On parliamentary government in England : its origin, development, and practical operation (Volume 2) online

PARLIAMENTARY GOVERNMENT IN ENGLAND

VOLUME II.



PRINTED BY

SPOTTISTVOODE AND CO., NEW-STREET SQUARE
LONDON



ON

PARLIAMENTARY GOVERNMENT

IN

ENGLAND

ITS ORIGIN, DEVELOPMENT, AND PRACTICAL OPERATION

BY

ALPHEUS TODD, LLD., C.M.G.

LIBRARIAN OF PARLIAMENT FOR THE DOMINION OF CANADA

AUTHOR OF 'PRACTICE AND PRIVILEGES OF THE TWO HOUSES OF PARLIAMENT'
' PARLIAMENTARY GOVERNMENT IN THE COLONIES ' ETC.



SECOND EDITION

BY HIS SON



IN TWO VOLUMES VOL. II.



LONDON
LONGMANS, GEEEN, AND CO.

AND NEW YOEK : 15 EAST 16 th STBEET
1889

All right f rrsrrvfd



J/v




EDITOE'S PBEFACE.



THE preparation of this volume for publication was
relayed in going through the press by parliamentary
legislation of the current year affecting certain depart-
ments treated upon in the latter portion of the work.

The Editor lost much time in procuring the
requisite official information regarding these depart-
mental changes, notably those which have taken place
in the army, navy, local government, &c., but no pains
have been spared to bring such information down to
date.

The very considerable changes effected in parlia-
mentary practice by the New Eules of Procedure have
induced the Editor to insert the Standing Orders of
the House of Commons, as amended, in an Appendix
to the work.

This volume was almost through the press when
the new Local Government Act became law ; a brief
summary of its main provisions has been introduced,
but it is felt that years must elapse before the new
legislation attains its full development, and only then
can its effect on the central government be fairly
judged and its operations properly estimated.

A. H. T.

OTTAWA, December, 1888.



PREFACE.



AFTER AN INTERVAL of two years from the issue of the
first part of this treatise, I am at length enabled to lay
before the public the concluding volume. The delay
has been unavoidable. It was partly owing to the prior
claims of official duty, and partly to the variety of topics
embraced in the latter portion of the work which de-
manded the most careful investigation and research.

The publication of the earlier volume was, in fact,
undertaken sooner than I had originally contemplated,
from a desire to place it in the hands of prominent
public men in Canada before the constitution of the new
Dominion should be enforced, trusting that it might be
helpful in the settlement of various political questions
which were likely to arise at that juncture. In order
to accomplish this, I was obliged to change the plan
of my work, to the detriment, in some measure, of
its appropriate order and sequence. The history and
development of the king's councils, and the interior
working of the Cabinet, ought properly to have followed
my exposition of the kingly office ; and such had been
my first design. But as these chapters were not suffi-
ciently advanced to admit of their insertion in the first
volume, I preferred to omit them from their proper
place, rather than postpone the publication. I mention



Vlll PREFACE.

this, as it will explain what might otherwise be regarded
as a defect in the work itself. Be this, however, as it
may, the additional time afforded for the completion of
the work has enabled me to bring down my narrative
of constitutional history and practice to the present day,
when we are about to enter upon a new and important
era in our political history.

As I have associated the name of the late Thomas
D'Arcy McGee, in the dedication of this volume, with
that of one of the most eminent statesmen* now living
in Canada, I may be permitted to mention that by his
lamented and untimely decease I have lost a friend who
took the warmest interest in the progress of this work
from its very commencement, and who welcomed the
publication of the previous volume by a most kindly
notice in a London journal. b After a large experience
in political life, at the beginning of which he evinced a
decided preference for a republican form of government,
Mr. McGee acquired, in maturer years, a profound admi-
ration for the British constitution. With the enthusiasm
of his poetical temperament, as well as with the sagacity
of a practical statesman, he loved to speak of its great
and varied excellences, and especially to dwell upon the
benefits resulting from the monarchical principle as the
true foundation of all stable government. Had he lived,
it was his purpose to have delivered a course of lectures
thereon in the chief towns of Canada. I should have
gladly assisted him in this good work, to the best of my
ability ; and now that he is gone, I feel that I cannot



* Rt. Hon. Sir John A. Macdonald, in the Canadian Neivs of March 14,
G.C.B., P.C., o. 1867.

, b See his letter, .signed M. P. P.,



PREFACE. IX

better contribute to the fulfilment of his patriotic inten-
tion than by inviting the consideration of political stu-
dents in this Dominion to the governmental institutions
of the mother country, as described in these volumes,
which claim to present fuller information upon that
subject than is obtainable elsewhere.

For the same reason, I venture to hope that my
work may be of service to public men in England,
inasmuch as, whatever may be its defects or omissions,
it is the first attempt that has been ever made to collect
and embody, in a systematic form, the laws, usages, and
traditions of parliamentary government.



ALPHEUS TODD.



LIBRARY OF PARLIAMENT, OTTAWA, CANADA:
February, 1869.



ERRATUM.



On page 713 of the first volume, line 12, instead of ' In vol. ii. prece-
dents will be found,' &c., read On page 799 (vol. i.) precedents, &c.



CONTENTS

OF

THE SECOND VOLUME.

CHAPTER I.

PARLIAMENTARY CONTROL OVER THE ISSUE AND EXPENDITURE
OF PUBLIC MONEY.

PAOB

I. Control over Public Revenue by department of Exchequer and Audit 2

Exchequer control over issue of money 2

Functions of the Exchequer 3

Proposed union of Exchequer and Audit Offices .... 5

Consolidation of these departments 6

Regarding receipt and custody of public moneys .... 7

issue of public money 8

Procedure in giving effect to parliamentary appropriation . . 8

Royal orders 8

Irregularities caused by neglect of restrictions . . . .10
Money only applied to services sanctioned by Parliament . .11

Deficiency Bills 11

Exchequer control does not prevent illegal expenditure . . .12

Funds used as ' one balance ' 12

Exchequer controls issue, but not expenditure, of money . . 14

Principle of its issue""*" 1 " 14

Impossibility of wholly preventing unauthorised expenditure . .15

Remedy against unauthorised expenditure 15

Instances of expenditure without authority of Parliament . . 16

Funds out of which unauthorised expenditure is defrayed . . 19

Treasury fflp-ot Fund 20

Civil Contingencies Fund ........ 20

Secret Service expenditure 21

Cases cited illustrating strictness regarding unauthorised expendi-
ture 24

Cash account of Paymaster-general 25

Salaries of Revenue Department not paid in first instance out of

votes 26



Xll CONTENTS OF

PAQK

II. The functions of the Treasury in relation to public expenditure . 27

Treasury control 28

over other departments 82

Army and Navy expenditure . . .33
sanction necessary to extra Army expenditure . . 37
empowered to give temporary sanction to use of sur-
pluses 39

Temporary advances must receive sanction of House of Commons 41
Treasury not empowered to apply a surplus from one vote to meet
deficiencies in another ........ 42

Whole sum voted need not be expended 43

Votes to make good excesses on grants 44

Unexpended balances are surrendered ...... 44

Duty of House of Commons regarding accounts . . . .47

III. Application of system of Audit to Public Accounts . . .47

A. Ordinary Duties of Board of Audit,

Origin of system of A udit . . . . . . . .50

Enlarged functions of Audit Office 50

Audit of Fees 50

Departmental Audit ......... 61

Administrative Audit 52

B. Nature and Operation of the Appropriation Audit.

Origin of Appropriation Audit . . . . . . .53

Report of Committee of Public Accounts, 1876 . . . .54

for 1877 ... 66

Navy Accounts Bill 57

Power of Army and Navy Departments in using surpluses . . 58

First complete system of Audit 60

Manner of conducting Appropriation Audit . . . .63
Attention of Parliament should be directed to excess of expendi-
ture 66

Control exercised by means of Public Accounts Committee . . 67

IV. Standing Committee on Public Accounts,

Finance Committees 67

Origin of Public Accounts Committee 69

Use of this Committee 71

Selection of its members ........ 72

Reports of Committees from 1861-6 73



THE SECOND VOLUME. Xlll

CHAPTER II.

THE PRIVY COUNCIL UNDER PARLIAMENTARY GOVERNMENT.

PAGE

Position of the Privy Council under Parliamentary Government . . 79

Appointment and rank of Privy-councillors 80

Oaths of Office .82

Counsels of the Crown to be kept secret 84

Never to be divulged without leave of the Sovereign . . . .84
Confidential communications with leaders of the Opposition . . 86
Procedure at meetings of the Privy Council . . . . .87

CHAPTER III.

THE CABINET COUNCIL : ITS ORIGIN, ORGANISATION, AND
FUNCTIONS.

I. The origin and early history of the Cabinet 89

A private advising Council inseparable from the Monarchy of

England 90

Its relation to Parliament 91

Committees of the Privy Council under the Stuart Kings . . 92

Unpopularity of Government by a Cabinet 93

Cromwell's method of Government 94

The Cabinet under Charles II 95

Sir W. Temple's plan for remodelling the Privy Council . . 98

The King's Council under James II 101

Constitutional Government secured by the Revolution of 1688 . 101
Condition of the House of Commons at this period . . . 103
Formation of the first Parliamentary Ministry .... 104
Notices of the presence of Ministers, and other placemen, in the

Tudor and Stuart Parliaments 105

Attempts to exclude all placemen from the House of Commons,

before the Revolution 114

Formal introduction of a united Ministry into Parliament by

William III 117

Subsequent legislation, permitting Ministers to sit in the House of

Commons, but excluding other officials 120

Early resort to ' Nomination Boroughs' to secure seats for Ministers 126

Benefits derived from their use 127

Advantages resulting from the presence of Ministers in Parliament 128
And the exclusion therefrom of other officials . . . .129

History of the Cabinet, from 1693 to 1702 130

Parliamentary Government during Queen Anne's reign . . .133

Progress of opinion concerning the Cabinet 134

II. The later history, and present organisation of the Cabinet . . 135

(1) Development of the rule requiring unanimity therein . . 135

Coup <P6tat of the AVhigs to thwart the designs of Bolingbroke 137

Divisions in the Cabinet after Queen Anne's death . . 140



XIV CONTENTS OF

PACK

Ultimate establishment, in 1812, of the principle of unity, and

of joint ministerial responsibility 142

(2) Origin and enforcement of total changes in a Ministry, in con-
formity to the expressed opinions of the House of Commons 143
(8) Origin and development of the Prime Minister's office . . 146
Condition of the Cabinet, from 1660 to 1783 . . . .146
Lack of a recognised head to the Ministry during most of this

time 151

Prime Ministers under prerogative government . . .152

Sir R. Walpole's administration 153

On parliamentary bribery and corruption . . . .156

Prime Ministers, from 1742 to 1783 159

Administration of W. Pitt (Lord Chatham) .... 161
Departmental system of Government, from before the Revolu-
tion until 1783 169

Consequences to the Crown of the consolidation of powers in

the hands of a Prime Minister 171

Its result on the condition of the Cabinet . . . .173

Actual position of the Prime Minister 173

May belong to either House of Parliament, and may hold any

ministerial office 1 75

(4) Present Organisation of the Cabinet 177

Position of the Cabinet explained .... 178
Its particular members officially unknown . . . .181

Ministers of the Crown, how chosen 182

Stipulations and conditions, on their appointment . . . 184
Ministers should be free to advise at all times .... 186
Conditions precedent to their acceptance of office , . . 1 87
Number of Ministers usually in the Cabinet .... 189

Qualifications for a seat therein 190

Cabinet Ministers without office 192

Functionaries who formerly sat in the Cabinet, but who are

no longer eligible for the same

Chief Justice of the Court of King's Bench

Archbishop of Canterbury

Commander-in-chief

Subordinate Ministers, their number and tenure

Ministerial offices, with inconsiderable duties, their use and

value 205

Combination of offices in the hands of one Minister . . . 210

Permanent and non-political offices 212

Their direct subordination to some political head . . . 213
The political element limited to the governing body . . 214
Who are exclusively responsible to Parliament for the whole

public service 215

Duty of permanent Civil Officers to their political chiefs . . 217
Testimonies to the efficiency and good conduct of the Civil

Service of Great Britain 218

Administrative reform in the public departments . . . 219



THE SECOND VOLUME. XV

PAGH

Substitution of responsible Ministers for Boards aa governing

bodies 221

Salaries and emoluments of Cabinet Ministers .... 225
Necessity for adequate compensation for ministerial service . 226

Official residences 229

Ministerial pensions 231

III. Functions of the Cabinet Council, with its relations to the Crown,

and to the Executive Government 232

How, when, and where, the Cabinet may be assembled . . 232
All its members not invariably or necessarily summoned . . 233
Topics usually discussed in the Cabinet ..... 235

Committees of the Cabinet Council 236

The Cabinet as a final Court of Appeal upon ministerial or depart-
mental differences 237

Its deliberations secret and confidential ..... 240

Mode of giving effect to its decisions 241

Circulation of Memorandums amongst Cabinet Ministers . . 242
Other Ministers invited to attend Cabinet Councils . . . 243
Position of the Prime Minister towards the Cabinet . . . 244
He may insist on the adoption of his own policy or else break up

the Ministry 245

Engagements entered into by a Prime Minister accepted by the

House of Commons as binding upon the Government . . 246
Communications between the Sovereigns and the Cabinet . . 247
Political neutrality of the Sovereign towards all who are not of

the Ministry 249

Intervention of the Sovereign in political affairs, as a mediator

between contending parties 250

Constitutional restraint upon the Sovereign upon such occasions . 254
Queen Victoria as a Constitutional Sovereign .... 255
The Sovereign never attends a Cabinet Council .... 257
But should be duly informed of its decisions upon all important

matters 257

The Prime Minister should submit all such matters for the sanction

of the Sovereign 259

Conclusions of the Cabinet 260

The Sovereign should receive full information on all measures

agreed upon by the Cabinet 261

The Sovereign should receive, for approval or for information, all

state papers, despatches, &c., of material importance . . . 263
Royal Instructions to the Foreign Secretary to ensure that all his

official acts shall be submitted to the Sovereign . . . 266
Dismissal of Lord Palmerston, in 1851, for acting, as Foreign

Secretary, without previous concert with the Crown, or with the

Prime Minister 268

Method of removing an insubordinate Minister from office . . 271
Recall of Earl Fitzwilliam from the lord-lieutenancy of Ireland . 271
Every Minister must support the policy agreed upon by the Cabinet,

or resign 273



XVI CONTENTS OF

PAGE

He-adjustment, or interchange, of ministerial offices . . . 275

Internal dissensions in the Cabinet 276

Proceedings for the removal of obnoxious or incapable Ministers . 277
Supremacy of the Prime Minister upon such occasions . . . 283

Resignation of office by individual Ministers 284

Dismissal of an individual Minister 284

Resignation or dismissal of a Lord Chancellor .... 285
of the whole Ministry .... 285
Resignation of a ministerial office should be accompanied by a re-
tirement from the Cabinet 286

Unless the Cabinet seat is retained by desire of the Sovereign . 286
Pertinacity of ex-Chancellor Loughborough in continuing to attend

the Cabinet until formally dismissed therefrom .... 286
Formation of a new Administration ... . 287



CHAPTER IV.

THE MINISTERS OF THE CROWN IN PARLIAMENT.

Parliamentary Government defined 288

I. Of the presence of Ministers of the Crown in Parliament . . 290
Cabinet Ministers must necessarily be Members of Parliament . 290
Ministers not of the Cabinet are ordinarily required to have seats 293
Increasing difficulty of obtaining seats in the House of Commons

for Ministers 295

Lord Campbell's plan that the House should itself assign seats to

certain persons who had failed to get elected .... 295
Principle upon which certain Administrative Offices are made

political and parliamentary 296

Permanent and non-political officers are excluded from Parliament 297
Proceedings to add to the number of political offices . . . 298
Every branch of the Public Service should be directly represented

in Parliament . 300

Precedents to enforce the necessity of this rule ..... 301
Representation therein of royal and statutory commissions . . 305
Departmental representation ought to be in both Houses . .310
Proportion of Cabinet Ministers usually assigned to each House . 311

Varying usage on this head since 1760 311

Present practice explained 315

Representation by Under-Secretaries 316

Limited number of Secretaries and Under-Secretaries empowered

to sit in the House of Commons together ..... 318

This rule infringed, in 1863-4 318

Reasons for excluding permanent Officers from the House of

Commons 319

Provisions of the statute law regulating the admission or exclusion

of officials from the House 321

As a rule, no Office-holder is eligible who does not represent a

Department of State or some public trust 328

Case of the Standing Counsel to the India Office . . . .330



THE SECOND VOLUME.



Attempts to modify the law requiring Members accepting Ministerial

offices to go for re-election ,531

Provisions of the Reform Act of 1867 on this subject .... 3:59

The Canadian law in this particular 842

The practice in Australia ......... 342

What constitutes an acceptance of a disqualifying Office by a
Member of the House of Commons ...... 343

In regard to an Office of profit 344

to an elevation to the Peerage 348

to the Chiltern Hundreds 349

New writ not to issue on a vacancy until expiration of time limited
for questioning the return ; or, if the election be controverted,
until the case is decided ........ 351

Except upon an acceptance of Office, when the seat is not claimed by
another person ........ . . 351

Attempt in 1867 to enforce the immediate issue of the writ in such cases,

whether the seat be contested or not 352

Canadian practice in this respect ........ 353

II. Functions of Ministers of the Crown in relation to Parliament . 354
(1) Parliamentary duties of Ministers collectively .... 354

(a) The Speech from the Throne and Address in reply thereto . 355
Of amendments to the Address 364

(b) The introduction of Public Bills, and the control of legislation,

by Ministers . 360

Effect of amendments to Government Bills upon the position of

Ministers 369

Extent of Ministerial responsibility in regard to legislation . 372
Right of private Members to initiate public Bills upon every

subject 375

Advantages ensuing from the free introduction and debate in

Parliament of all public questions ..... 379
Opposition attempts to carry public Bills to which Ministers

object 382

Ministers must initiate, or sanction, all motions for the grant of

public money . 383

Ministers must possess adequate Parliamentary support in order

to ensure useful legislation . . . . . . 384

The House of Commons invited to assist Ministers in deter-
mining the principles of intended public measures . . 385
The Indian Government Bill in 1858 .... 385

The Reform Bill in 1867 386

Position of Ministers towards private Bills .... 388
Prerogative of the Crown in controlling all legislation . . 390
The Royal veto on Bills 390

(c) The oversight and control of business in Parliament by

Ministers of the Crown 394

Government days in the House of Commons . . . 398,911
Privileges conceded to Ministers in forwarding their own

measures, and in debate . . . . . . 400

VOL. ii. a



XV111 CONTENTS OF



Duties of the Whippers-in .'.... . 401

(d) The necessity for unanimity and co-operation amongst Ministers

upon a Party basis ........ 402

Open questions ......... 404

Opposition of Cabinet Ministers to Government measures . . 406
of subordinate Ministers ..... 408

Strict discipline now enforced amongst Ministers . . .410
Ministers not responsible for extra-official language of their

colleagues . . . . . . . . . .411

Necessity for adequate Parliamentary support to enable Minis-

ters to carry on the Government ...... 412

Growing insubordination in Parliament to Party leaders . .413
Functions of the Opposition ....... 415

Qualities essential in a Leader of Opposition .... 417

Communications between Government and Opposition Leaders

on public questions ........ 419

(e) Questions put to Ministers, to official persons, and to private

Members of Parliament . . . . . . .421

Replies thereto ......... 422

Miuisterial statements in Parliament ..... 430

(f) The issue and control of royal, statutory, and departmental

Commissions ......... 431

Use of Commissions in facilitating the work of Parliamentary

Government . . . . . . . . . 432

Appointment of royal and statutory Commissions . . . 433
Constitutional powers of a royal Commission .... 441

Additional powers conferred by Parliament .... 443

Expenses incurred by Commissions ...... 446

Duration of Commissions ....... 447

Not subject to Parliamentary control ..... 448

Reports of Commissions ........ 449

Departmental Commissions or Committees .... 450

(2) Parliamentary duties of particular Ministers .... 452

Places of Ministers and of Opposition Leaders in both Houses . 452
The Treasury Bench in the House of Commons . . .453
The Leader of the Government in the House of Lords . . 454
in the House of Commons . 455

Ministers competent to move the Estimates and submit the

Budget to the House of Commons ..... 461

Subordinate members of the Ministry ..... 464

The Law Officers of the Crown ...... 465

Appointment of an additional Minister for Scotland . . 470
III. The Responsibility of Ministers of the Crown to Parliament:

(1) In matters of complaint against individual Ministers . . 471

(2) In regard to the Administration collectively .... 484
Position of Ministers towards both Houses respectively . . 484
Appointment of a Ministry by the Crown which cannot com-

mand a majority in the House of Commons .... 485
.Ministerial explanations in both Houses . . , . . .486



THE SECOND VOLUME. xix

PAOK

Ministerial explanations upon the formation of a Ministry . 486

upon partial changes in the Cahinet . 489

upon the resignation of Ministers . 490

Enquiries as to negotiations for a new Ministry . . . 402

Control over Ministers by the House of Commons . . . 492

By a Vote of Want of Confidence . . . .493

By a Vote of Censure for particular acts . . . 496

By the refusal of the House to be guided by the Ministers

of the Crown 408

Votes of Confidence in Ministers, when justified . . . 498
Inability of Ministers to control legislation, how far indicative

of their having lost the confidence of Parliament . . . 600
Defeats of Ministers upon isolated questions .... 601

upon vital questions 602

Threats of, or reference to, a Dissolution of Parliament . . 603
Dissolution, when determined upon, should be speedy . . 503

Business pending a Dissolution 503

When a Dissolution is justifiable 604

When it ought not to take place 607

Duty of the Sovereign in granting or refusing a Dissolution . 509
Interference, by either House of Parliament, with the preroga-
tive of Dissolution 610

Ministerial ' cries ' at the Hustings 611

Pledges by Members, how far justifiable 611

New Parliament to be promptly assembled after a Ministerial
crisis to decide upon the fate of Ministers .... 512

Adjournment of both Houses upon a change of Ministry . . 613