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Contemporary Eeview.

Constitutional History.


Constitutional Limitations.
Ancient Parliamentary Elections.
Institutions of the English Government.

Constitution of England.

The Privy Council.

Dublin Eeview.


Edinburgh Eeview.

Ellis & Blackburn's Queen's Bench Eeports.

Encyclopaedia Britannica.

English Constitution.

Financial Eeform Almanac.

Cases and Opinions on Constitutional Law.

Fortnightly Eeview.

Foster and Finlason Nisi Prius Eeports.

Fraser's Magazine.

Norman Conquest.

Government of England.

Great Governing Families.

House of Commons.

House of Lords.

House of Eepresentatives.

Pleas of the Crown.

Constitutional History of England.

Hansard's Debates. [of Commons.

Hatsell's Precedents of Proceedings in the House

Pleas of the Crown.

Government of England.

History of England.

Coke's Institutes.

International Eeview.

Irish Statistical Society Journal.

The Saxons in England.

History of England.

Law Eeports Appeal Cases.

Probate Division.

Law Times Eeports, New Series.

Lower Canada Journal.

Law Magazine, New Series.


Administrations of Great Britain.

Sessional Papers of the House of Lords.

Macmillan's Magazine.

Macnaghten and Gordon's Chancery Eeports.

Life of the Prince Consort.

Constitutional History.

Parliamentary Practice.

Eepresentative Government.

Mirror of Parliament.

Moore's Privy Council Cases.



N. Am. Bev. .
19th Cen.
Norm. Conq. .


P. 0. ..

Parl. D.
Parl. Govt. .
Parl. Hist. .
Parl. Prac. .
Parl. Bememb.
Parry, Parlts.
Peel's Mem. .
Pict. Hist, of Eng.


Prac. .
Prm. of Gov.
Q. B. Bep. .
Quar. Bev. .
Bep. of Sel. Com e .
Bept. Govt. .


Bose, Corresp.


S. O., H. of L. (or C.) .
Sat. Bev.
Shower's Bep.
Stat. of Can.
Stat. Soc. Jour. .
Step. Com. .
Stephen's Ecc. Stat. .
Hist. Crim. Law
Stockmar's Mem.
Stubbs' Const. Hist.
Term Bep. .
v. .

Wallace, Sup. Ct. Bep.
Well. Desp. .
West. Bev. .

North American Beview. [cil of England.

Proceedings and Ordinances of the Privy Coun-
Nineteenth Century.
Norman Conquest.

Privy Council.

English Commonwealth. [1830 to 1880).

Parliamentary Debates (Series of Debates from




Smith's Parliamentary Bemembrancer.

Parliaments and Councils of England.

Peel's Memoirs.

Pictorial History of England.



Principles of Government.

Queen's Bench Beports.

Quarterly Beview.

Beport of Select Committee.

Bepresentative Government.


Diaries and Correspondence.


Standing Orders, House of Lords (or Commons).

Saturday Beview.

King's Bench Beports.

Statutes of Canada.

Statistical Society Journal.

Stephen's Commentaries on the Laws of England.

Ecclesiastical and Eleemosynary Institutions.

History of the Criminal Law of England.

Memoirs of the Baron.

Constitutional History of England.

Durnford and East's Term Beport.


Wallace's United States Supreme Court Beports.

Wellington's Despatches.

Westminster Beview.

United States Supreme Court Beports.

King's Bench Beports.







THE GOVERNMENT of England is conducted in con- Definition
formity with certain traditional maxims, which limit of P arlia -


the exercise of all political powers therein. These govem-
maxims are, for the most part, unwritten and conven- ]
tional. They have never been declared in any formal
charter or statute, but have developed, in the course of
centuries, side by side with the written law. They
embody the matured experience of successive genera-
tions of statesmen in the conduct of public affairs, and
are known as the precepts of the constitution. a

The principle of a constitutional or parliamentary
government is essentially different from either that of
a republic or of a despotism. A constitutional king is
not responsible to the people, but he is bound by the
laws ; he is not free to govern as he pleases, but must
rule in conformity to the recognised usages of the

a See Freeman, Growth of Eng. Const, c. iii. ; Bonamy Price, Gout. Rev.
v. 38, p. 943.



constitution, and in subjection to its fundamental pre-
cepts, which regulate and define the rights and privileges
of all classes and estates in the realm.

Power of Society, like the family, is of divine appointment ;

reign"' anc ^ headship, in either case, has a divine origin. In a
under par- parliamentary government, rule and authority must

liamentary 1 /> i i i

govern- receive the sanction or popular consent, though it does
not necessarily emanate from the will of the people.
The obligation of a king to rule righteously is as great
as that of a people to obey those who have the rule
over them. It is indeed more difficult to control and
punish a sovereign who may abuse his office than to
call people to account for treason and rebellion. But
in a parliamentary government the kingly power is sub-
jected to such rigid limitations and restraints that its
abuse is difficult, if not impossible. The axiom that
the king can do no wrong, is necessary for the pro-
tection of the monarchy from injurious aspersion or
attack ; but it is rendered innocuous, as a means of
oppression or misrule, by the affirmation of the doctrine
that ministers of state are responsible for every exercise
Relation of kingly authority. These ministers have been per-
stersTothe mitted to share, with the crown, in all the functions of
crown. royalty, on condition that they assume a full responsi-
bility for the same, before the Parliament and people.
And inasmuch as no minister could properly undertake
to be responsible for a policy which he could not con-
trol, or for acts which he did not approve, it has neces-
sarily followed that the direction and administration of
the policy of government have passed into the hands of
the constitutional advisers of the crown, for the time
being ; subject only to their continuing to retain the
confidence of their sovereign and of Parliament. By
this means, the services of statesmen in whom the
country has confidence, and who represent the varying
needs of the age, and its progressive intelligence, are
secured on behalf of the empire ; while the equilibrium


of the state is duly preserved, amidst the recurrent
changes of its actual rulers, by the permanence of the
monarchical principle in the person of the sovereign.
Such are the theory and practice of the British consti-
tution, which it will be the endeavour of the author
to explain, both historically and practically, in the fol-
lowing pages.

' Since the establishment of parliamentary govern- Powers of
ment, the ordinary description of the British constitu- must^e 11
tion, as one in which the executive power belongs exercised

i i i i'ii P i -i through

exclusively to the crown, while the power of legislation ministers.
is vested jointly in the sovereign and the two Houses of
Parliament, has ceased to be correct, unless it be under-
stood in a legal and technical sense. It is the dis-
tinguishing feature of parliamentary government that
it requires the powers belonging to the crown to be
exercised through ministers, who are held responsible
for the manner in which they are used, who are ex-
pected to be members of the two Houses of Parliament,
the proceedings of which they must be able generally
to guide, and who are considered entitled to hold their
offices only while they possess the confidence of Parlia-
ment, and more especially of the House of Commons.' b
Through the instrumentality of the cabinet, as a con-
necting link between the crown and Parliament, a close
union, an intimate reciprocal action, has been effected
between the executive and legislative powers. It is
this which has given peculiar vitality to English parlia-
mentary government.

The great and leading maxims of the British consti- Revoiu-

- . . tion of

tution, as now interpreted, are the personal irresponsi-
bility of the king, the responsibility of ministers, and
the inquisitorial power of Parliament. For the com-
plete recognition of these cardinal principles, the nation
is indebted to the statesmen who effected the Eevolution
of 1688.

b Grey on Parl. Govt. p. 4. c See Bagehot on the Eng. Const, p. 12.

B 2


We have the great Lord Camden's authority for asserting that
' The Revolution restored this constitution to its first principles ; it
did no more. It did not enlarge the liberty of the subject, but gave
it a better security. It neither widened nor contracted the foun-
dation, but repaired and perhaps added a buttress or two to the
fabric.' d To the same effect it has been well observed by a recent
political writer, that, 'Prior to 1688, the theory of our constitution
was, that the crown was limited, and that its powers were checked
by the Houses of Parliament ; but this theory was not always recog-
nised by the king in practice. The Revolution of 1688 brought the
theory and practice into harmony. Since that time the crown has
never attempted to govern without Parliament.' e

Govern- Prior to that epoch, the government of England was

ment by . . ' .

preroga- mainly carried on by virtue of the royal prerogative,
that is to say, by the king in person, with the advice
and assistance of ministers appointed by himself, and
who were responsible to the sovereign alone for the
ordinary conduct of public affairs ; whilst they were
amenable to Parliament for any direct abuse of their
functions. Under this system Parliament had no voice
in the selection of ministers of the crown, and whenever
adverse opinions in regard to questions of administration
were entertained by either House of Parliament they had
no means of making those opinions known, except by
retrospective complaint and remonstrance. This occa-
sioned frequent contests between the crown and Parlia-
ment, which sometimes ended in civil war.

While the sole executive authority of the realm was
possessed by the king in whom, together with his
ministers and officers of state, was vested the exclusive
right of administering the laws of the land the legis-
lative authority was divided between three co-ordinate
powers, the King, the House of Lords, and the House
of Commons. Each of these branches of the one Par-
liament enjoyed an equality of rights, and had a de-
liberate choice of assent or dissent to every legislative

d I'J Ho wells State Trials, p. IOCS. c Ed. llev. v. 100, p. 274.


So long as this form of government prevailed, it was Balance of
customary to assume that the well-being of the English jrSnsS-
cornmonwealth consisted in the preservation of the tution.
balance of power between these co-ordinate branches
of the supreme Parliament, so that any abuse of autho-
rity on the part of one, might admit of correction by
the interposition of the authority of another branch.
For example, the power of the two Houses of Parlia-
ment to frame laws was presumed to be held in check
by the king's negative, which could always be interposed
to prevent the adoption of an unwise or unnecessary
statute. Again, the arbitrary exercise of the king's
right of veto was itself restrained by the power which
Parliament possessed of refusing a grant of supplies for
the service of the crown. On the other hand, freedom
of speech, though nominally conceded to Parliament
from a very early period, was not invariably respected
by the crown. In some instances, even the Tudor
nionarchs went the length of charging the Speaker of
the Commons to forbid members from meddling with
matters of state. Occasionally we read of free-spoken
representatives being cited before the Privy Council,
interrogated and reprimanded, or sent to the Tower.
In self-defence, the Commons adopted a standing order
for the exclusion of strangers during debate, and making
it punishable to repeat out of doors what had passed
within/ And in order to maintain the due independence
of the legislative chambers, it was held to be an infringe-
ment of constitutional privilege for the king to take the
initiative in legislation by submitting any Bills to the
consideration of the two Houses save only acts of
grace and pardon or even for the sovereign to take
formal notice of any resolution or proceeding of Parlia-
ment which did not affect the interests of the crown,

f Macaulay, Hist, of Eng. v. 3, p. 543 ; Park's Dogmas, p. 104 ; May,
Parl. Prac. c. iv.


until the same had been regularly communicated to him
for his concurrence. 8
contrast This was the doctrine and usage of the English

the theory constitution which prevailed before the era of parlia-
tiS of *the ment ary government ; and notwithstanding the funda-
constitu- mental alterations that have since taken place in con-
stitutional practice, this is still the theory of the British
government, as expounded by Blackstone, Paley, De
Lolme, and other text-writers of a later date. And yet
how strikingly is this theory at variance with the recorded
facts of our Parliamentary history for the past century
and a half ! While for many generations the forms of
the ancient constitution of England have continued un-
changed, the principle of growth and development has
been at work, and has silently effected numerous and
important alterations in all our governmental institu-
tions. For instance, the prerogative of the crown to
veto obnoxious measures presented for its sanction by
the Legislative Chambers has never been invoked since
the reig,n of Queen Anne. The undoubted right of the
Commons towithhold supplies from the crown has not
been exercised in a single instance since the Revolution
of 1688. All important public bills are now submitted
to Parliament by ministers of the crown, with the
avowed sanction and express authority of the sovereign ;
and it has become a recognised and prominent part of
the functions of the king's ministers that they shall be
able to lead and control the two Houses of Parliament,
and to carry on the government therein, by themselves
undertaking the oversight and direction of the entire
mass of public legislation. Moreover, the exercise of
every branch of the royal prerogative is now subjected
to free criticism in both Houses of Parliament ; and
although the standing orders for the exclusion of
strangers are still retained, they are practically a dead

Hats. Prec. v. 2, p. 356.


letter ; and so much publicity is allowed to the debates
and proceedings as to justify the saying that ' the entire
people are present, as it were, and assist in the delibera-
tions of Parliament.' 11 As a natural consequence of
these momentous changes, harmony has been established
between the executive and legislative powers, in place
of the jealousy and spirit of antagonism which were
characteristic of the former system.

This wide discrepancy between theory and prac- A proof
tice between the ordinary functions of the several granges in
branches of the legislature as defined in our old con- theconsti-
stitutional text-books, and the modern usages in respect
thereto, affords unmistakeable proof that the constitu-
tion itself has really undergone a material alteration
within the last 150 years, albeit these changes, for the
most part, have been unnoticed by political writers.
Formerly the obsolete privileges above enumerated
were regarded as so many proofs of an admirable system
of * checks ' and ' balances of power,' whereby the
different parts of our complex political system were
maintained in equipoise. They now remain as mere
indications of ancient landmarks, which have ceased
to be effectual restraints in the existing development of
our institutions.'

And here it may be remarked, parenthetically, that Dormant
because the crown and the House of Lords are pre- thTcrown
eluded by modern constitutional usage from making and Lords.
direct use of the powers which originally appertained to
them as distinct and independent branches of the legis-
lature, it must not, therefore, be assumed that they are
but of small account in their separate and individual
capacity. Their ancient rights, though dormant, have
never been disallowed ; but are still held in reserve, in
i' any sudden or violent attack upon their new

h May, Const. Hist. ed. 1871, v. 2, paper, by T. M. Oooley, the learned

p. 53. American jurist, in the Int. Rev. v. 3,

' As to general futility of ' checks p. 317.
and balances ' in government, see


House of

mode of operation. This may surely be affirmed of the
royal veto, in the present state of our constitutional
system, although, as a matter of constitutional practice,
the system of parliamentary government has fortunately
done away with the necessity for collisions between the
crown and the people on questions of public policy or
internal administration, and has caused all such matters
to be decided within the walls of Parliament by the
relative strength of existing political parties. The same
principle holds good in regard to the two Houses of
Parliament. While no formal alteration has taken
place in the original limits of authority between the two
co-ordinate and co-equal chambers of the legislature,
and it is now generally conceded that the proper func-
tion of the House of Lords is not to take a prominent
part in the initiation of public bills, but to control,
revise, and amend the measures of legislation "which
have received the sanction of the House of Commons,
nevertheless, if need be, it would be perfectly com-
petent for the House of Lords to claim its ancient
privileges, and to assume a more active share in the
origination of measures which concern the general
welfare of the community.

The principal change effected by the development
of the English constitution since the Eevolution of 1688
has been the virtual transference of the centre and force
of the state from the crown to the House of Commons.
Instead of prerogative government we now have parlia-
mentary government. Instead of the will of the crown
being paramount, or else engaged in direct conflict with
the other branches of the legislature, we now find the
constitutional influence of the crown, and of the great
landowners, exerted in the House of Commons, through
the instrumentality of members who obtain seats therein,
expressly in order that they may uphold and carry out
these legitimate influences. The introduction of mem-
bers into the House of Commons for such a purpose,


however at variance it may be with the abstract idea
of popular representation, has, indeed, become essential
to. the maintenance of monarchical institutions in Great
Britain. Curtailed in the exercise of their original
rights, as independent branches of the legislature, it
has become impossible for the crown and the nobles
to retain their proper share in the government of the
country unless they are both fairly represented in that
assembly wherein the supreme political power of the
state is now concentred. This result has been attained
by the growth of a system under which each of the
three co-equal elements of the crown, the aristocracy,
and the commonalty, representing respectively the
principles of authority, of stability, and of progress,
have been effectually, if not formally, incorporated into
the Commons' House of Parliament.

By the formal introduction of the king's ministers introduc-
into Parliament, which took place in the reign of ministers
William III., but was not directly ratified by law until therem -
the reign of Anne, the monarchical element in the con-
stitution began to make itself felt in the House of Com-
mons. The great advantages of this step were not at
first appreciated, even by its promoters ; but they gra-
dually became apparent in the harmonious working of
the machinery of government. As a natural consequence,
it necessitated a recourse by the rival factions on both
sides to a system of party organization, in order to
give strength and consistency to their endeavours. ' For
parliamentary government is essentially a government Party go-

/- .-, -,.,. /... . . vernment.

by means oi party, since the very condition of its exist-
ence is that the ministers of the crown should be able
to guide the decisions of Parliament, and especially of
the House of Commons ; and all experience proves that
no popular assembly can be made to act steadily under
recognised leaders except by party organization.' ] No

I Grey, Parl. Govt. ed. 1864, p. 49. May, Const. Hist. c. viii. ; Austin,
See further, as to the benefits of party, Plea for the Constitution, p. 34 ;


reliance can be placed on the support of a party ' occu-
pying the position of a detached auxiliary force, ready
to act on one occasion, to retire on another, and to be
a perpetual object of anxiety to those whom they mean
to serve, of hope to the enemy, and of speculation to
the rest of the world.' k Seats in the House of Commons
for the king's ministers and their adherents were obtain-
able from the first by means of various small boroughs,
which were under the direct control of the Treasury,
and of other boroughs which were subject to the in-
fluence of certain great families or wealthy proprietors,
who were willing to dispose of the same in support of
an existing administration. 1 Thus the government for
the time being were always able to command from forty
to fifty seats in a new Parliament, in addition to the
natural strength of the party they represented. 111
Property, In like manner, the holders of landed property
bers, r~ throughout the country, and especially the great heredi-

aristocracy, were able, in their own behalf, to
Commons, control many of the smaller constituencies. The com-
manding influence thus exercised by the crown, and the
landed gentry of the kingdom, over the election of
members of the House of Commons, appears at first
sight to be a departure from the strict rule of repre-
sentation in a popular assembly. The case however
assumes a very different aspect when it is considered
that property, and bodies, or classes of men having

Park's Lectures, pp. 61, 128 ; Bur- Political Problems, c. x. (or Quar.

rows, Const. Prog. p. 80; Amos, Rev. v. 126, p. 394). Fitzjames Ste-

Fifty Years of Eng. Const, p. 66; phen, in Con. Rev. v. 23, pp. 1, 165 ;

Mr. Disraeli's Speeches, in Hans. D. Syme, Rep. Govt. in England, 1881,

v. 153, p. 1304; Ib. v. 174, p. 1221; c. iii. ; and see Mr. T. E. Kebbel's

and see the Ed. Rev. v. 108, p. 277, review of the question, on both sides,

in reply to an article in the West, in 19th Cen. v. 11, p. 378.

Rev. v, 13, p. 402, condemnatory of k Life of Earl Minto, v. 2, p. 383.

party government. See also the argu- And see Amos, Primer of Eng.

ments against party government in Const, ed. 1875, p. 54.

Brougham's Essay on the Effects of l See Bulwer's Life of Palmerston,

Party, in his Sketches of the States- v. 1, p. 52.

men of the Time of George III. ; Greg's m Grey, Parl. Govt. new ed. p. 227.


separate interests not mere numbers have been hither-
to the acknowledged bases of representation in the
House of Commons. 11 It is true that the interference of i nter .
any lord of Parliament, or other peer or prelate, at elec- f g r e e r nce t of
tions is declared by a standing order to be a high breach elections.
of the privileges of the House of Commons, and that
the voting of peers is now distinctly forbidden by recent
decisions. But the peers themselves have repeatedly
disputed the force of this declaration, and even denied
that they are incapacitated for voting at parliamentary
elections ; p nevertheless, it has been admitted by the
most eminent constitutional authorities, including Lord
John Russell, Sir Eobert Peel, Lord Palmerston, and
Mr. Disraeli, that there is ' a customary and due in-
fluence ' which may be resorted to by all landlords over
their tenantry, in the choice of members to serve in the
House of Commons ; and that the interference of peers
at parliamentary elections, which was originally for-
bidden under widely different circumstances, ought not
now to be accounted unconstitutional, if exercised with
discretion and moderation. Occasional complaints have

Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 3 of 85)