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THE PROCEDURE OF
THE HOUSE OF COMMONS

A Study of its History and Present Form
BY JOSEF REDLICH

PROFESSOR IN THE FACULTY OF LAW AND POLITICAL SCIENCE IN THE
UNIVERSITY OF VIENNA, AUTHOR OF " LOCAL GOVERNMENT IN ENGLAND "

Translated from the German by

A. ERNEST STEINTHAL

OF Lincoln's inn, barrister-at-law, formerly fellow of trinity college,

CAMBRIDGE

With an Introduction and a Supplementary Chapter by

SIR COURTENAY ILBERT, K.C.S.I.

CLERK OF THE HOUSE OF COMMONS



VOL. I



LONDON
ARCHIBALD CONSTABLE iS CO. LTD.

1905



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PREFACE V, I '♦

— " — ^ , "^

T T has been left to an Austrian scholar to accortjplish a
-■- piece of work which some competent Englishman ought
to have undertaken long ago. Dr. Redlich's book on the
history and development of English parliamentary procedure
fills a conspicuous gap in English constitutional literature,
I welcome heartily an English translation of his book.

Sir Erskine May is, of course, the standard authority on
English parliamentary practice. His great treatise is recog-
nised as a classic, not only in his own country, but in every
country which enjoys any form of parliamentary government.
His unrivalled practical experience of parliamentary life and
work, his intimate knowledge of the journals of both Houses,
^ his extensive acquaintance with the English political and
^ constitutional literature of his day, fully entitle him to that
o9 position. But May's object in writing his treatise was purely
^ practical. He wished to give, and, by the volume of less
^ than 500 pages which he published in 1844, he succeeded
oc in giving, for the first time, a clear and comprehensive
-' description of English parliamentary procedure as it then
CM existed. He was compelled, as he tells us in the preface to
O) his first edition, to exclude or pass over rapidly such points
t of constitutional law and history as were not essential to
the explanation of proceedings in Parliament. In short, he
^ wrote, not as an historian, but as an expert in parliamentary
g procedure. The introduction of historical matter was, of
:i:: course, inevitable ; the English Parliament strikes its roots
so deep into the past that scarcely a single feature of its
proceedings can be made intelligible without reference to
history. But the historical portions of May's book are inci-
dental and subsidiary, and though his historical knowledge
was fully up to the level of his time, much of it now has
an antiquated appearance. Hence his work left the field
open to anyone who wished to approach the subject of
parliamentary procedure from the point of view of the



424364



iv PARLIAMENTARY PROCEDURE

scientific historian. Nor has the field been covered by any
subsequent EngUsh writer. Bishop Stubbs, in the twentieth
chapter of his Constitutional History, has summarised nearly
all that is known — and not much is known — about pro-
cedure in the mediaeval Parliament. Mr. Porritt, in his
" Unreformed House of Commons," has a valuable chapter
on parHamentary procedure before 1832. Sir William Anson
and other constitutional writers have devoted attention to
procedure in Parliament, as a part of constitutional law and
practice. But the treatment in each of these cases has
necessarily been partial and incidental. Dr. Redlich has,
with characteristic German thoroughness, concentrated his
attention on parliamentary procedure as a subject worthy of
separate treatment. But he has, at the same time, recog-
nised that it can only be adequately treated as a living and
organic part of a living and organic whole, and his aim
has been to show and illustrate the intimate relations which
have always existed between the growth and development of
parliamentary procedure and the contemporaiy political and
social conditions of the country. He has brought to bear
ori his subject not only great erudition, but, what is more
rare, especially in a foreign writer, knowledge derived from
personal inquiry and observation. Hence a freshness and
vividness of treatment which takes the book out of the
"Dryasdust" category. And its value, as a piece of impar-
tial and scientific work, is not impaired by the fact that it
comes from a country where parliamentary procedure is,
just now, a burning question. Dr. Redlich is an intelligent
and a sympathetic student of English institutions, and he
has written, on what is prima facie a dry and technical
subject, a book which is not only valuable but eminently
readable.^

Without the guidance of the historic sense parliamentary
procedure is a bewildering jungle. For the initiated, the

• It gains in some respects by being the work of a foreigner ; for the
foreign observer, though he may run the risk of occasionally going astray
in the description or interpretation of institutions with which he is not
familiar, yet sees things to which familiarity has blunted our senses.



PREFACE V

forms and ceremonies of Parliament, often quaint and arbi-
trary in external appearance, are pregnant with historical
significance. Take, for instance, the forms which until 1902
were invariably observed on the introduction of a bill into
the House of Commons, and which are still occasionally
observed. The Speaker puts the question that leave be given
to introduce the bill, and unless, as rarely happens, the
motion is opposed, proceeds to ask " Who will prepare
and bring in the bill ? " (I have known two experienced
Parliamentarians who believed the question to be "Who is
prepared to bring in the bill ? ") The member in charge
replies with a list of names, including his own, then goes
down to the bar of the House, and returns to the table with
a paper which is supposed to be the bill, but is really a
" dummy," and which he formally hands in. The whole
thing is over in a few seconds, but it represents, in a com-
pressed and symbolical form, proceedings which, in the
seventeenth century, may have extended over days or weeks.
There was first a debate in the House or committee on some
alleged evil in the body politic, and a discussion whether it
justified and required a legislative remedy. Then came the
selection of a small body of members, with some one mem-
ber as their spokesman, to devise an appropriate remedy.
It was this spokesman who subsequently moved for leave
to introduce a bill, and who named his colleagues in re-
sponse to the Speaker's question. And when he went down
to the bar, it was not for the purpose of immediate return,
but for the purpose of retiring with his colleagues to some
suitable place, possibly in the precincts of the House, but
possibly at Lincoln's Inn, or at the Temple, or elsewhere,
for deliberation, and for "penning" of the bill.

There are other forms which carry one back to a far
remoter period of parliamentary history. Nothing can be
more picturesque than the ceremonies which attend the
signification of the Royal assent to legislative measures
passed by the two Houses. The three silent figures, scarlet
robed and cocked-hatted, who sit in a row, like some



vi PARLIAMENTARY PROCEDURE

Hindu triad, in front of the vacant throne ; the Reading
Clerk who declaims in sonorous tones the prolix tautologies
of the Commission ; the Clerk of the Crown and the Clerk
of Parliaments, who, standing white-wigged and sable-
gowned on either side of the table, chant their antiphony,
punctuated by profound reverences, the one rehearsing the
title of each Act which is to take its place on the statute
book, the other signifying, in the accustomed form and
manner, the King's assent. " Little Pedlington Electricity
Supply Act." " Le Roy le veult." Between the two voices
six centuries lie.

The Parliament at Westminster is not only a busy
workshop ; it is a museum of antiquities.

The rules of parliamentary procedure are the rules which
each House of Parliament has found to be conducive to the
proper, orderly and efficient conduct of its business. Some
of them are old-fashioned, as in the case of other ancient
institutions, but much ingenuity has been shown in adapting
them to the circumstances and requirements of the time.

What, then, is the business of the House of Commons,
the House with which Dr. Redlich is more specially con-
cerned ? Its business is threefold — legislative, financial,
critical. It makes laws with the concurrence of the House
of Lords and of the Crown. It imposes taxes and appro-
priates revenue. By means of questions and discussions it
criticises and controls the action of the executive.

The making of laws is the function with which the
House of Commons is most commonly associated in the
popular mind. But this was not its original function, and
perhaps is still not its most important function. The House
is something much more than, and very different from, a
merely legislative body. Napoleon, when framing a consti-
tution for France, saw and expressed clearly the difference
between a legislature as he conceived it should be and
the British Parliament as it actually was. He professed the
greatest reverence for the legislative power, but legislation,
in his view, did not mean finance, criticism of the adminis-



PREFACE vii

tration, or ninety-nine out of the hundred things with which
in England the Parliament occupies itself. The legislature,
according to him, should legislate, should construct grand
laws- on scientific principles of jurisprudence, but it must
respect the independence of the executive as it desires its
own independence to be respected. It must not criticise the
Government. Thus, according to Napoleon, ninety-nine per
cent of the work of the British Parliament at the beginning
of the nineteenth century lay outside the proper province of
a legislature. And he would say the same to-day.

On the other hand Parliament is not a governing body.
During one brief period in the seventeenth century the
House of Commons took upon itself the task of administer-
ing the affairs of the country, but the experiment has not
been repeated. In this respect the House differs materially
from the county, district, municipal, and parish councils which
administer local affairs. These councils conduct administra-
tion with the help of committees to which large powers, often
of an executive character, are delegated, through the agency of
officers appointed and paid by themselves, and at the expense
of rates not only raised under their own authority, but levied
by their own officers. Neither Parliament as a whole, nor
the House of Commons in particular, does anything of this
kind. It provides the money required for administrative
purposes by authorising taxation ; it appropriates, with more
or less particularity, the purposes to which the money so
provided is to be applied ; it criticises the mode in which
money is spent and in which public affairs are administered ;
its support is indispensable to those who are responsible
for administration ; but it does not administer. That task
is left to the executive, that is to say, to Ministers of the
Crown, responsible to, but not appointed by. Parliament.

It is this separation but interdependence of the criticising
and controlling power on the one hand, and the executive
power on the other, that constitutes the parliamentary system
of government. In one sense it is the most artificial of
systems, for it works by means of subtle and delicate checks,



viii PARLIAMENTARY PROCEDURE

counterchecks, adjustments, and counterpoises. In another
sense it is not artificial, but natural, for it was not devised
by any ingenious machinist or framer of constitutions, but
has grown up through the operation of historical causes,
slowly, gradually, we may almost say, instinctively and un-
consciously. Unless these vital and fundamental principles
of the British constitution are understood and appreciated,
British parliamentary procedure is unintelligible.

The history of the English Parliament may be roughly
divided into four great periods.

The first is the period of the mediaeval Parliament, the
Parliament of Estates. It is a development and expansion of
the King's Council, of the Council in which the Norman King
held "deep speech" with his great men. In the thirteenth
century the word Parliament came to be applied to the speech
so held on solemn and set occasions. The word signified
at first the speech or talk itself, the conference held, not the
persons holding it, for " colloquium " and " parliamentum "
were practically identical. It was, as Professor Maitland says,
rather an act than a body of persons. By degrees the term
was transferred to the body of persons assembled for con-
ference, just as the word " conference " itself has a double
meaning. The persons assembled were the persons, or the
representatives of the persons, whom the King found it
needful to consult for matters military, judicial, administrative,
financial, legislative. They were often grouped differently for
different purposes. Gradually they solidified into two groups.
The lesser landowners and the merchants threw in their lot
with the burgesses. The greater clergy sat with the greater
secular barons. The lesser clergy stood aloof. The pro-
ceedings resembled those of a modern Eastern durbar. They
were partly ceremonial, partly practical. There were formal
addresses, and there was doubtless much informal talk about
public affairs. Grievances were brought up, and were sent
to be dealt with by the appropriate authorities. The formal
sittings of the two Houses were not of long duration. The
functions of the Houses, as such, were at first mainly con-



PREFACE ix

sultative, but eventually the Commons House acquired an
exclusive right of granting taxes and a substantive share in
framing laws. The records of the proceedings are the Rolls
of Parliament.

What was the history of procedure during this period ?
We derive from it much of our ceremonial. The formalities
at the opening and close of the Session, and on the occasions
when the Royal assent is given to laws, carry us back to the
fourteenth century, but at the mode in which business was
conducted on less formal occasions we can only guess, for
the information given by the Parliament Rolls is scanty, and
the description given by the " Modus tenendi Parliamentum "
— a fourteenth-century document professing to describe how
Parliaments were held under Edward the Confessor — is too
fanciful to be trustworthy. The contents of the Rolls are
mainly petitions, with or without their answers, but in the
course of the fifteenth century procedure by petition came to
be superseded for legislative purposes by procedure by bill,
and the two Houses not only asked for new laws, but pre-
scribed the form which those laws should assume. By the
end of the first period, that is to say, by the close of Henry
the Seventh's reign, procedure by bill, with the stages of
three readings, was firmly established, and was applied, not
only to changes in the general law, but also to the grant of
money, and to the province of what would be now called
private bill legislation.

The second period is the age of the Tudors and Stuarts,
having for its central portion the time of conflict between the
Crown and Parliament, between privilege and prerogative.
For the procedure of this period our information is much
more extensive. The journals of the House of Lords begin
with the accession of Henry VIH, those of the Commons
with the accession of Edward VI, when the Commons found
permanent quarters in St. Stephen's Chapel. The Commons
journals are at first very scanty, but gradually expand and
include not only records of proceedings, but notes of speeches,
which grew until the note-taking propensities of the Clerk



X PARLIAMENTARY PROCEDURE

at the tabic were checked by resolutions of the Commons,
who resented the King's calling for reports of their debates.
After the admonition to Rushforth the journal becomes, what
it has been ever since, a record of things done and not of
things said.

The records of the Elizabethan Journals are expanded by
Sir Symonds D'Ewes from other sources. Sir Thomas Smith,
in his Commonwealth of England, and Hooker, in the account
which he writes for the guidance of the Parliament at Dublin,
give us descriptions which enable us to understand how
business was conducted in the English Parliament under the
great Queen. In the next century formal treatises on parlia-
mentary procedure are compiled by Elsynge, Hakewel, Scobell,
Petyt, and others. Under the Long Parliament reports of
important speeches are occasionally printed and published
" by authority," but for the most part we are dependent for
our knowledge of debates on notes surreptitiously taken, and,
notwithstanding the severe prohibitions against publication,
sometimes communicated to the outside world through the
Mcrcuriiis PoUficiis and other organs. Examples of such
notes are supplied by the diaries of Goddard and Burton
under the Protectorate. After the Restoration Andrew Marvell
writes descriptive letters to his constituents at Hull, and
Anchetil Grey, another member, compiles continuous reports
of debates.

During all this period the law of Parliament, both sub-
stantive and adjective, as Bentham would phrase it, is
continually growing as a body of customary law, and its
development is recorded by entries in the journals, which
are sometimes records of formal resolutions, sometimes mere
notes of practice. The power of adjournment is distinguished
from the power of prorogation, and is claimed by the Com-
mons, who also successfully claim the power of determining
the validity of elections. The committee system grows up.
Small committees are appointed for considering the details
of bills and other matters, and sit either at Westminster or
sometimes at the Temple and elsewhere. For weightier



PREFACE XI

matters large committees are appointed, and have a tendency
to include all members who are willing to come. Hence
the system of grand committees, and of committees of the
whole House, which are really the House itself in undress,
with the Speaker out of the chair, and with less formality
in the proceedings. During the revolutionary period com-
mittees assume the functions of executive government, like
the famous executive committees of the French Revolution,
but this is merely a temporary phase. At the end of the
seventeenth century, and even earlier, parliamentary pro-
cedure is following the lines which it continues to retain
until after the Reform Act of 1832.

"The parliamentary procedure of 1844," says Sir R.
Palgrave in his preface to the tenth edition of May, referring
to the date of the first edition, " was essentially the procedure
^' on which the House of Commons conducted business
'' during the Long Parliament."

The third period of parliamentary history may be taken
as beginning with the Revolution of 1688 and ending with
the Reform Act of 1832. The chief constitutional changes
of this period, as registered in the statute book, are the Bill
of Rights, the Act of Settlement, the Union with Scotland,
the Septennial Act, the Union with Ireland. But the period
was marked by two other great changes, of equal, if not
of greater importance, the growth and development of the
Cabinet system, and the growth and development of the
party system. They were silent changes, not brought about
by any act of the legislature ; gradual in their operation ;
developed, modified, deflected, retarded by strong persona-
lities, like Walpole, Pitt, George III ; imperfectly appreciated,
misinterpreted, misunderstood.

In the early part of the eighteenth century Montesquieu
set himself the task of comparing the political institutions
of the world, and of revealing the spirit of which they were
the outward form. He visited England, attended parliamen-
tary debates, mixed with English statesmen, and produced a
study of the English constitution. He found in that con-



xii PARLIAMENTARY PROCEDURE

stitution a due balance of the monarchical, aristocratic, and
democratic elements, a due separation of the executive, legis-
lative, and judicial powers. The picture which he drew was
a fancy picture, an idealised picture, like that which Tacitus
drew of Germany for the instruction of his decadent country-
men. But it was the work of a genius, and it lived, to
influence profoundly the thoughts of political writers and the
action of statesmen. It influenced the writers of the Fede-
ralist, and, by following its lines, Alexander Hamilton and
his colleagues framed for the United States of America a
constitution differing widely in its main principles from the
constitution of the mother country. It influenced Blackstone
and De Lolme, and, with their help, founded the " literary
theory of the English constitution," which was accepted as
gospel on the Continent of Europe. Nor was the theory
seriously shaken in England until Bagehot wrote those articles
in the " Fortnightly Review," which he afterwards collected
in his epoch-making little book.

Thanks to Bagehot, we have now realised that the British
constitution was not in the eighteenth century, and is not
now, based on a system of " checks and balances " between
King, Lords and Commons, between monarchy, aristocracy^
and democracy. In the eighteenth century the dominant
force of the State was pretty equally represented in the two
Houses of Parliament. Checks and balances there were, and
are, in the play of the constitution, but not operating in the
way supposed by Montesquieu or by Blackstone. Nor is there
any such separation between the executive and the legisla-
tive powers as that which forms the distinguishing mark of
the American constitution. On the contrary, the keynote
of the British constitution is the intimate relation between,
the interdependence of, the executive and the legislature.

This it is that differentiates from other forms of con-
stitution, what we call parliamentary government, and what
Dr. Redlich and other German writers have christened
" Parlamentarismus." And its characteristic feature, the
indispensable condition of its working, is the Cabinet.



PREFACE xiii

What, then, is the Cabhiet ? ^ It consists of those members
of the King's Ministry who are summoned to attend Cabinet
meetings. The Secretaries of State and the holders of the
most important ministerial offices are always included in the
Cabinet, but there are some offices, such as those of Post-
master-General and Chief Commissioner of Works, of which
the holders sometimes are, and sometimes are not Cabinet
Ministers. The chief member of the Ministry, who is called
the Prime Minister, summons and presides at Cabinet meetings.
Until quite recently the Prime Minister was not officially
recognised as such, and his title still indicates position or
precedence rather than office.

An excellent description of the Ministry, as constituted
under the Cabinet system, is to be found in Macaulay,^ and
there are so many things which "every schoolboy" knows
are to be found in Macaulay, but on which an educated
man often experiences difficulty in laying his finger at short
notice, that one may be pardoned for transcribing a well-
known passage. Some of the statements apply exclusively,
or specially, to that portion of the Ministry which constitutes
the Cabinet.

"The Ministry is, in fact, a committee of leading members of the two
Houses. It is nominated by the Crown, but it consists exclusively of
statesmen whose opinions on the pressing questions of the time agree, in
the main, with the opinion of the majority of the House of Commons.
Among the members of this committee are distributed the great depart-
ments of the administration. Each Minister conducts the ordinary business
of his own office without reference to his colleagues. But the most
important business of every office, and especially such business as is likely
to be the subject of discussion in Parliament, is brought under the con-
sideration of the whole Ministry. In Parliament the Ministers are bound
to act as one man on all questions relating to the executive government.
If one of them diverts from the rest on a question too important to admit
of compromise, it is his duty to retire. While the Ministers retain the
confidence of the parliamentary majority, that majority supports them
against opposition, and rejects every motion w^hich reflects on them or is
likely to embarrass them. If they forfeit that confidence, if the parlia-
mentary majority is dissatisfied with the way in which patronage is

' The best account of the Cabinet system is, perhaps, that given in



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