surmounted, but the 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 administration of 
 Lord Derby a mixed system was established with a Legisla- 
 tive Assembly containing a majority of elected members, but 
 there was no admission of the principle of ministerial responsi- 
 bility and the actual government remained that of a Crown
 
 CROWN COLONIES 15$ 
 
 Colony. Another period of sixteen years passed in which, 
 despite some minor changes, the 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 embarrass- 
 ment 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 1 899-1900 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 prin- 
 ciples and the determination of authority oscillates between 
 government from at home and government by a privileged 
 and practically racial minority of the inhabitants of the 
 island. 
 
 Future of West Indies. The existing political organ- 
 isation of the rest of the West Indian islands cannot be 
 regarded as permanent any more than that of Jamaica. 
 Circumstances almost accidental have produced great varia- 
 tions among these dependencies of the Crown ; but every- 
 where 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 expected 
 throughout tlie West Indies either to a clearer establishment 
 of the irresponsible authority of the delegate of the Crown, or 
 towards fresh experiments in responsible 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 gener- 
 ally regarded as a warning, but the experiments that may
 
 «6o THE WORKING CONSTITUTION 
 
 be expected in the government of Cuba and Puerto Rico 
 may afford some help in the solution of a problem confessedly 
 difficult. 
 
 CHAPTER V 
 
 Self -Governing- Colonies 
 
 Self-government in the Colonies. It has been 
 seen how the autocratical character of a Crown colony may 
 be modified by the introduction of a consultative Assembly 
 wholly or partially elected ; and it can be easily understood 
 by what processes of gradual and tentative change the trans- 
 formation is carried on until the colony is endowed with the 
 amplest freedom of responsible government. 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 legisla- 
 tion and administration have been often reserved from parlia- 
 mentary control, and only subsequently 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 concerned, 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 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
 
 SELF-GOVERNING COLONIES i6i 
 
 power wherever any proposed legislation appears to extend 
 beyond the limits of the colony or to afFect imperial rela- 
 tions. Amendments of the law of marriage were at one 
 time thus reserved, but have not been so treated for a 
 generation. 
 
 Supremacy of Imperial Parliament. Every step 
 however in the development of a colony has been made 
 directly or indirectly under the sanction of the Imperial 
 Parliament. The authorisation of its constitution has been 
 affected 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 Imperial 
 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 Parliament, 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. 
 
 Deference to Colonial Opinion. 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 themselves. 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 yielding to home policy. The 
 Crown is under treaty obligations with the Emperor of China 
 to allow freedom of immigration and of trade to Chinese 
 subjects. But the Australian legislatures have passed Acts, 
 
 M
 
 i6« THE WORKING CONSTITUTION 
 
 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, originally 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 fade entitled to the local franchises ; but they have been 
 disabled 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. 
 
 Fiscal Independence. Every colony has the control 
 of its own tariff, but was formerly bound by the treaties the 
 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 His 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 sanctioned imposing 
 higher duties on the importation of British than 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 His Majesty to 
 become party to a treaty which would give greater beneiits in
 
 SELF-GOVERNING COLONIES 163 
 
 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 Parliaments. It is not intended to review 
 the details of the constitution 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^ together 
 with a Governor representing 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 Zealand, Queensland, New South 
 Wales and Natal 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, 
 and in the Cape Colony the Councils are all elected, some- 
 times 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 proportion of members. Reference has already been 
 made to the struggles that have occurred between Councils 
 and 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. 
 
 ^ Except Quebec and Nova Scotia, the province* of Canada have 
 now but one Chamber apiece.
 
 :64 THE WORKING CONSTITUTION 
 
 Federation of Canada. A new departure of the 
 greatest interest in the constitutional 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 II. ; 
 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 Protestant. The colony was organised on the 
 principle of equal representations 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 Bruns- 
 wick to be united with the two Canadas as four provinces of 
 one Federated Dominion. After much negotiation between 
 the leaders of parties throughout the four, a scheme of 
 Union was drawn up which, being approved by the Colonial 
 Office, was incorporated in an Act of Parliament 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. 
 
 Constitution of ttie Dominion. Under the Act of 
 1867 a Dominion Parliament was constituted consisting of a 
 House of Commons and a Senate. In the House of Com- 
 mons, Lower Canada, henceforth called the Province of 
 Quebec, was always to have sixty-five members, whilst the
 
 SELF-GOVERNING COLONIES 165 
 
 other Provinces were to be represented by a number of mem- 
 bers bearing the same proportion to sixty- five that their 
 popuhition might bear to the population of Quebec, the allot- 
 ment 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 dis- 
 solution. 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 Brunswick ; 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 legislatures (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 re- 
 lation to some specific subjects, but providing that whatever 
 was 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. 
 Dominion Finance- The Dominion Act gave to the
 
 i66 THE WORKING CONSTITUTION 
 
 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 ex- 
 penditure 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 pay- 
 ments and partly of an allowance according to population, 
 which latter would also on certain conditions become fixed 
 annual payments. 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 financial provisions relative to it. In all these 
 changes the principle of Dominion subvention to provincial 
 treasuries has gained strength. 
 
 Growth of the Federation. It remains to notice 
 briefly the new provinces which have been incorporated into 
 the Dominion. The rights of administration and of govern- 
 ment of the Hudson Bay Company were acquired by agree- 
 ment 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 terri- 
 tory under the direct authority of the Dominion Government, 
 and new provinces are now (1905) about to be carved out of 
 it. In 187 1 British Columbia joined the Dominion under 
 conditions similar in character, and this was followed by 
 Prince Edward Island in 1873.
 
 SELF-GOVERNING COLONIES 167 
 
 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 Federation. More recently steps have 
 been taken to bring about a federation of the Australian 
 colonies, and these have been carried to a successful con- 
 clusion. Originally drafted and re-drafted, corrected, and 
 revised in Australia, it there received parliamentary and ple- 
 biscitary 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. Queens- 
 land 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 in its final form 
 comprised the whole of Australia. This new constitution 
 differs in many respects from its Canadian predecessor. The 
 separate colonies retain a larger measure of independent exist- 
 ence, 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 King 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 King in 
 Council would exist concurrently with the right of appeal 
 to the Federal High Court until otherwise enacted by the 
 State legislature.^ The powers of legislation conferred on 
 the Commonwealth Parliament are specifically mentioned, 
 and the State Parliaments enjoy general reservation of powers 
 not transferred. The separate State is thus left in a position 
 
 1 The question of an ultimate appeal to the King in Council 
 through the Federal High Court is not here dealt with.
 
 i68 THE WORKING CONSTITUTION 
 
 of independence which has no parallel in the Canadian con- 
 stitution. The main matters handed over to the Common- 
 wealth Parliament 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. 
 
 Constitution of the Commonwealth. The Com- 
 monwealth has at its head a Governor- General appointed by 
 the Crown, who acts under the advice of Ministers respons- 
 ible to the Commonwealth Parliament ; and this consists of a 
 Senate in which each State has 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 chosen for a term of six years, one-half retiring 
 every third year, and are elected in each State by the electors 
 for the House of Representatives ; but in the election of 
 senators each State is treated as one undivided constituency, 
 except perhaps Queensland, where subdivision is possible. 
 The House of Representatives is chosen for three years by 
 the same persons who are voters for the House of Representa- 
 tives 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 Commonwealth, the State is to be one consti- 
 tuency 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 initia- 
 tion of all financial legislation, and the Senate is debarred 
 from amended 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 ; —
 
 SELF GOVERNING COLONIES 169 
 
 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 enactments 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 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. 
 
 Financial Settlement. In Australia as in Canada the 
 transfer of Customs and Excise duties to the federated 
 Parliament has necessitated the establishment of financial 
 relations between the Commonwealth 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 proportion 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. 
 
 Provision for a deadlock. The Commonwealth con- 
 stitution contains many transitory provisions which have not 
 been noticed in the foregoing 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 Representatives. 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
 
 I70 THE WORKING CONSTITUTION 
 
 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. 
 
 Amendment of the Constitution. The second 
 matter to be noticed is the provision for the amendment of 
 the constitution. Many important clauses in the Common- 
 wealth Act are expressly subjected to alteration 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 amendment 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 King's assent. 
 
 Appeals to Privy Council. A word must be added 
 on the only subject of controversy that arose in connection 
 with the constitution of the Commonwealth. The Bill as 
 settled in Australia and sent home contained a clause pro- 
 hibiting appeals to the King in Council on any question 
 involving the interpretation of the constitution of the Common- 
 wealth or of a State unless the public interest of some other 
 part of the King's dominions was involved ; and to this 
 solitary provision the Imperial Government objected as 
 touching a matter extending beyond what may be called the 
 domestic interests of Australia. Ultimately the difficulty 
 was settled by the deletion of the provision and the reserva- 
 tion of all rights of appeal to the King in Council, subject 
 to any future legislation on the subject by the Commonwealth
 
 SELF-GOVERNING COLONIES 171 
 
 Parliament which must be specially held over, if passed, for 
 the sanction of the Crown. It may be doubted whether the 
 point is of the importance attributed to it in the height of the 
 controversy, and it may be left to the public judgment of the 
 tuture in Australia and at home. 
 
 Further Schemes of Federation. Although the 
 framers of the Commonwealth Bill in some important points 
 copied the precedent of the United States rather 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 Austra- 
 lian 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 elsewhere it must be amid similar 
 circumstances. In 1877 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 limit- 
 ing its operation to five years, at the end of which it expired 
 without anything having been done or even attempted under 
 its provisions. Some steps have been taken towards another 
 federation in South Africa as the sequel of the war in that 
 continent, but any speculation as to the form it may assume 
 or the time In which it may be consummated would still be 
 premature.
 
 CHAPTER V: 
 Future Growth of the Constitution 
 
 Present Organisation of tlie Empire. 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 manifesta- 
 tions 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 negotiate commercial treaties at its discretion, and pro- 
 posals have even been discussed for differentiating in a hostile 
 manner against the imposts of the United Kingdom. The 
 real overruling authority of the Home Government is in 
 respect of peace or war, since other foreign relations are 
 scarcely controlled ; and even in respect of peace or war its 
 authority 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 
 
 171
 
 FUTURE GROWTH OF CONSTITUTION 173 
 
 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 forgotten 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 govern- 
 ment 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 Austraha 
 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. 
 
 Motives for Change. The organisation of the Empire 
 described in the last paragraph cannot be regarded as in itself 
 full of the promise of 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 of 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 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 development 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 inquiry has 
 been stimulated in recent years by the success of the federa- 
 tion of the Canadian Provinces. It has been already seen how 
 this federation has grown in British North America, and how
 
 174 THE WORKING CONSTITUTION 
 
 its example has inspired the politicians of Australia to under- 
 take 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. 
 
 The Proposed Zollverein. Some difficulties are 
 obvious. The Canadian Dominion is, and the Australian 
 Commonwealth will be, a Customs and Excise Union. This 
 is comparatively easy in each case, for if the Canadian pro- 
 vinces 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 
 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
 
 FUTURE GROWTH OF CONSTITUTION 175 
 
 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 fore- 
 going considerations would apparently 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 Common Parliament. A Union of the self- 
 governing elements of the Empire might be entertained for 
 the limited purpose of establishing a common Army, a com- 
 mon Navy, a common government of dependencies and a 
 common control of foreign relations ; but it must not be 
 concealed that even this limited federation would have diffi- 
 culties of its own. If the charge of the Army and Navy is 
 to become Imperial, and no Imperial system of Customs and 
 Excise duties is practicable, contributions 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 con- 
 struction 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 represented 
 in proportion to their population ; in which case the repre- 
 sentation of the United Kingdom would outnumber, 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
 
 176 THE WORKING CONSTITUTION 
 
 determine issues of peace and war affecting the colonies of 
 the furthest 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 representatives 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 alto- 
 gether, and these few would probably suggest as a substitute 
 some mternal 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 cf the Parliament of the United Kingdom, but 
 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 representation in the 
 second House, cannot be entertained as a practicable sug- 
 gestion 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. 
 
 The " Delegations " Plan. It would not be won- 
 derful if the glimpses of such a novel and strange machinery
 
 FUTURE GROWTH OF CONSTITUTION 177 
 
 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 con- 
 stitutional delegations from each self-governing part of the 
 Empire, to which the Ministers for Foreign Affairs, for tht 
 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 Parliament of the United 
 Kingdom should be prepared to hand over its highest func- 
 tions to a combination in which it would indeed have a voice, 
 but whose character and future action no man could pretend 
 to foresee. The conclusion 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 circumstances and satisfying new necessities. The subor- 
 dinate 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 citizenship, 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.
 
 A SHORT LIST OF BOOKS RECOMMENDED 
 
 WORKS OF REFERENCE • •. 
 
 Historical : 
 W. Stubbs. Constitutional History of England. ( Early Period. ) 
 H. Hallam. Constitutional Histo)-y of England. (Sixteenth 
 
 to Eighteenth Century.) 
 Sir T. E. May. Constitutional History of England. ( i 760- 
 1860.) 
 
 D. J. Medley. Constitutional History of England. (A student's 
 Descriptive: [manual.) 
 
 Sir W. Anson. Laiv and Custom of the Constitution. 
 
 W. E. Hearn. The Government of England. 
 
 Sir T. E. May. Laivs, Privileges, Proceedings, and Usage 
 
 of Parliament. (Tenth Edition.) 
 A. Todd. Parliamentary Government in England. 
 
 „ Parliamentary Government in the British Colonies. 
 
 Sir C. Ilbert. Legislative Methods and Forms. 
 
 „ The Government of India. 
 
 H. Jenkyns. British Rule and Jurisdiction beyond the Seas. 
 M. OsTROGORSKi. Democracy and the Organisation of Political 
 J. Redlich and Hirst. English Local Government. [^Parties. 
 
 For Comparison and Illustration : 
 J. Bryce. American Common'wealth. \_Europe. 
 
 A. L. Lowell. Governments and Parties on the Continent of 
 
 SHORTER WORKS 
 W. Bagehot. English Constitution. 
 A. V. Dicey. Law of the Constitution. 
 
 G. L. Dickinson. Development of Parliament During the 
 Nineteenth Century. 
 
 E. Jenks. Parliamentary England. 
 
 S. Low. The Governance of England. 
 
 F. W. Maitland. Justice and Police. 
 J. S. Mill. Representative Government. 
 W. B. Odgers. Local Government. 
 
 P. S. Reinsch. Colonial Administration. 
 J. H. Rose. The Rise of Democracy. 
 H. D. Traill. Central Government. 
 Sir S. Walpole. Foreign Relations. 
 
 178
 
 INDEX 
 
 Address, debate on the, 58 
 Adjournment, motion for, 70 
 Administrative law, 93, 103 
 Admiralty, 112 
 Advocate, Lord, 124 
 Africa, East, 143 
 
 ,, , South, 143, 171 
 
 ,, ', West, 143, 155 
 Agriculture, Board of, ii8 
 Ambassadors, 13 1-2 
 Appeal, English Court of, 99 
 ,, , Irish ,, 105 
 
 ,, , Scottish ,, 100 
 
 ,, toHouseof Lords,52, 99 
 ,, to Judicial Committee, 
 92, 165, 170 
 Appropriation Bill, 34, 35, 68 
 Archbishops, 105 
 Army estimates, 59 
 
 ,, organisation, 107-112 
 Arrest, law of, 94 
 
 ,, , freedom from. 41 
 Articles of War, 109 
 Ashby, case of, 43 
 Assemblies, Legislative, 6, 35, 
 
 15s. 158, 163 
 Assizes, 98, 103 
 Australian Colonies, 35, 167 
 
 Balfour, Mr., 64 
 
 Bankruptcy, 54, 98 
 
 Barbados, 157 
 
 Beach, Sir M. H., 32, 37 
 
 Beaconsfield, Earl of, 21 
 
 Belgium, 28 
 
 Bengal, 148 
 
 Bills, Government, 62, 64, 91 
 ,, , private members', 6? 
 ,, , stages of, 66 
 Bishops, 53, 105 
 Board of Agriculture, 118 
 ,, Education, 123 
 ,, Trade, 118 
 Bombay, 145, 148 
 Borough Councils, 120 
 ,, magistrates, 95 
 ,, representation, 9-10 
 Bright, Mr., 71 
 British Columbia, 164 
 
 ,, Guiana, 156-157 
 Budget, 61, 91 
 Burma, 148 
 
 Cabinet, 87-92 
 
 Canada, 164-7 
 
 Candidates, parliamentary, 23 
 
 Cape Colony, 8, 163, 171 
 
 Ceylon, 156 
 
 Chairman of Committees, 69 
 
 Chamberlain, Mr., 159 
 
 Chancellor of the Exchequer, 6:, 
 
 89, 91 
 Chancellor, Lord, 50, 85, 95, 97, 
 99, 108 
 ,, , Irish, 105 
 
 Chancery Division, 99, 104 
 Channel Islands, 137-8 
 Charity Commission, 80 
 Chartered Companies, 142-3 
 Chief Justice, 98, 105 
 China, 142 
 Church of England, 105 
 
 79
 
 x8o 
 
 INDEX 
 
 Church of Scotland, 106 
 Closure, 69 
 
 Colonial Governors, 6, 8, 35, 
 127, 154-8 
 ,, Secretary, 36, 127 
 
 Colonies, Crown, 153-60 
 
 „ , self-governing, 34-8, 
 127, i6o-7z 
 Commander-in-chief, no 
 Commissions, Parliamentary, 79- 
 82 
 ,, , Royal, 133-5 
 Committees of Commons, 66 
 
 ,, Lords, 67 
 
 Common Law, 94, 98 
 Commons, House of,its authority, 
 
 _ 4j 9> 29) 38 
 ,, ,, , its composi- 
 
 tion, 3, 10 
 „ „ ,its privi- 
 
 leges, 41-6 
 „ „ ,its proce- 
 
 dure, 55- 
 
 73 
 
 Commonwealth of Australia, 
 167-71 
 
 Comptroller and Auditor- 
 General, 33 
 
 Conservative Party, 16 
 
 Consolidated Fund, 32 
 
 Consular service, 131 
 
 Contempt of Court, 98 
 
 Councils, Colonial, 35, 154-9, 
 163 
 
 County Councils, 121 
 „ Court, 97 
 
 Crown, the, 2, 83-5, 108, 128 
 
 Customs and Excise, 31, 61, 115 
 
 Customs Union, 174 
 
 Cyprus, 155 
 
 Darling, Sir C., 35-6 
 
 Death Duties, 32 
 
 Debates, report of, 42 
 
 Demerara, 156-8 
 
 Departments of State, 107 et seq. 
 
 Diplomatic Service, 131 
 Dismissal of Ministers, 7 
 Disraeli, 5, 56, 85 
 Dissolution, 6-7 
 District Councils, 122 
 Divorce, 74, 98 
 
 East Africa, 143-4 
 
 East India Company, 145 
 
 Ecclesiastical Commission, 79 
 
 Education, 123 
 
 Egypt, 144 
 
 Eldon, Lord, 85 
 
 Elections, 20-4 
 
 Electoral Reform, 9-15, 19, 25-9 
 
 Embassies, 132 
 
 Empire, future of, 173-8 
 
 Equity, 99 
 
 Estimates, 58-9, 115 
 
 Expenditure, 32, 60 
 
 Federation, 164-71, 174-8 
 Finance Bill, 32 
 Fiscal policy, 162, 174 
 Foreign Office, 131 
 Franchise, 10-13 
 Frere, Sir Bartle, 8 
 
 General Election, 20-8 
 
 ,, warrants, 94 
 Gibraltar, 154 
 
 Gladstone, 5, 30, 86, 88, 91 
 Governor-Generals, 147, 165, i68 
 Governors of colonies, 8, 35, 
 
 154-9 
 Guardians of the poor, 120 
 Guernsey, 138 
 Gully, Mr., 56-7 
 
 Habeas Corpus, 94 
 
 Harcourt, Sir W. , 32 
 
 Hare on representation, 25-6 
 
 High Court, 98, 100, 104 
 
 Home Office, ii6 
 
 Home Rule Bill, 70 
 
 Hong Kong, 156
 
 INDEX 
 
 igi 
 
 Hudson Bay Company, 164 
 Hybrid Committee, 77 
 
 Impeachment, 54 
 Imperial Federation, 174-8 
 Income tax, 30 
 India, 126, 145 
 Ireland, 49, 102-5 
 Isle of Man, 138-40 
 
 Jamaica, 158 
 
 Jersey, 137 
 
 Jewish disabilities, 40 
 
 Joint Committee, 77 
 
 Judges, 93, 99-100, 104 
 
 Judicial Committee, 92, 170 
 
 Juries, 94, 97, 99, 102, 104 
 
 Justices of the Peace, 94-5, iC2 
 
 King. See Crown 
 King's Bench Division, 98 
 King's Speech, 57 
 
 Labour Party, 17 
 
 Land, expropriation of, 74 
 
 Land system of India, 150 
 
 Law Lords, 51 
 
 Law of arrest, 94 
 
 Legislative Assemblies, 6, 35, 
 
 155, 158, 163 
 ,, Councils, 35, 147, 
 
 154-9, 163 
 Liberal Party, 16 
 Lieutenant-Governors, 137, 140, 
 
 148, 165 
 Light Railway Act, 78 
 Local Acts, 75 
 Local Government Board, 119- 
 
 Lord Advocate, 124 
 ,, Chancellor, 50, 52, 85, 95, 
 
 97, 99, 100, 102, 105 
 ,, Chief Justice, 98, 99 
 ,, High Steward, 55 
 ,, Justice-Clerk, loo-i 
 ,, Justice-General, loo-i 
 
 Lord Lieutenant of Ireland, 115 
 ,, President of Court of Ses- 
 sion, ICO 
 ,, ,, Privy Coun- 
 
 cil, 89 
 ,, Privy Seal, 89 
 Lords, House of, its composition, 
 3, 48-52 
 ,, „ , its origin, 47 
 
 ,, ,, , its powers, 3, 
 
 33. 37. 39- 
 40,54 
 ,, ,, , its procedure, 
 
 67, 76 
 
 Madras, 145, 148 
 
 Magistrates, English, 94, 96, 
 119 
 ,, , Irish, 102, 104 
 
 Malta, 154 
 
 Manitoba, 166 
 
 Marines, 123 
 
 Master of the Rolls, 99, 105 
 
 Mauritius, 156 
 
 Melbourne, Lord, 8 
 
 Metropolitan police, 95 
 
 Military law, 108-9 
 
 ,, organisation, 110-12 
 
 Militia, m 
 
 Mill, J. S., 26 
 
 Ministers and House of Com- 
 mons, 5 
 ,, , dismissal of, 7 
 ,, , resignation of, 5-6 
 ,, , responsibility of, 84, 
 
 130 
 ,, , solidarity of, 89 
 
 Money Bills, 32, 34, 37, 58-61 
 
 Municipal Government, 120 
 
 Mutiny Act, 108 
 
 Natal, 163 
 National Debt, 32 
 Navy, 59, 112-14 
 New Brunswick, 8, 164-5 
 Newfoundland, 167
 
 lS2 
 
 INDEX 
 
 New South Wales, 163, 167 
 New Zealand, 163 
 Niger Company, 143 
 Nova Scotia, 164-5 
 
 Obstruction, 68 
 
 O'Connell, 52 
 
 Officers of army and navy, iii, 
 
 113 
 Ontario, 165 
 Opposition, the, 16, 62 
 Order in Council, 137 
 
 Palmerston, 130 
 Paper duty, 31 
 Parish, the, 119, 123 
 Parliament, course of business 
 
 in. 55 
 ,, , dissolution of, 7 
 
 ,, , supremacy of, 2, 
 
 107, 133, 161 
 ,, of Australian Com- 
 
 monwealth, 167 
 ,, of Canadian Do- 
 
 minion, 164 
 
 Parliamentary Commissions, 79 
 
 Parties, 15 
 
 Patronage of Crown, 84, 106 
 
 Peel, Sir R., 8, ii, 30, 31, 52, 
 85, 90 
 
 Peerages, 47-52 
 
 Petitions, election, 44, 82 
 ,, to Parliament, 71 
 
 Petty Sessions, 95 
 
 Pitt, 84, 146 
 
 Plenipotentaries, 132 
 
 Police, 95, 103, 116 
 
 Poor Law, 119 
 
 Post Office, 116 
 
 Presbytery, 106 
 
 Prime Minister, 90 
 
 Prince Edward Island, 164 
 
 Private legislation, 74 
 
 Private members' Bills, 64 
 
 Privilege, 41 
 
 Privy Council, 86 
 
 Probate Division, 98 
 
 Procedure, 58-79 
 
 Proportional Representation, 14, 
 
 19, 26-9 
 Protectorates, 143 
 Provisional Orders, 74, 
 Proxies, 53 
 Punjab, 148 
 
 Quarter Sessions, 96, 103 
 Quebec, 165 
 Queensland, 163, 168 
 Questions in Parliament, 70 
 Quorum of Lords, 53, 170 
 
 Railway Bills, 75-8 
 
 Railway and Canal Commission, 
 
 81 
 Reform Acts, 9-10 
 Regency Bill, 84 
 Report stage, 66-7 
 Reports of debates, 42 
 Representation, 10-15, ^5-9 
 Representative peers, 49 
 Resignation, 5-6 
 Responsible government, 84 
 
 130, 140, 160 
 Revenue, Indian, 149 
 
 ,, , Inland, 115 
 
 ,, of Isle of Man, 139 
 Rosebery, Lord, 21 
 Royal Commissions, 133 
 Rural District Councils, 122 
 
 Salisbury, Lord, 21, 39, 8S 
 Sanitary reform, 121 
 Sciiools, 123 
 Scotland, Church of, 106 
 
 ,, , Judiciary of, 100 
 
 ,, , Secretary for, 124 
 Secretary of Admiralty, 112 
 
 ,, , Colonial, 127 
 
 ,, , Home, 1 16 
 
 ,, , Indian, 126 
 
 ,, , Irish, 125 
 
 ,, , War, 109
 
 INDEX 
 
 183 
 
 Select Committee, 66 
 Selection, Committee of, 67 
 Senate, Australian, 168-9 
 
 ,, , Canadian, 164-5 
 
 ,, , United States, 129 
 Session of Parliament, 55 
 
 ,, , Court of, 100 
 Sessions, Petty and Quarter, 96, 
 
 103 
 Sheriff, loi 
 
 South Africa, 57, 143-4, 171 
 South Australia, 167 
 Speaker, 46, 56 
 Standing Orders, 64, 68 
 Stipendiary magistrates, 96 
 Straits Settlements, 156 
 Succession to Crown, 83 
 Supply, 63 
 
 Suspension of M.P., 46 
 Synods, 106 
 
 Tariffs, Colonial, i6i 
 Taxation, 30, 61 
 Telegraph service, 117 
 Telephone service, 117 
 Town Councils, 120 
 Trade, Committee of, 66 
 Treasury, 60, 115 
 Treaties, 128, 132 
 Trevelyan, Sir G., 55 
 Trial by jury, 95, 99 
 Tynwaid, 139 
 
 Union, Acts of, 47-8 
 Unions, Poor Law, 120 
 United States, 129, 171 
 University Commissions, 80 
 Urban District Councils, 122 
 
 Viceroy of India, 147 
 
 ,, Ireland, 125 
 
 Victoria, Colony of, 35, 167 
 Votes on account, 58 
 Voting, methods of, 14, 26-9 
 
 War, Articles of, 109 
 
 ,, , declaration of, ifS 
 
 ,, Office, 109 
 
 ,, , supplies voted for, 57 
 Warrants, 94 
 West Africa, 155 
 
 ,, Australia, 167 
 
 ,, Indies, 157 
 Whigs, 16-17 
 Wilkes, 45 
 Witnesses, 42 
 Woman suffrage, 12 
 Writs, issue of, 44 
 
 ,, summoning peers, 47 
 
 Yeomanry, 112 
 Zemindars, 150 
 
 THE END 
 
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