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has certainly not diminished in im-
portance, or in popular estimation ;
and an unusually large number of
public measures have originated
therein. See Fras. Mag. v. 15, N.S.
p. 173.

Hans. D. v. 191, p. 694.

See Escott, on England, its
People and Polity (in 1879), v. 2,
c. xxiii.



REFORM OF THE UPPER AND LOWER HOUSES. 43

direction that some alteration in its constitution, with
a view to bring this august body into greater harmony
with modern political ideas, may be anticipated. p

Though the representative peers for Scotland and Ireland are
elected from amongst their own order, their qualification is based on
the hereditary principle. The same is true in regard to the arch-
bishops and bishops, who individually occupy a position which may
be termed, in a general sense, the inherited privilege of the occupant
of the See for the time being. The only positive exceptions to this
principle are the two law lords, who were made ex-officio peers
for life in 1876, under the authority of the Appellate Jurisdiction
Act, 1876, sec. 6.

On the other hand, Mr. T. E. Kebbel, in the Opi ns
' Fortnightly Review ' for May, 1882, has no faith in against
a reformed House of Lords, but points out, with great theLords
force, its truly representative character and its value
to the nation. Its total abolition is advocated by Mr.
A. F. Leach, in the same journal for September, 1882.
And in the ' Eeview ' for February, 1883, the learned
historian, Mr. E. A. Freeman, points out the remark-
able changes undergone by the House of Lords, in
successive generations, within the last six hundred
years, which afford ' a strong presumption in favour '
of further change whereinsoever it may be needed. q

But ever since the days of Walpole, the House of Position
Commons have been steadily gaming political ascend- House of
ency. Nominally co-equal with the crown and the Commons -
Lords, as a constituent part of the legislature, they
have gradually attained to a position which enables
them to compel the adoption, sooner or later, of any
policy, or any legislative measure, upon which they are
agreed. Witness the Roman Catholic Emancipation
Act, which was carried against the deliberate will of



p See Sir D. Wedderburn. on Rathbone, M.P., on Reform in the

' Second Chambers' in 19th Gen. v. House of Lords, in the Fort. Rev. v.

10, p. 56 ; the Marquis of Blandford, 30, N.S. p. 399.

on 'Hereditary Rulers,' Ib. p. 217; q See Goldwin Smith, N. Am.

Fras. Mag. v. 24, N.S. p. 401 ; Mr. Rev. v. 108, pp. 241-246.



44 GENERAL INTRODUCTION.

George IV., the Reform Act, the repeal of the Corn
Laws, and the Jewish Oaths Bill, against the deliberate
will of the House of Lords. These, and other important
acts of legislation, though disapproved of either by the
crown or by the Peers, were nevertheless acquiesced in
by them, to avert more serious consequences. Again,
They it devolves upon the House of Commons practically
fate of to determine in whose hands the government of the
ministers. coun t r y s h a ll be placed. By giving their confidence
to one party and by refusing it to another, by extend-
ing it to certain men and refusing it to certain other
men, they plainly intimate to the sovereign the states-
men who should be selected to conduct the administra-
tion of public affairs, and to advise the crown in the
exercise of its high prerogatives. 1 In 1835, William IV.
was compelled to accept 'the resignation of Sir Robert
Peel, who, at the earnest solicitation of the king, had
attempted to carry on the government, and to recall
to his councils the Melbourne administration, which he
had previously summarily dismissed, on account of the
inability of Sir Eobert Peel to obtain the confidence of
the House of Commons.

The Lords In deciding the fate of a ministry, the House of Lords,
decide the we have already seen, 8 are practically powerless ; ' only
fate of f or fifteen years out of the last fifty has the ministry of

minis- > J *

tries. the day possessed the confidence of the House of Lords. ' fc
The Grey Ministry (in 1830 1834), which was remark-
ably strong both at home and abroad, was throughout
opposed in the Lords by a decided and constantly
increasing majority. On the other hand, the Derby
administrations, in 1852 and 1858, though approved
and sustained in the Upper House, were speedily broken
up because they could not command a majority in the
Commons. And the Palmerston ministry in 1864, when
their foreign policy was censured by the House of Lords,

* Russell, Eng. Const, p. xlviii. ' Mr. Gladstone's Gleanings of

Ante, p. 37. Past Years, v. 1, p. 236.



THE SYSTEM OP PARLIAMENTARY GOVERNMENT. 45

were able to set at nought this hostile vote, in conse-
quence of obtaining a small majority, upon a similar
question, in the Lower House." These examples are
sufficient to prove the great and preponderating autho-
rity of the House of Commons. That this authority
has not been abused, is due to the spirit of moderation
which has generally pervaded the councils of that
assembly, and also to the legitimate influence of the
crown and of the hereditary aristocracy, which, happily
for the equilibrium of the constitution, still finds ex-
pression within its walls.

These preliminary observations upon the system of
parliamentary government in England will, it is hoped,
afford some idea of its true character, and serve to
explain the chief points of contrast between our present
political institutions and those which were in operation
prior to the Eevolution of 1688.

It must be evident to the student of history, that Pariia
parliameiitary government is no modern political device
to substitute the supremacy of Parliament for that of ment
the crown, but that it owes its origin to the growth of
foundation principles in the English constitution ; and
that the transition, from the ancient method of govern-
ment by prerogative to that which now prevails, has
been a gradual and legitimate development. Whether
the modern system is, in every respect, the most per-
fect or the best adapted to the wants and wishes of the
nation, it is not the object of the present writer to
inquire. He is not concerned with the special advocacy
of any particular form of government ; his aim has been
simply to describe the actual working of representative
institutions in England as they now exist. He has not
refrained from noticing, as opportunity offered, the
peculiar defects of parliamentary government, and the
dangers to which he conceives that system to be ex-



Mr. Lowe's speech, Haus. D. v. 244, p. 208.



46



GENERAL IXTRODUCTIOX.



Its pecu-
liar ad-
vantages.



posed. On the other hand, he is bound in fairness to
point out its peculiar merits and advantages, which
have contributed to make it popular at home, and a
model for imitation in many foreign countries. These
advantages have been admirably stated by Rowlands,
in his work on the English Constitution, in the follow-
ing terms :

The value [of parliamentary government] in bringing the
monarchy into unison with the freedom demanded and obtained by
the other institutions of the government and by the people, cannot
be too highly estimated. It has changed the vague, precarious, and
irresponsible authority of the ancient monarchs for an executive
council, nominated by the monarch from the peers and representa-
tives of the people, but acting under the direct influence of the
House of Commons, and accountable there for all its proceedings.
It has relieved the king from the burden, and from the moral as
well as actual responsibility, of directing or conducting the state
affairs ; and whilst he retains his high position as chief of the state,
and the power of impressing his views of government on his ministers
when in office, and of selecting new ministers when a change is
required, he is not involved in the fluctuating fortunes of the rival
statesmen who from time to time become his servants as ministers of
the crown. With respect to the people, it has opened the road to the
highest offices of the state to the ambition of all who can raise them-
selves to distinction in the House of Commons ; and thus it places
political power of the highest order in the most eminent and dis-
tinguished of the people themselves. v

Advan- To this it should be added, that in times of difficulty

SKitl a parliamentary constitution possesses additional advan-

tionai go- tages over every other form of government. If the

over'oTner statesman at the helm should prove deficient in vigour

forms. or sa g ac ity 5 upon emergencies arising that were not

contemplated when he was originally placed in office,

he can be promptly removed, and replaced by one more

fitted for the occasion ; and this can be effected, through

the interposition of Parliament, without the necessity

for resorting to any extreme measures, and without



v Rowland's Eng-. Const, p. 438.
See further, as to the advantages of
parliamentary government over the



system which it superseded, Grey,
Parl. Govt. p. 344.



PARLIAMENTARY REMEDY. 47

disturbing the ordinary course of public affairs. On
the other hand, if the majority in Parliament should
become advocates of extreme opinions which the
nation is not prepared to sustain the remedy is equally
efficacious. By an appeal to the constituent body as
in 1784, in 1831, and in 1874 political supremacy will
be promptly transferred to other men, whose policy the
nation has approved.

Thus, upon the sudden crisis of the Crimean War, and as the
result of parliamentary interposition, the respectable but too pacific
premier, Lord Aberdeen, was compelled to give place to Lord
Palmerston, in whom the nation had confidence as a vigorous war
minister. It was said of the House of Commons, on this occasion,
that they had ' turned out the Quaker, and put in the pugilist.' w

As a suitable introduction to the more practical Subjects
part of this treatise, it is proposed, in the following intbis
chapters, to give a brief outline of the leading events treatlse -
in the annals of England which tend to elucidate the
origin and progress of our present political institutions ;
together with a summary of the constitutional history
of the successive administrations of England from 1782
to our own day.

We shall next consider the precise position of the
sovereign in relation to parliamentary government.
The leading prerogatives of the crown will be then
separately reviewed, and the limits of the control which
may be rightfully exercised by the two Houses of
Parliament over the administration of the same, by
responsible servants of the crown, will be explained
and illustrated. The position of the privy council
under parliamentary government, the origin, history,
and duties of the cabinet council, and the political
functions of the several members who compose the
administration, will next engage our attention. Finally,
the duties which devolve upon members of the govern-



Bagehot, Eng. Const, p. 33.



48 GENERAL INTRODUCTION.

merit, in the conduct of public business in Parliament,
will be briefly described.

In treating upon the various and important ques-
tions contained in this work, regard will be had to the
recorded opinions of eminent statesmen who have spent
their lives in the practical exposition of our parlia-
mentary system ; and numerous precedents will be
adduced, at every stage of the enquiry, not merely to
corroborate the doctrine advanced in the text, but to
illustrate the manner in which the principles and prac-
tices of parliamentary government have been gradually
developed, and become incorporated as recognised parts
of the British constitution.



ANGLO-SAXON CONSTITUTION. 49



CHAPTER II.

THE COUNCILS OF THE CROWN, UNDER PREROGATIVE
GOVERNMENT.

THE origin of the political institutions of modern Eng- origin
land must be sought for in the governmental system of national
our Anglo-Saxon progenitors. Meagre and imperfect P olit y-
as is our information on this subject, enough is known
of the leading principles of Anglo-Saxon government to
show that in them were to be found the rudiments of
the institutions which we now enjoy.

The precise features of the polity of England before
the Norman Conquest, although they have given rise to
much learned enquiry, are still, to a considerable extent,
conjectural. But the researches of Sir Francis Pal-
grave a and of Mr. Kemble, b supplemented and corrected
by the more recent investigations of Mr. E. A. Freeman c
and Professor Stubbs, d have been of inestimable service
in elucidating much that was previously obscure in this
branch of historical enquiry. The student of political
history will find in their works ample materials to aid
him in forming an intelligent idea of the fundamental
laws and established institutions of this country in the
earliest days of our national life. And these writers
are all agreed in testifying that, however striking may
be the contrast, in many points of detail, between the



Rise and Progress of the Eng. 2 vols. 8vo. 1849.

Commonwealth, 2 vols. 4to. 1832. c History of the Norm. Conq. v. 1.

b The Saxons in England; a His- Preliminary History to the Election

tory of the Eng. Commonwealth of Edward the Confessor (1867).

till the period of the Norm. Conq. d Const. Hist, of Eng. (1874).

VOL. I E



50 COUNCILS UNDER PREROGATIVE GOVERNMENT.

Anglo- primitive form of government in the time of our Anglo-

gOTern- Saxon forefathers and that which now prevails, ' the

ment. germs alike of the monarchic, the aristocratic, and the

democratic branches of our constitution will be found

as far back as history or tradition throws any light on

the institutions of our race.' 6

In common with other tribes of similar Teutonic
origin, the Saxons in England, from a very early period,
were ruled over by kings, whose power was not arbi-
trary and despotic, but was subjected to certain well-
defined limitations, by the supreme controlling authority
of the law.

The king. The dignity, authority, and power of the chief ruler
in England were gradually developed from that of an
ealdorman (who combined in his own person the func-
tions of a civil ruler and of a military chieftain) into
that of a king a change that is not peculiar to our own
land, but which marked the progress of political society
elsewhere, in countries inhabited by the Teutons and
other kindred peoples. The transition from ealdorman
to king brought with it an accession of power to the
ruler. As the territory over which his headship was
recognised expanded, his royal dignity and importance
increased.*

The early Teutonic constitution, when transplanted
into English soil, was, like that of many of the small
states of the Old World, essentially free. It consisted
of a supreme leader, with or without royal title, an
aristocratic council composed of men of noble birth,
and a general assembly of freemen, in whom the ulti-
mate sovereignty resided. 8 By degrees, however, the
primitive democracy of the ancient Teutonic communi-
The ties gave place to the rising influence of the comitatus,
nobles. or p ersona l following of the chiefs. And in proportion
as the kings of England advanced in strength and

e Freeman, v. 1, p. 75. * Freeman, v. 1, pp. 86-90.

f Ib. pp. 76-81. Stubbs, c. vii.



ANGLO-SAXON CONSTITUTION. 51

dominion they naturally acquired a more complete
supremacy over their comitatus. The thanes, or body-
servants of the king, were gradually invested with rank
and power in the kingdom. Thus there arose a new
kind of nobility, virtute officii, which at length obtained
precedence over the elder hereditary nobles. h

Other elements combined to magnify the authority
of the chief ruler : such as the growth of feudalism
under which lands were held by the tenure of military
service due from the vassal to his lord and the control
assumed by the king over the lands of the nation. At
first the ' folkland ' could only be alienated by the king,
with the consent of his Witan. But after the Norman
Conquest, the folkland was called the terra regis, or
king's land, when the king claimed the right of granting
it at his own pleasure, and without the sanction of
Parliament. 1

But the power of the crown was, from the first, The
subjected to the control of the Witenagemot, or ' Meet- mol ena
ing of the Wise Men,' which appears to have formed
part of the national polity of the Teutons, from their
earliest appearance in history, and was introduced by
them into the Saxon commonwealth. 3 Originally a
democratic assembly, Freeman describes the process by
which this popular council, without the formal exclu-
sion of any class of its members, gradually assumed an
aristocratic aspect, k without losing any of its essential
powers. Under the Heptarchy, every separate king in
England had his own Witenagemot ; but after the other
kingdoms were merged into that of Wessex, their re-
spective Witans became entitled to seats in the Gemot
of Wessex, as being the common Gemot of the realm.

Our knowledge as to the constitution of these great The
councils, in any English kingdom, is extremely vague Witans -



h Freeman, pp. 91-97. k Freeman, v. 1, pp. 106-1 10. And

' Ib. pp. 97-102. see his Paper on the origin of Parl.

J Kemble, v. 2, pp. 185-195. representation, in Int. Rev. v. 3, p. 728.

E 2



62 COUNCILS UNDER PEEROGATIVE GOVERNMENT.

and scanty. But we have proof that the great officers
of the court and of the kingdom were invariably
present in the Witenagemot, together with ealdormen,
bishops, abbots, and many other of the king's thanes.
There was also an infusion of the popular element, by
the attendance of certain classes of freemen, though to
what extent and in what manner this took place cannot
be positively determined. 1

In the First Report of the Lords' Committee appointed to search
the Journals of the House of Lords, Rolls of Parliament, &c., will
be found all matters touching the Dignity of a Peer of the Realm
(p. 17). Learned and elaborate reports were presented to the House
by this Committee in the years 1819 to 1825, which were reprinted
in 1829. The First Report, from which alone our citations are
made, treats of the constitution of the legislative assemblies of
England, from the Conquest to the legislative unions with Scotland
and Ireland. 111

But, howsoever composed, it is undoubtedly true that
the Witenagemot was an institution which afforded to
the English nation a remarkable amount of liberty and
protection.

The powers of the Witenagemot have been defined,
by Kemble, as follows : ' 1. First, and in general, they
possessed a consultative voice, and right to consider
every public act which could be authorised by the king.
2. They deliberated upon the making of new laws
which were to be added to the existing folcriht, and
which were then promulgated by their own and the
king's authority. 3. They had the power of making
alliances and treaties of peace, and of settling their
terms. 4. They had the power (subject to the re-
striction hereinafter mentioned) of electing their king.

5. They had the power to depose the king, if his govern-
ment was not conducted for the benefit of the people.

6. They had the power, conjointly with the king, of



1 Kemble, v. 2, p. 237. Stubbs, m Lords' Pap., 1829, v. 10.
c. vi.



ANGLO-SAXON CONSTITUTION. 53

appointing prelates to vacant sees. 7. They had power
to regulate ecclesiastical matters, appoint fasts and
festivals, and decide upon the levy and expenditure of
ecclesiastical revenue. 8. The king and his Witan had
power to levy taxes for the public service. 9. The king
and his Witan had power to raise land and sea forces,
when occasion demanded. 10. The Witan had power
to recommend, assent to, and guarantee grants of land,
and to permit the conversion of folcland into b6cland,
and vice versa. 11. They had power to adjudge the
lands of offenders and intestates to be forfeit to the
king. 12. Lastly, the Witan acted as a supreme court
of justice, both in civil and criminal causes.' n All these
instances of the powers exercised by the Witenageinot
are illustrated, in Mr. Kemble's narrative, by numerous
examples, taken from the records and chronicles of the
period.

In asserting that the king was elected by the Witan, The
and was subject to be deposed by their authority, it ^j
must not be inferred that the Anglo-Saxon state was,
either in spirit or in form, an elective monarchy, in the
modern acceptation of the term. In every Teutonic
"kingdom there was a royal family, out of which alone,
under all ordinary circumstances, kings were chosen ;
but within that royal family the Witan of the land were
privileged to exercise choice. The eldest son of the
last king was considered as having a preferential right ;
but if he were too young, or were otherwise objection-
able, some other and more capable member of the
royal family would be chosen instead. Again, the
recommendation of the king himself as to his successor
on the throne had great weight, and was usually re-
spected. On every occasion, indeed, the right to the
kingly office must be substantiated and confirmed by a
competent tribunal. But in so doing the members of



n Kemble, v. 2, pp. 204-232,



54 COUNCILS UNDER PEEROGATIVE GOVERNMENT.

the great council ' are not national representatives,
offering the empire to a candidate whom their voices
have raised to authority ; but they are the " Witan,"
the judges, whose wisdom is to satisfy the people that
their allegiance is demanded by their lawful sovereign.'
' Though we cannot adopt the theory that the Anglo-
Saxon empire was elective, we arrive, however, at the
conclusion that it was governed by law. The Constitu-
tion required that the right of the sovereign should be
sanctioned by a competent tribunal.' Thus, ' the in-
choate title of the sovereign was confirmed by the
national assent, and his claim was to be recognised by
the legislature. In this sense,' says Sir Francis Pal-
grave, ' the king was said to be elected by the people.'
In like manner, the extreme right of deposing their
sovereign, which the law assigned to the Witan, was
one that was obviously to be resorted to only in cases of
emergency, when the conduct of the reigning monarch
had made him intolerable to the people. The exercise
Powers of this power by the Witan was an event of very rare
Witan occurrence, but examples are to be found, both before
and after the Norman Conquest, of the deposition of
kings by Act of Parliament. 15

From this it will be seen that the powers of the
Witenagemot far exceeded those assigned by law to
modern legislative bodies, or exercised, in conformity
with constitutional practice, by the House of Commons
at the present day. ' Every act of government of any
importance was done, not by the king alone, but by the
king and his Witan.' The Witan had a right to share,
not merely in ordinary acts of legislation, but even in
matters of prerogative and administration which are
now considered as exclusively appertaining to the
crown/ 1 It might reasonably be anticipated that such



Enp. Commonwealth, v. 1. pp. p Kemble, v. 2, p. 219; Stubbs,v. 1,
558-562; Kemble, v. 2, p. 214; p. 136.
Freeman, v. ], p. 117. ' Freeman, v. 1, pp. 113, 120.



ANGLO-SAXON CONSTITUTION. 65

a polity would unavoidably give rise to frequent col-
lisions between the king and his parliament, and such
undoubtedly was the case after the Norman Conquest,
when the power of the sovereign had assumed more
formidable dimensions, at variance with the ancient
principles of English liberty/ But the Saxon Witen-
agemot appears to have co-operated more harmoni-
ously with the king than similar assemblies of a later
date. This may be accounted for by the fact that ' it
was not a body external to the king, but a body of
which the king was the head in a much more direct
sense than he could be said to be the head of a later
mediaeval Parliament. The king and his Witan acted
together ; the king could do nothing without the Witan,
and the Witan could do nothing without the king ; they
were no external half hostile body, but his own council
surrounding and advising him. 8 Under such circum-
stances, it is natural that this influential body should
have been privileged to interpose, with authority, in
the conduct of public affairs.

The mutual interdependence between the sovereign Royal au-
and his council at this period of our history must not
lead us to infer that a Saxon monarch was a mere
instrument for carrying out the resolves of his coun-
cillors.

The king of England, in those days, was the acknow-



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