Copyright
Alpheus Todd.

On parliamentary government in England : its origin, development, and practical operation (Volume 1) online

. (page 11 of 85)
Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 11 of 85)
Font size
QR-code for this ebook


the great officers of the household, a bishop, and one of
the principal secretaries ; whilst other functionaries
such as the Lord Chancellor, the Archbishop of Canter-
bury, the other principal secretary, and a few minor
officials remained in London, to dispose of the ordinary
and routine affairs of government. Occasionally, how-
ever, the whole council assembled together, either for or-
dinary purposes, or at the special command of the king. p

By means of rules adopted for its internal improve-
ment, the Privy Council was brought to a high state of
Division efficiency for the discharge of the numerous and impor-
of council tant duties which devolved upon it at this period. In

into Com- -, r r o T7- T-I -\ -I TTT n J 1

mittees. looo, King Ldward VI. drew up a series oi regulations



Sir H. Nicolas, Proc. P. C. v. 7, pp. 14, 15.
Ib. pp. 9, 10, 16.



THE PRIVY COUNCIL. 91

for his council, under which the whole body (which
then consisted of forty persons) was divided into five
commissions, or (as they would now be termed) com-
mittees, to each of which was assigned a distinct branch
of public business. Upon some of these committees
certain persons, mostly judges, were added. They
were styled ' ordinary councillors,' and were not con-
sulted on questions of general policy. This practice
has been adhered to to the present day. It was also
provided, by these new regulations, that every matter
should be brought under the royal notice, that ' if there
arise such matters of weight as it shall please the king's
majesty to be himself at the debating of, then warning
shall be given, whereby the more shall be at the de-
bating of it,' and that the secretaries should be the
channel of communication between the councillors and
their royal master . q

From a very early period it would seem to have been the prac-
tice for the Council to meet for the ordinary transaction of business
without the king being present. But the sovereign was evidently at
liberty to attend whenever he thought fit. r

The office of secretary, or king's clerk, it may be King's
~here remarked, was originally held in small estimation.
The secretary possessed no political influence, unless,
as sometimes happened, he was a member of the coun-
cil. At length it became necessary to appoint two
secretaries, after which, by almost imperceptible degrees,
the dignity of the office was increased. During the
reign of Henry VII. persons of weight were selected to
fill the post. In the following reign we find the secre-
taryship held by Cromwell. Henceforth the secretaries
take rank with barons, are always members of the
council, and by the Act 31 Henry VHI. c. 10, become
entitled to this position ex-officio. But it was not until



i Dicey, pp. 39-43. pp. 25, 34, 58 ; v. 7, p. 13. Dicey,

r Sir H. Nicolas, Proc. P. C. v. 1, p. 15.



92 COUNCILS UNDER PREROGATIVE GOVERNMENT.

the latter part of the reign of Elizabeth that we find
them designated Secretaries of State. 3

By the regulations of 1553, above mentioned, all
the business of the Privy Council was transacted through
committees which were variously modelled, as occasion
required. The same persons sat on different committees.
From this arrangement a body known in history as the
star Star Chamber came into existence, and acquired evil
fame from its arbitrary arid tyrannical proceedings. The
Star Chamber was, in effect, the council under another
name. It was frequently presided over by the king
himself, and even in his absence transacted business
with great dignity and solemnity ; hence it will be seen
that the council had abated none of its ancient preten-
sions to the plenary exercise of judicial power. Besides
asserting the right to act in almost every case where
a law-court had jurisdiction, the king and his council-
lors avowedly acted ' in cases not examinable in other
courts.' The secret tribunal of the Star Chamber con-
tinued in operation up to the reign of Charles I., when
the struggles of Parliament against the judicial autho-
rity of the Council, so long intermitted, were again
revived with accumulated vigour, until (by the statute
16 Car. I. c. 10) it was determined that ' neither his
majesty nor his Privy Council have, or ought to have,
any jurisdiction, power, or authority, by English bill,
petition, articles, libel, or any other arbitrary way
whatsoever, to examine or draw into question, deter-
mine or dispose of, the lands, tenements, hereditaments,
goods, or chattels of any of the subjects of this kingdom;
but that the same ought to be tried and determined in
the ordinary courts of justice, and by the ordinary
course of the law.' By the same statute, the power
' that the Council Table hath of late times assumed
unto itself, to intermeddle in civil causes and matters
only of private interest between party and party,' is



Dicey, p. 41. Thomas, Notes on Pub. Dep. p. 27.



THE PRIVY COUNCIL. 93

declared to be * contrary to the law of the land, and
the rights and privileges of the subject.' The Star
Chamber, with its cognate jurisdictions, was accord-
ingly by this Act swept away, and the most part of
those judicial powers which the state policy of former
generations had bestowed upon the council, were utterly
abolished.*

During this period of ' government by councils,' the Arrests by
privy councillors, in addition to their potent authority
as members of a board of such pre-eminence in the
state, assumed the right of arresting their fellow- citizens
at their own individual discretion. It may be thought
that such an act would have been justified by the use
of the king's name. But the councillors claimed the

o

authority as pertaining to themselves, and the judges
admitted the validity of their claim, so far at least
as commitments ' by order of the Council Board ' as
well as by royal command were concerned."

The government of Queen Elizabeth was conducted Queen
almost exclusively through the medium of her Privy
Council, individually or collectively ; Parliaments
(though regularly convened at intervals of from one
~to four years) being regarded by her as mere instru-
ments of taxation, to whicli she abstained from resort-
ing except upon necessity. The practical disuse of
Parliaments during the Tudor dynasty naturally led to
a larger assumption of jurisdiction on the part of the
Privy Council, which retained much of the authority
thus unlawfully acquired, even after the recurrence by
later sovereigns to the constitutional services of Par-
liament/

The powerful system so elaborately matured by the
Tudor sovereigns expired with them ; and the period
between the death of Elizabeth and the restoration of



* Sir H. Nicolas, Proc. P. C. v. 7, 110. Stephen, Hist, of Grim. Law of

p. 24. Dicey, pp, 45-57, which gives Eng. v. 1, c. vi.

a curious and minute account of the u Dicey, p. 56.

doings of the Star Chamber. See also T Macqueen, Privy Council, p. 680.
Palgrave, King's Council, pp. 38, 100,



COUNCILS UNDER PREROGATIVE GOVERNMENT.



Queen
Elizabeth
and her
Parlia-
ments.



Parlia-
ment
under the
Stuart
kings.



the Stuarts may be considered as the time when ' go-
vernment by councils ' came to an end. w But mean-
while, the Parliaments of Elizabeth, unlike their timid
predecessors in previous reigns, were remarkably out-
spoken ; and the Commons did not hesitate to tender
their advice to the queen, not merely upon affairs of
Church and State, but even upon the more delicate
topics of a royal marriage and the succession to the
throne. True, they were repeatedly commanded not
to interfere in any matters touching her majesty's
person, estate, or church government, but such as
might be propounded to them by the queen herself ;
yet they made good their claims to a higher considera-
tion, by successfully asserting the necessity for redress-
ing various grievances affecting the commonwealth/
And so there followed in due course, and as it were
by natural consequence, ' the mutinous Parliament of
James L, and the rebellious Parliament of Charles I.' y
And, concurrently with these proceedings, new require-
ments arose on the part of the crown, which could only
be met by the cordial assistance of the House of Com-
mons. The circumstances under which the power of
Parliament, in contradistinction to that of the monarchy,
gained strength and development under the Stuart kings,
belong to general history, and need not be here enlarged
upon. It will suffice to refer to two leading events,
which indicate the process whereby the House of Com-
mons attained the position, co-ordinate in power with
the crown itself, which it has occupied since the Bevo-
lution of 1688.

During the altercations between the Crown and Par-
liament which characterised the reign of Charles I., it
became necessary to provide for the maintenance of a
standing army. At first the troops were paid out of the
king's own revenues ; but James II. having increased

w Dicey, p. 69. Ilearn, Govt. of Eng. p. 132.

1 See Parry's Purlts. pp. 214-239. * Bagehot, Eng. Const, p. 311.



THE LONG PARLIAMENT. 95

his army to 30,000 men, it began to be regarded with
great jealousy, as being calculated to strengthen the
power of the crown, to the detriment of the rights and
liberties of the subject. Accordingly, a provision was
inserted in the Bill of Eights, 2 forbidding the raising or
keeping a standing army within the kingdom, in time
of peace, without the consent of Parliament. The
practice of appropriating the supplies granted to the
crown by Parliament to separate and distinct services
was first introduced in the time of Charles II., a though
it did not become an established usage until the Eevo-
lution, when it was formally incorporated amongst the
maxims of the Constitution, that the grant of supply,
and the control of the public expenditure in conformity
therewith, belongs inalienably to Parliament, and pre-
eminently to the House of Commons. b By the recog-
nition of these two principles a salutary check was
provided against the exercise of arbitrary power, and
at the same time the constitutional influence of the
House of Commons, as the source of all aids and sup- D 0wn f a ii
plies, was asserted and guaranteed. From this epoch of P re -
we may date the downfall of prerogative government govern-
in England, and the rise of parliamentary government.
But this momentous change in our political system
was not effected at once, or without an effort on the
part of the crown to recover its ancient supremacy.
Irritated by the opposition lie systematically encoun-
tered from the House of Commons, Charles I. abstained
from convoking Parliament for a period of eleven years,
from March 1629 to April 1640 a longer interval than
had ever before elapsed without some meeting of the
national council.* 1 At length, in 1640, the famous Long
Parliament was assembled.



1 1 Will, and Mary, Sess. 2, c. 2. v. 34, p. 537. Clode, Mil. Forces of

See Hearn, Govt. of Eng. p. 342. the Crown, v. 1, p. 84.
b Hatsell, v. 3, p. 202. Park's d Macaulay, Hist, of Eng. v. 1,

Dogmas, lecture xiii. p. 85.
c Sir J. Mackintosh, Hans D.(O.S.),



96 COUNCILS UNDER PREROGATIVE GOVERNMENT.

The first act of this Parliament, however, was, as we
have seen, 6 to abolish the Star Chamber, and to deprive
the Privy Council of most of its judicial power, leaving
its constitution and political functions unchanged.
Nevertheless, after its destruction and the subsequent
rise of the vast Colonial empire of Britain, the ancient
prerogative of the crown, as the fountain of justice,
was held to vest in it, the ultimate appeal in all cases,
civil and criminal, from all courts throughout the empire,
and a committee of the Privy Council, which is the
direct descendant of the old curia regis, is to this day
the organ by which that prerogative is administered/

In all matters of government the will of the sove-
reign continued supreme ; and though ministers were
individually powerful, they had not, and were not ex-
pected to have, a mutual agreement in regard to public
affairs. They often differed amongst themselves on im-
Minis- portant questions ; but as each minister was responsible
teriai merely for the administration of his own department.

responsi- . J -IT 1111 A

biiity. it was not considered essential that they should be ot
one mind on matters of state policy. The responsibility
of ministers, moreover, for the ordinary fulfilment of
their official functions, was practically to the king, and
to him alone.

The course of events which ensued upon the acces-
sion of Charles L to the throne unmistakably proved
that a more intimate and cordial understanding between
the Crown and Parliament, in the conduct of public
Charles i. affairs, had become indispensable to the very existence
House of f monarchical government. For Charles I. 'had not
Commons, the power to guide, if he had had the chance ; [his]
theory of sovereign right was incompatible with the
constitutional theory which, rising as it were from
the dead, had found its exposition among the Com-



e Ante, p. 93.
' Stepben, Hist. Grim. Law Eng. v. 1, p. 182. And see post, vol. 2.



THE LONG PARLIAMENT. 97

mons.' g In the protracted contest that arose between
the King and the House of Commons, much mutual
misunderstanding might have been avoided if Charles
had had some confidential minister to espouse his cause
and defend his policy within the walls of Parliament.
The bitter antagonisms which arose between the king
and his people might have been reconciled if only the
king's ministers had not been so distasteful to the House
of Commons. As it was, the servants of the crown
were generally regarded by the commons with mistrust
or aversion ; and if their acts merited condemnation,
there was no alternative but to proceed against them
by way of impeachment a procedure which at the
best was a cumbrous process, fruitful of delay, uncertain
in its issue, and provocative, meanwhile, of further ill-
will against the crown itself. If only some method
could have been devised to enable the king's ministers
to commend themselves to the goodwill of Parliament,
these perpetual causes of irritation might have been
effectually removed.

Overtures, indeed, on the part of the Long Parlia-
ment, were not wanting to point out to the king terms
of agreement and reconciliation ; and although they
involved for the most part the surrender of more power
than the crown was willing to relinquish, it is remarkable
that upon one occasion the principle of ministerial
responsibility was distinctly adverted to, as a means
of conciliating the favour of Parliament, and of pro-
tecting the king from evil counsellors. In the Grand Grand
Eemonstrance addressed by the House of Commons to
Charles I., in 1641, reference is made to * those cases of
not infrequent occurrence, when the commons might
have just cause to take exceptions at particular men for
being selected to advise the king, and yet have no just
cause to charge them with crimes.' It is added that



Stubbs, Const. Hist. v. 3, p. .505.
VOL. I.



98 COUNCILS UNDEE PREROGATIVE GOVERNMENT.

* the most cogent reasons might exist to be earnest with
the king not to put his great affairs into such hands,
though the commons might be unwilling to proceed
against them in any legal way of impeachment.' It is
then plainly stated, ' that supplies for support of the
king's own estate could not be given, nor such assistance
provided as the times required for the Protestant party
beyond the sea, unless such councillors, ambassadors,
and other ministers only were in future employed as
Parliament could give its confidence to.' h But the king
had already declared that he would neither separate
the obedience of his servants from his own acts, nor
permit them to be punished for executing his com-
mands. 1 Conciliation, therefore, was impossible ; the
time for moderate counsels to prevail had gone by, and
the downfall of the monarchy was the deplorable but
inevitable consequence. The circumstances which led
to this event belong to general history, and need not
Execution be dwelt upon in these pages. Suffice it to state that,
king 6 after a brief contest with the Long Parliament and its
adherents, Charles T. was taken prisoner, tried, and
executed on January 30, 164f .

Immediately afterwards Parliament proceeded to
take steps to provide for the future government of the
country. On February 7, they voted ' that the office of
a king in this nation was unnecessary, burthensome, and
dangerous,' and should be abolished ; and having on
the previous day decreed the abolition of the House of
Council of Peers, they ordered, ' that there be a Council of State
erected, to act and proceed according to such in-
structions as shall be given to them by the House of
Commons. ' j In the composition of this council, the
parliamentary majority were in a position jto carry out



b Foreter, Debates on the Grand Chanc. v. 2, p. 532.

Remonstrance, pp. 272, 273. J Parl. Hist. v. 3, pp. 1285, 1292.

1 See Gardiner's Hist, of Eng. Com. Journ. Feb. 7, 1641.
1624-1628, v. 1, c . via. Campbell's



THE COUNCIL OF STATE. 99

their own ideas as to the sort of persons who ought to
be entrusted with supreme authority, and to ensure
that the administration of public affairs should be in
direct conformity with their own opinions. For a time
the experiment proved successful, and, thanks to the
energy, learning, and political experience of the leading
men in the Council of State, the government of the
country, so long as it remained in their hands, was con-
ducted with much wisdom and ability. k

The Council of State consisted of -forty-one persons,
lords and commoners, who were chosen by the House of
Commons in the name of ' the Parliament of England,'
and of whom nine were a quorum for the dispatch of
business. A majority of the councillors were also
members of the House of Commons ; and as the average
number of members attending that House did not then
exceed fifty, the Council naturally became the more
powerful body ; and having all the public business of
the nation under review, they left but little for the
House to do, except to confirm, by Act, such matters
as the Council thought fit to submit for their sanction. 1
But, in point of fact, it was usual for the Council to refer
ull matters of special importance to the consideration
of the House, who were thus enabled to exercise a con-
trolling influence over their proceedings. 111

The Council of State was eminently a deliberative
body, and the rules which they framed for their own guid-
ance were calculated to ensure the most attentive and
careful consideration of every subject before them, by
the members present at any particular meeting. 11 Either
directly, or through their committees, the Council also



k Bisset, Commonwealth of Eng. until its overthrow by Cromwell, are

v. 1, pp. 49, 1 18-123. preserved in the State Paper Office, in

1 Parl. Hist. v. 3, p. 1291. Bisset, excellent condition. (Ib. p. 39.)
Commonwealth of Eng. Y. 1, pp. 24, m Bisset, v. 1, p. 43; v. 2, pp. 55,

36. The original minutes of all the 67.
proceedings of the Council of State, n Ib. v. 2, pp. 293-296.



H 2



100 COUNCILS UNDER PREROGATIVE GOVERNMENT.

transacted the business which is now apportioned
amongst various departments of state. Besides affairs
belonging to the Treasury, and to the different branches
of the secretariat, they were charged with the trust
heretofore exercised by the Lord High Admiral and by
the Master of the Ordnance. The creditable and suc-
cessful manner in which their multifarious labours were
accomplished is the more remarkable when it is con-
sidered that on an average eighteen or twenty members
attended at sittings of the Council, and that frequently
the number present was much larger. p

The Council was chosen for a period of one year
only, at the expiration of which term all the members
were re-elected except three. Two were added to
supply vacancies by death, so that there were in all but
five new members. But at the end of the second year
Parliament resolved to adopt a different principle.
Accordingly, on February 5, 165^, they decided that
the Council of State for the ensuing year should again
consist of forty-one members, but that only twenty-one
of the existing councillors should be capable of re-elec-
tion. The same rule was followed upon the election of
the Council for the fourth time. q In November 1652,
anticipating the regular period by nearly three months,
the Council was again re-elected upon a similar principle
for the fifth and last time/

But on April 20, 1653, Oliver Cromwell, who had
always been one of the Council of State, from its first
institution, having forcibly put an end to the Eump
Parliament, and established himself as military dictator,
went to the Council of State, who were assembled at
their customary place of meeting at Whitehall, and in-
formed the assembled members that their official exist-
ence had terminated, inasmuch as the Parliament from



Bisset, v. 1, p. 116 ; v. 2, p. 72. * Ib. v. 2, pp. 146, 234.
Ib. v. 1, pp. 118-123 ; v. 2, pp. r 76. p. 369.
77, 293, 377, 386.



COUNCIL OF STATE UNDEK CROMWELL. 101

whence their authority had been derived was defunct. 8
Thus ignominiously expired the famous Council of State,
which had ruled England with singular vigilance and
success for about four years and a quarter. Lacking
the stability which the authority and influence of a
constitutional monarchy can alone convey, the states-
manship and fidelity to the trust committed to them
displayed by these eminent men failed to preserve them
from overthrow, and they became the easy prey of an
unscrupulous usurper.

In lieu of this able and influential body, that had Crom-
steadily refused to co-operate with Cromwell in his am- ^ e un ci
bitious designs,* a phantom council was set up, consisting
of seven members, six of whom were military men, to act
as Cromwell's nominal advisers. But this was a mere
' barrack-room council,' entirely dependent upon Crom-
well himself." Subsequently the dictator convened a
Council of State, which included eight officers of high
rank and four civilians ; but the latter served merely as
a convenient screen, and the body continued to be, to
all intents and purposes, a military council/ When, in
December 1653, Cromwell accepted the office of Pro-
tector of the Commonwealth, he consented to receive
from Parliament a council of fifteen persons, to be
appointed by statute, with power, by advice of the
Council, to increase their number to twenty-one. But he
only waited until he was firmly seated upon the presi-
dential chair, to proceed to act, in most important
matters, without an order of council, and without, as it
would seem, even consulting his legal advisers. w The
several Parliaments convened by Cromwell during his
protectorate proved for the most part refractory and
unmanageable ; and it was entirely owing to his own



8 Bisset, v. 2, p. 467. T Forster, British Statesmen (Crom-

* Ib. p. 452. well), v. 7, p. 129.

u Ib. pp. 475, 476. w Ib. p 25' ; , n.



102 COUNCILS UNDER PREROGATIVE GOVERNMENT.

extraordinary vigour and administrative skill that his

government achieved the measure of success which,

especially in the foreign relations of England, has been

generally and deservedly associated with his name/

Cromwell's dictatorship lasted for five years, when it

was ended by his death, which occurred on September

Restora- 3, 1658. After a brief period of anarchy, the nation,

monarchy, tired of intestine strife, gladly welcomed the restoration

of the monarchy.

With the accession of Charles II. a new and transi-
tion period began, during which the Parliament con-
tinued to increase in strength and influence, while the
old antagonisms between the ministers of the Crown and
the House of Commons were revived with all their
former bitterness. The inveterate misgovernment of the
restored line of Stuarts y finally brought about the Ee-
volution of 1688, an event which not only produced a
change of dynasty, but was the means of confirming our
national liberties, and placing them upon a more secure
foundation. By the introduction of the king's ministers
into Parliament at this epoch harmonious relations were
at length established between the crown and the legis-
lative bodies, and the old abuses of prerogative govern -
ment were abolished for ever.

In reviewing the history of the English Constitution
from the Norman Conquest until the accession of
William of Orange, certain points appear deserving of



Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 11 of 85)