[i]

THE
GOVERNMENT OF ENGLAND

VOLUME I

[ii]

THE MACMILLAN COMPANY
NEW YORK · BOSTON · CHICAGO
ATLANTA · SAN FRANCISCO

MACMILLAN & CO., Limited
LONDON · BOMBAY · CALCUTTA
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THE MACMILLAN CO. OF CANADA, Ltd.
TORONTO

[iii]

THE
GOVERNMENT OF ENGLAND

BY

A. LAWRENCE LOWELL

PROFESSOR OF THE SCIENCE OF GOVERNMENT
IN HARVARD UNIVERSITY

VOLUME I

New York
THE MACMILLAN COMPANY
1908

All rights reserved

[iv]

Copyright, 1908,

By A. LAWRENCE LOWELL.

Set up and electrotyped. Published May, 1908. Reprinted June, 1908.

Norwood Press
J. S. Cushing Co.—Berwick & Smith Co.
Norwood, Mass., U.S.A.

[v]

PREFACE

Measured by the standards of duration, absence of violent commotions, maintenance of law and order, general prosperity and contentment of the people, and by the extent of its influence on the institutions and political thought of other lands, the English government has been one of the most remarkable the world has ever known. An attempt, therefore, to study it at any salient epoch cannot be valueless; and the present is a salient epoch, for the nation has now enjoyed something very near to manhood suffrage in the boroughs for forty years, and throughout the country more than twenty years, a period long enough for democracy to produce its primary if not its ultimate effects. Moreover, England has one of the most interesting of popular governments, because it has had a free development, little hampered by rigid constitutional devices. It is an organism constantly adapting itself to its environment, and hence in full harmony with national conditions. An endeavour has been made in these volumes to portray the present form of that organism and the forces which maintain its equilibrium.

In preparing a study of this kind one feels the need of limiting its scope, by reducing the denominator as Arthur Helps remarked. Hence the work covers only the English government as it stands to-day; and further, only those institutions, national and local, that have a general bearing. The British Constitution is full of exceptions, of local customs and special acts with which town clerks must be familiar. They fill the path of these men with pitfalls, but they do not affect seriously the general principles of the government, and no attempt is made to describe them here. Even the institutions of Scotland and Ireland, [vi]interesting as they are in themselves, have been referred to only so far as they relate to the national government or throw light upon its working.

Even so limited, the subject is not without difficulties. The forces to be studied do not lie upon the surface, and some of them are not described in any document or found in any treatise. They can be learned only from men connected with the machinery of public life. A student must, therefore, rely largely upon conversations which he can use but cannot cite as authorities, and the soundness of his conclusions must be measured less by his references in footnotes than by the judgment of the small portion of the public that knows at first-hand the things whereof he speaks. The precise effect of the various forces at work must be a matter of opinion on which well-informed people may differ, and the writer has drawn the picture as it appeared to him.

To undertake a study of this kind would be impossible without manifold assistance from others; and the writer is glad of this chance to express his sense of obligation to the many persons who have given him help and information, men in public life belonging to different parties, permanent officials, national and local, officers of political associations, jurists, publicists and many others. It is pleasant for him to recall the constant courtesy with which he was treated, not infrequently, in the case of local officers, without any introduction or claim of any kind. Among many men to whom he owes much he desires to acknowledge his debt to Rt. Hon. Joseph Chamberlain, Lord Fitzmaurice, Rt. Hon. John Morley, the late Sir William Harcourt, Lord Reay, Mr. Frederic Harrison, Sir William James Farrer, Sir Alexander Hargreaves Brown, Sir Frederick Pollock, Sir C. P. Lucas, Sir Horace Plunkett, Mr. Sidney Webb, Mr. Graham Wallas, Dr. William Cunningham, Mr. Francis W. Hirst, the late Capt. R. W. E. Middleton, Mr. A. E. Southall of the National Union of [vii]Conservative Associations and Mr. Charles Geake of the Liberal Publication Department.

His thanks are especially due to Professor A. V. Dicey, Sir Courtenay Ilbert, Professor H. Morse Stephens, now of the University of California, and Professor W. B. Munro of Harvard University, who, besides giving him information, have kindly read a part of the manuscript or proof sheets and made many valuable suggestions. Above all he feels the deepest gratitude to Rt. Hon. James Bryce, now happily British ambassador to the United States, the master and guide of all students of modern political systems, whose unwearied assistance, counsel and encouragement have been a constant help throughout the preparation of this work, and who has read the whole of the proof sheets except the chapters that deal with the Empire. These friends have made the writing of the book possible, and saved the author from many blunders. It is needless to say that none of them are in any way responsible for any opinions in these pages; and in fact the writer has tried not to express, and so far as possible not to form, opinions on matters of current party politics.

The writer is indebted also to a number of his students at Harvard, who have made researches in several different subjects. While some of the more important of these contributions have been referred to in the notes, it has been impossible to do this in all cases. Finally he desires to acknowledge the help he has received in his investigations from three assistants: Mr. Emerson David Fite, now of Yale University, Mr. Robert Lee Hale, now of the Harvard Law School, and Mr. Thomas N. Hoover of the Harvard Graduate School, the last of these having also verified the citations and prepared the index.

April, 1908.

[viii]

[ix]

TABLE OF CONTENTS

[xvi]

[1]

INTRODUCTORY NOTE ON THE CONSTITUTION

De Tocqueville declared that the English Constitution did not really exist,[1:1] and he said so because in his mind the word "constitution" meant a perfectly definite thing to which nothing in England conformed. An examination of modern governments shows, however, that the thing is by no means so definite as he had supposed.

The term "constitution" is usually applied to an attempt to embody in a single authoritative document, or a small group of documents, the fundamental political institutions of a state. But such an attempt is rarely, if ever, completely successful; and even if the constitution when framed covers all the main principles on which the government is based, it often happens that they become modified in practice, or that other principles arise, so that the constitution no longer corresponds fully with the actual government of the country. In France, for example, the principle that the cabinet can stay in office only so long as it retains the confidence of the popular chamber, the principle, in short, of a ministry responsible in the parliamentary sense, was not mentioned in the charters of 1814 or 1830, and yet it was certainly firmly established in the reign of Louis Philippe; and it is noteworthy that this same principle, on which the whole political system of the English self-governing colonies is based, appears neither in the British North American Act nor in the Australian Federation Act. The first of those statutes, following the English tradition, speaks of the Privy Council for Canada,[1:2] but never of the cabinet or the ministers; while the Australian Act, going a step farther, refers to the Queen's Ministers of State,[1:3] but ignores their [2]responsibility to the parliament.[2:1] Again, in the United States, the provision that the electoral college shall choose the President has become so modified in practice that the electors must vote for the candidate nominated by the party to which they owe their own election. In choosing the President they have become, by the force of custom, as much a mere piece of mechanism as the Crown in England when giving its assent to acts passed by the two Houses of Parliament. Their freedom of choice is as obsolete as the royal veto. So far, therefore, as this meaning of the term is concerned, the constitution of England differs from those of other countries rather in degree than in kind. It differs in the fact that the documents, being many statutes, are very numerous, and the part played by custom is unusually large.

De Tocqueville had more particularly in mind another meaning which is commonly attached to the term "constitution." It is that of an instrument of special sanctity, distinct in character from all other laws; and alterable only by a peculiar process, differing to a greater or less extent from the ordinary forms of legislation. The special sanctity is, of course, a matter of sentiment incapable of exact definition, and it may be said to belong to the British Constitution quite as much as to some others. The peculiar process of amendment, on the other hand,—the separation of the so-called constituent and law-making powers,—upon which Mr. Bryce bases his division of constitutions into rigid and flexible,[2:2] has had a long history and been much discussed; but although the contrast between the two types is highly important, the creation of intermediate forms has made it less exact as a basis of classification. The later constitutions, and the more recent practice, have tended to obscure the distinction. A separation between [3]the constituent and law-making powers does not, in fact, always exist in written constitutions. The Italian Statuto, for instance, which contains no provision for amendment, can be, and in fact has been, altered by the ordinary process of legislation;[3:1] and the same thing was true of the French Charter of 1830.[3:2] The last Spanish constitution omits all provision for amendment, but one may assume that if it lasts long enough to require amendment the changes will be made by ordinary legislative process.

From countries which can change their fundamental constitution by the ordinary process of legislation we pass by almost imperceptible degrees to those where the constitutional and law-making powers are in substantially different hands. Thus the procedure for changing the constitution in Prussia differs from that for the enactment of laws only by the requirement of two readings at an interval of twenty-one days. Here there is a difference legally perceptible between the methods of changing the constitution and other laws; but it may be remarked that a provision in the constitution to the effect that all laws should require two readings at an interval of twenty-one days, would not essentially change the nature of the constitution, and yet in theory it would make that constitution flexible instead of rigid. As it is, the fundamental laws are quite as much under the control of the legislature in Prussia as they are in England.[3:3] This is almost equally true of France; for although the changes in her constitution are made by the National Assembly, composed of the two chambers sitting together, yet the Assembly can meet only after the two chambers have passed a concurrent resolution to that [4]effect; and in fact the chambers are in the habit of determining beforehand by separate votes the amendments which shall be submitted to the Assembly. So that in France, also, the constitution is virtually under the unrestricted control of the legislature.

The separation of constituent and law-making powers has been rendered of much less practical importance in some countries not only by making the process of amending the constitution more simple, but also by making the enactment of laws more complex. In Switzerland, for example, changes in the Constitution of 1848 required a popular vote, while changes in the laws did not; but after the referendum on ordinary laws was introduced in 1874, this distinction largely disappeared, and at the present day the differences between the methods of passing constitutional amendments and ordinary laws are comparatively slight. In the case of ordinary laws a popular vote is taken only on the petition of thirty thousand citizens or eight cantons, and the popular majority is decisive; whereas constitutional amendments must be submitted to the people whether a petition is presented or not, and for their ratification a majority vote in more than half the cantons as well as a majority in the Confederation as a whole is required.[4:1]

In those European countries where the difference in the procedure for changing constitutional and other laws is the most marked, the special formalities for the former consist in requiring more than a majority vote in the legislature, or that a general election shall take place before the amendment is finally adopted, or both. Now the last of those conditions is practically not unknown in England. There is a growing feeling that no fundamental or far-reaching change ought to be made unless, as a result of a general election fought on that issue, Parliament has received from the nation a mandate to make the change. Such a doctrine does not affect the law, but it does affect that body [5]of customs which is a not less vital part of the British Constitution.

The classical distinction between constituent and law-making powers, and hence between rigid and flexible constitutions, has also been somewhat effaced by extending the requirement of a special procedure to the enactment of certain classes of ordinary law. Thus in the German Empire the only peculiar formality for amendments to the constitution is found in the provision that they are defeated by fourteen adverse votes in the Bundesrath.[5:1] This gives Prussia with her seventeen votes a veto upon them, but she has also a veto in the Bundesrath upon any measures affecting the army, the navy, customs-duties or excises.[5:2]

In the middle of the last century written constitutions in Europe were framed for the most part upon the same model and were much alike, so that a written constitution usually implied a definite type of limited monarchy, where the same class of matters were removed from the direct control of the legislature and placed, in theory at least, under special protection. But now written constitutions all over the world have come to differ a great deal, some of them being simpler, and others more comprehensive than of old. The constitutional laws of France, for example, provide only for the bare organisation of the public authorities, and can be amended virtually at will by the legislature; while the constitutions of Switzerland, Germany and the United States go into great detail, and that of the United States can be amended only with the greatest difficulty. The result is that the French constitution, although written and technically rigid, bears from the point of view of rigidity a far closer resemblance to the constitution of England than to that of the United States.

It would seem, therefore, that the distinction between constitutions which are flexible and those which are rigid, while valuable, has ceased to mark a contrast between widely separated groups; and that it might be well to [6]regard the distinction as one of degree rather than of kind. From this aspect it may be said that of late years constitutions have tended on the whole to become more flexible; and at the same time there has been a tendency toward greater variations in flexibility, the constitutions of England and of Hungary standing at one end of the scale, and that of the United States at the other.

If the term "constitution" does not necessarily imply that the so-called constituent and law-making powers are in different hands, still less does it imply the existence of a law of superior obligation which controls legally the acts of the legislature. Before discussing that question, one must understand clearly what is meant by a law. In England, and in the countries that have inherited the Anglo-Norman system of jurisprudence, a law may be defined as a rule that will be enforced by the courts. This results from the fact that officers of the government, like private persons, are subject to judicial process, and liable to have the legality of their actions examined and determined by the ordinary tribunals. Hence a rule recognised as law by the courts will be enforced against both officials and private citizens; and a rule which they do not recognise cannot be enforced at all, for they will entertain suits and prosecutions against officials who try to apply it, and will afford protection to individuals who resist them.[6:1] Assuming this definition of law, the famous decision of Chief Justice Marshall[6:2] that an Act of Congress inconsistent with the Constitution of the United States must be treated as invalid was a logical necessity. The Constitution was certainly intended to be a law, and as such it could be enforced by the courts. But if that law came into conflict with another law, an Act of Congress for example, the court must consider, as in any other case of conflict of laws, which law was [7]of superior authority; and there could be no doubt that the Constitution was the superior of the two. The same principle is applied in the British colonies, when colonial acts come into collision with the Acts of Parliament establishing the colonial government;[7:1] and it has been incorporated into the constitutions of the Spanish American republics.

But, except for those Latin countries which have copied it from the United States, the doctrine is almost entirely confined to the places where the Common Law prevails,[7:2] for elsewhere the same definition of law does not obtain. In accordance with the French interpretation of the theory of the separation of powers, it is the general rule on the continent of Europe that the ordinary courts administer only private law between private citizens, and that questions affecting the rights and duties of public officials are withdrawn from their jurisdiction. Such questions are now usually, though not universally, submitted to special tribunals known as administrative courts. The rules administered by these tribunals are laws, but they form a distinct and separate branch of the law from that applied by the ordinary courts. On the continent, therefore, a constitution may or may not be properly regarded as a law, but even if it be so regarded it is not of necessity enforced by any court. On the contrary, if an ordinary court is not [8]suffered to pass upon the legality of the actions of a policeman, it would be hardly rational that it should pass upon the validity of an act of the national legislature; and it would be even more irrational to intrust any such power to the administrative courts which are under the influence of the executive branch of the government.[8:1]

The conception of a constitution as a law of superior obligation, which imposes legal restraints upon the action of the legislature, is really confined to a very few countries, chiefly to America and the English self-governing colonies.[8:2] In Europe it has no proper place, for whether a constitution in continental states be or be not regarded as a supreme law, no body of men has, as a rule, been intrusted with legal authority to enforce its provisions as against the legislature; and in England there is no law superior in obligation to an Act of Parliament. There can, indeed, be no doubt that the Acts of Union with Scotland and Ireland were intended to be, in part at least, forever binding, but as they created no authority with power either to enforce or to amend the Acts, the united Parliament assumed that, like its predecessors, it possessed unlimited sovereignty; and it has, in fact, altered material provisions in each of those statutes.[8:3]

The English Constitution—speaking, of course, of its form, not its content—differs, therefore, from those of most other European nations more widely in method of expression than in essential nature and legal effect. They have [9]been created usually as a result of a movement to change fundamentally the political institutions of the country, and the new plan has naturally been embodied in a document; but since the Restoration England has never revised her frame of government as a whole, and hence has felt no need of codifying it. The national political institutions are to be found in statutes,[9:1] in customs which are enforced and developed by the courts and form a part of the Common Law, and in customs strictly so called which have no legal validity whatever and cannot be enforced at law. These last are very appropriately called by Professor Dicey the conventions of the constitution. The two chief peculiarities of the English Constitution are: first, that no laws are ear-marked as constitutional,—all laws can be changed by Parliament, and hence it is futile to attempt to draw a sharp line between those laws which do and those which do not form a part of the constitution;—second, the large part played by customary rules, which are carefully followed, but which are entirely devoid of legal sanction. Customs or conventions of this kind exist, and in the nature of things must to some extent exist, under all governments. In the United States where they might, perhaps, be least expected, they have, as already observed, transformed the presidential electors into a mere machine for registering the popular vote in the several states, and this is only the most striking of the instances that might be cited.[9:2] England is peculiar, not because it has such conventions, but because they are more abundant and all-pervasive than elsewhere. The most familiar of them is, of course, the rule that the King must act on the advice of his ministers, while they must resign or dissolve Parliament when they lose the confidence of the majority in the House of Commons.

It is impossible, however, to make a precise list of the [10]conventions of the constitution, for they are constantly changing by a natural process of growth and decay; and while some of them are universally accepted, others are in a state of uncertainty. Hence one hears from time to time a member of the Opposition assert that some action of the government is unconstitutional, meaning that it is an unusual breach of a principle which in his opinion ought to be recognised as inviolable. It was said, for example, that the Parliament of 1900, having been elected on the issue of the South African war, was not justified in enacting measures of great importance on other subjects, but that a fresh mandate from the nation ought to be obtained by another general election. As claims of this kind are in dispute, those customs alone can safely be said to be a part of the constitution which are generally assumed to be outside the range of current political controversy.

The relation between law and custom in the English government is characteristic. From the very fact that the law consists of those rules which are enforced by the courts, it follows that the law,—including, of course, both the statutes and the Common Law,—is perfectly distinct from the conventions of the constitution; is quite independent of them, and is rigidly enforced. The conventions do not abrogate or obliterate legal rights and privileges, but merely determine how they shall be exercised. The legal forms are scrupulously observed, and are as requisite for the validity of an act as if custom had not affected their use.[10:1] The power of the Crown, for example, to refuse its consent to bills passed by the two Houses of Parliament is obsolete, yet the right remains legally unimpaired. The royal assent is given to such bills with as much solemnity as if it were [11]still discretionary, and without that formality a statute would have no validity whatever. Public law in countries where it is administered not by the ordinary courts, but solely by the executive, or with the aid of special tribunals composed of administrative officials, must of necessity contain a discretionary element, and that element is always affected by political conventions. Hence there is a likelihood that the line between law and convention will become blurred, but this is not so in England. There the law and the conventions of the constitution are each developing by processes peculiar to themselves, but the line between them remains permanently clear. The conventions are superimposed upon the law, and modify political relations without in the least affecting legal ones. In fact Freeman declared that the growth of the unwritten conventions of the constitution began after the supremacy of the law had been firmly established by the revolution of 1688, and that they could not have been evolved if that condition had not existed.[11:1]

The question why the conventions of the constitution are so scrupulously followed, when they have no legal force, is not a simple one. Impeachment as a means of compelling the observance of traditions has, of course, long been obsolete. Professor Dicey maintains that the ultimate sanction of these conventions lies in the fact that any ministry or official violating them would be speedily brought into conflict with the law of the land as enforced by the courts.[11:2] He takes as illustrations the omission to summon Parliament every year, and the retention of office by a ministry against the will of the Commons without dissolving; and he shows in each case how the ministry would be brought into conflict with the law by the failure to enact the annual army bill or to pass the appropriations. He proves that in such cases the wheels of government would be stopped by the regular operation of the law; and that the House of [12]Commons can readily bring about this result if it pleases.[12:1] There is, however, another question, and that is why the House is determined to exert its power so as to maintain the conventions of the constitution as they stand to-day. It has long possessed the necessary authority, but the conventions were evolved slowly. The House of Representatives in Washington has the same power to stop appropriations, but it does not try to use it to force a responsible ministry upon the President; a result which has, on the other hand, been brought about in France almost as conclusively as in England, and that without the sanction arising from the risk of conflict between the government and the courts. Any parliament could use its authority if it chose to keep the ministry in office indefinitely, as well as to make it responsible. It could pass a permanent army act, grant the tea and income taxes for a term of years, charge all ordinary expenses upon the Consolidated Fund, and so make the existing ministry well-nigh independent of future parliaments.

The question seems to resolve itself into two parts: first, why a custom once established is so tenaciously followed in England; and, second, why the conventions have assumed their present form. In regard to the first it may be suggested that while the consequences mentioned by Professor Dicey form, no doubt, the ultimate sanction of the most important conventions of the constitution, they are not the usual, or in fact the real, motive for obedience; just as the dread of criminal punishment is not the general motive for ordinary morality. The risk of imprisonment never occurs, indeed, to people of high character, and in the same way the ultimate sanctions of the law are not usually present in the minds of men in English public life. In the main the conventions are observed because they are a code of honour. They are, as it were, the rules of the game, and the single [13]class in the community which has hitherto had the conduct of English public life almost entirely in its own hands is the very class that is peculiarly sensitive to obligation of this kind. Moreover, the very fact that one class rules, by the sufferance of the whole nation, as trustees for the public, makes that class exceedingly careful not to violate the understandings on which the trust is held.

The key to the question why the conventions have assumed their present form is to be found mainly in Professor Dicey's remark[13:1] that all of them exist for the sake of securing obedience to the deliberately expressed will of the House of Commons, and ultimately to the will of the nation. Their effect has been to bring the prerogatives of the Crown more and more completely under the control of the cabinet, and the cabinet itself under the control of the House of Commons; to restrain the opposition of the Lords to any policy on which the Commons backed by the nation are determined; and, finally, through the power of dissolution to make the House of Commons itself reflect as nearly as may be the views of the electorate. In England there is, in fact, only one conclusive means of expressing the popular will—that of an election to the House of Commons; and in ordinary cases there is only one body that has power to interpret that expression, the cabinet placed in office by the House so elected.

Professor Dicey has also pointed out a singular result of the conventions. If the growing power of the House of Commons, instead of being used to impose customary restraints on the exercise of authority by the Crown and the House of Lords, had been exerted to limit that authority by law, the Crown and the House of Lords would have been far more free to exercise at their discretion the powers still left in their hands; and hence the House of Commons could not have obtained its present omnipotence. By leaving the prerogative substantially untouched by law, and requiring that it should be wielded by ministers responsible to them, [14]the Commons have drawn into their own control all the powers of the sovereign that time has not rendered entirely obsolete.

The great part played by custom has had another effect upon English public life. It has tended to develop a conservative temperament. If laws are changed the new ones may have the same authority as the old; but if customs are changed rapidly they lose their force altogether. Stability is necessary for the very life of custom. The conventions of the constitution could not exist without respect for precedent, and where the institutions and liberties of a country depend not upon a written code, but upon custom, there is a natural tendency to magnify the importance of tradition and precedent in themselves. In England, therefore, there is a peculiar veneration for custom, and a disposition to make as little change in it as is compatible with changing times. The result is a constant tinkering, rather than remodelling, of outworn institutions,—a spirit which is strongly marked throughout the whole of English public life.

Critics and apologists both assert that the English political system is not logical; and the statement is true in the sense that the system was not excogitated by an a priori method. But on the other hand the very fact that it has grown up by a continual series of adaptations to existing needs has made it on the whole more consistent with itself, has brought each part more into harmony with the rest, than is the case in any other government. In this it is like a living organism. There are, no doubt, many small anomalies and survivals that mar the unity for the purpose of description; but these, like survivals of structure in animals, like the splint bones in the leg of a horse for example, do not interfere seriously with the action of the whole. It may be said that in politics the Frenchman has tended in the past to draw logical conclusions from correct premises, and that his results have often been wrong, while the Englishman draws illogical conclusions from incorrect premises, and his [15]results are commonly right. The fact being that all abstract propositions in politics are at best approximations, and an attempt to reason from them usually magnifies the inaccuracy. But in England the institutions being empirical have resulted from experience, although men have often tried to explain them afterwards by a somewhat artificial and incongruous process of reasoning. In this sense French political principles may be said to be the more logical, the English government—not the theories about it—the more scientific. It is more important, therefore, to describe the organs of the English government and their relations to one another than to consider the traditional principles that have been supposed to underlie the system. But the very nature of the English government renders it peculiarly difficult to portray. As the laws that regulate its structure are overlaid by customs which moderate very greatly their operation without affecting their meaning or their validity, it is necessary to describe separately the legal and customary aspects of the constitution. It is almost unavoidable to pass in review first the legal organisation of each institution, and then its actual functions. Such a process is sometimes tedious, especially for a person already familiar with the subject, but an attempt has been made in the following pages to separate as far as possible the dry legal details from a discussion of the working forces, so that the former may be skipped by the judicious reader.

FOOTNOTES:

[16]

PART I.—CENTRAL GOVERNMENT

CHAPTER I

THE CROWN

Political liberty and romance in English history are both bound up with the shifting fortunes of the throne. The strong hand of the Norman and Angevin kings welded the whole country into a nation, and on that foundation were built the solid structures of a national Common Law, a national Parliament, and a long series of national statutes. When in the fulness of time the Crown had accomplished its work of unification, it came into conflict with Parliament, and after a series of convulsions, in which one king lost his head and another his throne, political evolution resumed its normal course. The House of Commons gradually drew the royal authority under its control. But it did so without seriously curtailing the legal powers of the Crown, and thus the King legally enjoys most of the attributes that belonged to his predecessors, although the exercise of his functions has passed into other hands. If the personal authority of the monarch has become a shadow of its former massiveness, the government is still conducted in his name, and largely by means of the legal rights attached to his office. With a study of the Crown, therefore, a description of English government most fittingly begins.

Ever since 1688, when James II., fleeing in fear of his life, "withdrew himself out of the kingdom, and thereby abdicated," the title to the Crown has been based entirely upon parliamentary enactment. At the present day it rests upon the Act of Settlement of 1700,[16:1] which provided that, in default of heirs of William and of Anne, the Crown should pass to the Electress Sophia, and the heirs of her [17]body, being Protestants. Sophia was the granddaughter of James I., through her mother, wife of the Elector Palatine; and while not his nearest heir, was the nearest who was a Protestant.

The rules of descent are in the main the same as those for the inheritance of land at Common Law.[17:1] That is, the title passes to the eldest son; or, if he is not living, through him to his issue, male or female, as if he had himself died upon the throne. If the first son has died without issue, then to, or through, the eldest son who is living, or has issue living; and in default of any sons living, or leaving issue, then to, or through, the eldest daughter. The rule is, however, subject to the qualification that any one who is, or becomes, a Catholic is excluded from, and forfeits, the right to the Crown, which then passes to the next heir. In order to insure a test that will make this last provision effective, the sovereign is obliged to take an oath, abjuring the Catholic religion, in words which have proved offensive to members of that faith. After the accession of Edward VII., therefore, but before his coronation, an effort was made to modify the form of the oath, and a bill was introduced into the House of Lords for that purpose; but it was not then found possible to arrange a phrase satisfactory to all parties, and the bill was dropped.

In other monarchies permanent provision has been made by law for the possible incapacity of the monarch, whether by reason of infancy or insanity. But this has never been done in England. Each case has been dealt with as it arose, and usually after it has arisen, so that, in default of any person competent to give the royal assent to bills, Parliament has been driven into the legal absurdity of first passing a regency bill to confer such a power upon a regent, and then directing the Chancellor to affix the Great Seal to a commission for giving assent to that bill. Until recent times it was also thought necessary to appoint officers, Lords Justices [18]or others, to exercise the royal powers when the sovereign went out of the kingdom; but with the rapidity of modern travel and communication this has become unnecessary, and it has not been done since the accession of Queen Victoria.

The authority of the English monarch may be considered from different points of view, which must be taken up in succession; the first question being what power is legally vested in the Crown; the second how much of that power can practically be exercised at all; the third how far the power of the Crown actually is, or may be, used in accordance with the personal wishes of the King, and how far its exercise is really directed by his ministers; the fourth, how far their action is in turn controlled by Parliament. The first two questions, which form the subject of this chapter, cannot always be treated separately, for it is sometimes impossible to be sure whether a power that cannot practically be exercised is or is not legally vested in the Crown. An attempt to make use of any doubtful power would probably be resisted, and the legality of the act could be discussed in Parliament or determined by the law courts; but it is very rare at the present day that any such attempt is made. There are powers that have been disputed, or fallen into disuse, and that no government would ever think of reviving; and thus the question of law never having been settled, the legal right of the Crown to make use of them must remain uncertain.

The authority of the Crown may be traced to two different sources. One of them is statutory, and comprises the various powers conferred upon the Crown by Acts of Parliament. The other source gives rise to what is more properly called the prerogative. This has been described by Professor Dicey[18:1] as the original discretionary authority left at any moment in the hands of the King; in other words, what remains of the ancient customary or Common Law powers inherent in the Crown. The distinction is one not always [19]perfectly easy to draw, for many parts of the prerogative have been regulated and modified by statute, and in such cases it is not always clear whether the authority now exercised is derived from statute or from the prerogative. Nevertheless the distinction is often important, because where the powers have been conferred by Parliament the Crown acts by virtue of a delegated authority which lies wholly within the four corners of the statute, and exists only so far as it is expressly contained therein; while the prerogative not being circumscribed by any document is more indefinite, and capable of expanding or contracting with the progress of the suns.

All legislative power is vested in the King in Parliament; that is, in the King acting in concert with the two Houses. Legally, every act requires the royal assent, and, indeed, the Houses can transact business only during the pleasure of the Crown, which summons and prorogues them, and can at any moment dissolve the House of Commons. But it is important to note that by itself, and apart from Parliament, the Crown has to-day, within the United Kingdom,[19:1] no inherent legislative power whatever. This was not always true, for legislation has at times been enacted by the Crown alone in the form of ordinances or proclamations; but the practice may be said to have received its death-blow from the famous opinion of Lord Coke, "that the King by his proclamation cannot create any offence which was not an offence before, for then he may alter the law of the land."[19:2] The English Crown has, therefore, no inherent power to make ordinances for completing the laws, such as is possessed by the chief magistrate in France and other continental states. This does not mean that it cannot make regulations for the [20]conduct of affairs by its own servants, by Orders in Council, for example, establishing regulations for the management of the Army, or prescribing examinations for entrance to the civil service. These are merely rules such as any private employer might make in his own business, and differ entirely in their nature from ordinances which have the force of law, and are binding quite apart from any contract of employment.

Power to make ordinances which have the force of law and are binding on the whole community is, however, frequently given to the Crown[20:1] by statute, notably in matters affecting public health, education, etc., and the practice is constantly becoming more and more extensive, until at present the rules made in pursuance of such powers—known as "statutory orders"—are published every year in a volume similar in form to that containing the statutes. Some of these orders must be submitted to Parliament, but go into effect unless within a certain time an address to the contrary is passed by one of the Houses, while others take effect at once, or after a fixed period, and are laid upon the tables of the Houses in order to give formal notice of their adoption. A fuller description of these orders must, however, be postponed to the chapters that deal with Parliament. It is only necessary here to point out that in making such orders the Crown acts by virtue of a purely delegated authority, and stands in the same position as a town council. The orders are a species of subordinate legislation, and can be enacted only in strict conformity with the statutes by which the power is granted; and being delegated, not inherent in the Crown, a power of this kind does not fall within the prerogative in its narrower and more appropriate sense.

The Crown is at the head of the executive branch of the central government, and carries out the laws, so far as their execution requires the intervention of any national public authority. In fact all national executive power, [21]whether regulated by statute, or forming strictly a part of the prerogative, is exercised in the name of the Crown, and by its authority, except when directly conferred by statute upon some officer of the Crown, and in this case, as we shall see, it is exercised by that officer as a servant of the Crown, and under its direction and control. Legally some of the executive powers are indeed vested in the Crown in Council—that is, in the King acting with his Privy Council—but as the Council has no independent authority, and consists, for practical purposes, of the principal ministers appointed by the Crown, even these powers may be said to reside in the Crown alone.

All national public officers, except some of the officials of the Houses of Parliament, and a few hereditary dignitaries whose duties are purely ceremonial,[21:1] are appointed directly by the Crown or by the high state officials whom it has itself appointed; and the Crown has also the right to remove them, barring a small number whose tenure is during good behaviour. Of these last by far the most important are the judges, the members of the Council of India, and the Controller and Auditor General, no one of whom has any direct part in the executive government of the kingdom.[21:2] Now the right to appoint and remove involves the power to control; and, therefore, it may be said in general that the whole executive machinery of the central government of England is under the direction of the Crown.

The Crown furthermore authorises under the sign manual the expenditure of public money in accordance with the appropriations made by Parliament, and then expends the money. It can grant charters of incorporation, with powers not inconsistent with the law of the land, so far as the right to do so has not been limited by statute; but in consequence [22]of the various reform acts, municipal corporation acts, and local government acts, no charter conferring political power can now be created except in pursuance of statute, while even commercial companies usually require privileges which can be given only by the same authority.[22:1] The Crown grants all pardons, creates all peers, and confers all titles and honours. As head of the Established Church of England it summons Convocation with a license to transact business specified in advance. It virtually appoints the archbishops, bishops and most of the deans and canons, and has in its gift many rectorships and other livings.[22:2] As head of the Army and Navy it raises and controls the armed forces of the nation, and makes regulations for their government, subject, of course, to the statutes and to the passage of the Annual Army Act. It represents the empire in all external relations, and in all dealings with foreign powers. It has power to declare war, make peace, and conclude treaties, save that, without the sanction of Parliament, a treaty cannot impose a charge upon the people, or change the law of the land, and it is doubtful how far without that sanction private rights can be sacrificed or territory ceded.[22:3]

Just as Parliament has often conferred legislative authority upon the Crown, so it has conferred executive power in addition to that possessed by virtue of the prerogative. I do not refer here to the cases where a statute creates new public duties to be performed directly by the Crown and confers upon it the authority needed for the purpose. Such powers, although statutory, are exercised in the same way as those derived from the prerogative. I refer to statutes that regulate the duties or privileges of local and other bodies, and give to the Crown, not a direct authority to carry out the law, but a power of supervision and control. Statutes of this kind have become very [23]common during the last half century in relation to such matters as local government, public health, pauperism, housing of the working-classes, education, tramways, electric lighting and a host of other things. Even without an express grant of authority, supervisory powers have often been conferred upon the Crown by means of appropriations for local purposes which can be applied by the government at its discretion, and hence in accordance with such regulations as it chooses to prescribe. This has been true, for example, of the subsidies in aid of the local police, and of education. By such methods the local authorities, and especially the smaller ones, have been brought under the tutelage of the Crown to an extent quite unknown in the past.

All told, the executive authority of the Crown is, in the eye of the law, very wide, far wider than that of the chief magistrate in many countries, and well-nigh as extensive as that now possessed by the monarch in any government not an absolute despotism; and although the Crown has no inherent legislative power except in conjunction with Parliament, it has been given by statute very large powers of subordinate legislation. "It would very much surprise people," as Bagehot remarked in his incisive way, "if they were only told how many things the Queen could do without consulting Parliament . . . Not to mention other things, she could disband the army (by law she cannot engage more than a certain number of men, but she is not obliged to engage any men); she could dismiss all the officers, from the General Commanding-in-Chief downwards; she could dismiss all the sailors too; she could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She could make every citizen in the United Kingdom, male or female, a peer; she could make every parish in the United Kingdom a 'university'; she could dismiss most of the civil servants; she could pardon all offenders. In a word, the Queen could by prerogative [24]upset all the action of civil government within the government."[24:1] We might add that the Crown could appoint bishops, and in many places clergymen, whose doctrines were repulsive to their flocks; could cause every dog to be muzzled, every pauper to eat leeks, every child in the public elementary schools to study Welsh; and could make all local improvements, such as tramways and electric light, well-nigh impossible.

Great as the prerogative is to-day, it was, in some directions, even more extensive in the past, and men are in the habit of repeating the phrases derived from that past after they have lost their meaning. This is done by writers who are not under the slightest misapprehension in regard to the actual legal authority of the Crown. It is the habit, for example, to speak of the Crown as the fountain of justice, and even an author so learned and accurate as Todd repeats Blackstone's statement that "By the fountain of justice, the law does not mean the author or original, but only the distributor. Justice is not derived from the king, as from his free gift, but he is the steward of the public, to dispense it to whom it is due. He is not the spring, but the reservoir, from whence right and equity are conducted by a thousand channels to every individual."[24:2] Now apart from public prosecution by the state, which is less common in England than elsewhere, and the use of the King's name in judicial process, the only legal connection of the Crown with the distribution of justice to-day lies in the appointment of the judges; and to call it on that account the reservoir of justice is merely fanciful. There was a time when the Crown was really the fountain or reservoir of justice, when it might fairly have been said to administer justice by deputy. It created the Common Law courts, and after the growth of civilisation had produced more refined and complex ideas of justice it received petitions for the redress of wrongs not recognised before, [25]and established new courts to deal with them. Stubbs has compared the process to that of the sun throwing off a series of nebulous envelopes, which rolled up into compact bodies, but left the old nucleus of light to assert its vitality, unimpaired by successive emanations.[25:1] In this way the courts of equity arose to give relief in cases where there was no remedy by the strict rules of the Common Law, while the Star Chamber performed an analogous function in criminal matters. This last tribunal came to be used as a political engine under the Stuarts, and was abolished by statute[25:2] early in the struggle with Charles I. With the fall of the Stuarts the power of the Crown to create new courts came to an end altogether. In 1689 the Bill of Rights declared the "Court of Commissioners for Ecclesiastical Causes, and all other Commissions and Courts of a like Nature," illegal, and since that time an Act of Parliament has been necessary to create any new court of justice in England.

The Crown has been deprived in the same way of other powers once possessed or claimed under the prerogative. The Bill of Rights, for example, declared illegal the suspending or dispensing with laws, and the maintenance of a standing army in time of peace without the consent of Parliament. Some powers have, from long disuse, become obsolete and have been lost; such as the right to confer on boroughs the privilege of electing members to the House of Commons;[25:3] and the power to create life peers with votes in the House of Lords.[25:4] Other powers again, although legally unimpaired, have become obsolete in practice, and can no longer be exerted. The illustration commonly given of this is the right of the Crown to withhold its assent to a bill passed by Parliament,—popularly called, or [26]miscalled, the veto. The right has not been exercised since the days of Queen Anne; but it may not be gone so completely beyond revival as is generally supposed. It could, of course, be used only on the advice of the ministry of the day, and under ordinary circumstances a ministry willing to withhold the royal assent to a bill would be bound to treat the passage of that bill by the House of Commons as a ground for resignation or dissolution. One can imagine, however, a case where after a bill has passed the Commons the ministry should resign, and the House of Lords should insist on passing the bill in spite of the opposition of the new cabinet. It would be rash to assert that in such a case the royal assent would not be withheld. Something of the kind very nearly occurred in 1858, when the ministry threatened to advise the Queen to withhold her assent to a private bill unless the Lords gave permission to the Board of Works to appear before the private bill committee and oppose the plans.[26:1]

Since the accession of the House of Hanover the new powers conferred upon the Crown by statute have probably more than made up for the loss to the prerogative of powers which have either been restricted by the same process or become obsolete by disuse. By far the greater part of the prerogative, as it existed at that time, has remained legally vested in the Crown, and can be exercised to-day; but it is no longer used in accordance with the personal wishes of the sovereign. By a gradual process his authority has come more and more under the control of his ministers, until it is now almost entirely in the hands of the cabinet, which is responsible to Parliament, and through Parliament to the nation. The cabinet is to-day the mainspring of the whole political system, and the clearest method of explaining the relations of the different branches of the government to each other is to describe in succession their relations with the cabinet.

FOOTNOTES:

[27]

CHAPTER II

THE CROWN AND THE CABINET

It is not within the province of this book to trace the process whereby the King became irresponsible both at law and before the nation, while the responsibility for his acts became transferred to his ministers. The story has been told by others far better than the writer could tell it, and the object here is only to note the results of that process in the existing constitution.

The doctrine that "the King can do no wrong" had its beginnings as far back as the infancy of Henry III., and by degrees it grew until it became a cardinal principle of the constitution. Legally it means that he cannot be adjudged guilty of wrong-doing, and hence that no proceedings can be brought against him. He cannot be prosecuted criminally, or, without his own consent, sued civilly in tort or in contract in any court in the land.[27:1] But clearly if the government is to be one of law, if public officers like private citizens are to be subject to the courts, if the people are to be protected from arbitrary power, the servant who acts on behalf of the Crown must be held responsible for illegal conduct from the consequences of which the King himself is free. Hence the principle arose that the King's command is no excuse for a wrongful act, and this is a firmly established maxim of the Common Law in both civil and criminal proceedings.[27:2] To prevent royal violations of the law, [28]however, it is not enough to hold liable a servant who executes unlawful orders, if the master still has power to commit offences directly. A further step must be taken by restraining the Crown from acting without the mediation of a servant who can be made accountable, and for this reason Edward I. was informed that he could not make an arrest in person.[28:1] But, as the kings and queens are not likely to be tempted into personal assaults and trespasses, the principle that they can act only through agents has had little importance from the point of view of their liability at law, although it is a matter of vital consequence in relation to their political responsibility.

The doctrine that the King can do no wrong applies not only to legal offences, but also to political errors. The principle developed slowly, as a part of the long movement that has brought the royal authority under the control of public opinion; not that the process was altogether conscious, or the steps deliberately planned, but taking constitutional history as a whole, we can see that it tended to a result, and in speaking of this it is natural to use terms implying an intent which the actors did not really possess. To keep the Crown from actual violations of law was not always easy, but it was far more difficult to prevent it from using its undoubted prerogatives to carry out an unpopular policy. Parliament could do something in a fitful and intermittent way by refusing supplies or insisting upon the redress of particular grievances, but that alone was not [29]enough to secure harmony between the Crown and the other political forces of the day. There could, in the nature of things, be no appropriate penalty for royal misgovernment. In the Middle Ages, indeed, a bad king or a weak king might lose his throne or even his life; but in more settled times such things could not take place without a violent convulsion of the whole realm,—a truth only too well illustrated by the events of the seventeenth century. An orderly government cannot be founded on the basis of personal rule tempered by revolution. Either the royal power must be exercised at the personal will of the monarch, or else other persons who can be made accountable must take part in his acts of state.

As early as the fourteenth and fifteenth centuries the King's Council had begun to encumber the affixing of the various seals with a series of formalities which involved the intervention of one or more royal officers. The process continued until custom or statute required that almost every public act which the Crown was in the habit of performing directly—except the appointment and removal of the great officers of state themselves—must either be done in the Privy Council, or by means of an instrument authenticated by seals or countersignatures affixed by one or more officers of state.[29:1] The object of these formalities was to protect the Crown from improvident grants, and to secure the influence of the Council over the administration,[29:2] rather than to create any responsibility to Parliament or the public; and yet it was easy to maintain, when the time was ripe, that the officer who sealed or signed assumed thereby responsibility for the act. Then if a wrong was committed some one could be held to account; for misconduct some one could be punished; for acts that were unpopular, or a policy that was odious, some one beneath the throne could be assailed; and if a strong expression of resentment did not deter the offender, Parliament had as a [30]last resort the weapons of impeachment and bill of attainder. These weapons were a stage in the process of evolution, a stepping-stone in the progress of parliamentary control, but they were far too rough to produce a true accord between the Crown and Parliament; and when the political experiments of William and of Anne, fostered by the timely accident of two unkingly foreigners upon the throne, evolved at last the system of a responsible ministry in its present form, even impeachment became obsolete, or rather it lingered only as a means of retribution for personal malfeasance in office.

The rules requiring seals or signatures to be affixed to royal acts, though somewhat simplified, remain in force to-day, but they have ceased to be the real source of responsibility. The effort to fasten upon a particular person the actual responsibility for each public act of the Crown by compelling some officer to put his approval of it on record, has been superseded by the general principle that the responsibility must always be imputed to a minister. Though ignorant of the matter at the time it occurred, he becomes answerable if he retains his post after it comes to his knowledge; and even though not in office when the act was done, yet if he is appointed in consequence of it, he assumes with the office the responsibility for the act. This happened to Sir Robert Peel in 1834. Believing, as every one at that time did believe, that the King had arbitrarily dismissed Lord Melbourne's cabinet, he said, "I should by my acceptance of the office of First Minister become technically, if not morally, responsible for the dissolution of the preceding government, although I had not the remotest concern in it."[30:1] The rule is so universal in its operation "that there is not a moment in the King's life, from his accession to his demise, during which there is not some one responsible to Parliament for his public conduct."[30:2] A minister is now politically responsible for everything that occurs in his [31]department, whether countersignature or seal is affixed by him or not; and all the ministers are jointly responsible for every highly important political act. A minister whose policy is condemned by Parliament is no longer punished, he resigns; and if the affair involves more than his personal conduct or competence, if it is of such moment that it ought to have engaged the attention of the cabinet, his colleagues resign with him. Thus punitive responsibility has been replaced by political responsibility, and separate has been enlarged to joint responsibility.

The ministers, being responsible to Parliament for all the acts of the Crown, are obliged to refrain from things that they cannot justify, and to insist upon actions which they regard as necessary. In short, the cabinet must carry out its own policy; and to that policy the Crown must submit. The King may, of course, be able to persuade his ministers to abandon a policy of which he does not approve, and of his opportunities for doing so we shall have more to say later; but if he cannot persuade them, and, backed by a majority in Parliament, they insist upon their views, he must yield. It is commonly said that he must give his ministers his confidence, but it would be more accurate to say that he must follow their advice. With the progress of the parliamentary system this custom has grown more and more settled, the ministers assuming greater control, and the Crown yielding more readily, not necessarily from any dread of the consequences, but from the force of habit.

According to the older theory of parliamentary government, it was merely necessary that the King should have ministers who would accept responsibility for his acts; and, therefore, he might disregard their advice if he could find others who were willing to adopt his policy, and assume responsibility for it. Such an alternative is a very remote possibility in England to-day. It could only be brought about in one of two ways.

In the first place it might be brought about by the dismissal of the cabinet. William IV. was long supposed to [32]have dismissed arbitrarily Lord Melbourne's cabinet in 1834, and for many years his action in so doing was freely criticised; but on the publication of the Melbourne Papers[32:1] it appeared that the Prime Minister himself, meeting with great difficulty in carrying on the government, virtually suggested the dismissal to the King; and thus the incident was rather in the nature of a resignation than a dismissal. The right to dismiss a ministry, although unquestionably within the legal prerogative of the Crown, seems to be regarded as one of those powers which the close responsibility of the cabinet to the House of Commons has practically made obsolete. As in the case of some other powers, however, it is hardly safe to predict that it will never be used again, for circumstances might arise in which it was evident that the ministry and the House of Commons no longer represented the opinion of the country. Before Mr. Gladstone's last administration few people would have hesitated to say that the House of Lords would never again venture to reject a bill on which a House of Commons, fresh from a general election, was thoroughly in earnest, when the subject of the bill had been one of the chief issues in that election. Yet the Lords rejected the last Home Rule Bill of 1893, without losing popularity by so doing; and in 1906 it destroyed the Education Bill. It is conceivable that under similar conditions the Crown might, by dismissing a ministry, force a dissolution, and appeal to the electorate. Such an event, though highly improbable, cannot be said to be impossible.

The dismissal of a ministry must, of course, be carefully distinguished from the dismissal of an individual minister. This would be done, as in the case of Lord Palmerston,—the last of the kind that has occurred,—at the request of the Premier, and therefore not contrary to, but in accordance with, the advice of the person chiefly responsible for the acts of the Crown.

The other way in which a change of ministry could be [33]brought about by the Crown would be by a refusal to consent to some act which the ministry deemed essential to their remaining in office. Some cases of the exercise of such a right by the representative of the Crown have taken place in the self-governing colonies, but they are not such as are likely to occur in England. A request, for example, by the ministry to be allowed to dissolve a colonial legislature has on several occasions been refused by the governor, usually on the ground that a general election had recently been held, or that there was no important issue pending between the parties which the people could properly be called upon to decide.[33:1] In England, on the other hand, such a request by a ministry has never been refused since William Pitt in 1784 invented the principle that a government faced by a hostile majority in the House of Commons may appeal to the electorate instead of resigning; nor is it probable that it will be refused, because the rules of political fair play are so thoroughly understood among English statesmen that the power is not likely to be misused for party purposes.

An interesting discussion on the right of a colonial governor to reject the advice of his ministers was raised in the case of Governor Darling of Victoria in 1865. The story has been often told. It grew out of a quarrel between the Assembly and the Legislative Council, which were both elective, but happened to be on opposite sides in politics. The Assembly, wishing to enact a protective tariff, to which a majority of the Council was known to be opposed, tacked it to the annual appropriation bill; and the Council, unable to amend such a bill, rejected it altogether. Thereupon the Governor, yielding to the pressure of his ministers, sanctioned the levy of the new duties, the issue of a loan, and the payment of official salaries, without the authority of any act regularly passed by both branches of the legislature. For permitting, on the advice of his ministers, such a violation [34]of law, Governor Darling was rebuked, and finally dismissed by the Secretary of State for the Colonies.[34:1] It is needless to say that no such situation has ever arisen, or is likely to arise, in England.

There is one matter in which the Crown cannot really be bound by the advice of ministers, and that is in the selection of a Premier. It would be obviously improper, not to say absurd, that the King in the selection of a new Prime Minister should be obliged to follow the opinion of the old one who has just resigned in consequence of a change of party in the House of Commons. That Mr. Balfour, for example, should have had the right to dictate whether Sir Henry Campbell-Bannerman or Lord Rosebery should be his successor would have been grotesque. There is usually one recognised leader of the Opposition, and when that is the case the Crown must intrust the formation of the new ministry to him. This was illustrated in 1880. Mr. Gladstone had, some years before, retired from the leadership of the Liberals in Parliament, and the Queen, after their success at the general election, sent for Lord Hartington, then leading them in the House of Commons; but she found that Mr. Gladstone, who had really led the party in the country to victory, was the only possible head of a Liberal government.[34:2]

If the party that has obtained a majority in Parliament has no recognised leader, the Crown may intrust the formation of a ministry to any one of its chief men who is willing to undertake the task; or if, as is sometimes the case, the parties have become more or less disintegrated, so that only a coalition ministry can be formed, the Crown can send for the head of any one of the various groups. Not to speak of earlier days, when the King had more freedom than at present in the formation of his cabinets, it happened several times in the reign of Queen Victoria that the question who should be Prime Minister was determined by her personal [35]choice. In 1852, for example, Lord Aberdeen's coalition cabinet was formed by her desire.[35:1] In 1859 she selected Lord Palmerston rather than Lord John Russell;[35:2] and in 1868 and 1894, when in each case the existing cabinet lost its head, she selected the minister who was to succeed, designating in the first case Mr. Disraeli, and in the last Lord Rosebery.[35:3] Such opportunities, however, are likely to be less common in future, for it is altogether probable that a party will prefer to choose its own leader rather than to leave the selection to the Crown.

The choice of the other members of the cabinet is a very different matter; for although former sovereigns insisted on having a decisive voice in the composition of the ministry, it may be said that with Peel's appointment to office in 1834 the principle was definitely established that the Prime Minister chooses his colleagues, and is responsible for their selection.[35:4] The royal authority in this matter gave a last dying flicker in the bed-chamber question of 1839, where Peel's clumsiness and the Queen's impetuosity gave rise to a misunderstanding. Peel wished to replace some of the ladies attendant on the Queen, who were exclusively Whigs, by Conservatives; and the Queen, getting the impression that he intended to replace them all, refused.[35:5] When Peel came into office two years later part of the Whig ladies retired and were replaced; and it has since been settled that the Mistress of the Robes, like the Gentlemen of the Household, shall change with the administration, but that the other ladies shall remain. The Mistress of the Robes, however, must always be a duchess, and during the last years of the Queen's life it happened that there was no duchess who was a Liberal.

At the present day all persons whose offices are considered [36]political are appointed in accordance with the advice of the Prime Minister. This does not mean that the sovereign may not urge his own views, perhaps with success, and on one occasion, at least, the Queen secured, it is said, a place in the cabinet for a former minister whom the incoming Premier had either forgotten or meant to leave out. It does mean, however, that if the minister insists upon his advice it must be accepted. More than once, for example, the Queen tried in vain to exclude from the Foreign Office Lord Palmerston, who was a constant grief of mind to her. As Mr. Morley puts it in the chapter, in his "Life of Walpole," which is understood to express Mr. Gladstone's views upon the cabinet, "Constitutional respect for the Crown would inspire a natural regard for the personal wishes of the sovereign in recommendations to office, but royal predilections or prejudices will undoubtedly be less and less able to stand against the Prime Minister's strong view of the requirements of the public service."[36:1]

The responsibilities of the ministers may be classified as technical and complete. Thus for acts which happen before they come into office, and which they could not possibly have advised, they assume what may be called a technical, or perhaps a nominal, responsibility. A premier is technically responsible for his own selection; but as responsibility of that kind means merely the obligation to resign on an adverse vote of the House of Commons, and as he would be obliged to do this in any event, he assumes no additional responsibility by reason of his own selection; and the same thing may be said of all acts which happen before the ministers come into power, and which they do not by accepting office effectually sanction or condone. They become responsible, for example, for the condition of the public departments of which they take charge; and yet it may be for the very purpose of changing that condition that they were put in office. In other words, there is a difference between those things for which they are technically [37]responsible but not to blame, and those things which have been done by their advice, and for the consequence of which they may be said to be morally or completely responsible. The distinction is unimportant from the point of view of the conventions of the constitution, but its practical consequences are considerable as regards the position of the cabinet before Parliament and the public. Now the ministers are completely responsible for all political acts done by the Crown during their tenure of office, even those which appear to be most directly the work of the sovereign himself. All communications with the representatives of foreign powers, for example, pass through their hands. The creation of peers, the granting of honours, are now unquestionably subject to their advice; and although when King Edward's list of coronation honours was announced in 1901, The Times declared that the names were the personal choice of the monarch, it took pains to add that the constitutional responsibility must, of course, rest with the ministers.[37:1]

In short, the ministers direct the action of the Crown in all matters relating to the government. The King's speech on the opening of Parliament is, of course, written by them; and they prepare any answers to addresses that may have a political character. All official letters and reports to the King, and all communications from him, must pass through the hands of one of their number. A letter addressed to the sovereign as such by a subject, or other private person, passes through the office of the Home Secretary; and even peers, who have a constitutional right to approach him, must make an appointment for the interview through the same office. This does not mean that the Crown may not consult any one it pleases. That question came up in relation to Prince Albert, whom the ministers at first held at arm's length, and whose presence at their interviews with the Queen they refused for a couple of years to permit, while he, on the other hand, called himself the Queen's [38]"confidential adviser" and "permanent minister."[38:1] Confidential adviser he certainly was, but minister he certainly was not, because in the nature of things he could not be responsible for her acts. Mr. Gladstone in his "Gleanings of Past Years"[38:2] seems to have defined the true position of the Queen and Prince Consort when he said that she has a right to take secret counsel with any one, subject only to the condition that it does not disturb her relation with her ministers. She cannot, as a rule, consult the Opposition, because they are directly opposed to the ministry; but she can consult any one else, provided it does not affect the responsibility of her ministers; that is, provided that in the end she follows their advice.

The ministers are responsible for the public, not the private, acts of the Crown; but it is sometimes hard to distinguish between the two. Queen Victoria, for example, had relatives on many of the thrones of Europe to whom it was absurd that she should not write private letters; while other crowned heads were constantly writing letters to her on public business which they did not intend the ministers to see. The rule was, therefore, adopted that all her correspondence with foreign sovereigns, not her relatives, should pass through the ministers' hands,—an arrangement which, though a necessary result of English responsible government, was galling to the Queen, who was often made to express in her own handwriting opinions quite different from those which she really held.[38:3] In domestic matters, also, it is hard to draw the line between what is public and what is private. The Queen's marriage, which was felt at the time to have a greater political importance than it would have to-day, was arranged by herself, without consultation with her ministers, and merely announced to them. On the other hand, when the Princess Louise was betrothed to the Marquis of Lorne, Mr. Gladstone stated in the House of Commons that the marriage [39]with a subject had not been decided upon without the advice of the ministers of the Crown.[39:1] The risk of a strong infusion of British blood in the veins of some future occupant of the throne is, it seems, a political matter, for which the cabinet must hold itself responsible. But this is not true of purely social affairs. One of the chief functions of the Crown is that connected with its duties as the head of the social life of the capital. These duties the Queen virtually abandoned for many years after her husband's death; but although there were loud complaints on the part of the public, the question was not regarded as a political one for which the ministers could be called to account.

Since the King can do no wrong, he can do neither right nor wrong. He must not be praised or blamed for political acts; nor must his ministers make public the fact that any decision on a matter of state was actually made by him.[39:2] His name must not be brought into political controversy in any way, or his personal wishes referred to in argument, either within or without Parliament.[39:3] This principle was not fully recognized until after the accession of Queen Victoria. At the first election of her reign the Tories complained, apparently with reason, that the Whigs used her [40]and her name as party weapons,[40:1] and three years later we find Wellington referring to the Queen as the head of the party opposed to the Conservatives.[40:2] Almost the only public acts that can be done by the Crown before the public eye are ceremonies, public functions, speeches which have no political character and deeds of kindness that are above criticism. When the Queen, for example, made her last visit to Ireland, the public were allowed to understand that it was her own suggestion, and the same thing was true of her order allowing Irish soldiers to wear the shamrock, it being assumed that such acts could not have a political bearing, and would excite no hostile comment.

According to the earlier theory of the constitution the ministers were the counsellors of the King. It was for them to advise and for him to decide. Now the parts are almost reversed. The King is consulted, but the ministers decide. It is commonly said that, with the sovereign, influence has been substituted for power; or as Bagehot puts it in his own emphatic way, the Crown has "three rights—the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others."[40:3] But after the advice and warning have been given the final decision must remain with the ministers. It is for them to determine whether their opinion is of such importance that they feel obliged to insist upon it in spite of the objections of the King, and if they do he must yield. Bagehot goes on to describe how effective the right to advise may become in the hands of a sage and experienced monarch, but he admits how small the chance must be that the occupant of the throne will possess the qualities needed for making a good use of the right, and adds that the attempt of the ordinary monarch to exercise it would probably do more harm than good.

Historians have often observed that the absence of the [41]sovereign from cabinet meetings, since the accession of the House of Hanover, has been a great factor in the growth of cabinet government. His absence had, indeed, three distinct effects. It helped to free the individual members of the cabinet from royal pressure; it made it easier for them to act as a unit in their relations with the monarch; and it tended to remove him from the discussion of public policy until it had been formulated. This last point is highly important, and has a bearing upon the influence of the King to-day, because it is before the ministers have formed an opinion that his advice and warning are most effective. It is while some of them are reluctant and others are hesitating that the weight of his views has the best chance of turning the scale. After the matter has been threshed out and an agreement reached the decision is far less likely to be reversed, or even seriously modified, by his personal preferences.

Now the sovereign is not usually consulted about matters of domestic legislation and policy until the opinion of the cabinet has taken shape. For although he is informed in general terms of what is done at cabinet meetings, and sometimes discusses with a minister the proposed measures relating to his department, yet a matter is commonly talked over and agreed upon by the ministers before it is submitted to him for approval. In this way "the sovereign is brought into contact only with the net results of previous inquiry and deliberation,"[41:1] and the views of the cabinet are "laid before" him "and before Parliament, as if they were the views of one man."[41:2] Queen Victoria tried, indeed, to insist upon the right of "commenting on all proposals before they are matured;"[41:3] but apparently without much success. This was not equally true, however, of all departments of the government. On the contrary, after a long struggle with Lord Palmerston, in which she suffered many [42]exasperating rebuffs, the autocratic foreign minister by his impulsiveness and lack of perfect candour gave her at last an advantage. She succeeded in establishing, by the memorandum of August, 1850, the rule that she must be kept informed of foreign correspondence and despatches before they were sent, so that foreign matters should be intact and not already compromised when they were brought to her attention. Mr. Gladstone has criticised the principles laid down at that time because they meant that the comments of the Premier on despatches were to be made, not privately to the foreign minister, but after the draft had been submitted to the Queen.[42:1] In other words, he complained that the Queen was consulted before the tenor of the despatch had been finally settled between the Premier and the foreign minister. His criticism seems, therefore, to be levelled at the practice of consulting the Crown before the policy has been agreed upon by those who are responsible for it,[42:2] in this case the Prime Minister and the Foreign Secretary, for despatches are not ordinarily brought before the full cabinet for consideration.

The opportunity for an exertion of royal influence is much less in those matters which are settled in cabinet meeting than in others. In the former case the sovereign is not usually consulted until the question has been thoroughly discussed, and the cabinet has reached a decision which is the more difficult to change because it is often the result of a compromise, and has, therefore, something of the binding force of an agreement; whereas, in questions which are not [43]brought directly before the cabinet, the Crown when consulted has to overcome only the opinion, and perhaps the hasty opinion, of one or two ministers. This is true in such matters as the less important foreign relations, ecclesiastical and other patronage, and the ordinary executive work of the various departments. But herein another difference must be observed. The executive action of the government in domestic affairs is usually brought under very close scrutiny by Parliament, and is subjected to a galling fire there. Hence the minister, with the volley of questions levelled at the Treasury Bench ever before his mind, finds it more difficult in these affairs to yield his opinion to that of the monarch than he does in the case of foreign negotiations, and of ecclesiastical, judicial and military patronage, which are not habitually discussed in Parliament.[43:1] It would seem, therefore, that under ordinary circumstances the personal influence of the King in political matters is not likely to be very effectively asserted outside of foreign affairs, church patronage, and some other appointments to office.

Although one can perceive the general limitations upon the personal influence of the monarch imposed by the conditions under which it is exercised, one can never know how vigorously it is being used at the moment; and, indeed, it is difficult to estimate its actual effect during any comparatively recent period. There is no use in going back beyond the reign of Queen Victoria, to times when the parliamentary system was so imperfectly developed that ministers sometimes gave individual and contrary advice to the King;[43:2] and since the Queen came to the throne very little has been published which throws light upon the subject. From the various memoirs and letters of her ministers almost everything has been eliminated that bears upon the actual influence she exerted. Nevertheless certain facts appear. There can be no doubt that the personal opinions of the [44]monarch were deemed of greater importance at the time of the Queen's accession than they are to-day. Of late years, indeed, many popular writers have tended to neglect the royal influence altogether. With the love of broad generalisation, which is at once valuable and perilous in political philosophy, publicists have been in the habit of speaking of the Queen as a figurehead; but statesmen who have seen the inner life of the cabinet know that the metaphor is inexact. Mr. Gladstone is reported to have said that every treatise on the English government which he had read failed to estimate her actual influence at its true value; and in his "Gleanings of Past Years"[44:1] he remarks, "there is not a doubt that the aggregate of direct influence normally exercised by the sovereign upon the counsels and proceedings of her ministers is considerable in amount, tends to permanence and solidity of action, and confers much benefit on the country." Perhaps at a later period he might have stated this less strongly; and although no final judgment can yet be formed, one may venture an estimate of the Queen's influence in the different branches of the government.

The effect of the Queen's personal preferences in the selection of the Prime Minister and his colleagues has already been discussed, and it may be added that on two or three occasions a cabinet, instead of resigning on a defeat in the Commons, dissolved Parliament in deference to her wishes;[44:2] but except for this it is hard to find definite traces of her influence upon the general domestic policy of the country. Yet in some departments, at least, of the public service she took a very lively interest. At times she was prodigal of suggestions and advice, which bore, as far as one can see, no positive fruit. She held her opinions strongly, expressed them boldly, and was frank in her criticism of measures, but did not succeed apparently in [45]persuading her ministers to abandon or even to modify them. On more than one occasion she used her personal influence over the peers to prevent a disagreement between the Houses, but this was never done to give effect to her own personal views, and in the case of the Irish Church Disestablishment Bill it was done to secure the passage of a government measure with which she was not herself in sympathy.[45:1] In short her personal influence in domestic affairs, either in the form of initiating policy, or of effecting changes in that of her ministers, seems to have been very slight. To this statement, however, a couple of exceptions must be made, which relate to the Army and the Church. The Queen, who regarded the Army as peculiarly dependent upon the sovereign, procured the appointment of a royal duke as Commander-in-Chief, and for a time she resisted successfully all attempts to change the vague relation of that office to the Crown,[45:2] although in the end it was made completely subordinate to the minister responsible to Parliament.[45:3] In the matter of ecclesiastical appointments her opinions were expressed with still greater effect, bishops and deans having in several cases been selected by her, sometimes in preference to candidates proposed by the Prime Minister.

But it was in foreign affairs that the Queen's efforts were most untiring, and on the whole most successful, in spite of many disappointments. For years she was opposed to Lord Palmerston's aggressive attitude, and while she never effected a radical change of policy, she appears at times to have softened it to some extent.[45:4] Throughout her reign she insisted upon the right to criticise despatches, and not infrequently she caused changes to be made in them; sometimes, as in the European crisis of 1859-1861, by appealing from the Foreign Secretary and the Prime Minister to the [46]cabinet as a whole.[46:1] The most famous case is that of the Trent Affair in 1861, where the changes made in a despatch, in accordance with the suggestions of the Prince Consort a few days before his death, avoided a danger of serious trouble with the United States. In foreign affairs, therefore, it is safe to conclude that while the Queen never initiated a policy, her influence had on several important occasions a perceptible effect in modifying the policy of her ministers.

In the closing chapter of his biography of the Queen, Mr. Lee says that her "personal influence was far greater at the end of her life than at her accession to the throne. Nevertheless it was a vague intangible element in the political sphere, and was far removed from the solid remnants of personal power which had adhered to the sceptre of her predecessors."[46:2] No doubt her long experience, and the veneration due to her age and unblemished character, caused her opinions to be treated with growing respect; but there can be no doubt, also, that the political influence of the sovereign faded slowly to a narrower and fainter ray during her reign. One sees this in Peel's remark at her accession, that the personal character of a constitutional monarch counteracts the levity of ministers and the blasts of democratic passions.[46:3] One sees it in the great importance attached at that time to the persons surrounding the Queen, to the Ladies of the Bedchamber, to the question of her private secretary, and to the position of the Prince Consort. The Queen herself seems to have held views about her own position that were drawn from the past rather than the present.[46:4] At least this is the impression one forms, and it is [47]fortified both by her defence of her seclusion in 1864, on the ground that she had higher duties to discharge which she could not neglect without injury to the public service; and by her complaint that some of her ministers did not allow her time enough to consider and decide public questions, when in reality the decision was not made by her at all. The Crown has been compared to a wheel turning inside the engine of state with great rapidity, but producing little effect because unconnected with the rest of the machinery. This is, no doubt, an exaggeration; but the actual influence of Queen Victoria upon the course of political events was small as compared with the great industry and activity she displayed. What the influence of the sovereign will be in the future cannot be foretold with precision. It must depend largely upon the insight, the tact, the skill, the industry and the popularity of the monarch himself; and as regards any one department, upon his interest in that department. The monarch is not likely to be inured to a life of strenuous work, and yet in addition to the political routine, which is by no means small, his duties, social and ceremonial, are great. Moreover, with the highest qualifications for the throne, his opportunities must be very limited, for there is certainly no reason to expect any growth in irresponsible political authority.

Bagehot's views upon the utility of the monarchy have become classic. Recognising the small chance that an hereditary sovereign would possess the qualities necessary to exert any great influence for good upon political questions, he did not deem the Crown of great value as a part of the machinery of the state; and he explained at some length how a parliamentary system of government could be made to work perfectly well in a republic, although up to that time such an experiment had never been tried. But he thought the Crown of the highest importance in England as the dignified part of the government. Writing shortly before the Reform Bill of 1867, he dreaded the extension of democracy in Great Britain, for he had a low opinion of [48]the political capacity of the English masses. He felt that the good government of the country depended upon their remaining in a deferential attitude towards the classes fitted by nature to rule the state, and he regarded the Crown as one of the strongest elements in keeping up that deferential attitude. According to his conception of English polity the lower classes believed that the government was conducted by the Queen, whom they revered, while the cabinet, unseen and unknown by the ignorant multitude, was thereby enabled to carry on a system which would be in danger of collapsing if the public thoroughly understood its real nature. Whatever may have been the case when Bagehot wrote, this state of things is certainly not true to-day. The English masses have more political intelligence than he supposed, or more political education than when he wrote. A traveller in England does not meet to-day people who think that the country is governed by the King, nor does he find any ignorance about the cabinet, or any illusions about the part played by the chief leaders in Parliament. The English workingman is now bombarded from the platform, in the newspapers and in political leaflets, with electioneering appeals which do not refer to the King, but discuss unceasingly the party leaders and their doings. The political action of the Crown is, in fact, less present to men's minds than it was half a century ago. Mr. Lee tells us that he was impressed by the outspoken criticism of the Queen's actions in the early and middle years of her reign.[48:1] To-day the social and ceremonial functions of the Crown attract quite as much interest as ever; but as a political organ it has receded into the background, and occupies less public attention than it did formerly. The stranger can hardly fail to note how rarely he hears the name of the sovereign mentioned in connection with political matters; and when he does hear it the reference is only too apt to be made by way of complaint. If the foreign policy is unpopular, if there is delay in the formation of a cabinet, one [49]may hear utterly unfounded rumours attributing the blame to the King. Even if a committee of inquiry is thought not to have probed some matter to the bottom, it is perhaps whispered that persons in favour at court are involved. Fortunately such reports are uncommon. In general the growth of the doctrine of royal irresponsibility has removed the Crown farther and farther out of the public sight, while the spread of democracy has made the masses more and more familiar with the actual forces in public life. One may dismiss, therefore, the idea that the Crown has any perceptible effect to-day in securing the loyalty of the English people, or their obedience to the government.

On the other hand, the government of England is inconceivable without the parliamentary system, and no one has yet devised a method of working that system without a central figure, powerless, no doubt, but beyond the reach of party strife. European countries that had no kings have felt constrained to adopt monarchs who might hold a sceptre which they could not wield; and one nation, disliking kings, has been forced to set up a president with most of the attributes of royalty except the title. If the English Crown is no longer the motive power of the ship of state, it is the spar on which the sail is bent, and as such it is not only a useful but an essential part of the vessel.

The social and ceremonial duties of the Crown are now its most conspicuous, if not its most important, functions. There can be no question that the influence of the Queen and her court was a powerful element in the movement that raised the moral tone of society during the first half of the last century. But such an influence must vary with the personal character of the monarch. It may be exerted for good or for evil; and it may not be so strong in the future as it has been in the past.

In its relation to the masses royalty may be considered in another aspect. Within a generation there has been a great growth of interest in ceremony and dress. Antiquated customs and costumes have been revived, and [50]matters of this kind are regarded by many people as of prime importance. A kindred result of the same social force has been a marked increase in what Bagehot called the spirit of deference, and what those who dislike it call snobbishness—a tendency by no means confined to the British Isles. All this has exalted the regard for titles and offices, and enhanced the attractiveness of those who bear them. In prestige the titled classes have profited thereby, and although their position is less and less dependent upon court favour, the royal family has also profited directly. The presence of some one of its members is sought at ceremonies of all kinds, whether it be the opening of a new building, the inauguration of a charity, or an anniversary celebration at a university. The attendance of the King on such occasions insures an extended report in all the newspapers of the country, and is, therefore, a most effective form of advertisement.

A century or more ago people who had learned nothing from the history of Greece or Rome, and above all of Venice, were wont to assert that the sentiment of loyalty requires a person for its object. No one would make such a statement now. No one pretends that the English would be less patriotic under a republic; and yet with the strengthening conception of the British Empire, the importance of the Crown as the symbol of imperial unity has been more keenly felt. To most countries the visible symbol of the state is the flag; but curiously enough there is no British national flag. Different banners are used for different purposes; the King himself uses the Royal Standard; ships of war carry at the peak the White Ensign; naval reserve vessels fly the Blue Ensign, and merchantmen the Red Ensign; while the troops march, and Parliament meets, under the Union Jack; and all of these are freely displayed on occasions of public rejoicing. There is a tendency at the moment to speak of the Union Jack as the national flag, but a recent occurrence will illustrate how far this is from being justified. A British subject residing at Panama had been in the habit [51]of flying the Red Ensign, until one day he hoisted in its place the Union Jack. Now, according to the regulations the Jack is displayed from the consulates, and the British consul requested his patriotic fellow-citizen not to use it on his private house. The question was finally referred to the British Foreign Office, which in deference to a law of Panama forbidding all private display of alien flags, supported the position of the consul, but refrained from expressing any opinion on the right of an English citizen to hoist the Union Jack in foreign parts.[51:1] Each of the self-governing colonies has, moreover, its own flag, which consists of the Union Jack with some distinctive emblem upon it. One of the first acts of the new Commonwealth of Australia was to adopt a separate flag of this kind. The government held a competition in designs, and some thirty thousand were presented. From these one was selected which showed at the same time the connection with the empire and the self-dependence of the commonwealth. It is the Union Jack with a southern cross and a six-pointed star at one end,—a design that seems to have been more shocking to heraldic than to imperialist sensibilities.

The Crown is thus the only visible symbol of the union of the empire, and this has undoubtedly had no inconsiderable effect upon the reverence felt for the throne.

Whatever the utility of the Crown may be at the present time, there is no doubt of its universal popularity. A generation ago, when the Queen, by her seclusion after the death of Prince Albert, neglected the social functions of the court, a number of people began to have serious doubts on the subject. This was while republican ideals of the earlier type still prevailed, and before men had learned that a republic is essentially a form of government, and not necessarily either better or worse than other forms. The small republican group in England thought the monarchy useless and expensive; but people have now learned that republics are not economical, and that the real cost of [52]maintaining the throne is relatively small.[52:1] So that while the benefits derived from the Crown may not be estimated more highly, or admitted more universally than they were at that time, the objections to the monarchy have almost entirely disappeared, and there is no republican sentiment left to-day either in Parliament or the country.

FOOTNOTES:

[53]

CHAPTER III

THE CABINET AND THE MINISTERS

A German professor in a lecture on anatomy is reported to have said to his class, "Gentlemen, we now come to the spleen. About the functions of the spleen, gentlemen, we know nothing. So much for the spleen." It is with such feelings that one enters upon the task of writing a chapter upon the cabinet; although that body has become more and more, decade by decade, the motive power of all political action. The fact is that the cabinet from its very nature can hardly have fixed traditions. In the first place, it has no legal status as an organ of government, but is an informal body, unknown to the law, whose business is to bring about a coöperation among the different forces of the state without interfering with their legal independence. Its action must, therefore, be of an informal character. Then it meets in secret, and no records of its proceedings are kept, which would in itself make very difficult the establishment and preservation of a tradition. This could, indeed, happen only in case of a certain permanence among the members who could learn and transmit its practice. But a new cabinet contains under ordinary circumstances none of the members of its predecessor. A Conservative minister knows nothing of the procedure under Liberal administrations; and we find even a man of the experience of Sir Robert Peel asking Sir James Graham about the practice of a Liberal cabinet, of which that statesman—who at this time changed his party every decade—had formerly been a member.[53:1] No doubt the mode of transacting business varies a good deal from one cabinet to [54]another, depending to a great extent upon the personal qualities of the members. Still, the real nature of the work to be done, and hence the method of doing it, have changed during the last half century less in the case of the cabinet than of any of the other political organs of the state, and one can observe certain general characteristics that may be noted.

The conventions of the constitution have limited and regulated the exercise of all legal powers by the regular organs of the state in such a way as to vest the main authority of the central government—the driving and the steering force—in the hands of a body entirely unknown to the law. The members of the cabinet are now always the holders of public offices created by law; but their possession of those offices by no means determines their activity as members of the cabinet. They have, indeed, two functions. Individually, as officials, they do the executive work of the state and administer its departments; collectively they direct the general policy of the government, and this they do irrespective of their individual authority as officials. Their several administrative duties, and their collective functions are quite distinct; and may, in the case of a particular person, have little or no connection. The Lord Privy Seal, for example, has no administrative duties whatever; and it is conceivable that the work of other members might not come before the cabinet during the whole life of the ministry.

The essential function of the cabinet is to coördinate and guide the political action of the different branches of the government, and thus create a consistent policy. Bagehot called it a hyphen that joins, a buckle that fastens, the executive and legislative together; and in another place he speaks of it as a committee of Parliament chosen to rule the nation. More strictly, it is a committee of the party that has a majority in the House of Commons. The minority are not represented upon it; and in this it differs from every other parliamentary committee. The distinction is so obvious to us to-day, we are so accustomed to government [55]by party wherever popular institutions prevail, that we are apt to forget the importance of the fact. Party government as a system has developed comparatively recently; but it has now become almost universal. The only exception among democratic countries (that is, the only case where the executive body habitually contains members of opposing parties) is in Switzerland. Still the system is carried to a greater extent in some countries than in others; and the amount of power concentrated in the hands of a single party leader, or a body of party leaders, varies very much. The President of the United States, for example, is the representative of a party; but he rules the nation only in part. The legislature is neither in theory or in practice under his control; and this is so far true that even when Congress is of the same party as himself, neither he nor any committee of the party so controls both executive and legislative that any one body can be said to rule the nation. But where the parliamentary system prevails, the cabinet, virtually combining in its own hands, as it does, the legislative and executive authorities, may fairly be said to rule the nation; although the degree in which this is true must depend upon the extent of its real control over the legislature. Now, although the legal power of the executive government is in some respects less in England than in most continental countries, the actual control of the cabinet over the legislature is greater than anywhere else.

The cabinet is selected by the party, not directly, but indirectly, yet for that very reason represents it the better. Direct election is apt to mean strife within the party, resulting in a choice that represents the views of one section as opposed to those of another, or else in a compromise on colourless persons; while the existing indirect selection results practically in taking the men, and all the men, who have forced themselves into the front rank of the party and acquired influence in Parliament. The minority of the House of Commons is not represented in the cabinet; but the whole of the majority is now habitually represented, all [56]the more prominent leaders from every section of the party being admitted. In its essence, therefore, the cabinet is an informal but permanent caucus of the parliamentary chiefs of the party in power—and it must be remembered that the chiefs of the party are all in Parliament. Its object is to secure the cohesion without which the party cannot retain a majority in the House of Commons and remain in power. The machinery is one of wheels within wheels; the outside ring consisting of the party that has a majority in the House of Commons; the next ring being the ministry, which contains the men who are most active within that party; and the smallest of all being the cabinet, containing the real leaders or chiefs. By this means is secured that unity of party action which depends upon placing the directing power in the hands of a body small enough to agree, and influential enough to control. There have, of course, been times when the majority was not sufficiently homogeneous to unite in a cabinet; when a ministry of one party has depended for its majority upon the support of a detached group holding the balance of power. The Peelites in 1850, the Liberal Unionists in 1886, and the Irish Nationalists in 1892 formed groups of this kind; but such a condition of things is in its nature temporary and transitional, and usually gives place to a coalition ministry, followed by party amalgamation.

The statesman sent for by the Crown and intrusted with the formation of a ministry becomes himself the Prime Minister, and selects his colleagues. It may be added, also, that he has virtually power to dismiss a minister; that is, subject to his responsibility to the cabinet as a whole and to Parliament, he can request the Crown to dismiss a colleague—a request which the Crown cannot practically refuse.[56:1] In the selection of the cabinet his choice is, [57]however, decidedly limited both as to persons and offices. In the first place, all the men still in active public life who served in the last cabinet of the party have a claim, a very strong claim, to sit in the new cabinet, and hence it is unusual to discard a man who is willing to return to office.[57:1] This in itself fills a goodly number of the cabinet positions. Then all the prominent leaders in Parliament, and especially in the House of Commons, must be included. In fact, as Mr. Bagehot puts it, the Prime Minister's independent choice extends rather to the division of the cabinet offices than to the choice of cabinet ministers. Still, he has some latitude in regard to the men whom he will admit; especially the younger men, who are appointed to offices in the ministry but not in the cabinet, and this may be a matter of great moment. One cannot tell, for example, how different the history of Parliament in the middle of the century might have been had Peel decided to invite Disraeli to join his ministry in 1841.[57:2] Although the Prime Minister has by no means a free hand in the selection of his colleagues, the task is often extremely difficult and vexatious. It is like that of constructing a figure out of blocks which are too numerous for the purpose, and which are not of shapes to fit perfectly together; for with the selection of the members of the cabinet the difficulties are by no means over. The distribution of the offices among them may raise additional problems. One man will take only a particular office, while others may object to serving if he occupies that post. Where parties are a good deal broken up, or are evenly divided, obstacles like these have sometimes prevented the formation of a cabinet altogether; and there is always some disappointment and consequent discontent on the part of [58]men who thought themselves sufficiently prominent to be admitted to the ministry, and whose chagrin may drive them into an independent attitude.

There are, indeed, two ways in which an ambitious young member of the House of Commons can render his services indispensable to the Prime Minister. He must, of course, first get the ear of the House, and make himself a power there. Then he may vote regularly with the party whips, support the leaders of his party on all occasions, and speak in their favour whenever he can be of use to them. In that case he is likely to be regarded as a promising young man of sound principles who can be relied upon by his chiefs. Or, he may follow the opposite course of the candid friend, criticising and even attacking the leader of his party, showing the weak points in his arguments, and the errors in his policy. In that case, if the young man has achieved so important a position that he cannot be disregarded, he stands a good chance of being given an office as a dangerous critic who must be conciliated and attached firmly to the government. The first of these methods is slower but safer. The second has sometimes been tried with startling success, notably in the case of Lord Randolph Churchill; but it has also been tried too obviously, and without the necessary social or parliamentary influence; and when it does not succeed it is likely to leave its victim hopelessly stranded below the gangway.

The number of members in the cabinet has varied very much at different times,[58:1] and of late years it has shown a marked tendency to increase. William Pitt had only six colleagues. A generation ago the cabinets contained from a dozen to sixteen members; but they have now run up to eighteen or twenty. There are several reasons for the change. In the first place, as the sphere of the state activity extends and the government grows more paternal, the range of affairs that come within the action of the cabinet is greater; and hence from time to time there is need of [59]admitting a representative of some fresh department to its consultations. Then, on the political side, the development of the parliamentary system has made it necessary for the cabinet to have an ever stronger and stronger hold upon the House of Commons; and, therefore, the different shades of feeling in the party that has a majority in that House must be more and more fully represented in the cabinet. This alone would tend to increase the number of its members; but far more important still is the fact that a seat in the cabinet has become the ambition of all the prominent men in Parliament. Consequently the desire to be included is very great, and the disappointment correspondingly acute. For these various reasons there is a constant pressure to increase the size of the cabinet. The result is not without its evils. A score of men cannot discuss and agree on a policy with the same readiness as a dozen. There is more danger of delay when action must be taken. There is a greater probability of long discussions that are inconclusive or result in a weak compromise. There is, in short, all the lack of administrative efficiency which a larger body always presents; unless, indeed, that body is virtually guided and controlled by a small number of its own members. That some recent cabinets have been actually so controlled there can be little doubt; and this must become more and more the case as the cabinet grows larger, if it is to retain its great suppleness and strength. One sometimes hears of an interior junto, or cabinet within the cabinet, that really determines the policy. This is undoubtedly an exaggeration; a giving of formal shape to informal conferences among leaders on special questions, which have always taken place; but it appears not improbable that if the growth in the size of the cabinet continues, some such interior nucleus may develop which will bear to the cabinet something of the relation that the cabinet now bears to the ministry.

Certain offices always bring their holders into the cabinet. These are the positions of First Lord of the Treasury (a post almost invariably held either by the Prime Minister himself, [60]or by the leader of the House of Commons if the Prime Minister is a peer and takes some other office); Lord Chancellor (a great political as well as judicial office); the great English executive offices, those of the Chancellor of the Exchequer, the five Secretaries of State, and the First Lord of the Admiralty; and a couple of dignified positions without active administrative duties, those of President of the Council and the Lord Privy Seal. Certain other officers have been of late years always in the cabinet; such are the Presidents of the Board of Trade, the Local Government Board, and the Board of Education, and the Chief Secretary for Ireland,—except when his nominal superior, the Lord Lieutenant for Ireland, is himself a member. On the other hand, the Secretary for Scotland and the Chancellor of the Duchy of Lancaster are usually in the cabinet; while the President of the Board of Agriculture and the Postmaster-General are often there; the First Commissioner of Works and the Lord Chancellor for Ireland occasionally so. The tendency at the present day is certainly in the direction of including the head of every considerable branch of the administration.

The counsel of a statesman who was incapacitated for the performance of steady administrative work, or unwilling to undertake it, was occasionally secured in former times by giving him a seat in the cabinet without any office under the Crown. He then became what is known on the continent as a minister without portfolio. The last case of this kind in England was that of Lord John Russell in 1854-1856; but the same object is practically attained to-day by means of the office of Lord Privy Seal,[60:1] which involves no real administrative duties, and those of President of the Council,[60:2] and Chancellor of the Duchy of Lancaster, where the duties are very light.

[61] As the continental practice whereby ministers are allowed to address the legislature, whether they have seats in it or not, is unknown in England, every member of the cabinet, and indeed of the ministry, must have a seat in one or other House of Parliament;[61:1] the last exception being that of Mr. Gladstone, who held the office of Secretary of State for the Colonies during the last few months of Sir Robert Peel's administration in 1846, although he had failed of reëlection to the House of Commons.[61:2] The reason commonly given for such a limitation in the selection of ministers is that otherwise they could not be made responsible to Parliament, where they must be present in order to answer questions, and give information relating to their departments. From the standpoint of Parliament this is perfectly true, but the converse is also true. The head of a department sits in the House of Commons quite as much in order to control the House, as in order that the House may control him. In his chapter on "Changes of Ministry," Bagehot has shown how defenceless against attack any department is sure to be without a spokesman in Parliament, and he cites as a forcible illustration the fate of the first Poor Law Commission.[61:3] All this applies, of course, only to the House of Commons, for although the presence of ministers in the House of Lords is a convenience in debate, and an appropriate recognition of the legal equality of the two chambers, there is no responsibility to be secured thereby, and it is not the essential means of controlling the action of the peers.

The men who win places in the ministry have usually, although by no means invariably, made their mark in debate. It is a strange assumption that a good talker must be a good administrator, and that a strong government can be formed by parcelling out the offices among the leading [62]debaters in the legislative body. At first sight it appears as irrational as the other corollary of the parliamentary system, that the public service is promoted by dismissing an excellent foreign minister, because the House of Commons does not like an unpopular clause in an education bill. Any one with a sense of humour can point out the incongruities in any human organisation, whether it works in practice well or ill. But there is, in fact, reason to expect that a leading debater will make a good head of a department. Influence is rarely acquired over a body so permanent as the House of Commons by mere showy eloquence. Real weight there must be based upon a knowledge of men, and a power to master facts and grasp the essential points in a situation. It must be based, in other words, upon the qualities most essential to a good head of a department in a government where, as in England, the technical knowledge, the traditions, and the orderly conduct of affairs, are secured by a corps of highly efficient permanent officials. No doubt all leading debaters do not make good administrators. Sometimes a minister is negligent or ineffective, and occasionally he is rash. There are men, also, who have outlived their usefulness, or who were once thought very promising, and have not fulfilled their promise, but who cannot be discarded and must be given a post of more or less importance. The system works, however, on the whole very well, and supplies to the government offices a few extraordinary, and many fairly efficient, chiefs, although it puts some departments under the control of poor administrators.

The power of creating peers would make it possible to select for the head of a department a tried administrator altogether outside of the parliamentary field. Something like this was attempted in the recent case of Lord Milner, who was offered, on Mr. Chamberlain's resignation, the post of Secretary of State for the Colonies. Lord Milner was, indeed, a peer at the time the place was tendered to him, but he had attended in the House of Lords only to take his [63]seat. He had never spoken or voted there, and in fact had had no parliamentary career, his nearest approach to St. Stephens having consisted in standing on one occasion as a candidate for the House of Commons without success.

Formerly a statesman regularly began his official life as a parliamentary under-secretary; and he did not become the head of a department, or win a seat in the cabinet, until he had in this way served his apprenticeship in public administration—a practice which furnished both a guarantee of experience and a test of executive capacity. Of late years there have been a number of exceptions to this rule. Mr. Chamberlain, Lord Randolph Churchill, Mr. Morley and Mr. Birrell, for example, were admitted to the cabinet, and put at the head of great departments without any previous training in the service of the government. As a rule, however, the old system is likely to prevail, because it is difficult for a man to make his mark in Parliament unless he begins his work there very young; and the exceptions occur only in cases of men of great ability.

In the earlier part of the century, before the party system had developed as fully as it has to-day, complete unity in the cabinet was much less necessary than it is now. At that time it was not uncommon to have matters, sometimes very important ones, treated as open questions in the cabinet, and a good deal of discussion has taken place upon the advantages and the evils of such a practice.[63:1] Members of the cabinet occasionally spoke and voted against government measures, although a difference carried to that length was always rare. One even finds colleagues in the ministry standing as opposing candidates at an election.[63:2] Such occurrences would be impossible to-day, because, as will appear more fully when we come to treat of the political parties, parliamentary government in its present highly [64]developed form requires a very strong cohesion among the members of the majority in the House of Commons, and, therefore, absolute harmony, or the appearance of harmony, among their leaders. It is necessary to present a united front to the Opposition, but if the trumpet give an uncertain sound, who shall prepare himself for the battle? Any one watching the course of events during the early summer of 1903 must have observed how rapidly the process of disintegration went on in the Conservative party while it was known that the ministers were at odds over the tariff. Party cohesion, both in the House and in the cabinet, is, indeed, an essential feature of the parliamentary system; but since men, however united on general principles, do not by nature think alike in all things, differences of opinion must constantly arise within the cabinet itself.[64:1] Sometimes they are pushed so far that they can be settled only by a division or vote, but this is exceptional, for the object of the members is, if possible, to agree, not to obtain a majority of voices and override the rest.[64:2] The work of every cabinet must, therefore, involve a series of compromises and concessions, the more so because the members represent the varying shades of opinion comprised in the party in power. A minister who belongs to one wing of the party may, in fact, be more nearly in accord with a member of the front Opposition Bench than with some colleague who stands at the other political pole of opinion, and yet he will stay in the cabinet unless the measures proposed are such that he feels conscientiously obliged to resign. So long as he remains in the government he will attempt to agree with his colleagues, but when he has finally left them his personal opinions will take full course, and [65]he may go off at a tangent. In this way the behaviour of an ex-minister towards his former colleagues, which is sometimes attributed to rancour, may very well be due to a natural expansion of opinions which were held in check while he clung to the cabinet.

Men engaged in a common cause who come together for the purpose of reaching an agreement usually succeed, provided their differences of opinion are not made public. But without secrecy harmony of views is well-nigh unattainable; for if the contradictory opinions held by members of the cabinet were once made public it would be impossible afterwards to make the concessions necessary to a compromise, without the loss of public reputation for consistency and force of character. Moreover a knowledge of the initial divergence of views among the ministers would vastly increase the difficulty of rallying the whole party in support of the policy finally adopted, and would offer vulnerable points to the attacks of the Opposition. Secrecy is, therefore, an essential part of the parliamentary system, and hence it is the habit, while making public the fact that a meeting of the cabinet has taken place, and the names of the members present, to give no statement of the business transacted. Not only is no official notice of the proceedings published, but it is no less important that they should not be in any way divulged. In fact, by a well-recognised custom, it is highly improper to refer in Parliament, or elsewhere, to what has been said or done at meetings of the cabinet, although reticence must at times place certain members in a very uncomfortable position.[65:1] Occasionally [66]it becomes well-nigh intolerable. This is true where a cabinet breaks up owing to dissensions over an issue that excites keen public interest, and in such cases the story of what happened may be told in a way that would be thought inexcusable under other circumstances.[66:1]

When we consider the great public interest that attaches to the decisions of the cabinet, and the great value that premature information would have for journalists and speculators, it is astonishing how little cabinet secrets have leaked out. In curious contrast with this are the reports of select committees of Parliament, the contents of which are often known before the report is made,[66:2] probably in most cases not from any deliberate disclosure, but as a result of the piecing together of small bits of information, no one of which alone would seem to be a betrayal of confidence. The reason this does not happen in the case of cabinets is no doubt to be sought in the complete reliance of the members upon one another, and their disbelief in the statements of any one who pretends to have obtained information from a colleague. The best proof of the real silence of ministers is found in the fact that although on two or three occasions the press has been remarkably shrewd in guessing at probable decisions, members of the cabinet have seldom been guilty of talking indiscreetly. The one or two instances where it is alleged to have occurred have, indeed, acquired the sort of notoriety of exceptions that prove the rule.[66:3]

At one time, it seems, before the reign of Queen Victoria, minutes of cabinet meetings were kept, showing the opinions [67]held, with the reasons given therefor, and these were transmitted to the King.[67:1] Even as late as 1855 regular cabinet dinners took place, marked by the possible convenience that no reports of the topics of discussion were sent to the sovereign, as in the case of more formal meetings.[67:2] At the present day he receives only a general statement of the matters discussed, with formal minutes of decisions that require his approval; and it would be considered improper to inform him of the conflicting opinions held by the different ministers.[67:3] In fact no records of the cabinet are kept. This results in occasional differences of recollection on the question whether a definite conclusion was reached on certain matters or not; but possible difficulties of that kind are probably of far less consequence than the facility in compromising differences of opinion and reaching a harmonious conclusion that comes from the entire informality of the proceedings. So little formal, indeed, are the meetings that a person not a member of the cabinet is occasionally brought in for consultation. This occurred in 1848, for example, when the Duke of Wellington attended a Liberal cabinet to give advice upon measures to be taken in view of the danger of the Chartist riots.

It is an old practice, and obviously a necessary one, to hold one or more meetings of the cabinet in the autumn to consider the measures to be presented to Parliament during the coming session; to arrange, as it were, the government's parliamentary programme. Other meetings are held from time to time whenever necessary; sometimes as often as once a week during the session; occasionally even more frequently when urgent and difficult matters are to be [68]decided. After the session of Parliament comes to an end in August, the ministers usually take their vacation in travel, sport, or public speaking; and cabinet meetings are suspended unless political questions of a pressing nature arise.

In the rare cases where the cabinet is obliged to settle its policy by the crude method of a division or vote, the voices of its members count alike; but questions are usually decided by preponderance of opinion, not by votes; and the weight of the opinions of the ministers is naturally very unequal. Such a difference must be particularly marked in the large cabinets of the present day; and some of the members must be perfectly well aware that they are expected to follow rather than to lead. The relative influence of the different ministers over their colleagues, both at the cabinet meetings and elsewhere, depends, of course, primarily upon their personal qualities; although the post occupied is, in some cases, not without importance. This is particularly true in the case of the Prime Minister.

Until 1906 the Prime Minister, like the cabinet itself, was unknown to the law,[68:1] but the position has long been one of large though somewhat ill-defined authority. It has grown with the growth of the cabinet itself; and, indeed, the administrations of the great Prime Ministers, such as Walpole, Pitt and Peel, are landmarks in the evolution of the system.[68:2] We have, fortunately, from two of the chief Prime Ministers in the latter half of the nineteenth century, descriptions both of the cabinet and the premiership, which are authoritative;[68:3] and although they do not add a great deal to what is popularly known, they enable us to state it with greater confidence.

At the meetings of the cabinet the Prime Minister as [69]chairman is no doubt merely primus inter pares. His opinion carries peculiar weight with his colleagues mainly by the force it derives from his character, ability, experience and reputation; but apart from cabinet meetings he has an authority that is real, though not always the same or easy to define.

In the first place the Prime Minister has a considerable patronage at his disposal. Subject to the limitations imposed by political exigencies, he virtually appoints all the members of the ministry. The ecclesiastical offices also, from the bishoprics to the larger livings in the gift of the Crown, are bestowed on his recommendation; and so as a rule are peerages and other honours; and he has a general presumptive right to nominate to any new office that is established under the Crown.[69:1]

He is both an official channel of communication and an informal mediator. The duties of the Prime Minister, if one may use the expression, surround the cabinet. He stands in a sense between it and all the other forces in the state with which it may come into contact, and he even stands between it and its own members. Matters of exceptional importance ought to be brought to his attention before they are discussed in the cabinet; and any differences that may arise between any two ministers, or the departments over which they preside, should be submitted to him for decision, subject, of course, to a possible appeal to the cabinet. He is supposed to exercise a general supervision over all the departments. Nothing of moment that relates to the general policy of the government, or that may affect seriously the efficiency of the service, ought to be transacted without his advice. He has a right to expect, for example, to be consulted about the filling of the highest posts in the permanent civil service.[69:2] All this is true of every branch of the government, but the foreign relations of the country are subject to his oversight in a peculiar [70]degree, for he is supposed to see all the important despatches before they are sent, and be kept constantly informed by the Foreign Secretary of the state of relations with other powers.

The extent to which a Prime Minister actually supervises and controls the several departments must, of course, vary in different cabinets. One cannot read the memoirs of Sir Robert Peel without seeing how closely he watched, and how much he guided, every department of the government.[70:1] A score of years later we find Lord Palmerston lamenting that when able men fill every post it is impossible for the Prime Minister to exercise the same decisive influence on public policy;[70:2] and recently Lord Rosebery has told us that owing to the widening of the activity of the government no Premier could, at the present day, exert the control that Peel had over the various branches of the public service.[70:3] It is certain that a Prime Minister cannot maintain such a control if his time is taken up by the conduct of a special department; and this, combined with some natural recklessness in speech, accounts for the strange ignorance that Lord Salisbury displayed at times about the details of administration, as in the case when he excused the lack of military preparation for the South African War on the ground that the Boers had misled the British War Office by smuggling guns into the country in locomotives and munitions of war in pianos.[70:4] It has been usual, therefore, for the Prime Minister to take the office of First Lord of the Treasury, which involves very little administrative work, and leaves its occupant free for his more general duties.[70:5]

[71]

The Prime Minister stands between the Crown and the cabinet; for although the King may, and sometimes does, communicate with a minister about the affairs relating to his own department, it is the Premier who acts as the connecting link with the cabinet as a whole, and communicates to him their collective opinion. To such an extent is he the representative of the cabinet in its relations to the Crown that whereas the resignation of any other minister creates only a vacancy, the resignation of a Premier dissolves the cabinet altogether; and even when his successor is selected from among his former colleagues, and not another change is made, yet the loss of the Premier involves technically the formation of a new cabinet.

Unless the Prime Minister is a peer he represents the cabinet as a whole in the House of Commons, making there any statements of a general nature, such as relate, for example, to the amount of time the government will need for its measures, or to the question of what bills it will proceed with, and how far the lack of time will compel it to abandon the rest. The other ministers usually speak only about matters in which they are directly concerned. They defend the appropriations, explain the measures, and answer the questions relating to their own departments; but they do not ordinarily take any active part in the discussion of other subjects, unless a debate lasts for two or three days, when one or more of them may be needed. They are, indeed, often so busy in their own rooms at the House that it is not uncommon, when a government measure of second-rate importance is in progress, to see the Treasury Bench entirely deserted except for the minister in charge of the bill. But the Prime Minister must keep a careful watch on the progress of all government measures; and he is expected to speak not only on all general questions, but on all the most important government bills. He can do this, of course, only in the House of which he happens to be a member; and the strength of his all-pervading influence upon the government depends to no slight extent [72]upon the question whether he sits in the Lords or the Commons.

As the House of Commons is the place where the great battles of the parties are fought, a Prime Minister who is a peer is in something of the position of a commander-in-chief who is not present with the forces in the field. He must send his directions from afar, and trust a lieutenant to carry them out. In such a case the leader of the House of Commons stands in something of the position of a deputy premier. He is, of necessity, constantly consulted by his colleagues in the House, and he can, if so disposed, draw into his own hands a part of the authority belonging to the head of the cabinet. As Mr. Gladstone remarked, "The overweight, again, of the House of Commons is apt, other things being equal, to bring its Leader inconveniently near in power to a Prime Minister who is a peer. He can play off the House of Commons against his chief; and instances might be cited, though they are happily most rare, when he has served him very ugly tricks."[72:1] It is certainly true that the Prime Ministers who have most dominated their cabinets, and have had their administrations most fully under their control, have all been in the Commons. It may be added that a high authority has declared that "no administrations are so successful as those where the distance in parliamentary authority, party influence, and popular position, between the Prime Minister and his colleagues in the cabinet, is wide, recognised and decisive."[72:2]

Not only does the Prime Minister stand above and apart from his colleagues, but they do not all stand upon one plane. The influence of a minister depends upon his personal force, but it may be affected by the office that he holds, and perhaps by his nearness to the Prime Minister himself; for although there is no formal interior junta, or cabinet within the cabinet, yet the Premier is apt to take counsel informally [73]with other leading ministers, and if he is a masterful man those who can command or win his confidence have the better chance of shaping the policy of the government while it is still formless and malleable. The cabinet, moreover, does not always act as a whole. It sometimes appoints committees to consider special subjects, and indeed it has an old and well-established practice of appointing committees to prepare important government bills.[73:1]

It is commonly said that the ministers are severally responsible to Parliament for the conduct of their own departments, and jointly responsible for the general policy of the government. Like many other maxims of the British Constitution, this has the advantage of being sufficiently vague to be capable of different interpretations at different times. With the growth of the parliamentary system, and the more clearly marked opposition between the parties, the joint responsibility has in fact become greater and the several responsibility less. The last instances where a single minister resigned on an adverse vote of the House of Commons were those of Mr. Lowe, who retired from the vice-presidency of the Committee on Education in 1864 in consequence of a vote charging him with improper mutilation of the reports of inspectors, and Lord Chancellor Westbury, who resigned in 1866 on account of a vote censuring his grant of a pension to a registrar in bankruptcy charged with misconduct.[73:2] If at the present day the cause of complaint were a personal error on the part of the minister, he would probably be brought to resign voluntarily before there was a chance of his resignation being forced by a hostile vote in the House; and if the question were one of [74]policy, the government would, save in very exceptional cases, assume the responsibility for that policy, treating a hostile vote as showing a want of confidence in itself. The majority in the House of Commons, on the other hand, while it may question, criticise and blame a minister in debate, is reluctant to permit a vote of censure upon him which is liable to involve the fall of the ministry.[74:1]

Each minister is responsible to the cabinet for the conduct of his department. He is constantly meeting with problems which may involve criticism in Parliament, and where a mistake might entail serious consequences for the whole government. In such cases he must decide how far he can assume to settle the question in accordance with his own opinion, and what matters he ought to bring before the cabinet. He must not, on the one hand, take up its time in discussing trivialities, and he must not, on the other, commit his colleagues to a course of action which really involves general policy. If in doubt he can, of course, consult the Prime Minister; but in spite of this privilege annoying blunders must inevitably occur.

A minister naturally has charge in the cabinet of the business relating to his own department, but how far he takes an active part in other things will depend upon the interest that he feels in them. Lord Palmerston, for example, when Secretary for Foreign Affairs, took, as his letters show, little interest in anything else; but when he became Home Secretary he took not only an active but a leading part in directing the foreign relations of the country. This he was fully entitled to do, because the cabinet is both an assemblage of ministers at the head of the separate branches of the administration, and a council of state which must form a collective judgment upon the questions submitted to it. A minister is, therefore, justified in pressing his views on any subject, whether connected with his own department or not; and on no other basis could collective responsibility be [75]maintained. The practice is particularly marked in the case of foreign affairs, which usually form a large part of the business at the meetings.

It is not only on questions of general policy, brought before the cabinet, that differences of opinion between ministers may arise, for there are many matters of current administration that affect more than one department. In such cases the ministers concerned confer together, and if they cannot agree their differences must be submitted to the Prime Minister, and ultimately to the cabinet. There is, indeed, one department which is continually brought into contact—one might almost say conflict—with all the others; that is the Treasury. Any vigorous branch of the public service always sees excellent reasons for increasing its expenditure, and proposes to do so without much regard for the needs of the other branches; while the Chancellor of the Exchequer, who is obliged to find the money, must strive to restrict the aggregate outlay. If he did not, the expenditure of the government would certainly be extravagant. As a preliminary step to the preparation of the budget the Treasury issues in the autumn a circular to the other departments asking for estimates of their expenses during the coming fiscal year. These are made up in the first instance by the permanent officials, and then laid before the parliamentary head of the department, who revises and perhaps reduces them. When they reach the Treasury they are scrutinised by the permanent officials there, and if anything is not clear, an explanation is sought from the department concerned. The estimates are then submitted by the Treasury officials to their parliamentary chiefs, and if there is an objection to any item it is the duty of the Financial Secretary of the Treasury to confer with the head of the department whose estimates are in question.[75:1] If the parliamentary head of the department does not agree with the Financial Secretary he may go to the Chancellor of the Exchequer, and if they cannot settle the matter they [76]must appeal to the Prime Minister and as a last resort to the cabinet. Being placed in such a relation to his colleagues, it is not unnatural that the Chancellor of the Exchequer should often differ with them. As Gladstone notes in his diary in 1865, "Estimates always settled at the dagger's point."[76:1] Like other differences in the cabinet, these occasionally come to light, especially when they have been so sharp as to cause the Chancellor's resignation. Lord Randolph Churchill resigned in 1886 because the cabinet insisted upon appropriations for the Army which he opposed; and Sir Michael Hicks-Beach has told us recently that had it not been for the fact that his protests against the growth of expenditure were received with indifference he might not have quitted the office.[76:2] One cause, moreover, of the final resignation of Mr. Gladstone—who although not then Chancellor of the Exchequer, always looked upon matters from the Treasury standpoint—was a difference of opinion between him and his colleagues on the question of the cost of national defence.[76:3]

Whatever the policy of the cabinet at any moment may be, the scale of expenditure is ultimately determined by the feeling in the House of Commons, and this in turn depends upon the state of public opinion. Except for a few short periods of extravagance, the seventy years that followed the close of the Napoleonic wars were marked by a decided tendency in favour of economy. People felt the pressure of taxation, worried little about the condition of the Army or the Navy, and had no strong desire to increase the expenses of the government in any direction. Latterly the tendency has been reversed. The country has felt rich; there have been a series of alarms about national defence, and at the same time the general growth of paternalism has brought in a desire for improvement and expenditure in many ways.

[77]

The ministry is composed, as has already been pointed out, of an inner part that formulates the policy of the government, and an outer part that follows the lines laid down; the inner part, or cabinet, containing the more prominent party leaders, who are also holders of the principal offices of state, while the outer part consists of the heads of the less important departments, the parliamentary under-secretaries, the whips and the officers of the royal household. All of these persons are strictly in the ministry, and resign with the cabinet; but the officers of the household have, as such, no political functions, and do not concern us here. The heads of departments without seats in the cabinet have become, with the increase in size of that body, very few. By far the greater part of the ministers outside of the cabinet are the parliamentary under-secretaries, who have two distinct sets of duties, one administrative and the other parliamentary. Their administrative duties vary very largely, mainly in accordance with personal considerations. Some of them are really active in their departments, doing work which might fall upon the parliamentary chief, or upon the permanent under-secretary, while others have little or no administrative business; but in any case the real object of their existence is to be found on the parliamentary side. Whatever duties, parliamentary or administrative, may be assigned to an under-secretary, he is strictly subordinate to his chief, who retains both the authority and the responsibility for the decision of all questions that arise in the department;[77:1] although an active under-secretary in the Commons may sometimes attract more public notice than his real chief in the Lords.

It is commonly said that as a minister can speak only in the House of which he is a member, there must be two parliamentary representatives for every department, one in [78]each House. This, however, is not strictly true. Going back, for example, over the period of a generation, we find that the Foreign, Colonial and Indian Offices have practically always been represented in both Houses.[78:1] The other great departments have, of course, always been represented in the Commons;[78:2] but the War Office and the Admiralty have not always been represented in the Lords. The Board of Trade has often, and the Local Government Board and Home Office have usually, had no spokesman of their own there;[78:3] while all the parliamentary officers of the Treasury invariably sit in the Commons. The system of under-secretaries, therefore, is by no means always used in order to give a representative to the department in both Houses. It not infrequently happens that both, or in the case of the War Office and the Admiralty all three, representatives sit in the House of Commons. An under-secretary, even when he sits with his chief in the Commons, is, however, a convenience for those departments which have a great deal of business to attend to, and many questions to answer. Moreover, the large number of under-secretaryships has the advantage already noticed of including within the ministry a considerable number of lesser party lights who have not achieved sufficient prominence to be included in the cabinet, and yet whose interest in the fortunes of the ministry it is wise to secure.

One of the great changes in administrative machinery that has taken place in the civilised world within the last two hundred years is the substitution of an informal cabinet composed of the heads of departments, for a formal governing council of members who had themselves no direct administrative duties. The form of the old council has survived in England under the name of the Privy Council, but [79]its functions have become a shadow. The Privy Council never meets as a whole now except for ceremonial purposes. Its action is, indeed, still legally necessary for the performance of many acts of state, such as the adoption of Orders in Council, and the like; but this is a formal matter, requiring the presence of only three persons, who follow the directions of a minister, for all cabinet ministers are members of the Privy Council. The Council does real work to-day only through its committees. Of these the most notable is the Judicial Committee, which sits as a court of appeal in ecclesiastical and colonial cases, and will be more fully described in a later chapter. Other committees, such as those on trade and on education, have at times rendered great service to the state, but the more important administrative committees have now been transformed into regular departments of the government. It is by no means certain, however, that the Privy Council may not, through its committees, become in the future an organ by means of which important political functions, especially in connection with the growth of the empire, will be evolved. At present it is mainly an honorary body. Its members are appointed for life, and bear the title of Right Honourable; and, indeed, of late years membership in the Council has been conferred as a sort of decoration for services in politics, literature, science, war, or administration.

Mr. Gladstone was of opinion that the cabinet had "found its final shape, attributes, functions, and permanent ordering,"[79:1] and so far as its relation to Parliament alone is concerned, this may very well be true; but Parliament is gradually ceasing to be the one final arbiter in public life. The cabinet is daily coming into closer contact with the nation, and what modifications that may entail we cannot foresee. It may be observed, however, that while the members of the cabinet present a united front, and say the same thing in Parliament, they do not always say the same thing to the country. The ministers agree on a policy before [80]announcing it in Parliament, but they are not always in the habit of taking counsel together about the speeches that they make upon the platform. Mr. Chamberlain's sudden declaration of a policy of preferential tariffs in his speech at Birmingham in 1903 is only an extreme example of what sometimes occurs. Absolute unanimity may not, indeed, prove to be so necessary to the ministers in order to maintain their authority before the people as it is to hold their position in the House of Commons.[80:1] But no serious changes in the structure of the cabinet are probable so long as parliamentary government continues in its present form; and it is too early to speculate on the changes that may occur if the parliamentary system itself becomes modified under the pressure of political parties acting in a democratic country.

FOOTNOTES:

[81]

CHAPTER IV

THE EXECUTIVE DEPARTMENTS

The departments of state are very different from one another, both in historical origin and in legal organisation; and they have gone through transformations of all kinds, until the nomenclature has in some cases almost ceased to bear any relation to the facts. The title of an officer often gives no clear idea of his functions. The most striking case is that of the Treasury, whose regular chief, from the time of Henry VIII. to the death of Anne, was the Lord High Treasurer. Since 1714 the office has always been in commission; that is, its duties have been intrusted to a board composed of a number of Lords of the Treasury. But while the board is still regularly constituted by Letters Patent whenever a new ministry is formed, and still retains its legal authority, all political power has, in fact, passed from its hands. The board never meets, most of its members have little or no connection with the Treasury, and its functions are really performed by the Chancellor of the Exchequer, who is not now a chancellor, and does not control the work of what is more properly called the Exchequer. Thus, by a strange process of evolution the powers of the Lord High Treasurer have, by law, become vested in a board; and by a still later custom they are actually wielded by quite a different officer, whose title indicates neither his succession to the Treasurer nor the nature of his present duties.

Although in origin and legal organisation the departments of state are very unlike, yet the growth of custom, and the exigencies of parliamentary life, have, for practical purposes, forced almost all of them into something very near one [82]common type. Whatever the legal form of the authority at their head, the actual control is now in nearly every case in the hands of a single responsible minister, usually assisted by one or more parliamentary subordinates, and supported by a corps of permanent non-political officials, who carry on the work of the office.

The historical origin of most of the departments may be traced to one of three sources: the great offices of an earlier time; the secretariat of state; and the more recent boards and commissions. Many of the former offices of state survive as honorary posts, or with duties connected solely with the royal household.[82:1] The only ones that are still in touch with public administration are those of the Lord High Chancellor, who has retained the greater part of his ancient authority; of the Lord High Treasurer, the transformations of whose office have already been mentioned; and of the Lord High Admiral, whose powers have also gone into commission, and are vested in the Admiralty Board.

The secretariat is an old institution, although the standing of its members has varied much at different times. There are now five secretaries of state, but their position is peculiar in this, that they all share, from a legal point of view, the same office; and except so far as statutes have conferred special authority upon one or another, each of them can perform the duties of all the rest. During the greater part of the eighteenth century there were two secretaries, one for the northern and the other for the southern department, the former having charge of the relations with the northern powers, the latter of those with the southern powers together with home and colonial affairs. A series of changes made at the end of the century resulted in an increase of the number of secretaries to three, and a redistribution of their work, so that one had charge of foreign [83]relations, another of home affairs, and the third of war and the colonies. The Crimean War brought about in 1854 the separation of the colonial and war departments, with the creation of a fourth secretary of state; and, finally, the mutiny in India, and the consequent transfer of the direct government of that country to the Crown, caused the appointment of a fifth secretary of state to take charge of Indian affairs.

The third great source of public departments has been the creation in comparatively recent times of a number of administrative boards or commissions, whose duties (except in the case of the Board of Works) are not primarily executive; that is, they are not concerned mainly with direct administration, but rather with the supervision and control of local authorities and of bodies exercising functions of a public or a quasi-public nature. There are now five boards of this kind, the Board of Trade, the Local Government Board, the Board of Works, the Board of Agriculture, and the Board of Education. Some of them, the first and last named, for example, have developed from committees of the Privy Council; while others have grown out of administrative commissions which were not originally regarded as political, and had no representatives of their own in Parliament. Except in the case of the Board of Trade,[83:1] both their organisation and their functions now rest upon statutes,[83:2] and in general character they are all very much alike. Each of them consists of a president,[83:3] of the five secretaries of state, and of other high dignitaries, such as the Lord President of the Privy Council, the First Lord of the Treasury, [84]or the Chancellor of the Exchequer, and sometimes, in the case of the older boards, even of the Archbishop of Canterbury and the Speaker of the House of Commons. But the board never meets; the president alone constitutes a quorum, and he conducts the business of the department, with the assistance, in the case of the Board of Trade, of the Local Government Board and the Board of Education, of a secretary who is not himself a member of the board, but is, like the president, capable of sitting in the House of Commons, and occupies, in short, the position of a parliamentary under-secretary. In practice, therefore, these boards are legal phantoms that provide imaginary colleagues for a single responsible minister; and, indeed, the only department in the English government conducted by a board that really meets for the transaction of business is the Admiralty.[84:1]

A satirical observer has remarked that the English Constitution is a bundle of shams; and this is inevitable where law fails to keep pace with custom—where the legal organisation has ceased to express the real working of the system. But it is difficult to penetrate the motive for deliberately constructing a sham; and yet that was done in the creation of the Board of Agriculture in 1889, and the Board of Education ten years later. In the last case the measure was criticised upon this ground;[84:2] and Sir John Gorst in reply said that, as there were other boards, the general desire of the House was thought to be in favour of a Board of Education, and that, although these boards did not often meet, they were potential.[84:3] He denied that the Committee of Council on Education had never met, and referred to an occasion, about twenty years earlier, when it had been called together, and actually transacted business.[84:4] A better [85]statement of the reason, or rather the absence of any reason, for the creation of a sham board, was made with characteristic frankness by the Duke of Devonshire, who said, "as far as I remember, the point was mooted when the bill was first prepared, but I quite admit that I am unable, at the present moment, to recollect the reasons which weighed in favour of a board rather than a secretariat. It has the advantage, at all events, of numerous precedents, and it is perfectly well understood that there will be no board at all."[85:1]

In giving in this chapter a sketch of the executive departments nothing will be said of those offices to which no substantial administrative duties, or none outside of the royal household, are attached. There are about a dozen such posts, which are regarded as so far political that their holders retire upon a change of ministry; but they are omitted here, because the object is to describe not the offices of state, but the different branches of the public service and the distribution of business among them. Most of the departments require for our purpose only a few words, to point out the general nature of their duties and anything unusual in their structure or method of working. The functions of some others, such as the Colonial Office, the Local Government Board and the Board of Education, can be passed over rapidly, because they will be treated more fully in the chapters devoted to the subjects under their control; while the Army, the Navy and the Treasury are described at greater length on account of the peculiarities in their organisation, and the fact that their work is not dealt with in any other part of the book.

The Foreign Office has at its head a secretary of state, who, like the chief of every normal department, is supported by a [86]parliamentary under-secretary and also by a permanent staff consisting of an under-secretary, several assistant under-secretaries—in this instance three—besides clerks and other permanent officials. For convenience of administration there are in the Foreign Office a number of departments, the business being distributed among them partly on a geographical basis, and partly according to the nature of the subject.[86:1] The office has, of course, charge of foreign relations, controlling for that purpose the diplomatic representatives and the consuls. The only odd thing about its duties is the fact that in addition to the ordinary functions of a foreign office it governs certain dependencies of the Crown. The expansion of European influence over the less favoured portions of the globe has produced among other new things the "protectorate," which involves, by a political fiction, an international as well as a philanthropic relation between the ruler and the ruled. The result is that protectorates not closely connected with existing colonies are administered by the Foreign Office. This has been true of a number of protectorates in Africa, and notably of Egypt, which is still nominally ruled by the Khedive under the suzerainty of the Turkish Sultan, but is practically governed by a British agent.

The conduct of the relations with foreign powers requires from its very nature a peculiar method of procedure. Much of the work of the Foreign Office consists, no doubt, in examining and pushing the private legal claims of British subjects, and to some extent work of that kind has a routine character. But apart from this there is comparatively little [87]of the detailed administration—so common in other departments—which, involving merely the application of settled principles to particular cases, can be conducted by subordinates without consulting the political chief. Much of the correspondence with foreign powers may entail serious consequences, and hence must ordinarily be laid before the Secretary of State. The permanent officials play, therefore, a smaller part in the management of affairs than in most branches of the public service, a matter that will be discussed more fully in a subsequent chapter.[87:1] Moreover, the representatives at foreign courts are kept, by means of the telegraph, under more constant instructions than formerly, and it has become the habit in all countries to retain diplomatic negotiations very closely in the hands of the home government. Even the functions of foreign envoys as the eyes and ears of the state have declined in importance; and it has been observed that as gatherers of political information they have been largely superseded by the correspondents of the press.

All this has the effect of concentrating the direction of foreign relations in the hands of the Secretary of State. At the same time he is singularly free from immediate parliamentary control. Diplomatic correspondence is ordinarily confidential, and it is usually a sufficient answer to any question in Parliament, touching foreign relations, to say that the information sought cannot be given without detriment to the public service. It follows that the presence of the minister in the House of Commons is less necessary than in the case of other departments; while his arduous duties make it hard for him to find the time required for attendance at the long sittings. These facts, coupled with the strange provision of law which permits only four of the five secretaries of state to sit there, resulted in placing peers at the head of the Foreign Office continuously from 1868 to 1905, the under-secretary alone representing the department in the [88]popular chamber. But if the Secretary of State for Foreign Affairs is less under the direct control of Parliament than other ministers, he is more under the control of his colleagues. We have already seen that every important despatch ought to be submitted, before it is sent off, both to the Prime Minister and to the sovereign; and, as a rule, the telegrams, together with correspondence of peculiar interest, are also circulated among all the members of the cabinet.[88:1] In fact there is probably no department where the executive action of the minister is so constantly brought to the notice of his colleagues.

Ever since England began to extend her dominion beyond the seas her foreign relations have been complicated by her distant possessions, and it is therefore natural to pass from the offices of the Secretary of State for Foreign Affairs on one side of the doorway in Downing Street to those of the Secretary of State for the Colonies on the other. But it is needless to speak of the Colonial Office at length here, because the government of the dependencies will form the subject of later chapters. The Secretary of State for the Colonies is assisted by his parliamentary and permanent under-secretaries, and by a staff of subordinate officials. There are in this office four permanent assistant under-secretaries; one of whom has charge of questions of law, and also at present of business connected with Canada, Australasia and a number of islands; another of South Africa; a third of the East and West Indies, emigration, prisons and hospitals, with a mass of miscellaneous matters; and the fourth of East and West Africa.[88:2] But the division of the colonies among these officers is not fixed, and varies to some extent with their personal experience. There are, in close connection with the office, agents for each of the dependencies, those for the self-governing colonies being real representatives appointed by the colonial governments, [89]while the three who act on behalf of the crown colonies are selected by the Colonial Office itself.

It may be observed that the Colonial Office has by no means charge of all the outlying dependencies of the British Crown. Besides the protectorates governed by the Foreign Office, there are a number of smaller places under the care of other departments. The Isle of Man and the Channel Islands, for example, are under the Home Secretary; some small islets are used only for lighthouses by the Board of Trade; while by an official fiction the Island of Ascension is considered a vessel of war, and as such is commanded by the Admiralty. But larger by far than any of these, more populous than all the other parts of the British Empire put together, is India. It is not classed among the colonies, for that term is confined to the places under the Colonial Office, and does not extend to a country ruled by a distinct administrative system of its own.

The Secretary of State for India has the usual parliamentary and permanent staff; but he has in addition a Council of India, composed of not less than ten or more than fifteen members, appointed for a term of ten years. In order to insure a familiarity with Indian conditions, it is provided that nine of the members must have lived in India within ten years of their appointment.[89:1] The Council is a consultative body. It has no power of initiative, but except for matters requiring secrecy or urgency (such as war and peace, or the relations of India with foreign powers or with the native states), all questions must be brought before it for consideration. The Secretary of State is not, however, bound by its decision, save in a few cases, of which the most important are the expenditure of the Indian revenues, and the issue of Indian loans.[89:2]

Legally, the government of India is directed by the [90]Secretary of State and his Council. Even the laws made in India can be disallowed by the Crown on their advice; but in spite of the ease of communication furnished by the telegraph, the internal affairs of the country are still in the main managed by the authorities in India, happily without much interference from England. Parliament, moreover, exercises little control over Indian administration. Some matters—the use of the Indian revenues, for example, to pay for expeditions beyond the frontier—require its consent; and in other cases notice of action taken must be laid before it within a certain time. But the ordinary opportunities for bringing pressure to bear do not exist, because the salary of the Secretary of State for India, being paid out of the Indian revenues, does not furnish an occasion for a debate in Parliament; and although the Indian budget is regularly submitted, it does not need to be approved. On one of the last days of the session, when the work of the year is almost done, and the members are weary of attending, this budget, which is merely a financial statement, is introduced, and in order to give an opportunity for debate a formal motion is made that the Indian accounts show such and such totals of receipts and expenses. A discussion follows on the part of members who deem themselves qualified to express opinions on the government of India, and then the vote is passed. An illustration of the small authority of Parliament in Indian matters may be found in the fact that in 1891 (April 10) the House of Commons carried against the ministers a motion condemning the opium revenue; and in 1893 (June 2) a resolution that the examinations for the Indian Civil Service ought to be held in India, as well as in England, was carried in the same way; yet, on each occasion, the government after studying the subject came to the conclusion that the opinion of the House had been wrong, and did not carry it into effect. Such a condition of things is highly fortunate, for there is probably no body of men less fitted to rule a people than a representative assembly elected in another land by a different race.

[91] If the vast colonial empire has complicated foreign relations it has also caused England to become the greatest of maritime powers, with an enormous navy to protect her dependencies, her merchant ships, and not least important, the routes of her food supply. The effective organisation of a naval force is, therefore, of more importance in her case than in that of any other nation.

It has already been observed that the Admiralty is the only department of state conducted by a board that really meets for the transaction of business, yet even in this case the statement may convey a false impression of the character of the body. The board as created by Letters Patent under the Great Seal consists of a First Lord, four Naval Lords and a Civil Lord; but by a series of Orders in Council, and by the practice of the department, the parliamentary and permanent secretaries also sit as members of the board.[91:1] The First Lord, the Civil Lord and the parliamentary secretary are capable of sitting in the House of Commons, and are, in fact, always members of one or other House of Parliament. The permanent secretary is, as his name implies, a permanent official, and hence excluded from the House of Commons altogether. The Naval Lords, on the other hand, although eligible to Parliament,[91:2] are very rarely members,[91:3] and yet they are not permanent officials. They occupy the anomalous position of non-political officials, who nevertheless retire upon the fall of the ministry. This does not mean that they belong necessarily to the party in power, or that they may not be reappointed under the commission issued when a new ministry comes into office. In order to preserve a continuity of administration, and a knowledge of the work, the new patent usually includes one, and sometimes more, of the Naval Lords who served under the preceding cabinet, and commonly another who held the [92]place under some earlier ministry of the party that has taken office.

According to the language of the patent all of the members of the Board of Admiralty are equal in authority; but in fact the First Lord, who is always in the cabinet, is held by Parliament responsible for the conduct of the department, and as the other members of the board can be changed if necessary on his recommendation, they must adopt the course which he can justify in Parliament. With the evolution of the cabinet system, therefore, the power of the First Lord has increased until he has become practically a minister of marine assisted by an advisory council. The relation was sanctioned, not created, by Orders in Council of Jan. 14, 1869, and March 19, 1872, which declared the First Lord responsible for all business of the Admiralty,[92:1] and thus "the department now possesses more the character of a council with a supreme responsible head than that of an administrative board."[92:2]

The Civil Lord and the financial or parliamentary secretary are subordinate ministers, who occupy substantially the position of parliamentary under-secretaries. They are civilians, as is the permanent secretary also; while the four Naval Lords are naval officers, usually of high rank, who bring an expert knowledge to bear upon the administration of the department. But the members of the board, like the cabinet ministers, have individual as well as collective duties. By the Orders in Council of March 19, 1872, and March 10, 1882, and the regulations made in pursuance thereof, the work of the office is distributed among the members of the board, each of whom is at the head of a branch of the service, and responsible for it to the First Lord. By virtue of this arrangement the First Lord retains in his own hands the general direction of political questions, and the appointment of flag officers and the commanders of ships. The First [93]Naval Lord, who is also the principal adviser of his chief, has charge of strategical questions, the distribution of the fleet, discipline, and the selection of the higher officers not commanding ships. The Second Naval Lord has charge of the recruiting and education of officers and men, and the selection of the lower officers. The Third Naval Lord, who is the "Controller," attends to the dockyards, and to construction, repairs and ordnance; while the Junior Naval Lord has charge of the transport and medical service, and the victualling and coaling of the fleet. The Civil Lord attends to the civil establishments, and the contracts relating to stores and to land. The parliamentary secretary is responsible for finance; and the permanent secretary for the personnel in the Admiralty Office, for routine papers and correspondence and for the continuity of business on the advent of a new board.[93:1]

Thus the actual administration of the Navy devolves upon the members of the board charged with the superintendence of the different branches of the service, while the full board meets frequently for the consideration of such questions as the First Lord wishes to refer to it.[93:2] There have been at times complaints about the working of the board, and the existing organisation is the result of gradual adaptations,[93:3] but at the present day the system appears to be highly satisfactory, and in fact it is constantly held up as a model to the less fortunate chiefs of the Army.

The organisation of the War Office has undergone far more changes than that of the Admiralty, and has been the subject of a great deal more criticism both in and out of Parliament.[93:4] Like other countries with a popular form of [94]government, England has found it hard to reconcile military command and civil control. In the War Office, as in the Admiralty, there has been a tendency to transfer supreme power gradually to the hands of the parliamentary chief; but owing to a number of causes—one of which was the tenacity with which the Queen clung to the idea of a peculiar personal connection between the Crown and the Army—the process of change in the War Office has been slow and halting. Up to the time of the Crimean War the Army was controlled by several different authorities, whose relations to one another were not very clearly defined, and who were subordinate to no single administrative head. This naturally produced friction and lack of efficiency, which was forcibly brought to public attention by the sufferings of the troops during the war. The result was the creation of a distinct Secretary of State for War, and the concentration in his hands of most of the business relating to the Army; but the change was made without a thorough reorganisation of the War Office, and without defining the relative authority of the Secretary of State and the Commander-in-Chief.[94:1] This last office was held at that time by the Queen's cousin, the Duke of Cambridge; and the fact that he was a royal duke, coupled with the Queen's feelings about the Army, threw an obstacle in the way of bringing the office fully under the control of the Secretary. In 1870, however, the [95]Queen was prevailed upon to issue an Order in Council providing that the Commander-in-Chief should be completely subordinate to the Secretary of State.[95:1] Unfortunately, this order by no means settled either the organisation of the War Office, or the relation between the Secretary and the Commander-in-Chief.

A number of commissions have examined the subject, one of the most important of late years being Lord Hartington's Commission, which reported in 1890.[95:2] At that time[95:3] the Adjutant General, who was charged with the general supervision of the military department, was the first staff officer of the Commander-in-Chief, and as such was responsible to him for the efficiency of the forces; while the other principal military officers—the Quartermaster General, Military Secretary, Director of Artillery, Inspector of Fortifications, and Director of Military Intelligence—were also immediately responsible not to the Secretary of State, but to the Commander-in-Chief, and approached the latter through the Adjutant General. Thus, while all the officers in the department were nominally subordinate to the Secretary of State, practically between him and them stood the Commander-in-Chief, who had the privilege of approaching the Crown directly and without the intervention of the Secretary. The commission thought that such a system failed to make the heads of the different branches of the service effectively responsible to the Secretary, or to provide any satisfactory system for giving him expert advice. They recommended, therefore, the virtual abolition of the office of Commander-in-Chief, and a division of the duties among a number of officers, who should be individually responsible for their administrative work to the Secretary, and should collectively advise him as a War Office Council. They recommended, in short, a system not unlike that of the Admiralty.

[96]

As a preliminary to bringing about a change of this kind Sir Henry Campbell-Bannerman, the Liberal Secretary of State for War, procured the resignation of the Duke of Cambridge in 1895, and Lord Wolseley was appointed Commander-in-Chief for five years. The Secretary then announced a plan in accordance with the main principles suggested by the Hartington Commission. But just at that time the Liberal administration fell,[96:1] and Lord Lansdowne, the new Secretary of State, made a change in the plan, which left more power in the hands of the Commander-in-Chief. The policy thus adopted was embodied in an Order in Council of Nov. 21, 1895, followed by a memorandum setting out in greater detail the duties of the heads of the different branches of the service thereunder.[96:2] According to the new system the Commander-in-Chief exercised the general command, issued army orders, inspected troops, took charge of the distribution of the Army, and prepared strategical plans, having under him for that purpose the Director of Military Intelligence. He was also to have the general supervision of all the military departments, and to be the principal military adviser of the Secretary of State, all important questions going to him before submission to the Secretary. The Adjutant General was to have charge of the discipline and training of officers and men, and the patterns of their uniforms,—a matter which seems to involve as many changes in fashion as a dressmaking establishment. The Quartermaster General had charge of food, forage, transports and remounts. The Inspector of Fortifications constructed and maintained forts, barracks, etc., and supervised the engineer corps. The Inspector General of Ordnance looked after the supply of warlike stores and equipments, and each of these officers advised the Secretary of State on questions connected with his department. The Financial Secretary had charge of all [97]questions of expenditure, and of the audit of accounts. Until 1899 he was also at the head of the manufacturing departments, but by an order of that year they were transferred to the Inspector General of Ordnance, whose title was changed to Director. By the memorandum which followed the order a War Office Council was created, consisting of the heads of the military departments, the under-secretaries of state, and the Financial Secretary, together with any other officers who might be summoned; its function being to discuss subjects referred to it by the Secretary of State. An Army Board, composed of the heads of the principal military departments, was also established, which was to report upon promotions to the higher grades in the Army, upon estimates, and upon other questions submitted to it by the Secretary of State.

The two great changes made at this time were the modification in the powers of the Commander-in-Chief, and the creation of consultative boards in the War Office. Neither of them can be said to have attained the object aimed at. The attempt to create advisory councils of that kind has been tried more than once, but after working usefully for a time they have ceased to meet regularly and have fallen into disuse. This appears to have been the case with the War Office Council and Army Board created in 1895 and reorganized in 1899 and 1900.[97:1]

The position of Commander-in-Chief under the Order in Council of 1895 has been the subject of severe criticism. At the expiration of his term of five years, Lord Wolseley recorded in a memorandum his opinion that the attempt to give the Commander-in-Chief a supervision over the departments of the War Office, and yet make their heads responsible to the Secretary of State, involved a contradiction, and had resulted in depriving the Commander-in-Chief of all effective control, and in making his office a high-sounding [98]title with no real responsibility. He insisted that no army could be efficient unless the command, discipline and training of the troops were in the hands of one man, and that man a soldier; and he urged that the Commander-in-Chief should either be made the real head of the forces, or that the office should be abolished, and the Secretary of State for War should be himself a military man.[98:1] The only direct result that the memorandum had on the organisation of the War Office was the reëstablishmemt of the control of the Commander-in-Chief over the department of the Adjutant General by an Order in Council on Nov. 4, 1901.[98:2] But a statement by Lord Wolseley of his views, in a speech in the House of Lords in March, 1901, led to an unseemly altercation with Lord Lansdowne, the late Secretary of State for War, in which each sought to cast upon the other the blame for the lack of preparation for the war in South Africa.[98:3] The occurrence would appear to show that the relations between the military and civil authorities at the War Office are not yet upon a well-recognised or satisfactory basis; and it shows also that this relation is very different from that which ordinarily prevails between ministers and their expert officials. For reasons that will be explained in a later chapter, such a dispute in any other department would be well-nigh inconceivable. From a political point of view the Army and Navy officers are, in fact, in an exceptional situation. They are not subject to the general rule which excludes from the House of Commons all office-holders who are not ministers.[98:4] And just as military officers are allowed to play a part in politics forbidden to other public servants, so those among them who hold high administrative posts stand in a position peculiar to themselves, a position which in the case of the Admiralty is definite and satisfactory, although anomalous, [99]but in the case of the Army is not altogether definite or satisfactory.

The efficiency of the War Office was put to a rude test by the South African War, and some branches of the service did not stand the test very well. The results recalled, although in different respects, the experiences of the Crimean War. The commission on the war found that, both as regards plans and stores, there had been a grave lack of preparation which was not wholly due to the suddenness of the emergency.[99:1] There was not merely a deficiency in warlike stores, such as guns[99:2] and ammunition for them,[99:3] cavalry-swords[99:4] and clothing;[99:5] but some of the stores were unfit for use. Such clothing, for example, as there was on hand six months before the war broke out was all red and blue cloth, quite unsuitable for the campaign; and even after the manufacture of khaki suits had begun, changes were ordered first in the material and then in the pattern.[99:6] More than one third of the small arms ammunition on hand was found to be unserviceable and was discarded;[99:7] and all the reserve rifles were wrongly sighted, so that at a distance of five hundred yards they shot eighteen inches to the right—an occurrence the more extraordinary because the government had been manufacturing those weapons for some years, and never discovered the defect until after the war broke out.[99:8]

It would be a mistake to suppose that all the shortcomings in the South African War arose from defects in the War Office. Some of them were of a kind certain to occur where a military organisation is suddenly expanded beyond its normal size. Still, the errors already described certainly showed a lack of efficiency, and they have led to a remodelling of the office. In November, 1903, another commission was appointed for this purpose, and its principal [100]recommendations[100:1] were put into effect in the course of the following year.[100:2]

According to this last system, for which the Admiralty served as a pattern, an Army Council has been formed, consisting of the Secretary of State for War, the parliamentary under-secretary, the Financial Secretary to the War Office, and of four military members. The post of Commander-in-Chief having been abolished, and that of Chief of Staff created instead, the four military members of the council are the Chief of Staff, the Adjutant General, the Quartermaster General, and the Master General of Ordnance. By the terms of the Order in Council the military members are responsible to the Secretary of State for so much of the business relating to the organisation, disposition, personnel, armament and maintenance of the Army as he assigns to them or each of them, while the Financial Secretary is responsible for finance, and the parliamentary under-secretary for the other matters that are not strictly military. The permanent under-secretary acts as secretary of the council, which has also under its orders a new officer, the Inspector General of the Forces, charged with the duty of reporting to it upon the results of its policy, and of inspecting and reporting upon the training and efficiency of the troops, and the condition of the equipment and fortifications. But the Army Council has in the last resort only advisory powers, for the Secretary of State is expressly declared responsible to the Crown and to Parliament for all its business.

An army, and especially a standing army, is liable during a long period of peace to fall into habits that impair its efficiency in war. One of the chief criticisms made after the South African War related to the lack of initiative, and of capacity to assume responsibility, on the part of the officers both in the War Office and in the field.[100:3] Now, this [101]is precisely the defect that one would expect to find under the circumstances. With the traditions of strict discipline ingrained in military men, there is a natural tendency in time of peace to regulate everything with precision, leaving to subordinate officers little independence of action. And in fact the Committee on War Office Organisation in 1901 reported that the Army was administered by means of a vast system of minute regulations, which tended on the one hand to suppress individuality and initiative, while on the other their interpretation led to protracted references, and to absorbing the time of high officials by matters of routine.[101:1] The evidence presented to the Committee on the war in South Africa pointed to the same evil, for it showed that the deficiencies of the officers arose from their being too much controlled and supervised during their training.[101:2]

The excessive tendency to routine, and the consequent lack of initiative, might be counteracted in some measure by a keen intellectual interest in the profession on the part of the younger officers; but the military education they receive is hardly of a character to stimulate such an interest. As a rule the candidates for commissions, after leaving the great public schools, such as Eton, Harrow and Rugby, where the sons of the upper classes are educated, obtain admission to the military academies by means of competitive examinations based upon the curriculum of those schools. The ordinary time then spent in studying at Woolwich, where the engineer and artillery officers are taught, is two years; that at Sandhurst, the school for the infantry and cavalry, was eighteen months before the South African War, and later only a year. Periods of this length are obviously too short to give a thorough training, or even a strong interest, in military science; and, in fact, the object is rather to produce [102]a good subaltern than a highly educated officer.[102:1] If a man is ambitious for promotion he is expected to pursue his studies by himself, or to attend the staff college, later in life. Now, with the modern application of science to warfare, a military officer has become a member of a learned profession. But in England the preliminary teaching is insufficient for this purpose; and what is more, the conditions of the service are very unlike those of learned professions, and hardly such as to stimulate intellectual activity. Moreover, the private contributions to the mess, and the other expenses of an officer, are often so great that it is difficult for a man without private means to follow the Army as a career. In short, after the abolition of the purchase of commissions in 1871, the Army ceased to be a caste without becoming a profession.[102:2]

The fact that the Navy escapes some of the difficulties that beset the Army is not due altogether to better organisation. The Navy has in many ways great natural advantages as compared with the Army. Most civilians feel that after a short experience they could lead a regiment, but few landsmen have the hardihood to believe that they could ever command a ship. The Navy is a mystery which ordinary men do not pretend to understand, and with which they do not attempt to interfere; and this is a security for expert management. Again the Navy is less exposed to the dangers of peace. Warships are constantly in service. If they do not fight, at least they go to sea; and hence the Navy is far less likely than the Army to suffer from [103]the demoralising influence of minute and antiquated regulations.

This has an effect also upon the training of naval officers. Under the old plan which is now being superseded, the theoretical education given them was by no means high. The cadets destined for executive naval officers entered "The Britannia" at the age of about fifteen, and spent there a little less than a year and a half. They then had a service of about three years at sea, where besides learning the practical side of their profession, they were expected to study elementary mathematics, mechanics, physics, navigation, surveying, etc. Then followed a couple of months at Greenwich preparing for the final examination in those subjects; and, lastly, before receiving their commissions as sub-lieutenants, five or six months at Portsmouth studying pilotage, gunnery, and torpedo practice. Thus the average age for obtaining the commission was not far from twenty years. The theoretical study pursued was certainly not of an advanced character. In mathematics, for example, it did not include the calculus, or even conic sections. In fact, according to the syllabus as revised in 1899, one of the optional subjects which men who desired to go farther than the rest might pursue, if they desired, was projectiles, "treated so as not to require a knowledge of conic sections."[103:1]

The principal changes made by the new plan, which began to go into effect in 1903, were, first, making the executive, engineer and marine, officers more nearly into a single corps, and therefore giving them a common training until they reach the grade of sub-lieutenant; and, second, reducing the age for entering "The Britannia" to between twelve and thirteen. This last change enables the cadets to remain at the school four years, and will, it is hoped, insure a sounder education. They are then to get a training at sea for three years, followed by three months at Greenwich and six at Portsmouth. At that point they are to receive their [104]commissions as sub-lieutenants, and those who join the executive branch of the service will go to sea again, while the engineer and marine officers attend their respective colleges for some time longer.[104:1] Whatever good effects the new plan may have in other directions, it can hardly increase materially the scientific education of the cadet.

But if the education in the theory of naval science has not been carried far, the junior naval officer has much greater opportunities for learning the practice of his profession than the officer in the army. In fact, if not a master of naval science he becomes an excellent seaman, and this, in the opinion of many officers, is much the more important of the two.

One of the chief criticisms of Lord Hartington's Commission on the administration of the naval and military departments, bore upon the lack of combined plans of operation for the defence of the empire. They suggested the formation of a naval and military council, to be presided over by the Prime Minister, and to consist of the parliamentary heads of the two services, and their principal professional advisers.[104:2] In partial fulfilment of this recommendation a committee of the cabinet was formed, consisting of the Prime Minister, the parliamentary heads of the Army and the Navy, the First Lord of the Treasury, with the addition, if need be, of the Colonial Secretary. The committee was intended to deal with questions unsettled between the two departments, matters in which a joint policy was advisable, and questions relating to the relative importance of expenditures; and it differed from other committees in that minutes were to be kept of its proceedings, and formally recorded by the departments. The committee seems, however, not to have fulfilled the intentions of the Hartington Commission, for it has been openly [105]stated in Parliament that it never met;[105:1] and even the Secretary of State for War admitted that it acted mainly with regard to estimates, and to questions within the War Office and the Admiralty, while, in his opinion, it ought to act on larger questions of policy. A new Defence Committee was, therefore, created in 1903, to consist, besides members of the cabinet, of the most influential experts of the two services, and when necessary of representatives of the Indian and Colonial Offices. The committee is intended to deal not only with estimates, but with larger questions of military policy.[105:2] But whether this result will be permanently attained, or whether the committee will meet with the usual fate, and find itself absorbed by details of administration and of expenditure, is yet to be seen.

The departments of state that remain to be considered in this chapter need not detain us long. They are all concerned with the internal government of the kingdom, and so far as their work is of general interest it will be touched upon again.

The Home Office is a kind of residuary legatee. It is intrusted with all the work of the secretariat that has not been especially assigned to the remaining secretaries of state, or to the other administrative departments. Its duties are, therefore, of a somewhat miscellaneous character. As the heir to the residue of the secretariat, the Home Secretary is the principal channel of communication between the King and his subjects, and countersigns the greater number of the King's acts. He receives addresses and petitions addressed to the sovereign, and presents them if he thinks best. Among others he receives petitions of right—that is, claims to be allowed to sue the Crown—and consults the Attorney General about the answer to be given. Outlying places, such as the Channel Islands and the Isle of Man, which are not from an administrative point of view a part [106]of the United Kingdom and yet are not colonies, fall under his jurisdiction. He has charge of questions of naturalisation and extradition. But more important still, the central control over the police, not having been transferred to the Local Government Board, remains in his hands, and this gives him wide powers of supervision. The metropolitan police of London is, indeed, administered directly by the national government under his immediate control;[106:1] and although the police elsewhere is not under his orders, yet the fact that the central government pays one half of the cost on condition his regulations are observed, enables him to prescribe the organisation, equipment and discipline of the local police all over England. Moreover, all by-laws of counties and boroughs, except those relating to nuisances, must be submitted to him for approval, and may on his advice be disallowed by the Crown.[106:2] As a part of his authority in matters of police he manages the prisons, both the national prisons for convicts and the county and borough gaols. He is responsible for the appointment and removal of recorders and stipendiary magistrates. He appoints the Director of Public Prosecutions, and makes regulations about costs in criminal proceedings. By virtue of special statutes he sees to the enforcement of the acts relating to factories, mines, burial-grounds, inebriates, anatomy, vivisection, explosives, and other kindred matters.

He is assisted by a parliamentary under-secretary, and by a large staff of permanent officials, beginning with a permanent under-secretary, and including a prison commissioner, a metropolitan police commission, and a host of inspectors for factories, mines, police, and so forth.

It will be observed that although primarily responsible for public order, the Home Secretary is by no means a minister of the interior in the continental sense, for apart from the police he has very little to do with local government. The supervision of matters of that kind, although [107]in part scattered among different departments, is mainly concentrated in the hands of the Local Government Board. The Home Secretary has, on the other hand, some of the functions of a minister of justice; and this will be referred to again when we come to speak of the Law Officers of the Crown.

The Board of Works is not regarded as a department of great political importance, and for this reason it presents one of the two or three cases where the minister has no parliamentary under-secretary. For a score of years the public lands and buildings were under the care of a body called the Commissioners of Woods and Forests; but in order to keep the revenue from land separate from the expenditure upon buildings, and so bring the latter more completely under the control of Parliament, the duties were divided in 1852. The Commissioners of Woods, Forests and Land Revenues were made a permanent non-political body under the Treasury, while the Board of Works was established to take charge of the construction and maintenance of parks, palaces and other buildings. At that time many of the public buildings were, in fact, committed to the care of the departments that occupied them; but by a series of statutes these have now been transferred almost wholly to the Board of Works. Now, although the amount of money that passes through its hands is very large, the board is by no means entirely free, for without the sanction of the Treasury it can undertake no work not directly ordered by Parliament, and it can make no contracts for the erection of large public buildings without submitting them to the same authority,[107:1] which also appoints the ordinary permanent staff of the office.[107:2]

The Board of Trade occupies, on the contrary, a position of great and growing importance. It has had a long and chequered history, and although in the course of its career it has lost duties enough to keep an active department busy, [108]these have been more than replaced under that modern tendency toward state regulation of industry which is constantly adding to its burdens. It deals not only with trade, but with many of the chief agencies of trade, and especially with transportation. As in the case of the three other boards to be described hereafter, the Board of Trade is engaged not in direct administration, but in supervising and regulating the action of private bodies and local authorities, and in keeping a watch upon the enforcement of the law. Speaking broadly, its powers have grown by the process of making it responsible for the application of a great many statutes.

Its functions may be classified roughly under the heads of collecting information, registration, inspection, and authorising acts or undertakings of a public nature; although any such classification is sadly confused by the fact that duties of more than one kind have been conferred upon the board in regard to the same subject-matter, and even by the same statute. To the first of these classes belong its functions in collecting and publishing statistics relating to domestic and foreign trade, and giving advice on commercial matters to other departments of the government. To that class belong also its functions as a labour bureau in preparing statistics about labour, wages and other matters touching the interests of workingmen. In this connection it has power also to act as a board of conciliation in labour disputes, and to name arbitrators or conciliators. Under the head of registration may be mentioned its duties in maintaining the standards of weights and measures; registering joint-stock companies; examining and recording patents and trade-marks; and keeping a register of ships and seamen. Under the head of inspection come its functions in ascertaining that merchant vessels are in a seaworthy condition, and properly laden, officered, manned and equipped; with the power to detain unseaworthy craft. Under the same head may be classed its control over harbours, its duty to see to the enforcement of the [109]laws relating to railways[109:1] and to inquire into the causes of railway accidents and disasters at sea. As an example of the final class of powers may be cited the fact that the by-laws of a railway company require for their validity the approval of the board; but a far more important instance is to be found in its control over the building of new lines of railway, over new undertakings for the supply of water, gas and electric light, and over the construction of tramways and light railways, the last being a recent invention legally very different, but physically indistinguishable, from tramways. This control is exercised by means of provisional orders, prepared by the board after an investigation and a hearing of all the persons interested, and then confirmed by Parliament.[109:2] The petitioner is not, indeed, compelled to resort to a provisional order, but may avoid the direct control of the Board of Trade by means of a private bill in Parliament. But a provisional order is far less expensive; and even when the procedure is by private bill the board endeavours to exert its influence by scrutinising the bill, and bringing to the notice of the officers of the House any departures from the general policy of legislation.[109:3] The result is that the board has an effective, although by no means an absolute, control over these matters.

The subject of bankruptcy has also been placed in the hands of the Board of Trade, and except for legal questions which come before the courts, it has the entire charge of the cases, maintaining for that purpose a staff of inspectors, examiners and official receivers.

The nearest approach to actual administrative work intrusted to the board is in the case of lighthouses, buoys [110]and beacons, which are maintained by Trinity House, an ancient corporation composed of self-elected brethren but financially under the control of the Board of Trade.

Until the era of the Reform Bill local affairs in England were managed in the main by justices of the peace and town councillors, whose powers were derived from a host of statutes covering many subjects in great detail. These officers were kept rigorously within the limits of their authority because the legality of their acts could be tested in the courts of law; but they were almost entirely free from administrative control. The first wide breach in the system was made by the Poor Law Amendment Act of 1834, which aimed at a reform in the method of giving poor relief, and set up for the purpose a commission to supervise the local bodies. The new commissioners, being vigorous and efficient, aroused hostility, and as they were not permitted to sit in Parliament, they found it hard to defend their policy. In fact the experience they went through is used by Bagehot as an illustration of the impotence of an executive department without a representative in the House of Commons.[110:1] In 1847 the body was reorganised under the title of the Poor Law Board, with a responsible minister at its head, and thenceforth received from time to time additions to its duties. Various functions relating to public health and local government had in the meanwhile been intrusted to the Home Secretary and the Privy Council; and, finally, in 1871 the greater part of them were transferred to the Poor Law Board, which was given the name of Local Government Board.

Legislation of this kind has entirely transformed the nature of English local government. Partly by bringing the exercise of existing powers under the supervision of the central government, partly by subjecting to systematic control the new powers called into life by the wants of the time, the old system of local self-government—limited by law, but independent of any administrative superior—has been [111]replaced by a system where the local bodies, and especially those outside of the great towns, are to a considerable extent under the tutelage of the state. The subjection is not the same as that which prevails in other European countries, and it is not so great, but it is in some respects more nearly akin to the continental system than to that of England in the eighteenth century.

Except for such matters as police, education, and the supply of transportation, light and water, the control over the local authorities is almost entirely vested in the Local Government Board; but as the subject of local government, and therefore the powers of the board, will be considered at some length in another part of this book, we do not need to enumerate its functions here. We need only point out that it has the unusual number of five assistant under-secretaries, and a large staff of clerks, auditors and inspectors. But although the amount of head work to be done, and therefore the number of permanent officials of high grade, is large, yet from a political point of view the department is not regarded as of the first class.

The creation in 1889 of a new department of state to attend to the matters that have been transferred from various commissions to the Board of Agriculture hardly seems to have been necessary; and, indeed, the board is not important enough to require a parliamentary under-secretary. It has inherited the duty of shaking the dry bones of ancient tenures by dealing with such subjects as the commutation of tithes, the enfranchisement of copyhold, the enclosure of commons, allotments to labourers, and the improvement of land by limited owners. The control of fisheries, the promotion of agriculture and the prevention of contagious diseases among animals are also placed under its care, and it has been given power, or rather authority, to muzzle dogs and destroy the Colorado beetle.

The Board of Education is the youngest of all the boards, but in reality it is only a committee of the Privy Council reorganised with some additional powers. The most remarkable [112]thing about the act creating it—apart from the erection of a sham board—is the extent of the authority delegated to the executive. Instead of prescribing minutely the organisation and functions of the department of education, the act empowered the government, in its discretion, to set up such a consultative committee as it saw fit, and to transfer to the board any educational duties of the Charity Commissioners or the Board of Agriculture that it thought best.[112:1] Both of these powers have been exercised by Orders in Council of Aug. 7, 1900, and the Consultative Committee has been made to consist of representatives selected by the universities and by other bodies interested in education. But the subject of public education will be treated in subsequent chapters, and it is enough here to note that by means of elaborate regulations, commonly known as the Education Code, the board prescribes the instruction to be given in all schools aided by public money;[112:2] that it inspects endowed or private secondary schools at their request;[112:3] and that it has charge of the museums at South Kensington and Bethnal Green, and of the Geological Museum and Survey.

From the point of view of the national government the Post Office has two functions. It is a great administrative department which conducts a huge business, with a minister at its head; and it is a source of income, its gross receipts forming about one seventh of the total revenues of the United Kingdom, its disbursements only about one tenth of the total expenditure. For that reason it is under a financial control by the Treasury so strict as to leave very little chance for independent action, and this renders the position of Postmaster General far less important [113]than it would otherwise be. The office has been regarded as political since 1837; but until 1866 the holder could not sit in the House of Commons, and since that time he has occasionally been a peer, the Post Office in such a case being usually represented in the Commons by the Financial Secretary of the Treasury. The duties of the Postmaster General are minutely prescribed by statute, and while he has power to make regulations for the management of the postal service, it is not easy to make substantial changes or improvements without affecting the receipts or the expenses, and when that is done he comes at once under the control of the Treasury. The rates of postage, for example, and the compensation for carrying the mails, when not fixed by Act of Parliament, are subject to the approval of the Treasury; and so are the purchase or sale of land, and any lease of the right to carry on a telegraph or telephone business. The same approval is also required for his regulations touching money-orders, post office savings-banks, and the telegraph, although in these cases the revenue would not appear to be necessarily involved. In short, as Sir William Anson puts it,[113:1] "The Postmaster General is no more than the acting manager of a great business, with little discretionary power except in the exercise of the very considerable patronage of his office."[113:2]

The business of the department is certainly enormous, the number of persons employed being little short of two hundred thousand. In addition to the usual work of transmitting letters, books, parcels and money-orders, the Post Office in England maintains savings-banks, with deposits of about £150,000,000; and it has been given exclusive control of the telegraph by provisions which have been held to include the telephone also. But while the administration of the telegraph has been retained by the government in its own [114]hands, the right to conduct the telephone business was granted, by means of temporary licenses, to private companies, and to some extent to local authorities also; and the government has only recently decided to take over the management as soon as the licenses expire.

FOOTNOTES:

[115]

CHAPTER V

THE TREASURY

The most important of all the departments, and the one that exhibits in the highest degree the merits of the English government, is the Treasury. It is the central department of the administration, which keeps in touch with all the others, and maintains a constant financial control over them. But before considering how that is done it may be well to explain the process by which money flows in and out of the national purse. The part played by Parliament in the imposition of taxes, and the authorisation of expenditure by means of appropriations, will be described in chapter XIV, and we are concerned here only with the machinery for collecting those taxes, and giving effect to the appropriations.[115:1]

Until the Commonwealth, taxes were, as a rule, granted to the King, who used the proceeds to carry on the government as he saw fit; but under Charles II. Parliament began to appropriate parts of the revenue for specific purposes, and after the revolution of 1688 this developed into a comprehensive system, so that the whole revenue was appropriated, to be used only for the objects, and in the sums, designated by Parliament.[115:2] It was the custom, however, to appropriate for specific objects the proceeds of particular taxes, a practice that made the public accounts needlessly complex. In 1787 William Pitt, following earlier partial experiments, simplified matters by creating a single [116]Consolidated Fund into which all revenues from every source were turned, and from which all payments were made.[116:1] The Consolidated Fund is deposited in the Bank of England and the Bank of Ireland, which have a right to use it like any other deposit, and perform, in fact, for the government much the same service that an ordinary bank does for a merchant. This method of dealing with the national finances continued substantially intact until a few years ago,[116:2] when it was complicated by two innovations, one of which allows a department to use incidental revenues, under the name of "appropriations in aid," to defray expenses, and the other sets aside certain parts of the national income to supplement local taxation, in each case without passing through the Consolidated Fund.[116:3] The second of these exceptions is due to the great increase of local expenditure, and the narrow range of local taxation, which have caused a demand for national subventions, and have resulted in setting apart for the purpose the proceeds of specific sources of revenue. In this way the income from the local taxation licenses, and a portion of the income from the death duties and the duties on spirits and beer, are now collected by the central government and paid directly into the Local Taxation Account.[116:4] But saving these cases, all the national receipts [117]are paid into, and all the disbursements are made from, the Consolidated Fund.

The financial procedure of the Treasury is now regulated by the Exchequer and Audit Departments Act of 1866,[117:1] and the Public Accounts and Charges Act of 1891.[117:2] By these acts the gross revenue—after making the deductions already mentioned—is paid into the "account of His Majesty's Exchequer," at the Banks of England and Ireland, to be used as a single fund. The three chief collectors of revenue are the Commissioners of Customs, the Commissioners of Inland Revenue and the Post Office. With the growth of the principles of free trade the customs duties became confined to coffee, chicory, cocoa, dried fruit, tea, tobacco, wine, and a number of articles, such as spirits, on which duties are laid to countervail the excise upon similar articles produced at home. To these were added at the time of the South African War an export duty on coal, and import duties on sugar and grain, the last being again dropped in 1903, while the coal duty was repealed in 1906. Under normal fiscal conditions in times of peace, the customs duties yield about one fifth of the total revenue, the receipts being mainly from tobacco, tea and spirits. The gross receipts from the Post Office (including the telegraphs) form about one seventh of the revenue, but this is really misleading, because three quarters of those receipts are paid out again for the expenses of the department. All but a very small fraction of the remaining receipts come through the Commissioners of Inland Revenue, and their sources of income are of a miscellaneous character. The largest item is the excise, mainly on beer and spirits, which yields more than a quarter of the total national revenue.[117:3] The next largest is the income tax, which varies very much from time to time, and has produced during the last score of years from one seventh to one quarter of the total revenue. Then there are the death duties, a [118]progressive tax on property passing at death, which yield one tenth of the revenue. The ancient land-tax, and the inhabited-house duty produce comparatively small sums; and, finally, there are the stamp duties on all kinds of transactions, articles and licenses which yield all together about one twelfth of the revenue. Some of the license fees collected under the head of excise are so small as to appear rather vexatious than productive, such as one guinea for the display of armorial bearings not used upon a carriage, fifteen shillings for a license to have a manservant, or keep a carriage with less than four wheels, and fourpence a day for the privilege of occasionally selling tobacco.[118:1]

Neither the expenditure nor the proceeds of taxes being absolutely constant, it is necessary, in order to maintain a close balance between them, to adjust the sources of revenue to some extent from year to year, and this is done by means of a small number of variable charges. Most of the taxes are imposed by permanent statutes, changed only at long intervals, but the rates of assessment under the tea duty and the income tax are fixed each year in the annual Finance Act; and since 1894 certain additional duties on beer and spirits have also been laid for a year at a time.

It has been the aim of English statesmen to make the revenue and expenditure of each year balance one another as closely as possible, and their skill in doing so has been extraordinary. While the South African War was raging such a result was naturally impossible, but during the preceding twenty-five years the difference between receipts and expenditures (including payments on account of the debt) was never more than about four per cent, and in fifteen of those years it did not exceed one and a half per cent. The taxes are, indeed, of such a character that it is possible to forecast their proceeds with great accuracy. The Chancellor of the Exchequer intends to make his calculations so as to [119]leave a margin of safety, and yet during the period under consideration the difference between the estimated and actual receipts was never more than about three and a half per cent.[119:1]

Accurate fiscal administration is very much promoted by the rule that any part of an appropriation unexpended at the end of the financial year in which it is voted shall lapse, and cannot afterwards be used unless it is granted afresh by Parliament.[119:2] The rule has been thought to lead to wastefulness by provoking improvident haste in spending the whole appropriation before March 31.[119:3] But such an evil is surely far smaller than that of allowing the appropriations to run on, with the result, well known in France, for example, that the annual accounts cannot be finally made up, and the extent of the deficit determined, until several years have passed.

Like all other excellent things devised by men, the English system of finance is not without its drawbacks. If it promotes careful administration, and rivets attention upon any increase in the budget, it also makes the revenue inelastic in emergencies. A great deal has been said in Parliament of late about broadening the basis of taxation, but that is a very difficult thing to do suddenly, without dislocating the commercial as well as the fiscal system; and while the existing taxes are elastic up to a certain point, an attempt to raise them too much would diminish rather than increase their productiveness.

[120]

Just as there are two kinds of taxes, one permanent and the other annual, so there are two classes of expenditure, one regulated by standing laws, and the other by annual appropriations. All the ordinary expenses of the government require parliamentary sanction every year, both on the theory that the money collected from the nation ought not to be spent without the consent of its representatives, and also in order that Parliament may be able to oversee the administration and criticise it in every session. But there are certain matters that ought to be kept aloof from current politics, and ought not to be brought in question in the heat of party conflict. The principal charges that have been regarded in this light are the interest on the national debt, the Civil List or personal provision for the King, annuities for the royal family, certain pensions, and the salaries of the judges, of the Comptroller and Auditor General, of the Speaker, and of a few officers of lesser importance. These charges amount to nearly one quarter of the total expenditures; and they are called Consolidated Fund charges, because by statute they are paid directly out of the Consolidated Fund without the need of any further action by Parliament. The other expenditures are for what are known as the supply services, because the appropriations for them are voted by the House of Commons in Committee of Supply.

The administrative procedure for getting money out of the Consolidated Fund to pay the Consolidated Fund charges and the supply services is not precisely the same. In the case of the supply services a royal order for the amounts appropriated by Parliament is made under the King's sign manual, countersigned by two of the Commissioners of the Treasury. The Treasury then requires the Comptroller and Auditor General to grant credits at the Banks of England and Ireland for those amounts, and if satisfied that the authority from Parliament is complete, he makes an order on the banks granting the credits. From time to time the Treasury requests the banks to transfer to the [121]various supply accounts, for disbursement, sums of money not exceeding the credits so granted.[121:1] The procedure in the case of Consolidated Fund charges differs from this only in the fact that a royal order is not needed, and the Comptroller and Auditor General, on the requisition of the Treasury, grants quarterly credits for the amounts prescribed by statute.[121:2] By this process a highly effective security is provided that no money shall be spent without the authority of Parliament. The Consolidated Fund is deposited in the banks of England and Ireland, which are liable if any of it is withdrawn without an order from the Comptroller and Auditor General, while that officer is given the same independence as the judges. Like them he is appointed during good behaviour, with a salary charged upon the Consolidated Fund. The security is not absolutely perfect, for there are some moneys, such as the appropriations in aid, that do not pass through the Consolidated Fund; and as no foresight can be unfailing, the government is given a limited power to meet unforeseen contingencies, and to cover expenses that have inevitably proved larger than was anticipated.[121:3] But all matters of this kind are fully reported to Parliament by the Comptroller and Auditor General.

The Treasury lays before Parliament annually the Finance Accounts of the preceding year, while the Comptroller and Auditor General submits at a later date a separate report. Therein he examines the Consolidated Fund charges, and makes for the supply services more elaborate statements, called the Appropriation Accounts, in three volumes, relating to the Army, the Navy and the civil service. The accounts are rendered to him by the several departments, and after auditing them he transmits them to the House of Commons with his comments.[121:4]

[122] The money granted by Parliament is divided into votes, of which there are in all about one hundred and forty.[122:1] In the estimates these votes are subdivided into subheads and items; but the votes would appear to be the only limitation expressly placed by Parliament upon expenditure; for the Annual Appropriation Act provides that the sums granted shall be deemed to be appropriated "for the services and purposes expressed in Schedule (B) annexed" thereto, and that schedule gives a list of the votes, but not of the subheads or items. Nevertheless, the Comptroller and Auditor General is enjoined by the Exchequer and Audit Departments Act of 1866 to ascertain whether the money expended has been applied to the purpose or purposes for which each grant was intended to provide,[122:2] and hence the reports that he submits note the excess or saving with the reasons therefor, under each subhead, and sometimes, as in the case of votes for the construction of new buildings, under each item. He adds, also, his own comments wherever it seems to him necessary to do so. All this is done, even where the saving under one subhead more than counterbalances the excess under another in the same vote. When that happens, however, no action by Parliament is required; but if the total amount of a vote has been overspent, the excess is entirely unauthorised, and must be covered by a deficiency appropriation, which Parliament grants upon the reports of the Comptroller and Auditor General and the Committee on Accounts of the House of Commons. To the last rule there is one exception. In order to facilitate [123]the administration of the Army and Navy, the Annual Appropriation Act declares that the Treasury may authorise expenditure, not provided for, to be defrayed temporarily out of any surplus effected upon other votes in each of those departments; and the Act goes on to recite and sanction the transfers of surplus so authorised by the Treasury in the last year for which the accounts are complete.[123:1] This brings us to another important question, that of the financial control of the Treasury over the other branches of the administration.

There has been a great deal of discussion about Treasury control over the receipt and expenditure of public money. In the case of the receipts it is a simple matter, for the financial control over the Post Office has already been described, and the other great revenue departments are, as will shortly be explained, virtually subordinate to the Treasury. The question of control over expenditure is far more complicated. Committees of the House of Commons have, at different times, collected evidence on the subject,[123:2] but the statements made have often been vague, and tend to confuse the control of the Treasury over the estimates, with its control over expenditure after the appropriations have been voted by Parliament. The control over the estimates has been discussed in the preceding chapter. It is only necessary here to repeat that such a control is by no means absolute, because any important question of expenditure becomes a question of policy to be decided, in case of disagreement, by the Prime Minister or the cabinet; and to point out that the departments supported by their political chiefs are usually too strong for the Treasury to resist.[123:3]

[124]

It might be supposed that after the appropriations had been voted the departments would be free in expending them, subject only to their responsibility to Parliament; but this is not altogether true. In the first place a statute sometimes requires that the expenses of a department shall be sanctioned by the Treasury.[124:1] Then it is not infrequently provided that the salaries shall be fixed by the Treasury, or that alterations in the establishment shall require its consent. Moreover, the salaries of certain grades of clerks are regulated by Orders in Council,[124:2] which are changed only on the advice of the Treasury. Apart, however, from statutes and Orders in Council there is a general customary principle forbidding any increase in the civil establishment of a department,—that is, any increase in the number or salary of permanent officials,—without the approval of the Treasury; and this although the appropriations would not be exceeded.[124:3]

Over certain departments the control is even more extensive, for not only do the contracts made by the Post Office require its approval, but contracts entered into by the Board of Works are also the subject of discussion between the Treasury and the First Commissioner.[124:4] In the case of the Army and Navy the fact that the Treasury can authorise a [125]transfer of the surplus under one vote to cover a deficiency under another gives it a certain authority; and, indeed, its sanction is to some extent sought even for transfers between subheads of the same vote. This last is, of course, a matter of custom rather than of law, and practice differs in the two services. The Admiralty, which always plays the part of the good boy, comes very frequently to the Treasury for permission to make transfers between subheads before it acts; while the Army, save in exceptional cases, comes only at the end of the year for a formal approval.[125:1] The exceptional cases are, however, numerous. They sometimes extend even to separate items, and are regulated by a code of rules made by the Treasury and the department.[125:2] Every excess, for example, of a certain size in an item for a new building, the payment of any excess to a contractor, the discharge of a loss, or the insertion of a new item, require the sanction of the Treasury; and in fact the Appropriation Accounts of the Army and Navy are followed by many pages of correspondence on matters of this kind between the Treasury and the department. In the case of the civil services, where the Treasury has no authority to sanction transfers between votes, the system is less elaborate and the correspondence is not printed in full. Still there are frequent references in the accounts to Treasury letters sanctioning expenditures under subheads or items, especially in relation to such matters as salaries, the purchase of land, large excesses over estimates for construction, the abandonment of claims, and unforeseen expenditures.[125:3]

[126]

The control by the Treasury is sometimes vexatious in small matters,[126:1] but it does not seriously hamper the administration, or impair the efficiency of the service;[126:2] and while it can hardly prevent an expenditure on which a department is seriously determined,[126:3] the very need of consultation can hardly fail to act as a restraint upon extravagance.[126:4]

In addition to its control over the application of the sums voted by Parliament, and its authority to permit the use of appropriations for purposes not contemplated in the estimates, the Treasury has a limited power to open the national purse in case of necessity when no grant has been made by Parliament. For this purpose it has three sources of supply at its disposal: the Treasury Chest Fund, limited to £1,000,000, may be used to make temporary advances for carrying on the public service, to be repaid out of sums afterwards appropriated; the Civil Contingencies Fund, limited to £120,000, is available on similar terms for unforeseen contingencies and deficiencies; and, finally, any incidental receipts, not granted by Parliament as appropriations in aid, may be used as such under the authority of a Treasury minute to be laid before the Houses.[126:5]

In the remarks on the history of the Treasury Board, at the beginning of the last chapter, it was pointed out [127]that the board no longer meets. The Treasury minutes are still drawn up in the name of "My Lords," but this is merely the survival of a form, and all the members of the board, except the Chancellor of the Exchequer, have ceased to take part in directing the financial administration. The three junior lords have at times some small departmental duties, but their real functions are to act as assistants to the Parliamentary or Patronage Secretary, who is the chief government whip in the House of Commons. All the four whips receive salaries from the state on the theory that it is their duty to keep a House, or in other words to insure the presence of a quorum, while the supplies are being voted. But in fact they are officers, not of the state, but of the party in power, and it is their business to see that whenever a vote is taken in which the ministry is interested, their partisans are present in greater force than those of the Opposition. The relation of the First Lord to the Treasury is anomalous. He is usually the Prime Minister, and as such is supposed to keep a general supervision upon all branches of the administration, and to act as a sort of umpire between the different ministers, and, therefore, between the Treasury and the other departments. But whether he is Prime Minister or not he has a real connection with the Treasury. The functions of that office cover a much wider field than its name would imply, including subjects of a most miscellaneous character; and while the finances are entirely under the charge of the Chancellor of the Exchequer,—who is, in fact, the Minister of Finance, with the Financial Secretary of the Treasury as his parliamentary under-secretary,—the First Lord may be said, speaking very roughly, to be at the head of the outlying departments which are not concerned with financial affairs.

The Treasury has been described as a superintending and controlling office that has properly no administrative functions;[127:1] and this, in a sense, is true, for even in money matters its duty as an organised department is financial direction [128]and control, not the actual collection and disbursement of the revenue. It prepares the budget, reviewing the estimates submitted to it, and devising the means of defraying them; it supervises the collection of the revenue, and keeps watch over the expenditure. In this work the political chiefs are assisted by a body of clerks, headed by the permanent under-secretary, whose office is generally regarded as the highest in the permanent civil service. The offices that have direct charge of the collection of revenue have separate organisations with distinct staffs of permanent officials; but, except for the Post Office, they have no political chiefs of their own, and are in fact subordinate branches of the Treasury. The four great offices of this kind are the Post Office, which has already been described; and the departments of Customs, of Inland Revenue, and of Woods, Forests and Land Revenues, each of which is managed by commissioners who are members of the permanent civil service, and do not change with changes of ministry.[128:1]

The Treasury bears a similar relation to the departments that deal with purely fiscal payments, the National Debt Office, the Public Works Loan Board, and the Paymaster General's Office, through which almost all disbursements [129]are now made. For, although the Paymaster General is a political officer, he has ceased to have any real connection with his department, and it is administered under the direction of the Treasury.[129:1]

Besides the departments subordinate to the Treasury, there are a number of outlying departments more or less closely connected with it which have already been referred to as having nothing to do with financial affairs; and, indeed, one may say that in theory, at least, every branch of the public service—except the Ecclesiastical and Charity Commissions[129:2]—that does not have a political chief of its own, and is not connected with some other department, is under the supervision of the Treasury and represented in Parliament thereby. But while the commissioners, or other heads of such offices, are as a rule appointed on the recommendation of the First Lord, or of the Prime Minister, the degree of control exercised over them by the Treasury varies a great deal; and in some cases its responsibility, apart from regulating the amount of expenditure, is somewhat illusory. Several institutions in this position are intended to be entirely outside the range of party controversy; and the boards of trustees of the British Museum, the National Gallery, and the National Portrait Gallery habitually contain members of Parliament who would [130]never think of resigning their posts by reason of a change of ministry. The principal outlying departments of the Treasury directly connected with national administration, are: the Civil Service Commission, which examines the candidates for the various branches of the civil service; the Parliamentary Counsel's office, which drafts all the bills introduced by the ministers; and the stationery office, which does all the government printing.

Throughout a great part of the nineteenth century the influence of the commercial classes was strong, the government was conducted on strict business principles, and the Treasury as the representative of those principles was the keystone of the administrative arch, or to change the metaphor, the axle on which the machinery of the state revolved. For a long time, indeed, there was a marked tendency to consider the office of Chancellor of the Exchequer as the most important in the cabinet after that of the Prime Minister, to regard the person who held it as heir presumptive to the premiership, and to make him leader in the House of Commons when his chief was a peer. But with the waning desire for economy, and the growth of other interests, the Treasury has to some extent lost its predominant position. A symptom of this may be seen in the fact that during the last dozen years of Lord Salisbury's administrations, the Commons were led, not by the Chancellor of the Exchequer, but by a First Lord of the Treasury appointed for the purpose. The turning point came at the beginning of that period, when Lord Randolph Churchill in 1886 quarrelled with his colleagues over the estimates for the Army. The occurrence did not produce, but it did mark, a change in the tone of public opinion; and although the Treasury will no doubt maintain its control over the details of expenditure, one cannot feel certain that its head will regain the powerful influence upon general or financial policy exerted thirty years ago.

FOOTNOTES:

[131]

CHAPTER VI

MISCELLANEOUS OFFICES

There is in England no single officer corresponding to the minister of justice, or attorney general, in other countries, some of the duties performed by them elsewhere being divided in England among a number of authorities, while others are not performed at all. The principal officers who fill this important gap are the Lord Chancellor, the Law Officers of the Crown, and the Director of Public Prosecutions.

The greatest political dignitary in the British government, the one endowed by law with the most exalted and most diverse functions, the only great officer of state who has retained his ancient rights, the man who defies the doctrine of the separation of powers more than any other personage on earth, is the Lord Chancellor. Apart from his duties as a judge, as the presiding officer of the House of Lords, and as a member of the cabinet, all of which have been or will be described in other places, he has many powers of a miscellaneous character connected for the most part with the administration of the law.[131:1] He is, for example, at the head of the Crown Office in Chancery. This, as the place where the Great Seal is affixed, is legally and formally, although not politically, important. The Commissioners in Lunacy, also, report to him. The regulations relating to public prosecutions [132]require his approval, and the control of the Land Registry Office devolves mainly upon him. Almost all the judicial patronage, moreover, is in his hands, for he is consulted about the highest posts, the selection of the puisne judges of the High Court is made on his recommendation, and he appoints and removes the county court judges and justices of the peace.[132:1]

Although the Lord Chancellor is a party leader, and is at once an active member of the legislative, the executive and the judicial branches of the government, the evils that might be supposed to result from such a combination of powers in the same hands do not in fact appear. He might, indeed, when sitting in the Judicial Committee, or in the House of Lords, be called upon to construe a statute which he had a share in enacting, but this does no great harm. The really serious matter is a confusion of the executive and judicial powers, the sitting in judgment by a political officer upon a question on which he has acted, or which may affect his future action, in an administrative capacity. But since the Chancellor never holds court alone at the present day, such a question could come before him only in the Court of Appeal, the House of Lords, or the Judicial Committee, where he sits with other judges, who have no connection with the ministry. Moreover, the Chancellor, although the legal member of the cabinet, is not its sole, nor indeed its official, legal adviser; and the government would never think of acting upon any doubtful point of law without obtaining the opinion of the Law Officers of the Crown. These gentlemen hold no judicial position; and curiously enough, while a part of the ministry, are never in the cabinet.

The principal Law Officers of the Crown are the Attorney General, and the Solicitor General, who is his colleague and [133]substitute.[133:1] Their opinion on questions of law may be asked by the government, and by any department, although many of the departments are provided with permanent legal counsel of their own whose advice is sufficient for all ordinary matters. The Attorney and Solicitor General conduct personally a few prosecutions of unusual importance, file criminal informations, and appear in cases where the rights of the Crown are involved, or where their intervention is necessary to protect charitable endowments. They defend in Parliament the legality of the government's action, and explain incomprehensible legal points in its measures. While they are no longer permitted to engage in private practice, their salaries and fees are so large[133:2] that these posts are among the great political prizes for lawyers who have made their mark in the warfare of the House of Commons,[133:3] prizes the greater because, in addition to the direct emoluments, they confer a presumptive claim to the very highest places on the bench that may become vacant while the party is in power.

It has been observed that the Law Officers of the Crown conduct in person only a few criminal cases of unusual importance. In other countries the prosecution of offenders is the affair of the state, and is conducted in all the courts great and small by public officers. This is true in Scotland also, where the matter is in the hands of a body of officers, known as procurators fiscal, with the Lord Advocate at their head; and even in Ireland a similar system has developed informally by the employment of crown counsel acting under the control of the Attorney General for that kingdom. But in England criminal prosecutions in the vast majority of cases are still, in theory at least, conducted by [134]private persons.[134:1] Any one, whether a person injured or not, may prosecute the offender.[134:2] As a rule the examining magistrate, after committing the accused for trial, binds some one over to prosecute—either the complainant, the person injured, a policeman, the magistrate's own clerk, or a solicitor employed for the purpose. The case is usually conducted by the solicitor to the local magistrate, but the person bound over may employ his own counsel to take charge of it. The costs of the trial are, however, at the present day, allowed by the court, and paid out of the national treasury, under regulations made by the Home Secretary.

It has always been the habit for the Attorney General to conduct great state trials, cases, for example, of high treason; and it gradually came to be the practice for the legal officers attached to the different departments to prosecute in certain other cases, such as offences against the coinage. But about the middle of the last century there arose a demand for a general system of state prosecutions under the charge of a ministry of justice.[134:3] This movement culminated, or evaporated, in the Acts of 1879 and 1884,[134:4] whereby the Solicitor to the Treasury, who is the permanent legal adviser of that department, and is also charged with a number of other duties of a legal nature, has been made the Director of Public Prosecutions. The regulations governing his actions in this capacity are made by the Attorney General with the approval of the Lord Chancellor and the Home Secretary. They provide in substance[134:5] that he shall prosecute in all capital cases, in offences against the coinage, cases of fraudulent bankruptcy, cases where he is directed [135]to do so by the Attorney General or the Home Secretary, and cases where such action appears to him necessary in the public interest. He may employ counsel to conduct both the cases that he brings, and any other criminal proceedings before the high courts where no counsel has been retained; and he may also assist a private prosecutor by authorising special expenses for evidence or counsel. It is his duty to give advice to the clerks of justices of the peace, and to police officers; and, finally, he is in all these matters subject to the control of the Attorney General.

The Director of Public Prosecutions makes to Parliament an annual report of his doings, enlivened by narratives of the most interesting cases. But in spite of his activity the vast bulk of the prosecutions are conducted as of old under private direction; for out of the many thousands of criminal cases tried every year, only from three hundred and fifty to five hundred are in his charge, and the number shows no marked tendency to increase.

Enough has been said to justify the statement that no single officer exercises any considerable part of the functions of a minister of justice. Such duties are not only divided among a number of persons, but scattered in small fragments among different departments. An illustration of this is furnished by the Return of Public Prosecutions, which is submitted to Parliament by the Home Secretary, and bears his signature on the first page; while the return itself is signed by the Director of Public Prosecutions, and dated from the Treasury. Gneist, in his work on the English administrative system, portrays the Lord Chancellor as the minister of justice for civil, and the Home Secretary for criminal, matters,[135:1] but such a generalisation is overstrained and misleading, and it is safer to assert that when the English bring confusion into any administrative department they usually succeed in confounding utterly all general principles, and making all general statements inaccurate.

[136]

If there is no minister of justice in England, still less is there a minister of religion such as is commonly found in countries that possess established churches. The government of the Church of England will be treated in another chapter, and it is only necessary here to point out that although a strictly national institution, often deeply involved in political controversy, the Church is in many ways singularly free from the control of the executive government. It is, no doubt, regulated by laws that cannot be altered without the authority of Parliament. Its organisation, its ritual, and its articles of faith can be changed only by statute. But in administrative affairs its dependence upon the state is very much less. The King is, indeed, its supreme head; he virtually appoints the bishops and other high dignitaries, and his assent is necessary to the exercise of their limited powers by the Convocations of the two provinces.[136:1] Beyond this, however, the Crown does not interfere in the government of the Church, or the discipline of its members, which are left under the charge of its own officers. Proceedings against a clergyman for doctrinal errors or violation of the ritual can be taken only with the consent of the bishop, the government having no part in it; and although the Crown appoints a portion of the members of the Ecclesiastical Commission, which manages much of the Church property, the bishops form a large majority of the body, and the commission itself is not subordinate to any minister of state. The only control, therefore, exercised by the cabinet upon the administration of the Church is to be found in the restraint upon Convocation, and in the fact that the responsibility for the selection of high ecclesiastics rests with the Prime Minister, who, curiously enough, is not necessarily, and in the last two cabinets actually has not been, a member of the Church of England. The Prime Minister also nominates the incumbents of a number of large livings, while the Lord Chancellor presents [137]to several hundred others that happen to lie in the gift of the Crown.[137:1] Except for these things no minister is responsible for the conduct of the Church or of its members.

The connection between Church and State in England is thus a peculiar one. In some ways the relation is very close, but it is rather legislative and judicial than administrative. The Church is minutely regulated by state laws, the judge of its principal tribunal must be confirmed by the Crown, and appeals lie to a secular court;[137:2] but it lives upon its own revenues without any grant from Parliament, and although its highest officers are appointed by the state, and sit in the upper House of Parliament, yet once appointed, they, like all the rest of the clergy, are practically free from the supervision and control of the executive government.

These are all the public offices in the English government that it is necessary to mention. A description of the peculiar institutions of Scotland and Ireland is not within the scope of this book, except so far as they affect the central government. Until twenty years ago the connection of the government with matters relating exclusively to Scotland was maintained chiefly through the Home Office, but the Lord Advocate was virtually the parliamentary under-secretary for Scotch business, and took entire charge of it, unless his chief was a Scotchman, and cared to assert himself. In 1885 a Secretary for Scotland was created, one might perhaps say revived, and to him were intrusted for that kingdom duties corresponding to those discharged in England by the Home Office, the Local Government Board and the Board of Education. In fact he may be said to be the general representative for [138]Scotch purposes of all the various civil departments of state; and in particular he is at the head of the Scotch Local Government Board and the Scotch Education Department. He is not one of the secretaries of state and receives a much smaller salary than they do, but he is a member of the ministry, usually, though not invariably, with a seat in the cabinet, and he is always a member of one or the other House of Parliament.

The contrast between the relations of England to Scotland and to Ireland is striking. By the Act of Union of 1707 England and Scotland became one state, with a common Parliament and a common executive government, but political differences have not been obliterated. The Act of Union preserved the ecclesiastical and legal institutions of Scotland; and at the present day she has her own established church, which is Presbyterian; her own system of education, which is quite different from the English; and her own system of law, based upon the Civil not the Common Law, and adorned by a nomenclature so disfigured as to pass for her own. With such differences as these it has been not uncommon for Parliament, even where the same legislative principles were to be applied on both sides of the Tweed, to enact them in separate statutes, each adapted to the institutions of the country in which it is to operate. Socially, also, the fusion has not been complete. Every Scotchman is an Englishman, but an Englishman is not a Scotchman. The Scotch regard themselves as an elect race who are entitled to all the rights of Englishmen and to their own privileges besides. All English offices ought to be open to them, but Scotch posts are the natural heritage of the Scots. They take part freely in the debates on legislation affecting England alone, but in their opinion acts confined to Scotland ought to be, and in fact they are in the main, governed by the opinion of the Scotch members. Such a condition is due partly to the fact that Scotch institutions and ideas are sufficiently distinct from those of England to require separate treatment, and not different enough to excite [139]repugnance. It is due in part also to the fact that the Scotch are both a homogeneous and a practical people, so that all classes can unite in common opinions about religion, politics and social justice. The result is that Scotland is governed by Scotchmen in accordance with Scotch ideas, while Ireland has been governed by Englishmen, and until recently, in accordance with English ideas.

The Act of Union with Ireland in 1801 abolished the Irish Parliament, and vested the whole legislative power for the United Kingdom in the joint Parliament at Westminster; but the executive government for Ireland was left at Dublin. It is conducted in the name of the Lord Lieutenant as the representative of the Crown.[139:1] The work is nominally done by him in his Privy Council, subject to such instructions as may be sent to him by the English government through the Home Secretary. In practice, however, matters have worked out very differently, for the administration of Ireland has been far too important to rest under the wing of the Home Office. The Lord Lieutenant is always a great nobleman, and he is expected to keep up a vice-regal state, sometimes at an expense exceeding his enormous salary of £20,000 a year; but he is not ordinarily the real head of the Irish Office. Since 1868 he has been a member of the cabinet less than eleven years, whereas his Chief Secretary has been in the cabinet during the whole of that period, except from 1882 to 1885, and for three other intervals that were very brief. Moreover, the Chief Secretary is always a member of the House of Commons, where he must defend the administration of Ireland against the attacks of the Irish members, and often of the English Opposition also. Thus it has come about that the Chief Secretary habitually plays the part of minister for Ireland, and is practically the ruler of the country. He is at the head of the Irish Local Government Board, Congested Districts [140]Board and Department of Agriculture and Technical Instruction, and in general he is held responsible for all administration of a political character, except in the case of the revenue and the Irish Board of Works, which are under the direct control of the Treasury.[140:1] He possesses, indeed, not only the authority vested in a number of ministers in England, but also powers not conferred upon them at all. During the greater part of the time since the Union in 1801, Ireland has been subject to a long series of coercion acts, temporary in duration, but renewed at short intervals under different names.[140:2] The provisions have varied, but the object has always been to arm the Irish government with extraordinary and arbitrary powers for the suppression of disorder. Moreover, the police of Ireland, instead of being, as in England and Scotland, under the control of the local authorities, is under the direct orders of Dublin Castle. This force, the Royal Irish Constabulary, contains over twelve thousand men, a number twice as large in proportion to the population as that of the police in Great Britain.

The administration of Ireland has been the conspicuous failure of the English government. Its history for a century has been a long tale of expedients, palliations and concessions, which have never availed to secure either permanent good order or the contentment and loyalty of the inhabitants. Each step has been taken, not of foresight, but under pressure. The repressive measures have been avowedly temporary, devised to meet an emergency, not part of a permanent policy; while concessions, which if granted earlier might have had more effect, have only come when attention to the matter has been compelled by signs of widespread and grievous discontent. Catholic emancipation was [141]virtually won by the Clare election; disestablishment of the Anglican Church was hastened by the Fenian movement; the Home Rule Bill followed the growth of the Irish parliamentary party, culminating in Parnell's hold upon the balance of power in the House of Commons; and the land laws have resulted from agrarian agitation. It has been said that the same thing is true of English reforms, that Parliament seldom gives redress until a wrong has been brought forcibly to its notice, and this is no doubt a natural if not an inevitable result of the parliamentary form of government. It is a part of the general tendency to treat symptoms rather than causes, to which we shall have occasion to refer again. But while Parliament, now that all classes are represented there, is certain to be made aware of an English grievance long before it has become intolerable, it is by no means so keenly sensitive to an Irish one. The fact is that Irish problems lie beyond the experience of the English member and his constituents. Being unable to distinguish readily a real grievance from an unreasonable demand, he does not heed it until he is obliged to; and the cabinet, with its hands already full, is not inclined to burn its fingers with matters in which the House is not deeply or generally interested. All this is merely one of many illustrations of the truth that parliamentary government can work well only so far as the nation itself is fairly homogeneous in its political aspirations.

But if the parliamentary system has proved an instrument ill-fitted for ruling Ireland, it is also true that the problem has been one of extreme difficulty. English statesmen might have repeated what Lord Durham said of Canada in his famous report: "I expected to find a contest between a government and a people. I found two nations warring in the bosom of a single state."[141:1] For centuries Ireland has remained a conquered land without a thorough fusion of the victors and the vanquished; the native stock has been subjected without being assimilated, and the difference of race has been intensified by a difference of creed. The [142]Celt still looks upon his Saxon landlord, and upon the Orangemen in Ulster, as aliens, and upon the constabulary as the garrison of a foreign power. This has not only made the management of Ireland an exceedingly hard thing for an English government to carry on, but it also stands in the way of any other solution of the problem. To allow the Irish to govern themselves means putting the under dog on top and the upper dog underneath. The difficulty has been further increased by a deep-seated divergence in the conceptions of law and justice. Unlike Scotland, Ireland has the English system of jurisprudence. Her courts are modelled on those at Westminster, and administer the English Common Law, while most of the statutes affecting civil rights are the same. But, as men have often pointed out, there are in times of agitation two laws, and two governments, in the country; on one side the English law, administered by the English government through its officials, and on the other a hostile system resting upon very different principles, and applied by an extra-legal political organisation, but in fact more vigorously enforced than the first, and often more in harmony with the popular sense of justice.

The divergence between the legal conceptions of the English and Irish is most marked in the case of land. According to the ideas of Englishmen, and of Irish landlords, the land belongs to the owner, and apart from special statutory provisions, the tenant has only a contractual right of possession, during the continuance, and subject to the terms, of his contract. But the tenants feel that, subject to somewhat indefinite duties towards the landlord in the way of rent, they have rights in the land, of which their forbears were robbed, and which they have reclaimed from the waste.[142:1] Such a difference is fundamental, and cannot be adjusted to the satisfaction of both parties. People speak of the hunger of the Irish for land, as if that were the cause of the difficulty, but the Irishman has no general [143]land-hunger. When he has emigrated to America, instead of going, like the Swede, to the great open prairies where any industrious man can easily own a farm, he has settled, like the landless Hebrew, in the great cities. What the Irish want is Irish land, and to this they think they have a right.

Various remedies for solving the relation of landlord and tenant have been tried. First came the Act of 1860, which based that relation strictly upon contract, though restraining to some extent its enforcement by summary eviction. Ten years later the Act of 1870 proceeded upon quite a different principle, for it extended the Ulster tenant-right over the whole country, giving to the tenant a salable property in his holding. It granted, even to a tenant from year to year, a claim against his landlord for disturbance; and it conferred a right to compensation for past as well as future improvements. But these provisions did not set the questions at rest. Later followed in 1881 the judicial reduction of rents,—the fixing by public authority of fair rents as they were called. But here trouble arose on both sides. If the landlord's views were right, and the land belonged absolutely to him, it was clearly unjust to deprive him of its market value in rent, and he was entitled to feel that the government was giving away his property to smooth its own political difficulties.[143:1] On the other hand, the fair rents did not end the matter for the tenant. The English, deeply impressed with the sanctity of contract, meant the new rents to be paid as rents are paid in England; but the Irishman, living in what might almost be called a world of status, and brought up under a system of rack rent, had far less respect for contract, and regarded rents as things to be paid approximately rather than exactly. The result was more friction, and a further judicial reduction in 1887. Finally, after a series of land-purchase acts designed to promote peasant proprietorship, but too limited in scope to affect general social conditions, had been tried, a number [144]of landlords and some of the Irish leaders held a conference in 1902, and virtually agreed that as both parties claimed rights in the land, the government should pay the landlord for it and transfer it to the tenant, an arrangement the more easy because by that time the landlords' interest had fallen greatly in value. The government undertook to carry out the plan by the Land Purchase Act of 1903, making not indeed an immediate gift, but a loan of its credit, and charging the tenant a low rent which is expected eventually to repay the advance, and leave him the owner of the land.[144:1] Since that time the purchase and distribution of estates, under the act, has been going on, but the process naturally takes time, and as might be expected, it has been far more rapid in the prosperous than in the poor parts of the country. One may hope that by this means the land question will in time be solved, but he must have a blind faith who believes that with it the Irish question will disappear.

A crude outline of the land legislation has been given simply to show the enormous difficulty of governing a country where the legal conceptions of rulers and ruled are irreconcilable, and yet that is precisely the kind of obstacle that arises at every step in the Irish problem.

FOOTNOTES:

[145]

CHAPTER VII

THE PERMANENT CIVIL SERVICE

The history of the permanent civil service would be one of the most instructive chapters in the long story of English constitutional development, but unfortunately it has never been written. The nation has been saved from a bureaucracy, such as prevails over the greater part of Europe, on the one hand, and from the American spoils system on the other, by the sharp distinction between political and non-political officials. The former are trained in Parliament, not in administrative routine. They direct the general policy of the government, or at least they have the power to direct it, are entirely responsible for it, and go out of office with the cabinet; while the non-political officials remain at their posts without regard to party changes, are thoroughly familiar with the whole field of administration, and carry out in detail the policy adopted by the ministry of the day. The distinction has arisen gradually with the growth of the parliamentary system.

A dread of the power of the King to control Parliament, by a distribution of offices and pensions among its members, gave rise to a provision, in the Act of Settlement of 1700, that after the accession of the House of Hanover no person holding an office or place of profit under the Crown should be capable of sitting in the House of Commons.[145:1] But before this act took effect the disadvantages of excluding entirely from the House the great officers of state was perceived. The provision was, therefore, modified so as to shut out absolutely only the holders of new offices created after [146]Oct. 25, 1705, and of certain specified posts already existing. Members of the House of Commons appointed to other offices were to lose their seats, but be capable of reëlection.[146:1] As there were many old offices the number of placemen in Parliament continued large, and no sharp line was drawn at once between the great officers of state and their subordinates. But two processes went on which in time rendered the distinction effective. When a new office of a political nature was created it became the habit to make a special statutory provision permitting the holder to sit in the House of Commons; and, on the other hand, place bills were passed from time to time excluding from Parliament whole classes of officials of a lower grade. These acts apply, for example, to all the clerks in many of the government departments,[146:2] and together with the provision excluding the holders of all new offices created since 1705, they cover a large part of all the officials under the rank of minister.[146:3] The distinction between the offices which are and those which are not compatible with a seat in the House of Commons, is made complete by the regulations of the service itself. These cannot render void an election to the House which is not invalid by statute. They cannot make the holding of office a disqualification for Parliament, but they can make a seat in Parliament a reason for the loss of office. They can and do provide that if any civil servant intends to be a candidate he must resign his office when he first issues his address to the electors.[146:4]

[147] If it were not for three or four ministers, such as the Irish Law Officers, who are expected to get themselves elected to Parliament if they can, but whose tenure of their positions does not depend upon their doing so, one might say that the public service is divided into political officers who must sit in Parliament, and non-political officers who must not.

In a popular government, based upon party, the exclusion of the subordinate civil servants from the legislature is an essential condition both of their abstaining from active politics and of their permanence of tenure. But it does not by itself necessarily involve either of those results. This is clear from the example of the United States, where office-holders of all grades are excluded from Congress by the provisions of the Constitution, but by no means refrain from party warfare. The keeping out of politics, however, and the permanence of tenure must, in the long run, go together; for it is manifest that office can be held regardless of party changes only in case the holders do not take an active part in bringing those changes to pass; and if, on the other hand, they are doomed to lose their places on a defeat at the polls of the party in power, they will certainly do their utmost to avert such a defeat. In England the abstinence and the permanence have been attained, and it is noteworthy that they are both secured by the force of opinion hardening into tradition, and not by the sanction of law.[147:1] At one time, indeed, large classes of public servants were deprived of the parliamentary franchise. An Act of 1782, for example,[147:2] withdrew the right to vote from officers employed in collecting excises, customs and other duties, and from postmasters; but these disqualifications were removed in 1868.[147:3] The [148]police, also, were, by a series of acts, deprived of the franchise in the constituencies where they held office. Except as regards Ireland, however, these statutes were, in their turn, repealed in 1887;[148:1] and the only disqualifications now attaching to public officials relate to such positions as those of returning officers at elections.[148:2]

England enfranchised her officials at the very time when she was enlarging the suffrage and the number of office-holders. In some other countries the political danger of a large class of government employees has been keenly felt. This has been particularly true of the new democracies in Australia with their armies of public servants on the state railroads; and, indeed, the pressure constantly brought to bear in the legislature in favour of this class caused Victoria in 1903 to readjust her election laws.[148:3] The employees of the government have not been disfranchised altogether, but they have been deprived of the right to vote in the regular constituencies, and have been allotted one representative in the legislative council and two in the assembly to be elected entirely by their own class. They have, therefore, their spokesmen in the legislature, but they are no longer able to influence the other members as of old.

In England these dangers are by no means unknown; but they have not taken the form of work done by civil servants for purely party ends. From that evil the country has been almost wholly free; for although all office-holders, not directly connected with the conduct of elections, have now a legal right to vote, and are quite at liberty to do so, it is a well-settled principle that those who are non-political—that is, all who are not ministers—must not be active in party politics. They must not, for example, work in a party organisation, serve on the committee of a candidate for Parliament, canvass in his interest, or make speeches on general politics. All this is so thoroughly recognised that one rarely hears complaints of irregular conduct, or even [149]of actions of a doubtful propriety. In this connection it is worthy of note that the revenue officers were disfranchised in 1782 at their own request. At that time the government controlled through them seventy seats in the House of Commons, and Lord North sent them notice that it would go hard with them if they did not support his party. His opponents sent them a similar warning, and the result was that in self-protection they sent up a strong petition asking for exclusion from the franchise.[149:1] The bill to reënfranchise them was carried in 1868 against the wishes of the government of the day.[149:2] But on that occasion, and in 1874, when the acts imposing penalties upon their taking an active part at elections were repealed, it was perfectly well understood that they would not be permitted to go into party politics, and that the government was entitled to make regulations on the subject.[149:3] Those regulations are still in force,[149:4] and it is only by maintaining them that the civil servants can continue to enjoy both permanence of tenure and the right to vote.

The danger arising from the votes of public servants has been felt in a different way. While the government employees have kept clear of party politics, they have in some cases used their electoral rights to bring pressure to bear upon members of Parliament in favour of increasing their own pay and improving the conditions of their work. This has been peculiarly true of the dockyards. The members of the half dozen boroughs where the state maintains great shops for the construction and repair of warships are always urging the interests of the workmen; and they do it with so little regard to the national finances, or to the question whether they are elected as supporters or opponents of the ministry, that they have become a byword in Parliament under the name of "dockyard-members."[149:5]

[150]

Unfortunately the difficulty has not been confined to the dockyards. At the time when the revenue and post-office employees were enfranchised, Disraeli dreaded their use of the franchise for the purpose of raising their salaries;[150:1] and Gladstone said he was not afraid of government influence, or of an influence in favour of one political party or another, but of class influence, "which in his opinion was the great reproach of the Reformed Parliament."[150:2] These fears have not proved groundless. As early as 1875 it was recognised that the salaries paid by the government were above the market rate;[150:3] and ever since the officials in the revenue and postal departments obtained the right to vote, pressure on behalf of their interests has been brought to bear by them upon members of Parliament, and by the latter upon the government. Complaints of this have been constant.[150:4] It has been a source of criticism that members should have attended meetings of civil servants held to demand an increase of pay,[150:5] and that they should receive whips urging their attendance at the House when questions of this sort are to come up.[150:6] Owing to the concentration of government employees in London the pressure upon the metropolitan members is particularly severe.

For nearly a score of years a continuous effort has been made in Parliament to secure the appointment of a committee to inquire into the pay of postal and telegraph [151]employees, and into grievances which are said to exist in the service. The government has in part yielded, in part resisted; but in trying to prevent pressure upon members of Parliament, it took at one time a step that furnished a fresh cause of complaint. The story of this movement illustrates forcibly the dangers of the situation. In 1892 the Postmaster General, Sir James Fergusson, called the attention of the House of Commons to a circular addressed by an association of telegraph clerks to candidates at the general election, asking whether if elected they would vote for a committee to inquire into the working of the service.[151:1] He then sent to the clerks an official warning that it is improper for government employees to try to extract promises from candidates with reference to their pay or duties.[151:2] Nevertheless two of the clerks, Clery and Cheesman, who had been chairman and secretary of the meeting which had voted to issue the circular, signed a statement that the notice by the Postmaster General "does not affect the policy of the Association." Immediately after the election these two men were dismissed.[151:3] That became a grievance in itself, and year after year attempts were made in Parliament to have them reinstated. Shortly after they had been dismissed Mr. Gladstone came into office; and he made a vague statement to the effect that the government intended to place no restraint upon the civil servants beyond the rule forbidding them to take an active part in political contests.[151:4] But it would seem that Fergusson's warning circular was not cancelled,[151:5] and certainly Clery and Cheesman were not taken back.

The motions for a parliamentary committee to inquire into the conditions of the service were kept up; and in 1895 the government gave way so far as to appoint a commission, composed mainly of officials drawn from various departments, which reported in 1897 recommending some [152]increases of pay both in the postal and in the telegraph service. These were at once adopted, and in fact further concessions were made shortly afterward, but still the agitation did not cease. The employees would be satisfied with nothing but a parliamentary committee, no doubt for the same reason that led the government to refuse it, namely the pressure to which members of Parliament were subject,[152:1] and the additional force that pressure would have if brought to a focus upon the persons selected to serve on a committee.[152:2] Year after year grievances on one side, and on the other charges of almost intolerable pressure were repeated. In 1898 the interest centred in a motion to the effect that public servants in the Post Office were deprived of their political rights. A long debate took place in which the whole history of the subject was reviewed,[152:3] and Hanbury, the Financial Secretary of the Treasury, exclaimed, "We have done away with personal and individual bribery, but there is a still worse form of bribery, and that is when a man asks a candidate to buy his vote out of the public purse."[152:4] In 1903 Mr. Austen Chamberlain stated that members had come to him, not from one side of the House alone, to seek from him, in his position as Postmaster General, protection in the discharge of their public duties against the pressure sought to be put upon them by the employees of the Post Office.[152:5] He consented, however, to appoint a commission of business men to advise him about the wages of employees; but again there was a protest against any committee of inquiry not composed of members of Parliament.[152:6] The report of the commission was followed in 1904 by a debate of the usual character.[152:7] Finally in 1906 the new Liberal ministry yielded, and a select committee was appointed.[152:8]

[153] There are now employed in the postal and telegraph services about two hundred thousand persons, who have votes enough, when organised, to be an important factor at elections in many constituencies, and to turn the scale in some of them. If their influence is exerted only to raise wages in a service recruited by competitive examination,[153:1] the evil is not of the first magnitude; but it is not difficult to perceive that such a power might be used in directions highly detrimental to the state. There is no reason to expect the pressure to grow less, and mutterings are sometimes heard about the necessity of taking the franchise away from government employees. That would be the only effective remedy, and the time may not be far distant when it will have to be considered seriously.

As we shall have occasion to see hereafter, the pressure in behalf of individuals is comparatively small, and it is characteristic of modern English parliamentary government that political influence should be used to promote class rather than personal interests.

Permanence of tenure in the English civil service, like the abstinence from partly politics, is secured by custom, not by law, for the officials with whom we are concerned here are appointed during pleasure, and can legally be dismissed at any time for any cause. Now, although the removal, for partisan motives, of officials who would be classed to-day as permanent and non-political, has not been altogether unknown in England, yet it was never a general practice. The reason that the spoils system—that is, the wholesale discharge of officials on a change of party—obtained no foothold is not to be found in any peculiarly exalted sense, inherent in the British character, that every public office is a sacred trust. That conception is of comparatively modern origin; for in the eighteenth century the abuse of patronage, and even the grosser forms of political [154]corruption, were shamelessly practised. It is rather to be sought in quite a different sentiment, the sentiment that a man has a vested interest in the office that he holds. This feeling is constantly giving rise, both in public and private affairs, to a demand for the compensation of persons displaced or injured by a change of methods which seems strange to a foreigner.[154:1] The claim by publicans for compensation when their licenses are not renewed, a claim recognised by the Act of 1904, is based upon the same sentiment and causes the traveller to inquire how any one can, as the result of a license ostensibly temporary, have a vested right to help other people to get drunk.

The habit of discharging officials on party grounds never having become established, it was not unnatural that with the growth of the parliamentary system the line between the changing political chiefs and their permanent subordinates should be more and more clearly marked, and this process has gone on until at the present day the dismissal of the latter on political grounds is practically unheard of, either in national or local administration.

While the discharge of public servants on political grounds never became a settled custom in England, such vacancies as occurred in the natural course of events were freely used in former times to confer favours on political and personal friends, or to reward party services. Such a practice was regarded as obvious, and it continued unchecked until after the first Reform Act. It was particularly bad in Ireland, where Peel, who was Chief Secretary from 1812 to 1818, took great credit to himself for breaking up the habit of treating the Irish patronage as the perquisite of the leading [155]families, and for dispensing it on public grounds, that is, using it to secure political support for the party in power.[155:1] That the patronage was used for the same purpose in England at that period may be seen in the reports and evidence laid before Parliament in 1855, 1860 and 1873 after a different system had begun to take its place.[155:2] It was no doubt an effective means of procuring political service, and Lord John Russell speaks of the Tories in 1819 as apparently invincible from long possession of government patronage, spreading over the Church, the Law, the Army, the Navy, and the colonies.[155:3] The support most needed by the ministry was that of members of the House of Commons, and they received in return places for constituents who had been, or might become, influential at elections. Thus it came about that the greater part of the appointments, especially to local offices, were made through the members of Parliament.[155:4] The system hampered the efficiency of administration, and harassed the ministers. Writing in 1829, the Duke of Wellington used words that might have been applied to other countries at a later time,—"The whole system of the patronage of the government," he wrote, "is in my opinion erroneous. Certain members claim a right to dispose of everything that falls vacant within the town or county which they represent; and this is so much a matter of right that they now claim the patronage whether they support upon every occasion, or now and then, or when not required, or entirely oppose; and in fact the only [156]question about local patronage is whether it shall be given to the disposal of one gentleman or another."[156:1]

At last a revulsion of feeling took place. Between 1834 and 1841 pass examinations, which discarded utterly incompetent candidates, were established in some of the departments, and in several cases even competitive examinations were introduced. But the great impulse toward a new method of appointment dates from 1853, and it came from two different quarters. In that year the charter of the East India Company was renewed, and Parliament was not disposed to continue the privilege hitherto enjoyed by the directors of making appointments to Haileybury—the preparatory school for the civil service in India. A commission, with Macaulay at its head, reported in the following year that appointments to the Indian service ought to be made on the basis of an open competitive examination of a scholastic character. The plan was at once adopted, Haileybury was abandoned, and with some changes in detail, the system of examination recommended by the commission has been in operation ever since.[156:2]

In 1853, also, Sir Stafford Northcote and Sir Charles Trevelyan, who were selected by Mr. Gladstone to inquire into the condition of the civil service in England, reported in favour of a system of appointment by open competitive examination. The new method met with far more opposition at home than in India, and made its way much more slowly. Foreseeing obstacles in the House of Commons, Lord Palmerston's government determined to proceed, not by legislation, but by executive order, resorting to Parliament only for the necessary appropriation. An Order in Council was accordingly made on May 21, 1855,[156:3] creating a body of three Civil Service Commissioners,[156:4] who were to examine all candidates for the junior positions in the various [157]departments of the civil service. The reform was not at the outset very radical, for political nomination was not abolished, and the examinations—not necessarily competitive—were to be arranged in accordance with the desires of the heads of the different departments. The change could progress, therefore, only so fast as the ministers in charge of the various state offices might be convinced of its value; but from this time the new method gained favour steadily with high administrative officials, with Parliament and with the public. In 1859[157:1] it was enacted that (except for appointments made directly by the Crown, and posts where professional or other peculiar qualifications were required) no person thereafter appointed should, for the purpose of superannuation pensions, be deemed to have served in the permanent civil service of the state unless admitted with a certificate from the Civil Service Commissioners. In 1860 a parliamentary committee reported that limited competition ought to supersede mere pass examinations, and that open competition, which does away entirely with the privilege of nomination, was better than either.[157:2] The committee, however, did not think the time ripe for taking this last step, and the general principle of open competition was not established until June 4, 1870. An Order in Council of that date,[157:3] which is still the basis of the system of examinations, provides that (except for offices to which the holder is appointed directly by the Crown, situations filled by promotion, and positions requiring professional or other peculiar qualifications, where the examinations may be wholly or partly dispensed with) no person shall be employed in any department of the civil service until he has been tested by the Civil Service Commissioners, and reported by them qualified to be admitted on probation.[157:4] It provides further that the appointments [158]named in Schedule A, annexed to the Order, must be made by open competitive examination; and this list has been extended from time to time until it covers the greater part of the positions where the work does not require peculiar qualifications, or is not of a confidential nature, or of a distinctly inferior or manual character like that of attendants, messengers, workmen, etc.[158:1]

Since the general introduction of open competition, by the Order in Council of 1870, two tendencies have been at work which are not unconnected. The first is towards simplification, by grouping positions that have similar duties into large classes, with a single competition for each class, and thus diminishing the number of examinations for separate positions.[158:2] The second is the tendency so to examine the candidates as to test their general ability and attainments, and hence their capacity to become useful [159]in the positions assigned to them, rather than the technical knowledge they possess.[159:1] This distinction marks an important difference between the system of civil service examinations as it exists in the United States, and the form which the system has assumed in England. For in the United States the object is almost entirely to discover the immediate fitness of the candidates for the work they are expected to do; in England the object in most cases is to measure what their ability to do the work will be after they have learned it. The difference arises partly from the fact that in America the examinations were superimposed upon a custom of rotation in office and spoils, while in England permanence of tenure was already the rule; and partly from the fact that the system is applied in America mainly to positions requiring routine or clerical work, whereas in England it affects also positions involving, directly or prospectively, a much greater amount of discretion and responsibility. Now, it is clear that if men are to be selected young for a lifelong career, especially if that career involves responsible administrative work, any acquaintance with the details of the duties to be performed, and any present fitness for the position, are of far less consequence than a thorough education, keen intelligence and capacity for development. Proceeding upon this assumption, Macaulay's commission on the Indian Civil Service laid down two principles: first, that young men admitted to that service ought to have the best general education England could give; and, second, that ambitious men should not be led to spend time in special study which would be useless if they were not successful in the competition. The commission urged, therefore, that the examinations should be closely fitted to the studies pursued in the English universities. This plan was adopted, and although at one time the age of admission, and with it the standard, was lowered, they were afterwards restored; and the same principle is now also applied to the higher grades [160]in the home service. For the lower positions in that service, where the work is of a clerical nature, and hence less discretion and responsibility are involved, it was formerly the habit to make the examinations more of a test of immediate preparation for the duties of the office; but this, as we shall see, has recently been replaced by a system based upon Macaulay's ideas, though applied, of course, to an inferior scale of education.

The permanent officials of a typical department comprise a permanent under-secretary at the head, and one or more assistant under-secretaries and chiefs of branches. These offices are treated as not subject to examination under the Order of 1870, either because they are filled by promotion, or on the ground that the positions require peculiar qualifications.[160:1] As a matter of fact such posts are by no means always filled by promotion, and persons are sometimes selected for them who are outside of the service altogether. Next in rank come the principal clerks; but they are recruited entirely by promotion from the first-class clerks, who are, therefore, the highest grade of officials entering the service by competitive examination. Below them are the men now properly called clerks of the second division, although the title of this class of civil servants has been changed so often that one finds strange variations of nomenclature in the different departments. Below these again come the assistant clerks (abstractor class), and finally the boy clerks.

The sharp separation of the clerks into classes, with distinct examinations for each class, did not arise at once. The first examinations under the original order of 1855 were required only for a "junior situation in any department," [161]and they were not the same in the different departments. They were elementary affairs,[161:1] evidently designed to sift out incompetence rather than to test superiority; for it must be observed that in only a very small proportion of these examinations was there even a limited competition.[161:2] When, however, the Order of 1870 extended the admission examinations to all positions in the service, not specially excepted or filled by promotion, and set up the principle of open competition, it became necessary to distinguish between the higher posts, involving discretionary powers and requiring a liberal education, and the lower ones where the duties are of a clerical kind; to distinguish, in other words, between the administrator and the clerk. Such a distinction was made by the commissioners in their earliest regulations under the Order of 1870,[161:3] the two classes being recruited separately by examinations of different character, the first of which was adapted to university graduates, and the second to young men from commercial life. At the outset the line was drawn somewhat at haphazard without sufficient attention to the real nature of the work to be done, and it was readjusted several times before it assumed its present form.[161:4]

[162]

Aside from the regular grades of clerks recruited by open competition, there are various kinds of inspectors, clerks and other special officials, appointed after open competition, limited competition, pass examination or no examination at all. In fact the departments are full of anomalies, some of them the necessary result of peculiar conditions of service, and others due apparently to no very rational cause. The reader will, no doubt, be sufficiently wearied by a description of the more common methods of examination, without going into the eccentricities of the system. It may be convenient to consider first the open competitions, and then the appointments that are made in other ways.

The highest posts in the permanent civil service to which admission is obtained by competitive examination are known as the first-class clerkships. In 1895 the examinations for these positions and for the Indian Civil Service were consolidated, and in the following year those for the Eastern Cadets[162:1] were added; so that a single annual competition is now the gateway to all three careers, the successful candidates being allowed, in the order of their rank at [163]the examination, to choose the service they will enter. In spite of the smaller pay the first men on the list have usually selected the home service, because the life is more agreeable; and so far as the vacancies make it possible they are assigned to the particular department they prefer.

Although these positions are called clerkships, the work is not of a clerical, but of an administrative, and in the upper grades of a highly responsible, character. The aim of the commissioners is, therefore, to recruit young men of thorough general education for an important and lifelong administrative career. With this object the candidates are required to be between twenty-two and twenty-four years of age, and the examination, which has no direct connection with their subsequent duties, is closely fitted to the courses of study in the universities. As a matter of fact the papers in mathematics and natural science are based upon the requirements for honour degrees at Cambridge, the papers in classical and other subjects upon those at Oxford; and thus it happens that by far the larger part of the successful candidates come from one or other of these two great universities.[163:1] The range of subjects is naturally large, and a candidate is allowed to offer as many as he pleases, but by an ingenious system of marking a thorough knowledge of a few subjects is made to yield a higher aggregate of marks than a superficial acquaintance with a larger number.[163:2] The examination papers are set, and the books are read, by well-known scholars, instructors at the universities and others, who are selected for the purpose. That the papers [164]are severe any one may convince himself by looking at them. Moreover the number of candidates, which is two or three times as large as the vacancies in all three services together, insures a rigorous competition; and the result is that the candidates who win the appointments are men of education and intellectual power. They belong to the type that forms the kernel of the professions; and many of them enter the civil service simply because they have not the means to enable them to wait long enough to achieve success in a professional career. They form an excellent corps of administrators, although the time has not come to express an opinion on the question whether they will prove the best material from which to draw the permanent under-secretaries and the other staff officers at the head of the different services. As yet few of them have attained positions of this grade, but it must be remembered that they have only recently begun to reach an age when they could be expected to do so.

When the government was considering the introduction of competitive examinations, in 1854, fears were expressed that such a system would result in driving the aristocracy out of the civil service, and replacing it by a lower social class.[164:1] Mr. Gladstone himself did not share that belief. On the contrary, he thought the plan would give to the highly educated class a stronger hold than ever upon the higher positions in the service.[164:2] In this he proved a better prophet than his critics. By far the greater part of the successful competitors for the Class I clerkships now come, as we have seen, from Oxford and Cambridge; and the men educated at those universities are still drawn chiefly from the upper classes, from the aristocracy, the gentry, the sons of clergymen, of lawyers, of doctors, and of rich merchants who have [165]made, or who hope to make, their way into the higher strata of society. Men of more humble extraction go, as a rule, to the provincial colleges. The Civil Service Commissioners have given in some of their annual reports the occupations of the fathers of the successful candidates at the chief open competitions; and while in the case of the joint examination for the Class I clerkships and the Indian Civil Service the list includes no peers, and does include some tradesmen, yet on the whole it consists of persons belonging to the upper and the upper middle class. Thus it has come about that competitive examinations, instead of having a levelling tendency, by throwing the service open to a crowd of quick-witted youths without breeding, has helped to strengthen the hold of the upper classes upon the government, by reserving most of the important posts for men trained in the old aristocratic seats of learning. In this connection it may be observed that the highest positions in the civil service are often held by men of noble blood, and it has sometimes happened that the permanent under-secretary has been a man of higher social position than his political chief. Sir Robert Herbert and Sir Courtenay Boyle, for example, who were recently the permanent heads of the Colonial Office and the Board of Trade, were scions of ancient families in England and Ireland; and the latter had at one time as his political chief Mr. Mundella, who had begun life as a printer's devil.[165:1]

Ranking below the Class I clerkships, there is a large body of persons whose work is mainly clerical. These are known as the second division clerks, and they are recruited by open competition. The standard of education required by the examination is naturally much less high than in the case of the first-class clerks, and the candidates are consequently younger, the competition being now limited to youths between seventeen and twenty years of age.[165:2]

[166]

As the work done by the second division is of the same general character as that performed by clerks in commercial houses, the examination was at first devised on the supposition that the candidates would have a commercial training, and it was adapted to test their immediate fitness for that work. Besides the elementary general subjects of writing, English composition, arithmetic, geography and English history, it covered copying, indexing, digesting returns and bookkeeping. Such a test was not inappropriate in the earlier days, when appointments were made by nomination and the object of the examination was simply to eliminate individual appointees who were unfit for their duties; but it was continued long after the system of open competition, with its crowd of eager young candidates almost devoid of actual commercial training, had brought in a very different state of things. In 1896 the Association of Head Masters pointed out, in a memorandum, the bad effect produced on general education. They showed that, in order to improve their chance of success, boys were prematurely taken from school and placed in the hands of crammers to acquire "a high degree of polish upon a rather low though useful order of accomplishment"; and they asked that the examination might be brought more into line with the curriculum of the schools. This was done, without giving up the former methods altogether, by introducing a number of options, so that a candidate need offer only the subjects ordinarily taught in a secondary school.[166:1] The result in the future will no doubt be to make proficiency in regular school work the real test for appointment, and thus, in accordance with Macaulay's principle, to base the selection upon general education instead of technical knowledge.

[167] Unlike the first-class clerks, the clerks of the second division are drawn mainly from the middle and lower middle classes, and their education has been obtained in the grammar schools and other schools of a similar kind. Although a distinct corps, recruited by a different examination, and intended for a lower grade of work, they are not altogether cut off from the higher positions. After eight years of service they can, in exceptional cases, be promoted to first-class clerkships, and this is sometimes done. But as the number of second division clerks appointed each year is about three hundred, and the number promoted to first-class clerkships is on the average only about four, the chance of reaching that grade is very small.[167:1]

Within the last few years a new grade, called assistant clerks (abstractor class), has been formed, recruited at present by competitive examinations among the boy clerks. The work is chiefly in the nature of copying, but an assistant clerk may for special merit be appointed to the second division without competing in the examination.[167:2]

The lowest grade of officials recruited in common for a number of departments is that of boy clerks.[167:3] These come from much the same class in the community as the clerks of the second division, and the competitive examination, though more elementary, is of the same character,[167:4] the limits of age being fifteen and seventeen years. The employment is essentially temporary, and in fact boy clerks are not retained after they are twenty; but the position is [168]a step towards further advancement, for the boy clerks alone can compete for the assistant clerkships, and if they go into the examination for the second division a credit for the service they have done is added to the marks they obtain. Yet the examination for boy clerks is one of the few competitions for a large number of positions, where the quantity of candidates is insufficient.

Besides the open competitions for the general grades of clerks, there are many others for special classes of employees in the different departments. Some of these positions require no peculiar qualifications, and there is no obvious reason for having a number of separate examinations differing slightly from one another; but certain departments still cling to their own schemes, and the Post Office to several schemes. All this is being gradually simplified, by having the same examination for a number of distinct services, that for the second division clerks, for example, being now used for recruiting the clerks in the Custom House.[168:1] The examinations for the second division could, probably, be combined with those for clerks in the Customs and Inland Revenue, just as a combination has been made in the case of the first-class clerkships, the Indian Civil Service and the Eastern Cadets—and that will, no doubt, be the tendency in the future. The same criticism does not, of course, apply to all the examinations. Some of them require very different degrees of education; for others, such as those for draughtsmen, law clerks, and many more, professional or technical training is obviously necessary; while certain positions are reserved for women. Each of these examinations is governed by regulations prescribing the age of the candidates, the fee to be paid, and the subjects included, but it is clearly needless for our purpose to follow them in detail.[168:2]

In most of the departments there are positions in the [169]permanent civil service not filled by competition, because the kind of experience and capacity needed cannot be tested, or fully tested, by examination; and in that case the examination may be wholly or partially dispensed with under Clause VII of the Order in Council of 1870. There are other positions where open competition is inapplicable because the places to be filled are not numerous enough, or sufficiently tempting, to attract competitors at large; or, because, as in the case of the higher class clerks in the Foreign Office, of attachés of legation, and of inspectors of various kinds, the work is of a delicate and confidential nature, and can be intrusted only to persons whose character is well known. In such cases it is common to have competitive examinations limited to candidates selected for the purpose.[169:1] Even a limited competition has a tendency to raise the standard, but it must be remembered that in order to obtain a chance to compete in such cases some influence, direct or indirect, is indispensable; although the power of nomination does not, in fact, appear to be abused for political purposes.

There are positions for which no competition is held, but where a single person is nominated subject to an examination to test his competence. Some of these places might very well be open to competition, and, indeed, there are still strange anomalies in various branches of the civil service; the strangest being the fact that the employees of the Education Department are, almost invariably, appointed without any examination at all, and this is true not only of inspectors, whose work requires peculiar qualifications, but even of clerks of the abstractor class. There are, however, positions in the civil service where the technical knowledge or experience needed are really such as to render a competition difficult. Even in manual occupations this is believed to be the case. In the royal dockyards, for example, although the apprentices are recruited by open competition, [170]the artificers are appointed subject to a pass examination touching only their skill in their trade, while the foremen are usually selected by a limited competition which includes something more. Provincial postmasters also form a class by themselves. Until a few years ago they owed their positions to political influence; for long after the members of Parliament had lost all control over other appointments, they retained the power to fill any vacancies that might occur in the postal service within their constituencies, provided, of course, they belonged to the party in power. But this last remnant of parliamentary patronage was abolished in 1896, and provincial postmasters are now appointed on the recommendation of the surveyors of the postal districts.[170:1]

Finally there are the appointments made entirely without examination of any kind, either because examination is dispensed with under Clause VII of the Order in Council of 1870, or because the position is one excepted altogether from the operation of the Order. Such posts are chiefly at the top or at the bottom of the service. They include positions of responsibility at one end of the scale; and those of messengers,[170:2] porters and servants at the other.

Political influence has not only ceased almost entirely to affect appointments to office, but it has also been very nearly eliminated in the matter of promotion. The struggle on this subject began as early as 1847, and the government has been strong enough to declare that an effort to bring influence to bear will be treated as an offence on the part of the employee; or as the minutes adopted by the Treasury in 1867, and by the Admiralty a couple of years later, ingeniously and forcibly express it, the attempt by a public officer to support his application by any solicitation on the part of members of Parliament, or other persons of influence, "will be treated . . . as an admission on the part of such [171]officer that his case is not good upon its merits."[171:1] These measures seem to have had the desired effect.[171:2]

If we seek to understand how it happened that the baneful influence of political patronage in the civil service, which had been dominant in England in the eighteenth century, was thrown off with comparative ease a hundred years later, while in some other nations that influence was, at the same period, growing in strength, and has proved extremely tenacious; if we seek to explain this contrast, we must take account of a striking peculiarity of English public life at the present day that has come with the evolution of the parliamentary system. For reasons that will be discussed hereafter a member of the majority of the House of Commons votes on the side of the government with singular constancy; and as compared with most other countries under a popular form of government politics turn to an unusual extent upon public questions. The House is engaged in almost ceaseless battles between the two front benches with the ranks of their followers marshalled behind them; and the battles are over public matters. Questions affecting private, personal or local interests occupy a relatively small share of the attention of the member of Parliament. He is primarily the representative of a national party elected to support or oppose the cabinet, rather than the delegate of a district sent to watch over the interests of his constituents, and push the claims of influential electors. The defence, said to have been triumphantly made elsewhere, by a member accused of absence from important divisions, that he had procured more favours for his constituency than any other representative, could not be pleaded as an excuse in England. Hence the ministry is not compelled to enlist personal support either in the legislature or at the polls, by an appeal to private gratitude. It can afford to turn a deaf ear to solicitations for patronage, and [172]stand upon its public policy alone. In short, the enormous strength of party, in the legitimate sense of a body of men combined for a common public object, has enabled the government to do what it could not have done so easily had party required the support of artificial props. The political condition that has strengthened the government for this work is not in itself an unmixed good. It brings with it evils, which will be noticed in due course; but to its credit must be placed the purification of the civil service.

At the outset ministers feared that the change would meet with resistance in Parliament, but using one's influence to procure favours for others is not a wholly agreeable task, especially when more supplicants are disappointed than gratified. The reform brought to the House of Commons relief from pressure by importunate constituents, and all the later steps have been taken with the approval of the members themselves.

With the elimination of politics the civil service has become a career, steady and free from risk. But the salaries are not high in relation to the capacity required, and as a rule they begin low with a small increment for each year of service. They are not large enough to provide for illness and old age; and, hence, along with the progress of reform there grew up a demand for pensions. The law on the subject, although frequently amended, is still based upon the Superannuation Act of 1859, which grants to "persons who shall have served in an established capacity in the permanent civil service of the state" for ten years, and retire at sixty years of age or by reason of infirmity, a pension equal to ten sixtieths of their final salary. For every additional year of service another sixtieth is added up to a maximum of forty sixtieths. Provision has been made, also, for the case of injuries received in the public service; while more recent statutes have authorised gratuities to women employees upon marriage—an allowance apparently given, as in the case of the other grants, rather in a spirit of commiseration, than in order to encourage matrimony.

FOOTNOTES:

[173]

CHAPTER VIII

THE MINISTERS AND THE CIVIL SERVICE

As scientific and technical knowledge increase, as the relations of life become more complex, there is an ever-growing need of men of special training in every department of human activity; and this is no less true of the government than of every other organisation. Any work, therefore, carried on at the present day without the assistance of experts is certain to be more or less inefficient. But, on the other hand, experts acting alone tend to take disproportionate views, and to get more or less out of touch with the common sense of the rest of the world. They are apt to exaggerate the importance of technical questions as compared with others of a more general nature—a tendency which leads either to hobbies, or, where the organism is less vigorous, to officialism and red tape. These evils have become so marked in the case of some governments as to give rise to the ill name of bureaucracy. In order, therefore, to produce really good results, and avoid the dangers of inefficiency on the one hand, and of bureaucracy on the other, it is necessary to have in any administration a proper combination of experts and men of the world. Now, of all the existing political traditions in England, the least known to the public, and yet one of those most deserving attention, is that which governs the relation between the expert and the layman.

The first branch of the English government to reach a high point of development was that which dealt with the administration of justice; and it is here that we first see the coöperation of professional and lay elements. They appear in the form of judge and jury; and in that form they have [174]worked together from the Middle Ages to the present day. The judge, a royal officer of high rank, supplies the expert knowledge, while the lay influence is exerted by means of a panel of twelve men of average ignorance, drawn from the community by lot for the occasion; and although this is not the usual method of combining the two elements, their reciprocal control has certainly been effective.

It was not, however, in the superior courts of law alone that the principle made itself felt. Its working, if less evident on the surface, may be traced no less clearly in the exercise of petty jurisdiction by the justices of the peace sitting without a jury. But here the mutual relation of the two elements was reversed. The justice of the peace was in most cases a landowner, a country gentleman, not skilled in law. In the earlier period the commission included a number of trained lawyers, who were said to be of the quorum, because without the presence of one of them the justices were not by law competent to act.[174:1] But in process of time the trained lawyers ceased to be appointed, while the names of almost all the justices came to be inserted in the quorum clause;[174:2] and thus it happened that judicial authority was vested in a squire who knew little of the law he was called upon to administer. But the justice supplied, in fact, the lay, not the professional, element in his own court; the requisite legal knowledge being usually furnished by his clerk, who was learned in the law; or, at least, learned in the duties of the justice of the peace as set forth in the statutes and in the manuals published for the purpose.

The office of clerk of the peace for the county must be of considerable age, for it is referred to in a statute of Richard II. in 1388.[174:3] But besides this office, which is a public one, it has been the habit time out of memory for an active justice to retain a private clerk of his own to assist him when acting as a single magistrate; such a clerk being [175]paid partly out of the justice's pocket, partly from the fees that accrued.[175:1]

More important than the age of these offices is the question of the real power exerted by their holders. That the influence of a clerk over the justice who employed him has long been both great and notorious is clear from the frequent references to it in literature. Early in the seventeenth century Fletcher, in "The Elder Brother," makes Miramont say to Brissac:[175:2]—

Near the end of that century the same idea was expressed with singular frankness in a manual on "The Office of the Clerk of the Peace," published in 1682. In an address "to the reader," which precedes the second part of the volume, the author explains the object of the book. After saying of the justices of the peace that their birth is a glory to their seats, he continues:—

"But divers of these Gentlemen having not been conversant in the Practice of the Ordinary Courts of Justice, often in the absence of those worthy Persons, who be associated with them for their Learning in the Law, meet with many difficulties and discouragements."

Coming down to the eighteenth century there is the case of Squire Western and his clerk in "Tom Jones"; and later in the same novel the scene in the inn at Upton, where the strange justice is unwilling to act because he has not with [176]him his book or his clerk. The reader will probably remember Justice Foxley and his clerk in "Redgauntlet"; and also Dickens's burlesque of the relation in the scene at Ipswich, where after much whispering between the justice (Mr. Nupkins) and his clerk (Mr. Jinks) the magistrate says to Mr. Pickwick:—

"An information has been sworn before me that it is apprehended you are going to fight a duel, and that the other man, Tupman, is your aider and abettor in it. Therefore—eh, Mr. Jinks?"

"Certainly, Sir."

"Therefore, I call upon you both to—I think that's the course, Mr. Jinks?"

"Certainly, Sir."

"To—to—what, Mr. Jinks?" said the magistrate pettishly.

"To find bail, Sir."

"Yes. Therefore, I call upon you both—as I was about to say, when I was interrupted by my clerk—to find bail."

The satire here is particularly keen, because before the public the magistrate always takes the whole credit to himself, and is very sensitive about having the world believe that he is under the control of his clerk.

Leslie Stephen, I think, remarks somewhere that the characteristic feature of the English system of government is a justice of the peace who is a gentleman, with a clerk who knows the law; and certainly the relationship between the titular holder of a public post, enjoying the honours, and assuming the responsibility, of office, and a subordinate, who, without attracting attention, supplies the technical knowledge and largely directs the conduct of his chief, extends throughout the English government from the Treasury Bench to the borough council. Perhaps, indeed, it is not altogether fanciful to attribute the ease with which the principle has become established in the national government to the fact that the members of Parliament, and the ministers as well, have been drawn in the past mainly from [177]the same class as the justices of the peace, and have brought with them to a larger sphere the traditions of the local magistrate.

The extent of the control exerted in the national administration by the permanent officials is forcibly illustrated by the history of the Colonial Office. My colleague, Professor Edward Channing, has pointed out to me that the records of the American colonies reveal how largely the Committee for Trade and Plantations was in the hands of Blathwayt, its secretary. In spite of all the violent political upheavals of the time that functionary retained his post without interruption from the latter part of the reign of Charles II. until some years after the revolution of 1688; and if a colony wanted anything done by the home government it was he that must be persuaded, sometimes by inducements of a pecuniary nature.

The power, but happily not the corruption, of the permanent officials in the Colonial Office can be traced still more clearly at a much later time. In 1839 Lord Durham, in his famous "Report on the Affairs of British North America," complains that owing to the repeated changes in the political chiefs of the Colonial Office, the real management of the colonies fell into the hands of "the permanent but utterly irresponsible members of the office"; and he quotes from a report made in the preceding year by a select committee of the Assembly of Upper Canada, to show that this was felt by the colonists themselves as a grievance.[177:1] The group of English colonial reformers, with whom Lord Durham was associated, held the same opinion. Gibbon Wakefield tells us, in his "View of the Art of Colonization" that "The great bulk, accordingly, of the labours of the office are performed, as the greater portion of its legislative and executive authority is necessarily wielded, by the permanent under-secretary and the superior clerks."[177:2] Wakefield and his school disapproved of the colonial policy of the day, and disliked cordially the permanent officials and their [178]methods. "Our colonial system of government," Wakefield adds, "is the bureaucratic, spoiled by being grafted on to free institutions."[178:1] He had a special aversion for Sir James Stephen—long the legal adviser, and afterwards permanent under-secretary, to the Colonial Office—whom he regarded as the archetype, if not the founder, of the class of officials that had become the real arbiters of the destinies of the colonial empire.[178:2]

Wakefield quotes from Charles Buller's "Responsible Government for Colonies" (a work published in 1840, but at that time already out of print), an extract entitled "Mr. Mothercountry, of the Colonial Office."[178:3] Parliament, Buller declares, takes no interest in the colonies, and exercises no efficient control over the administration and legislation affecting them; and hence the supremacy of England really resides in the Colonial Office. But the Secretary of State holds a shifting position. Perplexed by the vast variety of questions presented to him, he is obliged at the outset to rely on one or other of the permanent officials, and the official who thus directs the action of the British government Buller calls "Mr. Mothercountry." He is familiar with every detail of his business, and handles with unfaltering hand the piles of papers at which his superiors quail. He knows the policy which previous actions render necessary; but he never appears to dictate. A new Secretary of State intends to be independent, but something turns up that obliges him to consult Mr. Mothercountry. He is pleased with the ready and unobtrusive advice which takes a great deal of trouble off his hands. If things go well, his confidence in Mr. Mothercountry rises. If badly, that official alone can get him out of the colonial or parliamentary scrape; and the more independent he is the more scrapes he falls into. Buller goes on to point out the faults of Mr. Mothercountry; his love of routine, his tendency to follow precedent, his dislike of innovation, and his dread of being criticised.

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Any one, with even a slight knowledge of government offices in England, will recognise that the portrait of Mr. Mothercountry and his influence is hardly overdrawn, in cases where the political chief either holds his place for a short time, or is not a man of commanding ability. The impression of the critics of colonial administration is, indeed, strikingly reënforced in this respect by memoirs of the permanent officials themselves; although some allowance must, no doubt, be made for a natural overestimate of their own importance.[179:1] Sir Henry Taylor confided to the world in his autobiography a number of remarks that throw light on the internal working of the Colonial Office in the second quarter of the century. While never its permanent under-secretary, he was for a great many years a highly influential person there, as may be seen from the fact that early in his career he drew up, on his own judgment, a despatch recalling a governor, which the secretary signed.[179:2] Taylor tells us that Lords Goderich and Howick, who became the political chiefs of the Colonial Office in 1831, were "not more in pupilage than it is necessary and natural that men should be who are new to their work."[179:3] He says that when Lord Stanley was appointed Secretary of State, in 1833, he asked no advice from his subordinates, and a measure he prepared was blown into the air by the House of Commons; whereupon he had recourse to Mr. Stephen,[179:4] "who for so many years might better have been called the Colonial Department itself than the 'Counsel to the Colonial Department.'"[179:5] A little later he repeats this last statement, saying that while Lord Glenelg was Secretary "Stephen virtually ruled the Colonial Empire."[179:6] Taylor's own influence was shown when complaints were made of his [180]administration of the West Indies. The House of Commons appointed a committee of inquiry, and the report of that committee, with the exception of the last few sentences, was entirely drawn up by Taylor himself.[180:1]

Sir Frederick Rogers (afterwards Lord Blachford), who was permanent under-secretary from 1860 to 1871, has left in his letters suggestive comments upon most of his political chiefs. The Duke of Newcastle, he says, is "very ready to accept your conclusions, very clear in his own directions, and extremely careful (which I respect very highly) never to throw back on a subordinate any shadow of responsibility for advice that he has once accepted."[180:2] "Cardwell," he remarks, "is happily absent, though not so much as I could wish";[180:3] and, finally, he writes that he likes Lord Granville, who "is very pleasant and friendly, and I think will not meddle beyond what is required to keep us clear of political slips."[180:4] Some people outside of the office evidently thought that the secretaries of state had not meddled overmuch, for George Higginbottom, afterwards Chief Justice of Victoria, once remarked in the Assembly, "It might be said with perfect truth that the million and a half of Englishmen who inhabit these colonies, and who during the last fifteen years have believed they possessed self-government, have been really governed during the whole of that time by a person named Rogers";[180:5] and in the same vein Rees, in his "Life and Times of Sir George Grey," refers to Sir Robert Herbert (permanent under-secretary from 1871 to 1892) as the man who "controls the destinies of the Colonial Office."[180:6]

With the growing interest in the empire, there has come a change; but until a very recent period the fact that British statesmen knew little of the subject, and did not care much more, no doubt made the power of the permanent officials peculiarly great in the Colonial Office.

[181] Their influence, however, upon the policy of the government in the other departments, if less absolute, has nevertheless been very large. This impression one obtains both from published documents, and from private conversations, although the former alone can be cited as evidence. As far back as 1845 we find the Lord Lieutenant speaking of the permanent under-secretary as "the main-spring of your government in Ireland."[181:1] But more important than scattered statements of this kind is the information derived from the testimony taken by parliamentary committees of inquiry. One cannot read, for example, the evidence collected in 1900 by the Committee on Municipal Trading[181:2] without being convinced that not only the efficiency, but also in large measure the current policy, of the Board of Trade depended upon the permanent official at its head, and this is true of every branch of the administration.[181:3] Sir Lyon Playfair gave the reason for it when he said: "The secretary being a very busy man is very apt to take the advice of the clerk who has been looking over all the details [182]and the correspondence before it comes to him."[182:1] A superior, indeed, lacking the time to become thoroughly familiar with the facts, must be to a great extent in the hands of a trusted subordinate who has them all at his fingers' ends. It is the common case of the layman and his confidential expert; and it must be observed in this connection that with exacting parliamentary and other duties, the cabinet ministers cannot devote all their time to the work of their departments.

The theoretical relation between the political chief and his permanent subordinate is a simple one. The political chief furnishes the lay element in the concern. His function is to bring the administration into harmony with the general sense of the community and especially of Parliament. He must keep it in accord with the views of the majority in the House of Commons, and conversely he must defend it when criticised, and protect it against injury by any ill-considered action of the House. He is also a critic charged with the duty of rooting out old abuses, correcting the tendency to red tape and routine, and preventing the department from going to sleep or falling into ruts; and, being at the head, it is for him, after weighing the opinion of the experts, to decide upon the general policy to be pursued. The permanent officials, on the other hand, are to give their advice upon the questions that arise, so as to enable the chief to reach a wise conclusion and keep him from falling into mistakes. When he has made his decision they are to carry it out; and they must keep the department running by doing the routine work. In short the chief lays down the general policy, while his subordinates give him the benefit of their advice, and attend to the details. It is easy enough to state a principle of this kind, but in practice it is very hard to draw the line. The work of a public department consists of a vast mass of administrative detail, the importance of which is not self-evident until some strain is brought to bear upon it; and all the acts done, however trifling in [183]themselves, form precedents, which accumulate silently until they become as immovable as the rocks of the geologic strata. To know how far the opinion of an expert must be followed, and how far it may be overruled; to know what is really general policy, and what is mere detail; to know these things is the most valuable art in life. The capacity of an administrator on a large scale depends upon what he attends to himself, and what he commits to others. But the political chief of a department is so situated that it is difficult for him to determine what questions he will reserve for himself and what he will leave to his subordinates. To understand why that is the case it is necessary to know something of the procedure in the government offices.

The method of doing business in a public office is of necessity more elaborate than in a private concern. There is more responsibility for the work done; more subjection to public criticism in small matters; and a stronger obligation to treat every one alike, which means a more strict adherence to precedent. All this entails a complicated machinery that is less needed in private business, where a man can say that if he makes a mistake the loss falls upon himself and is no other person's affair. In a public office, therefore, more writing is done, more things are preserved and recorded, than in a private business, and there are more steps in a single transaction.[183:1] Now although the procedure in the English departments varies somewhat in detail, the general practice is much the same throughout the public service.

When a minister wishes to prepare a measure for Parliament, or to make any change in administrative policy, he consults the permanent under-secretary and any other officials especially familiar with the subject; if, indeed, the matter has not been suggested to him by them. He weighs their advice, and states his conclusion to the permanent under-secretary, who in turn gives his directions to the proper subordinates for carrying it into effect. In such a case the [184]procedure is obvious; but by far the greater part of the action in the central offices begins at the other end, and comes from the contact of the government with the public, or from questions that arise in the course of administration. When anything of this kind occurs, whether it be in the form of a despatch, a petition, a complaint, a request for instructions, or a communication of any sort, it is sent by the official charged with the opening of correspondence to the principal, or senior, clerk within whose province it falls. The senior clerk intrusts it to one of the junior first-class clerks in his division. He examines the paper, and unless it is of such a purely routine character that he feels authorised to dispose of it, he affixes to it a minute or memorandum, which gives a history of the matter, the precedents in similar cases, and any other information that may assist his superiors in reaching a decision, commonly adding a suggestion of the course to be pursued. The paper then goes back to the senior clerk, who inspects it, and if the question is of small consequence approves the minute or directs a different disposition, subscribing his initials. If the affair is more weighty, he adds his own comments in the form of a second minute, and transmits the paper to the permanent under-secretary.[184:1] That officer, as the permanent head of the department, gives the final directions,[184:2] and returns the paper, unless the matter is of great importance, or involves a new question of policy, or is likely to give rise to discussion in Parliament, when he submits it to his political chief with a further minute of his own.[184:3]

Each permanent official thus performs a double service [185]for his immediate superior. He collects all the material that bears upon a question, presenting it in such a form that a decision can be readily and quickly made; and he acts to a certain extent as a reader, examining a mass of papers that the superior would be quite unable to go through, and making up his own mind how far they contain anything that requires his chief's attention.[185:1] This system runs throughout the department, from the junior first-class clerks to the parliamentary head, each official deciding what he will submit to his superior; in the same way that the minister himself determines what matters he will settle on his own authority, and what he had better lay before the cabinet. No doubt a subordinate in undertaking to decide a question occasionally makes a mistake for which the minister must assume the responsibility; but that is not a serious danger. The besetting sin of bureaucracy is the tendency to refer too much to a higher authority, which cannot become familiar with the facts of each case, and finds its only refuge in clinging to hard and fast rules. It is fortunate, therefore, that the growth in the machinery of central administration in England has been accompanied by greater deconcentration within the departments.[185:2] The process has not been without effect on the position of the permanent under-secretary. By relieving him of detail it has made him more free to devote his attention to general policy; and, in fact, a departmental committee reported a few years ago that he ought "to divest himself of all but the most important matters in which the application of a new principle is involved." No question, the report continued, ought to reach him until it has been threshed out by the responsible head of a division, and is ripe for decision. "The permanent secretary should be able to devote himself to such work as conferring with and [186]advising his Parliamentary chiefs, framing or elaborating proposals for new legislation or administrative reform, considering all questions in Parliament, receiving members of Parliament, or representatives of the Public on questions of difficulty, and generally controlling and directing the conduct of the Department."[186:1]

The point to which deconcentration is carried is not the same in all branches of the public service. Mr. Gladstone declared that the Chancellor of the Exchequer could not take as active a part as other ministers in the current business of his department;[186:2] while in the Foreign Office, on the other hand, it has been the tradition that the Secretary of State ought to see almost everything. No doubt this is in part due to the very nature of diplomatic relations, but there can also be no doubt that in the past it has been carried much too far. When Mr. Hammond was under-secretary for foreign affairs he insisted on making the first minute on all papers in the office.[186:3] A change has been made in this respect, and the practice brought more into accord with that which prevails in other departments;[186:4] but the Foreign Secretary is still expected to give his personal attention to a greater mass of detail than other ministers.[186:5]

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Now any subordinate who determines what questions he may decide himself, and what he will refer to his superiors, and who prepares the materials for a final judgment in the cases that he does refer, is certain to exert a great deal of influence. The permanent under-secretary, holding his position, as he does, for an indefinite period, devoting his whole time to the work, and becoming thoroughly familiar with the affairs of his department, can, no doubt, regulate the class of questions that shall be referred to him, and can acquire complete control over the administration. But the minister, who is usually unfamiliar with the department to which he is assigned, who remains at its head a comparatively short time, and whose attention is largely engrossed by the more exciting scenes enacted in the cabinet, in Parliament, and on the platform, must, unless gifted with extraordinary executive capacity, be to a considerable extent in the hands of his permanent subordinates.

The smooth working of a system of this kind evidently depends upon the existence of mutual respect and confidence between the minister and the permanent under-secretary. If the minister, knowing that the under-secretary does not share his own political views, fails to treat him with perfect frankness, or if, after one party has been long in power, the permanent officials have little sympathy with a new ministry from the other party, and do not give it their active and cordial help, then mistakes are certain to be made, the efficiency of the service suffers, and the plans of the government are likely to miscarry. The permanent under-secretary ought to feel, and in fact does feel, a temporary allegiance to his chief, although of a different political party. He gives his advice frankly until the chief has reached a decision, and then he carries that out loyally. Confidential communications—and they are numberless—he treats as sacred even from the next parliamentary chief. If one minister prepares a measure which never sees the light, the permanent under-secretary might refuse to show the documents to the succeeding minister, and the latter would [188]recognise the propriety of such a course. The minister on his part seeks the advice of the under-secretary on all questions that arise, making allowance for bias due to preconceived political or personal conviction. This does not mean that if a government comes into power pledged to a definite policy, such as Home Rule or a preferential tariff, the under-secretary would be consulted about the general principle. In a case of that kind the policy has been settled in Parliament or by a general election, and the advice of the permanent officials would be limited to the details of the measure proposed.

The system has, of course, its limits. There are cases where the known opinions of the under-secretary would make it almost impossible for him to conduct a certain policy effectively. When the Conservatives, for example, came into office in 1895 with a policy of coercion for Ireland, they found as permanent Irish under-secretary Sir Robert Hamilton, who was known to be a strong Home Ruler, and believing that it would be very difficult for them to govern the country through his agency, they promoted him out of the way; such cases must sometimes occur, but they are extremely rare. It is, indeed, astonishing how far the system can be carried; to what an extent an under-secretary can act as the loyal adviser and administrator for chiefs of totally different political opinions.

The actual relations between the minister and the permanent under-secretary depend in any particular case very much upon the personality of the men. Peel and Gladstone, for example, maintained a close supervision and control over the departments under their charge, while John Bright felt that his real field of usefulness was in the House of Commons, and left the affairs of the Board of Trade almost altogether in the hands of the permanent officials. The system naturally works at its best when minister and under-secretary are both strong, good-tempered men, when each is active, but recognises clearly the province of the other. The saying has become almost proverbial that the most [189]valuable minister is one who knows nothing about his department when appointed, and like most paradoxes it contains a distorted truth. A good minister must be a good administrator, but he must look to results, and not suppose that he knows as much about the technical side of the work as his permanent subordinate. For, as Bagehot quotes Sir George Cornwall Lewis, "It is not the business of a Cabinet Minister to work his department. His business is to see that it is properly worked."[189:1] If he attempts to go beyond his province, to be dogmatic and to interfere in details, he will cause friction and probably come to grief.

The permanent officials have, indeed, several means of controlling a minister who ventures to disregard them. They have been heard to say that a fool, if given rope enough, will hang himself. If he does not care for their advice they need not tender it, and then he is sure to make mistakes for which he alone will be held responsible. If, on the other hand, he tries, with the best intentions, to go too much into detail, nothing is easier than the trick, familiar, probably, to every bureaucracy, of overwhelming him with detail. He wishes to decide questions himself. The papers bearing upon them are brought to him in ever-increasing piles, until he finds himself hopelessly unable to cope with the mass of documents, and virtually surrenders at discretion. Then there are the means of control arising from the audit of accounts and from questions in Parliament. The permanent under-secretary points out to his chief that an expenditure he proposes is likely to be disallowed by the auditor, or that an action he suggests may very well give rise to an embarrassing question in the House of Commons, and to these things a minister is highly sensitive. Questions afford, indeed, a means of mutual control, for the permanent officials are usually far more afraid of the House of Commons than the minister is himself, and tend to be reticent in preparing answers.

The Treasury Bench is not so omniscient as it appears [190]when answering questions in the House. After notice of a question has been given, the materials for a reply are prepared, and often the answer itself is drawn up, by some permanent official in the department. Sometimes the minister merely reads the answer as it has been placed in his hands, but more commonly while keeping the substance, he puts it into words of his own that he thinks better suited to the temper of the House. The labour of working up the answers to innumerable questions on every conceivable subject, and of every degree of importance and triviality, is in the aggregate very great, and places a heavy burden upon the permanent officials during the session of Parliament. But no satisfactory method of limiting the privilege has yet been devised, and although abused, it has the effect of keeping the administration up to the mark. The system affords an opportunity for constant public criticism, and while it gives the permanent officials some control over the minister, it is, on the other hand, a most effective means of preventing the growth of a bureaucratic spirit.

If the permanent officials can restrain a minister from interfering overmuch, there is no similar means of preventing him from neglecting his duties. Yet in that case the service suffers. It is apt to become numbed and bureaucratic. Permanent officials tend to follow precedent, and, indeed, the force of precedent furnishes the basis of their power, but the tendency to be too rigid in their rules is the curse of all their tribe. They shrink from innovation, rarely making a new precedent themselves. This is particularly true in the lesser offices, giving rise, at times, to complaint; and the political chief has to insist upon the need of making exceptions in hard cases, without allowing the hard cases themselves to make bad law. The surest remedy for an excess of routine is a parliamentary head who is interested in the department, and with him a permanent under-secretary of large calibre and wide experience in affairs.

Speaking in 1884 about the Reform Bill then pending, Sir Stafford Northcote predicted that an extension of the [191]franchise would increase the power of the permanent officials;[191:1] and many people think that the prophecy has been fulfilled. But this would seem to be one of the cases where an impression is due not so much to a real change of conditions, as to the fact that a state of things already existing has become recognised. The power of the civil service has undoubtedly grown very much within the last hundred years; owing partly to the fact that the ministers, instead of being primarily administrators, have become legislators, engrossed by the work of Parliament and by general politics; partly to the much shorter periods for which they hold office. During the one hundred and two years from 1721 to 1823 there were nineteen chancellors of the exchequer; of whom five held office for more than ten years apiece, the aggregate length of their services being seventy-eight years. In the eighty-two years from 1823 to 1905, twenty-three men held the office, one of them for thirteen years, another for nine, and no one else for more than about six years. The effect of such a shortening of the minister's tenure of office upon the position of his permanent subordinates is self-evident. But the present conditions of political life have now existed with little change for a generation; and, in the opinion of men well qualified to form a judgment, the power of the permanent officials, while varying from time to time with the personnel of the ministry, has not of late years shown any general tendency to increase.

Although the civil servant enjoys a great deal of the substance of power, yet he purports to act only under the directions of his political chief. Sir Stafford Northcote was admonished early in his career by Mr. Gladstone "that references from the Opposition Bench to opinions of the permanent officers of Government, in contradiction to the opinion of the Minister who is responsible in the matter [192]at issue, were contrary to rule and to convenience."[192:1] If this were not so the principle of ministerial responsibility could hardly be maintained. The minister is alone responsible for everything done in his department, and he receives all the credit and all the blame. The civil servant never talks in public about the policy of his department,[192:2] never claims anything done there as his own work; and, on the other hand, the minister ought not to attribute blunders or misconduct to a subordinate unless prepared at the same time to announce his discharge. This rule is not, indeed, always observed in the military services, for within a few years the House of Lords has heard the late Secretary of State for War and the Commander-in-Chief charge each other with the responsibility for the lack of preparation in South Africa;[192:3] and in 1901 the First Lord of the Admiralty in the House of Lords laid the blame for the capsizing of the royal yacht at her launching upon the naval constructor, while praising, at the same time, his skill in designing battleships.[192:4] In the civil services the principle has been, as a rule, very strictly followed; although here, also, in the case of Sir Antony MacDonnell, the under-secretary to the Lord Lieutenant of Ireland, an exception occurred which caused no small stir at the time.[192:5] Nor is the [193]responsibility of the minister merely formal and conventional, for the mistakes of the officials in his department go into the great balance of good and evil report, whereby the reputation of the cabinet is made, and its fate at the next election is determined. In short, the permanent official, like the King, can do no wrong. Both are shielded by the responsibility of the minister, and in fact it may happen that a policy adopted, let us say by the Foreign Office, which is popularly attributed to the personal wishes of the King, is in reality the work of some permanent subordinate.

Fifty years ago the public was not aware of the power of the civil servants, and Parliament, regarding them as clerks, paid little attention to them. But now that their importance has come to be understood there is, in the opinion of some of their own members, a danger that they will be made too prominent, that the screen which protects them from the public gaze will be partly drawn aside, and that they will [194]thereby lose their complete irresponsibility, and with it their permanence and their non-political character. Whether such a danger will prove serious is at present only a matter for conjecture.

While the permanent official can win no credit for particular acts, a life of exceptional service does not pass unrecognised. Sir Robert Peel, who appreciated their importance, lamented that honours were not conferred upon them more freely.[194:1] Such a complaint could hardly be made to-day, for a number of them are knighted every year, and occasionally a permanent under-secretary, on retiring from office, is even raised to the peerage. In spite of self-effacement, therefore, the career of a permanent official is honourable and attractive. If he is debarred from the excitement and the glory of the political arena, he is spared its hazards, its vexations, and its disappointments. He wields great power, takes a real part in shaping the destinies of the nation, and if capable and fortunate he may end his days in the subdued lustre of the House of Lords.

FOOTNOTES:

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CHAPTER IX

THE HOUSE OF COMMONS

Constituencies and Voters

The composition of any representative body involves two separate things; the electors and the constituencies. During the first part of the nineteenth century public attention outside of England was mainly concentrated upon the electors, or in other words upon the extension of the franchise. But now that something like universal suffrage has been introduced into most of the countries which have a popular element in their government, the franchise is little discussed, and much more is said about the constituencies, that is, the method of combining the voters into groups. The change is largely due to discontent with some of the results of democracy, a feeling which finds vent in widespread criticism of representative institutions.[195:1]

It was formerly assumed that the interests of the masses of the people were fundamentally identical; and hence the mode in which the electors were grouped was comparatively unimportant, the main question being the enlargement of the basis of representation. We have now learned that the formation of the constituencies offers a distinct problem with grave practical effects, and popular government not having brought the millennium that was foretold, men seek a remedy in different methods of combining the voters. We constantly see discussions of this subject. We hear of the relative advantage of scrutin d'arrondissement and scrutin de liste; that is, single electoral districts or large areas choosing a number of representatives apiece. We hear [196]about the grouping of voters on the basis of their natural economic relations into urban and rural constituencies; or on the basis of wealth, as in the three-class system of Prussia. We hear suggestions of possible grouping on the basis of occupations;[196:1] and a vast amount of literature has been published to prove the advantage of a grouping on the basis of opinions, by some form of proportional representation.

In England the two questions of the electors and the constituencies, although usually considered, and made the subject of legislation, at the same time, have always been kept distinct. Each of the great series of measures of parliamentary reform has touched both subjects, but in unequal degree; and, in fact, it was really the state of the constituencies that forced both problems upon public attention.

The Reform Act of 1832 brought in a general franchise for boroughs in place of the multifarious, and on the whole highly exclusive, privileges which had existed before. It also changed, though in a less radical way, the franchise in the counties. But as a political measure its greatest importance lay in its effect upon the constituencies by the redistribution of seats. It took from small boroughs in various stages of decay and rottenness one hundred and forty-three seats, and gave them to the counties, and to new large towns hitherto unrepresented. The Act of 1867, on the other hand, while transferring seats to some extent, was mainly a measure for extending greatly the borough franchise. In 1884 and 1885 both subjects were dealt with radically. By the Act of 1884 the franchise for counties was much enlarged; and by that of 1885 the distribution of seats was reorganised upon a basis closely akin to equal electoral districts.

The constituencies for the English Parliament are of three kinds; counties, boroughs and universities. The last are quite different from the others in nature and franchise, and a word may be said about them here.

[197]

Oxford and Cambridge were given two seats apiece by James I. The University of Dublin, which had already one seat, obtained another by the Reform Act of 1832; and, finally, the Act of 1868 gave one member to London University, one to Glasgow and Aberdeen combined, and another to Edinburgh and St. Andrews. The franchise for the universities belongs in general to the registered graduates.[197:1]

Until 1832 each county, and each borough that had the privilege of being represented, elected, as a rule, two members of Parliament. This, however, was not true of the Scotch boroughs, which were, with few exceptions, grouped into districts returning a single member apiece; a system that has been maintained to the present day. Some of the English boroughs had been given the right of electing members by the Tudors and the early Stuarts, not because they were places of importance, but, on the contrary, because they were not populous, and their members could be easily controlled by the Crown—the electoral rights being commonly vested in the governing council, which was a close corporation. Other boroughs that had once been places of consequence had, in the course of time, fallen into decay. So that by the beginning of the nineteenth century many members of the House represented no substantial communities, and were really appointed either by small self-perpetuating bodies, or by patrons, who, owning the land, controlled the votes of the few electors in the constituency. This condition of things was made scandalous by the open practice of selling elections to Parliament for cash; and the demand for reform, which had been checked by the long struggle with France, began again after the peace, culminating finally in the Reform Act of 1832.[197:2] The object of this measure was to remove a manifest abuse, rather than [198]to reorganise the representation of the country on a new basis, and it applied to the conditions a somewhat rough and inexact remedy. The boroughs with less than two thousand population by the census of 1821 were disfranchised altogether, those with more than two thousand and less than four thousand lost one member, and the seats thus obtained were divided about equally between the counties and the new large towns that had hitherto been unrepresented.[198:1] But the constituencies still remained very uneven in population—and, indeed, the framers of the act had no desire for equal electoral districts.

The same process was continued by the Act of 1867, which again took members from little towns and gave them to larger ones and to the counties. While there was no general attempt to make the number of representatives proportional to the size of a constituency, a few of the largest provincial towns were given three members; and in that connection an interesting experiment was tried. With the object of providing for minority representation, the electors in the boroughs returning three members—the so-called three-cornered constituencies—were allowed to vote for only two candidates apiece. This resulted in diminishing the real representation of the borough, as compared with the rest of the country. If Manchester, for example, was Liberal, she would probably be represented by two Liberals and one Conservative. But in a party division the Conservative would neutralise one of the Liberals, so that Manchester would count for only one vote, and would, therefore, have only half as much weight as a much smaller borough with two members both belonging to the same party. The experiment gave so little satisfaction that it was afterward abandoned; and it is chiefly interesting to-day because the effort to organise a large party majority so as to compass the election of all three members gave rise to the Birmingham Caucus, whose birth and whose progeny will be described in a subsequent chapter. Except for the [199]few three-member constituencies, and a much larger number of boroughs having only a single seat, the constituencies still returned two members apiece; and this continued to be the rule until the third and last of the great measures of parliamentary reform.

The Redistribution Act of 1885, although, like all English measures of reform, to some extent a compromise between the old ideas and the new, rested upon the principle of equal electoral districts each returning a single member. The proportion of one seat for every 54,000 people was roughly taken as the basis of representation; and in order to adapt the principle to the existing system with the least possible change, boroughs with less than 15,000 inhabitants were disfranchised altogether, and became, for electoral purposes, simply a part of the county in which they were situated. Boroughs with more than 15,000 and less than 50,000 people were allowed to retain, or if hitherto unrepresented were given, one member; those with more than 50,000 and less than 165,000, two members; those above 165,000 three members, with an additional member for every 50,000 people more. The same general principle was followed in the counties.[199:1]

The boroughs that had hitherto elected two members, and were entitled to the same number under the new scheme, remained single constituencies for the election of those two members. Of these boroughs there are twenty-three,[199:2] which, with the City of London, and the three universities (Oxford, Cambridge, and Dublin), makes in all twenty-seven cases where two members are elected together. All the other constituencies are single-member districts, a result which was brought about by a partition of the counties, of boroughs with more than two members, and of the new boroughs with only two members, into separate electoral divisions, each with its own distinctive name.

[200] It may be interesting to note that the Reforms of 1832 and 1867 did not change the total number of members of the House, but merely redistributed the existing 658 seats. By the disfranchisement, after 1867, for corrupt practices, of four boroughs returning six members, the number was reduced to 652; and the Reform Act of 1885 increased it to 670, where it has since remained.

The distribution of seats under the Act of 1885 was only a rough approximation to equal electoral districts; and in time it has become far less close, until to-day the difference in the size of the constituencies is very great. The smallest is the borough of Newry in Ireland, which had at the census of 1901 a population of only 13,137; or, if we leave Ireland aside on account of its peculiar conditions, the smallest in Great Britain is the city of Durham with a population of 14,935; while the largest is the southern division of the County of Essex, with 217,030 inhabitants; so that the largest constituency to-day is nearly fifteen times as populous as the smallest.[200:1] Nor are the inequalities confined to extreme cases; for they exist in lesser degree throughout the electoral body, many of the constituencies being two or three times as large as many others.

But unless one assumes that the exact equivalence of all votes is a fundamental principle of political justice, differences of this kind are of little consequence, provided one part of the community, or rather one set of opinions or interests, is not distinctly over-represented at the expense of another. Now, in Parliament an over-representation of this kind does exist; not, indeed, in regard to the different social classes or economic interests in the nation—for inequalities of that sort are not marked enough to be important—but between the different parts of the country.

[201]

Some parts of Great Britain have grown very rapidly, while the population of Ireland has actually diminished during the last half century; and the result is that whereas in the United Kingdom as a whole there is now, on the average, one member of Parliament for every 62,703 people, England has only one for every 66,971; and Ireland one for every 44,147. If a redistribution of seats were to be made in strict proportion to population, Ireland would therefore lose thirty members, and England would gain about as many, while Scotland would gain one seat, and Wales would lose three.

The question of the proportional representation of England and Ireland is a burning one, because the parliamentary system cannot work well unless one party has a majority which can give to the ministry a stable support. But eighty of the Irish members are Nationalists, who do not belong to either of the great parties, and may at any general election acquire a balance of power, and cause confusion in politics, as they did after the election of 1885. The loss of twenty-five seats, which they would suffer by a reduction of the Irish representation, would materially lessen that danger. The Conservative government was constantly urged by its supporters to make the transfer of seats from Ireland to England, and was actually preparing to do so at the time it resigned in 1905. On behalf of Ireland it was argued that this would be a violation of the Act of Union, which was in the nature of a treaty, and allotted to Ireland one hundred members in the House of Commons.[201:1] On the other hand the advocates of the policy replied that the terms of the Act of Union cannot be forever binding under a change of circumstances; they referred to the fact that in 1868 the Church of England was disestablished in Ireland, notwithstanding the provision in the Act for its perpetual establishment there;[201:2] and they said that conditions had so changed as to justify a redistribution of seats. The Irish, [202]however, claim that the great bulk of their people wanted disestablishment, and that Ireland could waive provisions made in her behalf; but it may be urged that the provision about the Church was made for the benefit not of Ireland, or its people, but of a minority there.

The formation in England of new constituencies for the seats transferred would raise great practical difficulties. Even if it did not involve a general redistribution bill, it would necessitate changing many of the districts. Quite apart from the danger of incurring a charge of gerrymandering for party purposes, there would be a host of personal interests of members of Parliament to be considered. Each member affected would be anxious that the change should not make his seat less secure than before; and claims of this sort have peculiar weight in a country where, as in England, the sitting member has almost a prescriptive right to renomination by his party.

The English practice of rearranging the constituencies, and apportioning the representatives among them, only at long intervals, of treating a bill for the purpose as an exceptional measure of great political importance, instead of the natural result of each new census, has the advantage of preventing frequent temptations to gerrymander. But, on the other hand, it raises the matter of electoral districts to the height of a constitutional, and almost a revolutionary, question, preceded sometimes by long and serious agitation, and always fought over on party grounds. This is a perpetual difficulty, for the shifting of population, which must always be changing the ratio of representation, will from time to time make a redistribution of seats inevitable.

The extension of the franchise was long a grave constitutional question also, but it has now been so nearly worked out that it can hardly be regarded in that light in future. Before the Reform Act of 1832 the franchise in the counties depended entirely upon the ownership of land, an old statute of 1429,[202:1] having confined the right of voting to [203]forty-shilling freeholders; that is, to men who owned an estate of inheritance, or at least a life estate, in land of the annual value of forty shillings.[203:1]

In the boroughs the franchise was based upon no uniform principle, but varied according to the custom or charter of the borough. Sometimes it depended upon the tenure of land; and, since residence was by no means always necessary, it might happen that the voters did not live in the place, and there were even cases where members were returned to Parliament by boroughs that had no longer a single inhabitant. Sometimes the right belonged to the governing body of the town; sometimes to all the freemen; sometimes to all householders who paid local taxes; and in one place, at least, it extended to all the inhabitants. In these last cases the franchise was actually wider before the Reform Act of 1832 than it was afterward, so that although the act enlarged the electorate very much on the whole, and preserved the rights of all existing voters, it narrowed the franchise seriously for the future in a few places.[203:2]

In the counties the Act of 1832 continued to treat the right to vote as dependent upon the tenure of land, although in some ways restricting and in others much more largely extending it. In order to prevent the manufacture of forty-shilling freeholders for electoral purposes, the act provided that a voter must have been in possession of his land for six months, unless it came to him by descent, devise, marriage or promotion to an office;[203:3] and, also, that if he held only a life estate he must either have acquired it by one of these methods, or must be in actual occupation, unless again it was of the clear yearly value of ten pounds.[203:4] On the other hand the act extended the right of voting in counties [204]to persons entitled to copyholds, and leaseholds for sixty years, of the annual value of ten pounds; to leaseholds for twenty years of the value of fifty pounds; and to leaseholds of fifty pounds annual value without regard to the length of the term, if the tenant was in actual occupation of the land.[204:1]

In the boroughs the Reform Act wrought a complete change. Except that it preserved the personal rights of living voters,[204:2] and retained the privileges of freemen in towns where they existed,[204:3] it swept away all the old qualifications,[204:4] and replaced them by a single new franchise based exclusively upon the tenure, or rather the occupation, of land. The new qualification was uniform throughout England, and included every man who occupied, as owner or tenant, a house, shop, or other building, worth, with the land, ten pounds a year. But while the franchise in the boroughs was thus based, like that in the counties, upon land, the effect was entirely different, and was intended to be so. It has been said that the framers of the act meant the county members to represent property, and the borough members to represent numbers. The boroughs, as will appear later, did not really stand for numbers, but the counties did certainly represent property, and that in spite of the Chandos Clause which admitted fifty-pound leaseholders and was resisted by the authors of the bill. The electorate in the counties consisted of the landholders with a few large farmers, while in the towns it comprised the great middle class.

Later in the same session acts of a similar nature were passed for Scotland[204:5] and Ireland;[204:6] and in fact it was the practice until 1884 to deal with the franchise in the three kingdoms by separate statutes.

[205]

As the practice of keeping a register of persons entitled to vote at parliamentary elections did not begin until this time, it is impossible to say precisely how much the Act of 1832 increased the size of the electorate. But from returns made just prior to the passage of the Act,[205:1] it would appear that the number of borough electors in England and Wales was then about 180,000; whereas immediately after the Act had gone into effect it was 282,398.[205:2] The total increase in the borough electorate, which was the one chiefly affected, was therefore about 100,000, and a great part of this increase consisted of the voters in the large towns that had been given seats for the first time by the Act.

The new system was in no sense either democratic or proportionate to population. The average ratio of electors to population for the whole United Kingdom was about one in thirty; but the variation in different constituencies and different parts of the kingdom was very great. In the English and Welsh counties the ratio ran all the way from one in five in Westmoreland, to one in thirty-seven in Lancashire, one in thirty-nine in Middlesex, and one in sixty in Merioneth. In the English and Welsh boroughs it ran from nearly one in four in Bedford and Aylesbury, where practically all adult males were voters, to one in forty-five in the manufacturing towns. In Scotland even a smaller part of the population enjoyed the franchise. In the counties the ratio ran from one in twenty-four in Selkirk, to one in ninety-seven in Sutherland; and in boroughs or districts, from one in twenty in the Elgin district, to one in forty in that of Linlithgow. In the Irish counties it ran from one in fifty-eight in Carlow, to one in two hundred and sixty-one in Tyrone; and in the boroughs from one in nine in Carrickfergus and Waterford, to one in fifty-three in Tralee.

[206] The proportion of members of Parliament to population was far more uneven still. As reformers at a later date were constantly pointing out, one half of the borough population of England was contained in sixteen boroughs, and elected only thirty-four members; the other half, numbering less than two and a half millions, still returning two hundred and ninety-three members; while the counties with eight millions of people returned one hundred and forty-four members. Thus it happened that less than one fifth of the population in England elected nearly one half of the representatives; and as these came from the boroughs it can hardly be said that the borough members represented numbers.[206:1]

Mr. G. Lowes Dickinson, in his "Development of Parliament during the Nineteenth Century,"[206:2] has pointed out that while the framers of the Act of 1832 had not the least intention of introducing democracy, the measure itself could not have furnished a permanent settlement of the franchise, and was destined inevitably to lead to further steps in the direction of universal suffrage. The first step was a slight reduction, in 1850, of the amounts required for the qualification of voters in Ireland.[206:3] This was followed by a series of moderate English reform bills, which failed to pass the House of Commons.[206:4]

In 1867 Disraeli, who had educated his reluctant party until it accepted the political need of extending the franchise, brought in a bill with elaborate safeguards against the predominance of the masses. Under the existing law a small fraction of the working classes had votes in the boroughs;[206:5] [207]and it was Disraeli's intention to admit a larger number of the more prosperous workingmen without giving them an overwhelming weight in the electorate. But the parliamentary situation was peculiar. The Conservative government, which had come into power only through the quarrels of its opponents, had not a majority in the House of Commons, and could not insist upon its own policy; while the Liberals were not under the sense of responsibility that comes with office. The result was that the bill was transformed by amendments, the safeguards proposed by the cabinet were swept away, and a far longer stride toward universal suffrage was taken than any one had expected.

In the counties the Act of 1867[207:1] reduced the ten-pound qualification for owners and long leaseholders to five pounds, and created a new twelve-pound occupation franchise. But a far greater extension was made in the boroughs, where two new franchises were introduced. The most important of these was that of the "householder," whereby a vote was given to every man who occupied, as owner or tenant for twelve months, a dwelling-house, or any part of a house used as a separate dwelling, without regard to its value.[207:2] The other franchise admitted lodgers who occupied for the same period lodgings of the clear value, unfurnished, of ten pounds [208]a year.[208:1] In the course of the next session acts, in general similar, were passed for Scotland and Ireland.[208:2]

From 1832 to 1862, in spite of the general gain in wealth, the electors had increased very little faster than the population; in England and Wales, indeed, the voters remained about one twentieth of the people,[208:3] while in Scotland they had risen only from one thirty seventh to one thirtieth.[208:4] But the Acts of 1867 and 1868 almost doubled the electorate. In the counties the voters, who numbered 768,705 just before those acts, were, by 1871, 1,055,467; while the borough voters increased from 602,088 to 1,470,956.[208:5]

It was evident that the qualifications for voting could not long remain far wider in one class of constituencies than in another; that the franchise of the boroughs must, in time, be extended to the counties. This was done in 1884,[208:6] and the change more than doubled the county electorate. The franchise, therefore, is now substantially uniform throughout the United Kingdom, except that certain owners [209]and leaseholders have a right to vote in counties, and that in some old towns the freemen still possess the suffrage. Inasmuch as most of the boroughs are included in counties, the occupier, householder, or lodger would be entitled on the same qualifying property to vote in both; and hence a man in a borough would have two votes at an election, while another man with the same qualification outside of the borough would have only one. To avoid this result it is provided that a man shall not be entitled to vote at an election for a county in respect of the occupation of a dwelling-house, lodging, land or tenement in a borough;[209:1] but he may vote in the county on account of the ownership of land in a borough which he does not occupy, or on account of land which he both owns and occupies if he occupies other land in the borough sufficient to qualify him there.[209:2]

Although the franchise is now substantially uniform, it is not exactly the same for the different parts of the United Kingdom; nor is it by any means simple. The latest acts have not codified the law. It must still be sought in many statutes, whose provisions are so complicated, and often obscure, that they can be understood only by studying the interpretation put upon them by the courts. The reader who wishes to ascertain the law on a special point must refer to treatises upon the subject, such as Rogers on "Elections." It will be enough for our purpose to summarise the various franchises as they exist to-day.

There are two qualifications which are not universal. One of these, relating to property rights in land, applies only to counties, and to some extent to boroughs which are counties in themselves.[209:3] It confers the right to vote on [210]owners of land[210:1] of forty shillings yearly value, who hold an estate of inheritance; or who hold an estate for life, and are in actual occupation of the land, or have acquired it by some means other than purchase, or whose land is of five pounds clear yearly value.[210:2] Under this franchise come, also, the leaseholders of land of five pounds yearly value if the original term was not less than sixty years, and fifty pounds value if the term was not less than twenty years.[210:3] The corresponding qualifications for Scotland and Ireland are slightly different in their conditions and in the values required.

The other franchise which is not universal is that of freemen in those towns where they had a right to vote before 1832. The privilege still exists in a number of old boroughs, but, except in the City of London, is confined to freemen who have become such by birth or apprenticeship.

The three remaining franchises are universal, though not precisely uniform. They are those of the ten-pound occupiers, the householders, and the lodgers. The first of these gives the right to vote to a man who occupies, as owner or tenant, any land or tenement of the clear yearly value of ten pounds. The second confers the right on a man who occupies, as owner or tenant, any dwelling-house, or part of a house used as a separate dwelling, without regard to its value. The qualification extends also to men who are not owners or tenants, but who occupy by virtue of an office, service, or employment, a dwelling-house in which the employer does not himself reside. The third of these franchises confers the right to vote upon a man who occupies lodgings of the value, unfurnished, of ten pounds a year.

The application of these franchises to particular cases has [211]given rise to a great amount of litigation, and in particular the courts have found it almost impossible to distinguish between a householder and a lodger. For the general reader, who is concerned with the study of the English government, and not with the effort to get the largest possible number of party members registered, such questions have little interest; but there are two or three matters that ought to be noted, because they have an important bearing on the actual size of the electorate.

One matter of political consequence relates to the period of occupation required. Owners of land in counties, who have acquired it by descent, marriage, promotion to an office, etc., are not required to have owned it for any period. All other owners must have held the title for six calendar months before the 15th of July preceding the registration; and all other voters, except freemen, must have been in occupation of the qualifying premises, or some other premises within the same constituency, for one year preceding the 15th of July.[211:1] This, of course, has the effect of disqualifying entirely persons whose occupation has not been continuous for the whole of that year, and as the register does not take effect until the 1st of January following, and then remains in effect a whole year, voters who have moved to another part of the country within eighteen months after their year of occupation can vote only by a journey back to their former place of abode.

A second matter that must be noticed is the question of residence. Before the Reform Act of 1832 the qualification for counties was based upon ownership; that for boroughs varied very much; but in those places where the franchise was broad it was based mainly upon residence. This distinction has, to some extent, persisted. In general it may be said that for English and Scotch counties, and in Ireland for both boroughs and counties, residence is not required, except so far as the occupation of a dwelling-house or lodging may involve residence and this is not necessarily the case.[211:2]

[212] In English boroughs a voter must have resided for six calendar months previous to the 15th of July in the borough, or within seven miles thereof;[212:1] and in Scotland he must have resided there for a whole year.

The requirement of residence does not, however, imply quite so much as might appear, because, according to English law, the possession of a chamber in which a man occasionally sleeps, and to which he can return at any time, is enough to constitute residence; and, hence, he may have a residence in more than one place.[212:2] In the counties, therefore, residence is unnecessary, and even in the boroughs the requirement of residence does not limit a man to voting in a single constituency. The importance of this will shortly be pointed out.

The third matter to be noticed is the question of rating. We have already observed that at one time the personal payment of rates by the voter was much discussed, and was regarded as an important guarantee of character.[212:3] In England poor rates are assessed upon the occupiers, not the owners, of the property, and it is still provided that all voters whose qualification depends upon the occupation of land (except lodgers, who are not from the legal point of view occupiers) must have been rated and must have paid their rates.[212:4] But this means only that the rates must have been paid on their behalf; and the practice of compounding by the landlord for small tenements is so universal that practically the landlord pays the rates in almost all cases where the occupiers would be likely to fail to do so. In England, therefore, the requirement that the rates must have been paid has little or no effect on the electorate. In Scotland, on the other hand, this is not the case. There the rates are divided between the owner and the occupier, and the practice of compounding does not exist. The [213]result is that many occupiers are omitted from the parliamentary register every year on account of their failure to pay rates. For the whole of Scotland the number reaches fifty thousand.[213:1]

A comparison of the number of electors on the register with the total population shows that England is not very far to-day from manhood suffrage. The ratio is about one in six,[213:2] whereas the normal proportion of males above the age of twenty-one years (making no allowance for paupers, criminals, and other persons disqualified by the laws of all countries), is somewhat less than one in four. The only classes excluded from the franchise are domestic servants, bachelors living with their parents and occupying no premises on their own account, and persons whose change of abode deprives them of a vote. Now, these are not necessarily the worst political elements in the community. No doubt the provision requiring twelve months' occupation excludes vagrants, but it also excludes excellent artisans who migrate with changes of trade, and other persons whose calling compels them to move from place to place. In 1902 a school-teacher, in a plaintive letter to The Times,[213:3] described how he had never been able to vote at a general election. He had graduated with honours from his university, was nearly forty years old, married, and prosperous; but his very success in his profession, by involving changes of residence, had always cost him the right to vote. It is a common saying that many respectable people are disfranchised from this cause, although the slums, which move little, are not.

The present condition of the franchise is, indeed, historical rather than rational. It is complicated, uncertain, expensive in the machinery required, and excludes a certain number of people whom there is no reason for excluding, while it admits many people who ought not to be admitted [214]if any one is to be debarred. But the hardship or injustice affects individuals alone. No considerable class in the community is aggrieved, and neither political party is now anxious to extend the franchise. The Conservatives are not by tradition in favour of such a course, and leading Liberals have come to realise that any further extension would be likely to benefit their opponents.

Although there is no urgent demand for a closer approach to manhood suffrage, there has long been a strong desire to restrict each man to a single vote. That a man should have a vote in two different constituencies is as clearly a breach of political equality as if he had two votes in the same place; and for this reason, as well as from the fact that most of the men who have more than one vote are Conservatives, a demand for the abolition of plural voting has been for many years an article in the Liberal programme. So far as the franchise is not dependent upon residence there is nothing to prevent a man from voting in every constituency where he possesses a qualification.[214:1] Now for the counties and the universities residence is not necessary; and even in the boroughs, where it is required, plural voting is restrained only in part, because a man may have more than one residence, and because residence within seven miles of the borough is enough, so that the men who carry on their business in the town and live in the suburbs are qualified in the borough by reason of their offices or workshops, and in a suburban borough or the county by reason of their dwellings.

It is not easy to determine how many persons are entitled to vote in more than one constituency, or how much they affect the result of elections. In a return of resident and non-resident voters made to Parliament in 1888,[214:2] it appeared, [215]as was natural, that the proportion of the latter was greatest among the freeholders in the counties, nearly one quarter of whom were non-residents. In all there were about two hundred thousand non-resident voters in England and Wales. This is between four and five per cent. of the total electorate, which does not seem an important fraction; but it fails to express the full effect of plural voting, because it does not include the persons who have more than one residence, or who live outside the limits of a borough but within seven miles of it, or those again who reside in a borough that forms part of a county and are qualified to vote in both. Moreover, the men with more than one vote, although a small proportion of the whole electorate of the kingdom, are quite numerous enough to turn the scale in a close constituency.

One of the first acts of the new Liberal ministry in the session of 1906, was to bring in a bill to abolish plural voting altogether. This could not be done simply by making residence a condition of the franchise, because in England a man may have more than one residence. The measure provided, therefore, that the voter must elect in which of the places where he possessed a qualification he would be registered, and forbade him to vote anywhere else. The bill was passed by the House of Commons, but rejected forthwith by the Lords.

It is interesting to observe the number of voters registered under the different franchises. In 1906 the figures for the United Kingdom were as follows:—

By far the greater part of the voters are registered as occupiers, a class which includes both the householders and the ten-pound occupiers. The table contains a surprisingly small number of lodgers; and this is due to the fact that whereas the lists of owners and freemen are virtually permanent, and the list of occupiers is made up by the [216]overseers of the poor from the rate-book,[216:1] a lodger alone must make every year a personal application to be registered.[216:2] The result is that no one seeks to be enrolled as a lodger if he has any other franchise; and no doubt many lodgers, who have no other qualification, neglect to register at all.

A characteristic, although not in itself a very important peculiarity of the English electoral law, is the rule depriving peers of the right to vote;[216:3] and in fact the Commons still profess to be highly jealous of any part taken in electoral campaigns by members of the House of Lords.[216:4] In other respects the disqualifications for voting in England are now much the same as in other countries. There are the usual rules excluding aliens, infants, idiots, paupers, convicts, and persons who have been guilty of corrupt practices at elections. Formerly there were also provisions excluding large classes of public officers, but these have been repealed, except in the case of the Irish police, of certain officers directly concerned in the conduct of elections, and of persons employed and paid by the candidates.

Women cannot vote for members of Parliament, although they possess the franchise for almost all local elections. This question has of late aroused much interest. Although both of the political parties have at times adopted resolutions in favour of woman suffrage, the leading men in both are divided about it, and the Labour Party may be said to be the only political organisation of men in England that want it heartily. But many women are agitating for it very vigorously, and the most enthusiastic of them have sought martyrdom by refusing to pay taxes, by creating a disturbance in the ladies' gallery of the House of Commons, and by getting arrested for speech-making in the [217]Palace Yard. They are known as Suffragettes, and evidently have faith in the old adage that Parliament never redresses grievances until they are brought forcibly to its notice. Women will no doubt ultimately obtain the suffrage if they are substantially united in wanting it, and the principle is certainly making great headway among them in England to-day.

It is not enough that a man possesses the requisite qualifications for the franchise. His name must also be upon the register of voters for the constituency, and the process of compiling the register is cumbrous and expensive. This is due in part to the complicated nature of the various franchises, which may involve intricate questions of law and of fact, and partly to the practice of leaving the duty of proving claims and objections mainly in the hands of private individuals. The lists are made up in the first instance by the overseers of the poor in each parish; but any person whose name is omitted may claim to have it inserted, and any person whose name is on the lists may file an objection to any other name which he thinks ought not to have been included. These claims and objections are heard in September by the Revising Barrister—a barrister of not less than seven years' standing, appointed for the purpose by the judge in whose circuit the constituency lies, and paid by the Treasury. It is his duty to revise the register by adding the names of persons who prove their claims, and by striking off names improperly inserted. In doing this he is not limited to names against which objections have been filed, for he has a right to make inquiries and summon witnesses on his own motion.[217:1] In practice, however, the cases are prepared beforehand, and argued before him, by the local agents of the two political parties, whose object is to get the names of their partisans on to the register and keep off those of their opponents.

[218] The process is repeated every year, and the work and cost involved are considerable, the money being provided by the candidate for Parliament, or by means of subscriptions to the party funds. This is one of the things that makes elections expensive; and it helps to explain the desire of each party in a constituency to have a candidate at all times, even when an election is not impending. In Scotland registration is far less of a burden upon the parties, and costs the candidate very little, because the qualifications of all the voters, except the lodgers, are investigated by a public officer, called the assessor, and a corps of assistants, with the result that there are few claims or objections for the political agents to contest. There seems to be no self-evident reason why this should not be done everywhere, and for every class of voter.

FOOTNOTES:

[219]

CHAPTER X

THE HOUSE OF COMMONS

Electoral Procedure

All elections to Parliament, whether general elections following a dissolution, or the so-called by-elections resulting from an accidental vacancy, take place in pursuance of a writ under the Great Seal, issued from the Crown Office, and directed to the returning officer of the constituency. In all counties, and in Scotch and Irish boroughs, the returning officer is the sheriff or his deputy. In English boroughs he is the mayor.

Until 1872 candidates for Parliament were nominated viva voce at the hustings,—a temporary platform erected for the purpose. If more names were proposed than there were seats to be filled, the election was said to be contested, and a show of hands was called for. Many of the persons present were probably not entitled to vote, but that was of no importance, because the show of hands was merely formal, and a poll was always demanded. A time for taking it was then fixed, extending over a number of days, during which the electors declared their votes publicly. This gave a chance for bribery, for the intimidation of voters, and for disturbances of various kinds, not seldom deliberately planned. The disorderly scenes that accompanied an election have often been described both in histories, and in novels such as "The Pickwick Papers" and "Coningsby," written by men familiar with the old polling days. In 1872 the method of conducting elections was changed by the Ballot Act,[219:1] which introduced secret voting, and made the procedure more orderly in many other respects.

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Nominations are now made in writing by proposer, seconder, and eight others, all registered voters. If only one person is nominated for a seat, the candidate, or candidates if it be a two-member constituency, are at once declared elected; nor is this a hypothetical case, because, for reasons that will be described hereafter, usually more than one fourth, and sometimes more than one third, of the seats are not contested at a general election.

If, on the other hand, the election is contested, a day is fixed for the poll; for voting is now confined to a single day in each constituency. It is not the same day in all of them, on account of the latitude still given to the returning officer. He has a right, within certain limits which are different for counties and boroughs, to determine how many days shall elapse between his receipt of the writ and the election (that is, the nomination) and how many between the election and the poll.[220:1] The result is that in boroughs the voting may take place anywhere from four to eight days after the receipt of the writ; and in counties anywhere from six to seventeen days. Now, as the writs are sent out by mail at the same time, the voting at the general election covers a period of more than two weeks.

It might be supposed that such a power to arrange the order of elections would be used by the returning officer to help his own party, and this is said to be done, not systematically over the country, but in particular places. The multiplicity of election days has another and more important political effect; for it gives time to the out-voters, as the non-residents are called, to get from one constituency to another, and thus it facilitates voting in more than one place. For this reason the Liberal party—which [221]is opposed to plural voting—has demanded in its platform that all elections should take place on the same day. To this it has been objected that the change would, by lengthening the electoral period in the boroughs, increase the fatigue and cost to borough candidates; and in view of the rate at which labour and money are expended on such occasions the objection is not altogether without foundation.

For the convenience of voting the constituency is divided into a number of polling districts; and when an election is contested, the vote is taken in these districts between eight in the morning and eight in the evening of the appointed day. The method of voting under the Australian system of secret ballot, which was adopted in 1872, need not be described, because in some form its use has become well-nigh universal in civilised countries.[221:1] It may be noted, however, that the Ballot Act has never been extended to the universities, where voting is still done orally, or by means of a voting paper tendered at the polls by another elector to whom it has been intrusted.[221:2] In fact most of the university votes are given by proxy—a practice which was introduced in 1861,[221:3] and would be abolished by the ballot.

Before the Reform Act of 1832, huge sums of money were sometimes expended at parliamentary elections, and bribery and corruption were rife. Nor did the disfranchisement of rotten boroughs, and the extension of the franchise, by any means put an entire stop to the practice. Even as late as 1880 the special commissions appointed to inquire into the conduct of a number of boroughs, for which election petitions had been filed, found a bad state of affairs.[221:4] In Macclesfield [222]and Sandwich about half the voters had been guilty of bribery and other corrupt practices;[222:1] and as a result of the investigation those two boroughs, which were decidedly the worst, were entirely disfranchised. A series of attempts have been made to root out the evil by legislation. They have been more and more elaborate, and reached their culmination in the Corrupt and Illegal Practices Act of 1883.[222:2] These laws seek to restrain improper conduct at elections by several methods; first, by forbidding altogether certain classes of acts, which either interfere directly with the purity of elections, or have proved a source of inordinate expense; second, by limiting the total amount that can be spent, and the purposes for which it can be used; third, by requiring that disbursements shall be made through one recognised agent, who is obliged to return to the government a full account thereof; and, fourth, by imposing for violation of these provisions penalties, political and other, inflicted not only by criminal process, but also summarily by the tribunal that tries the validity of a controverted election.

The most demoralising acts forbidden by law are known as corrupt practices. They are bribery, treating, undue influence, and personation.[222:3]

Bribery at elections is, of course, criminal in all countries; and in England the offence is defined in great detail, for just as there are seven recognised kinds of lies, so the English statutes describe seven distinct methods by which bribery can be committed.[222:4] It is unnecessary for anybody who is not engaged in electoral work to remember these; and it is enough here to point out that they include a promise, or endeavour, to procure any office or employment for a voter in order to influence his vote.

Treating differs from bribery in the fact that bribery involves a contract for a vote, express or implied, whereas the person who treats obtains no promise from the voter, [223]and relies only upon his general sense of gratitude. But, as one of the judges remarked in the trial of an election petition some years ago, it is difficult in the large constituencies of the present day to bribe successfully, while a small amount of treating is sufficient to procure a great deal of popularity.[223:1] This is particularly true in England, where the habit of treating is made easy by the existence of sharp class distinctions. Treating was forbidden as long ago as the days of William III., and it is now defined[223:2] as giving, or paying the expense of giving, "any meat, drink, entertainment or provision to or for any person for the purpose of corruptly influencing that person or any other person to give or refrain from giving his vote."

Undue influence is defined by the Act of 1883[223:3] as making use, or threatening to make use, of any force, violence, or restraint, or inflicting, or threatening to inflict, any temporal or spiritual injury on any person in order to influence, or on account of, his vote; or by duress or fraud impeding the free exercise of the franchise by any man. These provisions cover threats by an employer to discharge workmen,[223:4] and the denunciation by priests of spiritual penalties on political opponents.[223:5]

Personation it is unnecessary to describe.

All these corrupt practices are criminal offences punishable by fine or imprisonment, and by the loss of political rights for seven years.[223:6] What is more important for our purpose, they are liable to cost the member his seat; for if upon the trial of a controverted election the court reports that any corrupt practice has been committed by the candidate, or that bribery or personation has been committed with his knowledge and consent, his election is void, and he is forever incapable of being elected to Parliament by that [224]constituency.[224:1] Moreover, if the election court reports that a corrupt practice has been committed by his agents, although he may be personally quite innocent, his election is void, and he is incapable of being chosen by that constituency for seven years.[224:2]

It will be observed that in order to set aside an election, the corrupt practice must be brought home to the candidate, personally or through his agents. In accordance with the older traditions of English public life, the election is regarded as the affair of the candidates alone. The action of party organisations, or other bodies, is not taken into account,[224:3] and their conduct has no effect upon the result, unless their relations with the candidate have been such as to make them his agents. So long as a political association is urging the general interests of the party, rather than supporting a particular candidate, he is not responsible for their acts. It has been held, for example, that a candidate is not responsible for treating by such an association, although he was present and spoke at the meeting where it was done, if it was got up by them for their own purposes, and not to assist in his election.[224:4] It has been held, also, that a payment by a party organisation of bills for music and beer at public meetings, previous to an election, and even the candidate's subscription to their funds, need not be included in his election expenses, unless the organisation was a sham supported by him.[224:5]

In all such cases it is difficult to prove agency to the satisfaction of an election court. The time must come in any election, however, when the local party association by active [225]assistance to the candidate becomes his agent.[225:1] But this is not true of other bodies less directly connected with the party organisation, which are, nevertheless, in the habit of doing a great deal of work at elections. Thus it has been held that a Licensed Victuallers Association, having a distinct and direct interest in the election, did not become the agent of the candidate, although it played an important part in the campaign.[225:2] That this leaves a door wide open for corrupt influence is self-evident.

To the general principle that a corrupt practice must be brought home to the candidate there is one exception. If bribery, treating, personation, intimidation, or undue influence, whether physical or ecclesiastical, has been general in the constituency—that is, so extensive that the voting could not have been the free expression of the will of the electorate—the result of the election is invalid at common law, although neither the candidate nor his agent are directly implicated.[225:3]

Besides corrupt practices, certain other acts are forbidden under the name of illegal practices; but the provisions relating to them are mainly designed to restrain the expense of elections, and will be described under that head. The essential distinction between the two practices is much like that which lawyers were formerly in the habit of drawing in the case of crimes between malum prohibitum and malum in se. A corrupt practice involves moral turpitude, and it is necessary to prove a corrupt intent.[225:4] A gift to a voter, for example, is not bribery unless it is made for the purpose of influencing his vote; but an illegal practice is simply an act forbidden by statute, and as such—in the case, for instance, of a payment of expenses above the maximum fixed by law—is illegal without regard to the motive with which it is done. For this reason a corrupt practice cannot be [226]excused,[226:1] while the election court may grant relief from the consequences of an illegal practice where it is trivial in itself, and was committed without the connivance of the candidate who took all reasonable means to prevent it; or where, although the direct act of the candidate or his election agent, it arose from inadvertence, accidental miscalculation, or other reasonable cause; or, finally, where a failure to make a return of expenses has been due to illness.

Some acts which, without involving great expense, tend to lower the tone of elections, are treated as illegal practices, and forbidden by statute. Such are the use for committee rooms[226:2] of premises where liquor is sold, and the furnishing of voters with cockades, ribbons, or other marks of distinction,[226:3] a proceeding which is believed to engender broils.

Other acts apparently harmless are prohibited in order to prevent extravagance. The most curious example of this is the provision forbidding the use of hired carriages to take voters to the polls.[226:4] Such a rule may seem unnecessary; but before the Act of 1883, by which it was enacted, thousands of pounds were said to have been spent in certain cases for the conveyance of electors. The Act does not forbid the use of carriages, but only of hired ones; and the result is that the private carriages and motor cars of wealthy partisans, sometimes blazoned with ancient armorial bearings, are placed at the disposal of the candidate. In fact in estimating the chances of an election one constantly hears that the Conservative has the advantage of a larger number of carriages.

But by far the most systematic effort to restrain extravagance at elections is found in the provisions that prescribe on the one hand the objects of expenditure, and on the other its total amount. A schedule to the Act of 1883 enumerates [227]the objects for which expenses may be legally incurred, and the first part of the schedule deals with the persons who may be employed. These are: one election agent;[227:1] a polling agent to watch the voting at each polling station; and clerks and messengers in proportion to population, the allowance being somewhat more liberal in counties than in boroughs on account of the greater area of the constituency. The act provides that, except as authorised by this schedule, no person shall be employed for pay;[227:2] and that no paid employee shall vote.[227:3] It may be noticed that among the list of persons who can be employed, canvassers are not mentioned, and hence the use of paid canvassers is illegal.[227:4] Now, as canvassing, that is the personal solicitation of votes, is by far the most effective part of the work done at an election, each candidate is always assisted by an army of volunteers. Wherever possible he is also helped by the agents of other constituencies, or of distinct associations, who, not being paid by him, and in fact, receiving no additional pay for their services on this occasion, are not within the prohibition of the law.

The other expenditures authorised by the schedule are printing, advertising, stationery, postage, and the like; public meetings; one committee room for every five hundred electors;[227:5] and miscellaneous expenses not exceeding two hundred pounds for matters not otherwise illegal. The candidate is also allowed to incur personal expenses for travelling and hotel bills;[227:6] and, finally, there are the charges of the returning officer for the cost of erecting polling booths, the payment of persons on duty thereat, and the other expenses attending the election.[227:7] These last charges are divided between the candidates and they are by no means [228]small, as may be seen from the fact that at the general election of 1900 they amounted, for the whole United Kingdom, to £150,278 10s. 11d., or nearly one fifth of the whole expense incurred.[228:1] The National Liberal Federation has, indeed, repeatedly urged in its programme that such charges ought to be defrayed by the state, instead of being a burden upon the candidates.

In order to reduce the cost of elections, Parliament has not only enumerated the objects for which money may be used, but has also set a maximum limit to the amount that may be spent.[228:2] In the case of boroughs this is fixed at three hundred and fifty pounds if the registered electors do not exceed two thousand, with an additional thirty pounds for every thousand electors above that number. In the counties the scale is somewhat higher, six hundred and fifty pounds being allowed where the registered electors do not exceed two thousand, with sixty pounds for each thousand electors more.[228:3] These sums do not, however, represent the total cost, for they include neither the personal expenses of the candidate to an amount of one hundred pounds, nor the charges of the returning officers.

The rules in regard to election expenses are furnished with sanctions of the same nature as those attached to corrupt practices, although the penalties are less severe. In addition to the criminal punishments that may be inflicted, it is provided that a candidate, or his election agent, who violates those rules shall be guilty of an illegal practice;[228:4] and that if a candidate is guilty, personally or by his agents, of an illegal practice (from the consequences of which he has not been relieved as heretofore described) he shall lose his seat, and cannot be elected by the same constituency during the life of that Parliament.[228:5]

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It is one thing to make elaborate regulations about election expenses, and it is quite a different thing to insure their observance. The device adopted for this purpose in England is that of requiring each candidate to appoint an election agent, who is responsible for the disbursements. Except for the personal expenses of the candidate, to an amount not exceeding one hundred pounds, no payment of election expenses can be made by the candidate, or by any person on his behalf, except through the election agent,[229:1] and no contract for any such expenses is valid unless made by him.[229:2] Within thirty-five days after the election the agent must give to the returning officer an account of all his payments, and of all sums that he has received from the candidate or any one else, for the purposes of the campaign; and the candidate must certify that the account is true to the best of his knowledge and belief.[229:3]

The class of person selected for this duty is not only a matter of great importance to the candidate, but upon it depends also in large measure the purity of elections. A candidate may act as his own election agent, but this is rarely done. Usually, though by no means invariably, he takes the paid secretary of the local political association, who has the advantage of knowing the constituency better than any one else; and the Practical Manual for Parliamentary Elections, issued by the Conservative party, advises that course.[229:4] Rogers, on the other hand, in his work on Elections,[229:5] warns candidates that it is unwise to select such persons, because "when this is done attempts are frequently made to saddle the candidate with responsibility for the acts of the association and its members." "A further danger," he remarks, "arises in such cases of the election expenses being confused with or concealed under registration or other expenses of the association." With the modern organisation of parties a confusion of that kind is liable to occur in any event; and perhaps it is not so much dreaded by candidates as the [230]author of the text-book on elections might imply. In spite of any dangers that may lurk in the practice, it is not only common, but apparently growing; and in fact the occupation of a paid secretary and agent has developed into a profession whose characteristics will be discussed in the chapters on party organisations.

Formerly the validity of elections was decided by the House of Commons itself, with the natural consequence that politics were a large factor in the result. To such an extent was this true that the fall of Sir Robert Walpole was brought about by a hostile vote on an election case. In 1770 the matter was placed by statute in the hands of select committees of the House; but that did not put an end to political bias, and finally in 1868, the trial of election petitions, whether filed on the ground of a miscount, or of corrupt or illegal practices, was committed to a judicial body. The tribunal now consists of two judges of the King's Bench Division of the High Court of Justice, selected by the other judges of that division.[230:1]

A defeated candidate, or any voter, may present to the court a petition stating the grounds on which he claims that the election is invalid, and the case is then tried, witnesses are examined, and costs are awarded, according to the usual course of judicial proceedings. The decision takes the form of a report to the Speaker of the House of Commons, but it is really a final judgment upon the questions involved, for if the court finds that corrupt or illegal practices have taken place, the report has the effect not merely of avoiding the election, but of subjecting the candidate, and any guilty persons, to the political incapacities which those practices entail.[230:2]

So far as the reduction of the cost of elections is concerned, the English method of dealing with the subject has certainly been successful. According to the returns laid before Parliament, the total aggregate expenses incurred by candidates throughout the United Kingdom at the general election of [231]1880—the last that took place before the Corrupt Practices Act of 1883—was £1,736,781; at the next election in 1885 it fell to £1,026,645, and on every subsequent occasion it has been less than that. In 1900 it was £777,429, which is not far from the average in these days. The expense of English elections is, however, far from small to-day. In 1900 the average cost for the United Kingdom in constituencies that were not uncontested was four shillings and four pence, for every vote cast.[231:1]

Moreover the returns undoubtedly do not in every case include all that is spent. A recent series of letters to The Times, under the title "The worries of a parliamentary representative," throws light on this subject.[231:2] It opened with a letter from the member for a Welsh borough complaining that about a month after he had signed the return of his election expenses he received a note from his agent in regard to claims by workers at the election; that upon his refusal to pay any such claims in violation of the Corrupt Practices Act the agent wrote asking whether he would or would not fulfil the obligations made on his behalf during the election. His continued refusal, the member declared, had made him unpopular with many of his former supporters, who were now trying to prevent his renomination. In answer to this charge the agent, in a letter to The Times, explained that all he had meant was that the member "should find some way—legal, of course—of expressing his gratitude to men who had worked splendidly in his cause;" and he added that this way had eventually been found, its name being "undoubted distress." In his reply in The Times the member denied that his relief of distress in the constituency had any relation to the election, or was a mode of expressing gratitude to men who had worked for him. It would be rash to assert that indirect means of rewarding party workers are not often found; and in fact another election agent stated in a letter to The Times[231:3] in [232]the course of the foregoing controversy, that promises of such a nature, made in behalf of the candidate, were unfortunately too common.

Apart from occasional acts involving direct violations of the Corrupt Practices Act by the candidate himself, the statute has holes through which others can pass so readily that an election agent has been known to speak of the return of expenses as largely a farce. In fact the elaborate provisions of the law can easily be evaded if the candidate and his agent have a mind to do so. If they only keep their eyes shut tight enough, and are sufficiently ignorant of what goes on, it is very difficult to connect them with corrupt or illegal practices in such a way as to avoid the election.[232:1] An agent from another constituency may pay the railway fares of out-voters. The Primrose League, or some other body, may give picnics, teas and what not, which would be corrupt treating if done by the candidate, but for which he is not held responsible. The brewers may furnish free beer in public houses where voters are collected before going to the polls, and yet the candidate has done nothing to forfeit his seat. Nor is this an imaginary danger; for, with the introduction of what is known as the tied-house system, the publicans have come under the control of the great brewing establishments, which have to-day a huge stake in the results of parliamentary elections. Agency, in short, is a very difficult thing to establish in such cases. As Rogers, who devotes a whole chapter to the subject, remarks: "It is to conceal agency, and so to relieve the candidate from the consequences of corruption practised on his behalf, that efforts of unscrupulous men engaged in the conduct of an election have been generally directed, and it is not too much to say that an election inquiry has been more frequently baffled from a failure in the proof of agency than from all other causes put together."[232:2]

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Then there is the uncertainty when the election period begins, and hence what payments must be included in the return of election expenses. The Act of 1883 defines a candidate, unless the context otherwise requires, as one who is nominated or declared to be such on or after the issue of the writ or the dissolution or vacancy in consequence of which it is issued.[233:1] But clearly this does not mean that a corrupt act committed earlier will not avoid the election. On the contrary it is settled by repeated decisions that a man may become a candidate, and his election expenses may begin, before that date;[233:2] although it is impossible to lay down any hard and fast limit of time.[233:3] A great deal must depend on the nature of the expense itself. Registration, for example, is something entirely distinct from the election, and the cost of registration, whenever incurred, need not be included in the return of expenses.[233:4] On the other hand proof of the actual purchase of a vote at any time would certainly cost the candidate his seat.[233:5] Between these two extremes there are a great many acts whose character is affected by the proximity of an election. A subscription to a local political organisation, made when the dissolution was impending, has been held to be a part of the election expenses,[233:6] when it would not be so under other circumstances;[233:7] and in the same way the question whether a gift of money or food to relieve distress in the constituency is or is not made with a corrupt purpose of influencing votes may depend upon the expectation of an election in the near future.[233:8]

As general elections in England come at irregular intervals, and at short notice, it is common to select candidates without regard to the prospect of a dissolution, sometimes years before it occurs; and in fact the sitting member, having [234]a presumptive right to stand again, is regarded in the light of a permanent candidate. Under these conditions it is the habit in most places for a candidate, who can afford it, to ingratiate himself with his constituents by subscribing liberally to public and charitable objects; and since a payment to be corrupt must be made for the purpose of influencing particular voters[234:1] subscriptions of this kind are not deemed corrupt; nor, unless given near the time of an election, are they election expenses or illegal payments.[234:2] The practice is called nursing a constituency, and it takes a great variety of forms, from a subscription for a cricket club to the founding of a hospital. The sums expended vary very much with the nature of the place and the wealth of the candidate, and no one knows how large they are in the aggregate, because men do not state publicly what they give in this way; but as far as one can form an opinion, it would appear that such gifts by a member of Parliament commonly amount to a number of hundred pounds a year. It is obvious that the custom of nursing, combined with the uncertainty about the time when the election period begins, opens a door to abuse.

Another difficulty in a strict enforcement of the election laws is connected with the proof of the offence. A witness cannot, indeed, refuse to give evidence on the ground that it will incriminate him, for the law provides that he must testify; and if he tells the truth he is entitled to a certificate of indemnity, which protects him against prosecution.[234:3] But the facts that tend to establish bribery, for example, are directly known, as a rule, only to persons who have the strongest motives for concealing them; and the same thing is true to a greater or less extent of other breaches of the [235]election law. It is clear, therefore, that if the offence must be proved by legally competent evidence beyond reasonable doubt, as in criminal cases, an election procured by improper means may well stand, just as many criminals escape punishment; and this brings us to another question, that of the efficiency of the election courts.

The system of sending petitions for trial to a couple of judges selected by the bench itself has provided a court as free as any human tribunal can be from the party bias that always affects the decisions of such questions by a legislative body.

But no institution is altogether without defects. A select committee on the subject of election petitions reported in 1898 that the grievances alleged to exist in the present system related to delay, to the expense involved, and to the lack of security for costs in favour of the successful party; and it recommended some changes in procedure to improve these matters.[235:1] The expense of an election trial is undoubtedly great—sometimes thousands of pounds—and since the charges are borne by the litigants, and a favourable judgment involves a fresh election, while the trial itself is likely to entail a certain amount of unpopularity, it is not surprising that a defeated candidate hesitates to file a petition.

With all respect to the select committee of the House of Commons, it would seem to a foreign observer that the defects it reported are not the only ones to be found in the existing system. The bringing of election petitions is discouraged not only by the cost involved, but also by uncertainty both in the result and in the grounds on which it will be based. A candidate may feel convinced that his defeat was due to corruption practised by his opponent, by the publicans, and by the local political organisation, and yet the court, finding some of these charges unproved, may think it unnecessary to inquire into others because much graver questions are decisive of the case; the graver matter being [236]that, contrary to the provision forbidding "marks of distinction," the defendant's agent furnished his supporters with cards to wear in their hats.[236:1] Where serious corrupt practices are charged, the election may be set aside on account of the payment of a railway fare to an out-voter.[236:2] And in a case where the facts stated by the court portrayed a bacchanalian orgy in the form of a drunken procession through the streets, headed by the candidate himself in a barouche, with some direct evidence that he offered free drink to the crowd, the judges found that there was no sufficient evidence of treating; but avoided the election on account of the payment of two shillings for conveying a voter to the polls.[236:3]

Such results are thoroughly unsatisfactory for both parties; to the defeated party because he loses his seat; to the successful party because he does not want to have an election, which he believes to be vitiated by gross corruption, set aside on account of a trivial breach of the law. The main difficulty seems to lie in the attitude of mind of the judges. They require a degree of proof of corrupt intent, which is very proper in criminal cases, but which would seem to be out of place in an election petition. On a charge, for example, that an agent of the candidate, to whom pay was promised, had voted, it was held necessary to prove an actual express promise of payment, and not such an implied promise as would support a civil action.[236:4] So, also, where a candidate named Lowles caused to be distributed among the poor, some time before an election, his own visiting cards exchangeable for food, and it was announced in a newspaper that gifts of food had been arranged by the Unionist candidate, one of the judges said: "I cannot bring myself to believe in the circumstances of this case that the motive of Mr. Lowles in giving away the tickets, months before any election was [237]imminent; was to influence voters."[237:1] Nor is this an isolated instance. Where soup and coal tickets were distributed largely at the expense of a candidate, who reminded voters, when the election came on some months later, that he had given away soup, the court said that "although . . . it would have been more prudent for the Respondent had he kept aloof from the immediate distribution of the relief, we cannot infer, from the evidence before us, that his motive or conduct was corrupt."[237:2]

The difficulty seems to lie to some extent in the fact that a report of corrupt or illegal practices by the court involves not only the setting aside of an election, but the same loss of political rights as would follow upon a conviction;[237:3] and, hence, the judges tend to require the kind of evidence that would support a criminal prosecution. Moreover, they seem to find it incredible that a candidate for Parliament can be guilty of the grosser kind of offences. One feels this very strongly in reading the opinions in election cases.

If the present system of trying election petitions is not a complete success, it is nevertheless certain that the old electoral abuses have been very much reduced. There is a current impression both in England and elsewhere that the bribery of voters in Great Britain has been entirely rooted out. But any one familiar with English elections knows that this is by no means altogether true.[237:4] That the cases where gross corruption occurs are not made public by means of election petitions is due, partly to the reluctance to bring such petitions which has already been pointed out, and partly to the fact that where bribery is extensive both sides are usually guilty. Bribery in England is disappearing. In by far the greater part of the constituencies it does not exist, and the elections are, on the whole, pure; but in a [238]few places the old traditions still persist. These are mostly boroughs in the South of England containing a considerable number of ancient freemen, among whom corruption is sometimes widespread. The writer has heard the number of such places estimated by persons in a position to know the facts at a score or two dozen. The names of several of them are well known to every one who takes an active part in electoral work; but even in these boroughs the increase in the number of voters has lowered the price paid for votes, and in some of them the practice is slowly dying out. It is only fair to add that it does not receive any countenance or encouragement from the central authorities of the great political organisations.

FOOTNOTES:

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CHAPTER XI

THE HOUSE OF COMMONS

Disqualifications, Privilege, Sessions

No property qualification is now required for sitting in the House of Commons, and any male British subject may be elected, who is not specially debarred.[239:1]

Infants are excluded both at Common Law, and by statute, although this rule has been disregarded in several notable instances, the best known cases being those of Charles James Fox and Lord John Russell who entered Parliament before they came of age. Incurable insanity was a disqualification at Common Law, and so by statute is confinement in a lunatic hospital. But it would seem that a temporary lunatic, if at large, is not incompetent to sit and vote.

Peers are also excluded; and this is true even of those Scotch peers who, not having been chosen among the sixteen representatives of the peerage of Scotland, have no right to sit in the House of Lords. There is one exception, however, to the rule that peers are ineligible to the House of Commons, for a peer of Ireland, who is not selected to represent that kingdom in the House of Lords, may sit for any county or borough in Great Britain, but not for an Irish constituency. The rule excluding peers is sometimes a hardship on a rising young man transferred by the death of his father from the active battlefield of politics in the House of Commons to the dignified seclusion of the House of Lords. But it has had, on the other hand, some effect in preventing the House of Commons from absorbing [240]all the political life of the country, and has thus helped to maintain the vitality of the House of Lords. Among the peers there have always been men of great national authority who would have preferred to sit in the other House. It is safe to say that in the year 1900 two of the statesmen who possessed the greatest influence with the people—Lord Salisbury and Lord Rosebery—would have been in the House of Commons had it not been for the rule excluding peers.

The clergy of the Roman Catholic Church and the Church of England, and ministers of the Church of Scotland, are disqualified by statute;[240:1] but these provisions do not include dissenting ministers; and it may be added that at the present day a clergyman of the Church of England may by unfrocking himself remove his disqualification.[240:2]

As in most other countries, there are in England rules disqualifying persons who, by assuming certain relations with the government, or by misconduct, have rendered themselves unfit to serve; such are government contractors, and holders of pensions not granted for civil or diplomatic services; bankrupts,[240:3] and persons convicted of treason or of felony, or guilty of corrupt practices.

The exclusion of permanent officials has already been discussed; and it will be remembered that by the compromise effected in the reign of Queen Anne the holders of certain specified offices, or of any offices created after Oct. 25, 1705, are absolutely disqualified; while a member accepting any other office from the Crown loses his seat, but can be reëlected.[240:4] It will be remembered, also, that by later statutes or by custom all holders of civil offices not distinctly political [241]are now excluded from the House of Commons; and so are the judges of the higher courts, and most of those in the lower ones.

Now the offices held by ministers are either old offices within the meaning of the Act of Anne, and therefore compatible with a seat in Parliament, or new offices that have been taken out of the rule by special statutes passed usually when the office was created. This is not, indeed, universally true; for by special provision of statute only four of the five secretaries of state, and four of their under-secretaries, can sit in the House of Commons at one time. With that limitation every minister is capable of sitting; but on his appointment he loses his seat, and must go back to his constituents for a new election. The last rule, however, like every other, has its exceptions. The under-secretaries of state occupy old offices, but as they do not accept them from the Crown they are not obliged to undergo a fresh election on their appointment; and they are not, in fact, in the habit of doing so.[241:1] The same privilege has been extended by statute to the Financial Secretary of the War Office. There is, indeed, no self-evident reason to-day why it should not be extended to all the ministers. The original fear of influence on the part of the Crown no longer applies; and the only important effect of the rule is that if a new cabinet comes into power when Parliament is in session, all business there has to be suspended while the ministers are seeking reëlection. A number of attempts have been made to do away with the rule, and they have been supported by very eminent statesmen, but they have been constantly defeated, mainly on the ground that a constituency, having elected a man while he was in an independent position, has a right to reconsider its choice when he assumes the burden of public office.[241:2] Such reasoning is characteristic of English political life. It either proves nothing or it proves too much, for if it is sound, the same principle applies with quite as much force to the [242]under-secretaries, and with a great deal more force to the Speaker. This objection to a change was avoided, while a part of the practical inconvenience was removed, by a provision in the Reform Act of 1867 that a person who has been elected to Parliament since he became a minister shall not vacate his seat on account of accepting a different office in the ministry.[242:1]

Formerly there were a number of other qualifications and disqualifications that have now been swept away, such as the requirement of ownership of land, and of residence in the constituency,[242:2] and the provision for oaths and declarations intended mainly to exclude Roman Catholics. It is curious that after the disabilities of the Roman Catholics were removed in 1829 the oath continued to be an impediment to the admission of Jews and atheists, although it had never been aimed at them. In each case the law was changed, but only after the matter had been brought somewhat violently to the attention of the House. The last religious impediment was taken away in 1888 at the conclusion of the unseemly wrangle with Mr. Bradlaugh.

A disqualification not only prevents a person from sitting in the House, but is also the only way in which he can voluntarily get out of it. A man cannot resign his seat, and hence the regular method of accomplishing the same result is the acceptance of a disqualifying office. Two or three sinecures are retained for that purpose, the best known being the stewardship of the Chiltern Hundreds, a position which the member desiring to leave Parliament applies for, accepts, and immediately gives up. The place is, in fact, not an office, but an exit. It may be added that the House has power, for reasons satisfactory to itself, to declare a seat vacant, and to expel a member.

It is unnecessary to say much here about the privileges [243]of the House of Commons. Most of them are matters of historical rather than present political significance. At the opening of each new Parliament, the Speaker, after being confirmed by the Crown, demands the ancient and undoubted rights and privileges of the Commons, the most important of which are freedom from arrest and liberty of speech. The freedom from arrest, which is enjoyed by members during the session and forty days before and after it, does not protect a member from the consequences of any indictable offence, or of contempt of court; nor in civil actions does it now prevent any process against him except arrest.

Freedom of speech was not acquired without a long struggle; but since the Bill of Rights of 1689 it has been a settled principle that "the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament." A man cannot, therefore, be prosecuted criminally, or made civilly responsible, for anything he has said in the House; although the House itself may punish what it deems an abuse of the forms of debate.

Curiously enough the privilege of free speech in the House does not necessarily include the right to publish that speech outside. This matter has had an eventful history. Until about one hundred years ago the House attempted to prevent the report of its debates in the public press, and in the course of the struggle became entangled in the memorable controversy with Wilkes. The question has never been dealt with by legislation, and it is still assumed that the House might declare the publication of its debates a breach of privilege, and put a stop to it. But the struggle came to an end because the House changed its mind. Instead of objecting to the publication of the debates it came, in time, to desire it; and whereas it had attempted earlier to keep out reporters, it now strove to protect them.

The privilege of free speech covered only words uttered in the House and matter printed for circulation among the members alone. It did not extend to the printing of a speech, [244]or to documents intended for general distribution even though issued by order of the House itself; and in its later attempt to insist upon its right of publication, as in its earlier effort to insist upon its right to prevent publication, the House came into conflict with the judiciary. In the case of Stockdale v. Hansard[244:1] the Queen's Bench held that a publisher might be liable in damages to a person injured by defamatory matter contained in a report made to the House of Commons, although the printing was ordered by the House itself. The question was then set at rest by a statute[244:2] providing that publication by order of either House should be a defence to any civil or criminal proceedings. But this has no effect upon the newspapers, and although a fair account of a debate published in the ordinary course of reporting is not in itself libellous, even if it contain defamatory matter, yet a faithful report of a speech published with a malicious intent is still libellous, and it is never safe to go to a jury on a question of intent.

If the attitude of the House of Commons toward the publication of its debates has changed entirely, it is because its relation to the public has undergone a complete transformation. Every member of Parliament to-day is seeking for the approbation of his constituents, and far from dreading publication of what he says in the House, his effort is rather to attract attention to himself by the reports in the local press of his remarks in Parliament. Moreover, the House as a whole depends more than ever upon popular support; and one may find a striking illustration of the way the same thing produces different political effects under different conditions by observing that while the cabinet would lose authority if its discussions were not secret, Parliament would suffer if its debates were not public.

Sir William Anson remarks that "The Privileges of Parliament, like the Prerogative of the Crown, are rights conferred by Law, and as such their limits are ascertainable and determinable, like the limits of other rights, by the Courts [245]of Law."[245:1] This principle has not always been accepted by the House, which has on several occasions come into collision with the courts; but the latter have always maintained, and maintained successfully, that when a question involving a privilege of the House comes before them for decision, it is their duty to ascertain whether the privilege exists or not, and to determine its effect upon the case before them. They have further maintained that they must decide the question for themselves, and that a claim to the privilege on the part of the House is not conclusive.

In one respect the authority of the courts is incomplete; for the House has a right to order a man committed to prison for contempt, and the question what constitutes a contempt is so far within the discretion of the House that the court will not order the prisoner set at liberty on habeas corpus where the return to the writ simply states that he is committed for contempt by order of the House. Referring to this subject, Professor Dicey says: "The powers exercised by the Houses, and especially in practice by the House of Commons, make a near approach to an authority above that of the ordinary law of the land."[245:2] Such a power, however, is exceedingly unlikely to be used in any dissension with the courts to-day; and if it were used, the courts would be almost certain to win, because the commitment by the House terminates with the session.

There remain to be considered only the methods of calling Parliament together, and of putting an end to its labours.

Parliament can be summoned and dissolved, and its sessions can be opened and closed by the Crown alone, the only legal restraint upon the arbitrary power of the sovereign in the matter being the Act of William and Mary, which provides that a new Parliament shall be summoned within three years after a dissolution.[245:3] This statute is now, of course, unnecessary; and, in fact, the same proclamation [246]which dissolves one Parliament always announces the issue of writs for the election of another. If Parliament is not dissolved by the Crown, its term expires at the end of the seven years prescribed by the Septennial Act of 1716; but, as a matter of fact, Parliament never dies a natural death, and if its life is not cut off earlier, a dissolution takes place shortly before the end of the seven years.

Until 1867 the death of a sovereign always wrought a dissolution of Parliament; but this rule, which depended more on ancient theory than on modern convenience, was abolished by the Reform Act of that year.

While a session can be brought to a close only by prorogation, either house may adjourn for any period at its pleasure, subject only to the right of the Crown to terminate an adjournment of more than fourteen days. Although a prorogation is made by the Crown, and adjournment by the House itself, practically both are virtually in the hands of the ministry to-day, and the really important difference between them is that a prorogation terminates all unfinished business, while an adjournment does not. For that reason a government which has business that it cannot put through during the regular session, and does not want to abandon, will sometimes resort to an adjournment instead of a prorogation. This was done, for example, in 1902 in order to complete the stages of the Education Bill in the autumn, and again in 1906 chiefly in order that the House of Lords might consider the pending government measures. The wisdom of the rule that the close of the session puts an end to all measures that have not finished their course in both Houses is not so clear in the case of Parliament, as in that of legislative bodies where a vast number of measures are brought in by irresponsible members. In such bodies the rule may result in killing a great many bills that had better die, but in Parliament this is far less true. Almost all important legislation relating to public affairs is now introduced by the ministers; and every year measures to which both they and the House have devoted much time [247]and thought are killed by the close of the session. A day comes when the leader of the House arises and states what bills he is obliged by lack of time to drop, a process commonly known as the slaughter of the innocents. The necessity would seem to be unfortunate.

In fact the House of Commons spends so much time in debating each bill that it gets through its work slowly; and whereas many other popular chambers are reproached with legislating too much, Parliament is accused of legislating too little. Moreover the House of Commons suffers less from an excess of the easy good nature, which, in America at least, is the parent of many ill-considered and unwise laws; yet the present rule does act as a serious check upon the persistent member with a mission, and perhaps it kills off, on the whole, more bad bills than good ones.

There is, however, a class of measures on which the rule, if carried out strictly, would have a distinctly injurious effect. These are the private bills—a term applied to projects which relate to private or local interests, such as bills for the extension of a railway, or for authority to supply water, gas, tramways and the like. Legislation of that kind is, as we shall see, conducted in Parliament by a semi-judicial process, and as it is highly expensive for both sides, it would be unreasonable that the closing of the session, for reasons quite unconnected with these matters, should oblige the promoters and objectors to incur the cost of beginning proceedings all over again. In practice this seldom happens, for in the few cases where such a bill cannot be completed before the end of the session it is usually suspended by a special order providing that the stages it has already passed shall be formally taken at the opening of the next session, so that the bill really begins its progress again at the point it had already reached. When, as in 1895, Parliament comes to an untimely end in the midst of a session, a general provision of this kind is made suspending all unfinished private bills, and thus a great deal of unnecessary hardship is avoided.

FOOTNOTES:

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CHAPTER XII

PROCEDURE IN THE HOUSE OF COMMONS

The House, its Rules and Officers

To the traveller who cares for history, either of the past or in the making, there is no place more interesting than the long sombre building with a tower at each end, that borders the Thames just above Westminster Bridge. Apart from occasional meetings at other places during the Middle Ages, the Mother of Parliaments has sat close to this spot for more than six hundred years. Except for old Westminster Hall, almost the whole of the present structure was, indeed, built after the fire of 1834. Yet if it contains little that is really venerable, save memories, the smoke of London has given to the gothic panelling of the outer walls the dignity of apparent age. The interior has a more modern air, for it is not only well planned with a view to its present use, but in some parts it expresses with peculiar fitness the purposes it serves. From opposite sides of the large central lobby corridors lead to the two Houses, but the hall of the Lords seems designed for ornament, that of the Commons for doing work. The House of Commons is seventy-five feet long by forty-five feet wide and forty-one feet high, panelled in dark oak, and lit by long stained glass windows and sky-lights in the ceiling. From the main entrance a broad aisle runs the whole length of the chamber, with the clerks' table filling nearly the whole upper end of it, and beyond this a raised chair for the Speaker with a canopy over his head. Facing the aisle on each side long rows of high-backed benches, covered with dark green leather, [249]slope upward tier above tier to the walls of the room; and through them, at right angles to the aisle, a narrow passage, known as the gangway, cuts across the House. There is also a gallery running all around the room, the part of it facing the Speaker being given up to strangers, while the front rows at the opposite end belong to the reporters, and behind them there stands, before a still higher gallery, a heavy screen, like those erected in Turkish mosques to conceal the presence of women, and used here for the same purpose. The structure and arrangement of a legislative chamber are not without influence upon the mode of transacting business. The whole number of seats in the House of Commons is far from large, not large enough for all the members. The two side galleries are reserved for them, but they are very narrow, containing only a little more than one hundred seats apiece, and although they are occupied on very crowded nights, they are practically useless for any one who intends to take part in debate. A small portion of the space under the strangers' gallery is also appropriated for visitors, and the rest of the floor contains only three hundred and sixty seats, enough for little more than one half of the six hundred and seventy members of the House. During the greater part of the time even those seats are not filled, for they are adapted only for the transaction of the business of the House. They are merely benches with no means for writing. If a member wants to carry on his correspondence, he goes to the library, or to one of the other rooms near by. In the House he can only speak, listen, and applaud.

On a great occasion, like the introduction by Mr. Gladstone of his first Home Rule Bill, every seat in the House is taken. At the opening of an ordinary sitting, also, while questions to the ministers are asked and answered, and at a time when the leaders of the two great parties are speaking about a measure of general interest, most of the seats on the floor are occupied; but as soon as the lesser lights arise the members begin to drop off, going to the [250]lobby, the library, the smoking-room, the dining-room, or the terrace. Nor is it always the lesser lights alone that speak to nearly empty benches, or rather to the reporters' gallery. The writer well remembers, on the first occasion when he saw the House, now more than twenty years ago, that Sir William Harcourt, then Home Secretary, made a speech an hour and three quarters long upon a bill which he had brought in to reform the government of London, and that, during a great part of the time, the only persons present besides the officers of the House, were the Lord Mayor, the Chairman of the Metropolitan Board of Works, and a casual who sat on one of the upper benches behind the minister. This is the smallest number of members the writer has ever beheld in the House, but to see only a score or two on the benches is by no means unusual. Many more, however, although not within ear-shot, are potentially present. Forty members constitute a quorum, but if any one suggests that they are not there, electric bells are rung all over the building, summoning the members into the House, a two-minute sand-glass is turned, and the members are not counted until it has run out. The same process takes place whenever a division—that is a vote by count—is challenged.

The small size of the chamber makes it easy to hear an ordinary tone of voice; and this, coupled with the still smaller attendance, discourages flights of oratory or popular eloquence, and gives to the debates a businesslike and almost conversational character. Moreover, the very fact that members do not stay in the House if not interested in what is being said, prevents the distracting hum of conversation which is sometimes annoying in other representative bodies. All this makes the spectator feel that the members are present for public business and nothing else. Except for occasional scenes enacted for the most part by the Irish members, the proceedings are orderly, and respect for the dignity of the House, and the authority of the chair, are almost universal.

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Even the arrangement of seats in the House is not without its bearing upon political life; and although a small matter, it affords another illustration of the principle that an institution which, instead of being deliberately planned, is evolved slowly, will develop in harmony with its environment, or force its environment into harmony with itself. The front bench at the upper end of the aisle, close at the right hand of the Speaker, is called the Treasury Bench, and is reserved for the ministers; the corresponding bench on the other side being occupied by the former ministers of the party now in Opposition. Behind these two benches sit for the most part men whose fidelity to their respective parties is undoubted, members whose allegiance is less absolute generally preferring seats below the gangway on either side.

Of course, on a crowded night members cannot always find seats that express their exact sentiments. Still, the arrangement is fairly well preserved, especially in the case of prominent men, with whom it is sometimes a matter of no little consideration.[251:1] Any group that desires to emphasise its freedom from regular party control always sits below the gangway. The Fourth Party, for example, sat in 1884 below the gangway on the Opposition side, the Labour Party has sat there since the election of 1906, and the same position is occupied by the Irish Nationalists under every ministry; while the Liberal Unionists at the time of their breach with Mr. Gladstone over his first Home Rule Bill took up their seats below the gangway on the government side. The House at a great debate resembles a martial array, with the leaders face to face in the van, supported by their troops in ranks behind them. The minister leans over the table, and points in indignation or in scorn at the "honourable gentlemen opposite." All this expresses the idea of party government, and lends a dramatic effect to parliamentary warfare.

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Nowhere in the whole range of British institutions does the interaction of law and custom baffle any attempt at logical description so much as in the case of procedure in Parliament. The cabinet, which is becoming more and more exclusively the motive force in all important legislative action, is not, indeed, so completely unknown to the rules of the House as it is to the statute-book; and yet a study of the rules alone would give but a faint idea of the authority of the Treasury Bench. On the other hand, it is impossible to understand how the government is attacked, and how it carries through its plans, unless one is familiar with the rules themselves. At the present day the discussions connected with appropriations, for example, turn little on financial questions, and are used mainly as an opportunity for criticising administrative conduct; but to understand how this is done, and to what extent the government has sought to limit the practice, a knowledge of the process of granting supply is essential.

The actual working of the House of Commons involves three problems: first, the regular forms of procedure; second, the action of the cabinet and of private members, operating subject to those forms; and third, the methods by which the cabinet maintains a control over its own supporters, and through them over the House itself. To deal with these three matters together would involve so much confusion, that it has seemed better to take up one of them at a time. This chapter and the two succeeding ones are, therefore, devoted solely to the organisation of the House and the forms of procedure on public matters, the relation of the government to the work of the House being described in the chapters that follow, while the machinery for keeping the majority compact and under the lead of the Treasury Bench will be dealt with at a later stage under the head of "Party Organisation in Parliament." Legislation for private and local objects, which has had a peculiar and instructive development, is treated in a chapter by itself.

Before describing the organisation and procedure of the [253]House it may be well to explain the method of voting, because frequent reference must be made to it, and the terms are technical. After stating the question to be voted upon, the Speaker, or the Chairman, calls in the ordinary way for the ayes and noes. According to the apparent preponderance of voices he then says, "I think the ayes (or noes) have it." If no objection is raised, he adds a moment later, "The ayes (or noes) have it," and the vote is so recorded. If, on the other hand, any of the minority doubt the result, or wish the numbers and names recorded, they cry out contrary to the Speaker, "The noes (or ayes) have it." Whereupon the Speaker directs strangers to withdraw (except from the places reserved for them), the division bells are rung all over the building, the two-minute sand-glass is turned, and when it has run the doors are locked, and the question and vote are repeated in the same way.[253:1] If the Speaker's opinion of the result is again challenged—and this is almost always done—he orders a division of the House, that is, he directs the ayes to go to the right, the noes to the left; and he appoints two tellers from each side, one of each pair to count the ayes, and the other the noes, in order to check one another. The ayes then go into the lobby that runs parallel to the House on the Speaker's right, the noes into that on his left; and until 1906 every member in the House, except the Speaker, was obliged to go into one lobby or the other, unless he was physically disabled, when his vote might be counted in the House.[253:2] The tellers, standing at [254]the door of each lobby, count the members as they pass between them in returning to the House, while clerks at tables in the lobbies take down their names.

Ever since 1836, when the method of taking a division assumed its present form, the names of members voting on each side have been printed and preserved, although curiously enough these division lists are not included among the parliamentary papers. The process may seem a clumsy way of counting votes, but under the system in force until 1906 it took, on the average, only twenty minutes, and under the new system, whereby the recording of names begins when the sand-glass is turned, it takes not much more than half as long. This is less time than would be consumed by a roll-call, and the system has been found so satisfactory that it was adopted by the House of Lords.

Until recently a division was the only means, apart from an oral vote, of taking the sense of the House; and any one member could force a division by challenging the result of an oral vote, or rather any two members could do so, for a division cannot take place unless two tellers can be found for each side. In 1888, however, as a part of the movement to prevent obstruction and waste of time, the Speaker or Chairman was empowered, if he thinks a division frivolously or vexatiously claimed, to call upon the ayes and noes to rise in their places. He can then count them, and declare the result;[254:1] but this is in fact rarely done.

The names of the men selected as tellers indicate the political nature of the vote. If the government intend to treat the question, I will not say as one of confidence, (for there are cases of secondary importance where a ministry may be beaten without feeling that they have lost the confidence of the House and must resign), but if they intend to treat it as one where an adverse vote is a defeat for them, if they desire to rally their followers to vote solidly upon it, then the government whips are appointed tellers. If in the same way the Opposition want to treat it as a party [255]question, their whips are appointed tellers upon the other side. But if on one side or the other this is not the case, private members who have made or seconded the motion or taken an active part in debate are selected by the chair as tellers, and if so any member may, without disloyalty to his party, vote according to his own unaided convictions.

Like other legislative bodies the House of Commons has printed rules, and the most important of these, the standing orders, are published every year among the parliamentary papers. But the standing orders are by no means a code of procedure, for they cover only a fraction, and so far as they relate to public business a small fraction, of the subject.[255:1] The procedure rests essentially upon custom, to be gathered in part from precedents and the rulings of Speakers, in part from unrecorded tradition known by personal experience. Many standing orders have, in fact, been adopted from time to time in order to modify or forbid an existing practice, and hence their effect is mainly negative. No particular formality is required for the adoption of these rules, but in 1902, when extensive changes were made, the proposals were read several times, and were, in fact, submitted to a procedure similar to that for the enactment of a bill.[255:2]

The standing orders differ from the rules of legislative bodies in some other countries in two important respects. In the first place they do not have to be adopted afresh by each new House of Commons, but once established they continue in force from Parliament to Parliament until repealed. There are, indeed, sessional orders which require [256]to be renewed at the beginning of each session, and sometimes a new rule after proving its utility in this way is given the permanent form of a standing order. Orders or resolutions without any fixed duration are also adopted at times. These expire upon prorogation, but it sometimes happens that without being formally revived they continue to be observed as a part of customary practice of the House.[256:1]

The second peculiarity of the standing orders lies in the fact that they can be suspended by a simple majority vote. Notice of a motion for that purpose is usually required and given, but it may be dispensed with; and it is not even necessary to refer in the motion to the standing orders at all. Any order or resolution, inconsistent with their terms, has, if adopted, the effect of suspending them,[256:2] and the House is, in fact, constantly adopting special orders which change the course of procedure as prescribed by the standing orders or the customary practice. This has often been done when the government has needed to take, for its own measures, part of the time allotted to private members, or has wanted to extend the sitting beyond the usual hour. Many of these cases are now provided for by the new rules adopted in 1902; but the most effective form of cutting short debate, the process known as the "guillotine," although now regulated by standing order in the case of supply,[256:3] is still applied in the case of all other bills solely by a special order of the House adopted for a particular bill on the motion of a minister.

Most of the changes in the standing orders made during the last fifty years have been aimed at preserving order, or preventing waste of time, or altering the distribution of time.[256:4] Those of the first class, such as the provisions [257]authorising the suspension of a member for disorder, arose from the conduct of the Irish members, and may be regarded as an accident unconnected with the normal evolution of the parliamentary system. This is not true of the rules designed to prevent waste of time; for although the provisions to cut off debate grew out of Irish obstruction, the subsequent history of closure has shown that some process of this kind was certain to come sooner or later in the natural course of things, and that the Irish merely hastened it.[257:1]

The changes made in order to save time are commonly attributed to the increase in the amount of business the House is called upon to despatch, and if in that business be included the enlarged control of the House over administrative detail by means of questions and otherwise, this is undoubtedly true, but so far as legislation is concerned, it would be more accurate to attribute the changes to the fact that it requires more time to transact business than it did formerly. There are a far larger number of members who want to interrogate and criticise the ministers, and to take part in debate. The pages of Hansard are more numerous in proportion to those of the statute-book. Now the old procedure was very elaborate. In the passage of an ordinary public bill through the House there were, apart from amendments, more than a score of different steps, upon each of which debate might take place, and a division might be claimed. Then motions to adjourn, and other dilatory tactics could be used indefinitely. Moreover, the general [258]rule that amendments and debate must be relevant to the question before the House[258:1] was subject to wide exceptions, if, indeed, there could be said to be any such general rule at all. The debate upon a dilatory motion, for example, was not limited to the motion itself;[258:2] and every time a motion was made to go into Committee of the Whole on Supply, any grievance could be brought forward and discussed.[258:3]

All this was unimportant so long as the battles between the parties were confined to occasional full-dress debates, and the rest of the time was devoted to the real work of legislation. But when systematic obstruction arose, and when without any intent to obstruct it became the recognised business of the Opposition to oppose, and in the case of measures that aroused strong party feeling to oppose at every step, the opportunities for doing so were too numerous to endure. Some of the steps in the enactment of a bill, such as engrossment,[258:4] passage,[258:5] and first and second reading in the Committee of the Whole,[258:6] have been discontinued altogether. Others, such as taking up the consideration of a bill,[258:7] or going into Committee of the Whole on a bill,[258:8] or bringing up a report from Committee of the Whole,[258:9] are taken as a matter of course without question put. In other cases again the question is put, but no debate is allowed.[258:10] With the same object debate upon a dilatory motion has been limited to the subject-matter of the motion, and the Speaker or Chairman has been empowered to forbid debate upon it, or even to refuse to put the question at all, if he considers the motion an abuse of the rules of the House.[258:11]

The opportunities for criticising the government both in going into Committee of Supply, and by other means, have also been limited in various ways, and above all the system of cutting short debate by means of closure has been brought of late years to a condition of great efficiency. These [259]matters, and the distribution of time between the government and private members will be considered more fully hereafter, and it is only necessary to remark now that the tendencies noted are permanent, because although a party while in Opposition may object to changes in the rules that enhance the control of the government over the conduct and time of the House, it finds itself compelled to maintain them when it comes into office. The tendencies are, in fact, the natural result of the more and more exclusive responsibility of the ministry for all public action, legislative as well as executive.

The Commons are always summoned to the bar in the House of Lords to hear any formal communication from the Crown, and when after a general election they meet on the day appointed, they are summoned there to hear the formal opening of the new Parliament. They are then desired in the name of the sovereign to choose a Speaker, and retire to their chamber for the purpose. As soon as he has been chosen, the mace is placed on the table before him, as a symbol of his authority and a token that the Commons are sitting as a House. But he is still only Speaker-elect, until the next day, when, followed by the Commons, he again presents himself at the bar of the Lords, announces his election, and asks for the royal confirmation, which is now, of course, never refused.

If only one person is nominated for Speaker, he is called to the chair without a vote. If more than one, they are voted upon successively, a majority being required for election.[259:1] The proposer and seconder are always private members, for it is considered more fitting that the ministers should not be prominent in the matter.[259:2] The Speaker is, however, always selected by the government of the day, and a new Speaker is always taken from the ranks of the party in power. Sometimes the election is not uncontested, and this happened when Mr. Gully was chosen in 1895. But although the Speaker may have been opposed when first [260]chosen, and although he is elected only for the duration of the Parliament, it has now become the invariable habit to reëlect him so long as he is willing to serve. The last cases where a Speaker's reëlection was opposed occurred in 1833 and 1835, and on the second of those occasions he was defeated. The principle is well illustrated by the career of Mr. Gully. He was elected by a small majority, during the last few months of a moribund Liberal cabinet. His selection had not pleased the Conservatives, and he was warned that they held themselves at liberty not to reëlect him if they came to power in the next Parliament. Contrary to the ordinary rule his constituency was contested at the next general election, but although the Conservatives obtained a large majority in the new Parliament, he was returned to the chair without opposition.

The Speaker is purely a presiding officer. He has nothing to do with appointing any committees, or guiding the House in its work. He is not a leader but an umpire, otherwise he could not remain in the chair through changes of party. As an umpire, however, his powers are very great, and in some cases under the modern changes in the standing orders they are autocratic. He decides, for example, whether a motion to closure debate may be put, or whether it is an infringement of the rights of the minority;[260:1] he can refuse to entertain a dilatory motion if he considers it an abuse of the rules of the House;[260:2] and he can stop the speech of a member who "persists in irrelevance, or tedious repetition."[260:3] Moreover, from his decision on those matters, or on any points of order, there is no appeal.[260:4] The House can suspend or change its own rules by a simple majority vote, but it cannot in a concrete case override the Speaker's construction of them.[260:5] This is a general principle of [261]English parliamentary law, which is applied in almost all public bodies.[261:1] It may render a conscientious man more careful in his rulings, but it certainly places in his hands enormous power.

Familiarity with representative bodies seems to breed contempt, for the last half century has been marked by an increase of disorderly scenes in the legislatures of many countries. In England such things were brought about by the growth of the Irish Home Rule party, which regarded the government of Ireland by the British Parliament as unjust on principle, and oppressive in fact; and which, to say the least, was not distressed by loss of dignity on the part of the House of Commons. In 1880 the Speaker was given the power to repress disorder, now embodied, with subsequent modifications, in Standing Order 18. He can name a member who disregards his authority or obstructs business, and then a motion is in order, to be decided at once without amendment or debate, to suspend that member.[261:2] When the standing orders were revised in 1902 they contained a clause prescribing the duration of the suspension for the first and subsequent offences, but this was struck out during the discussion, and a suspension is now indeterminate. It is obvious that to a party, in a hopeless minority, which denies the authority of Parliament, a disorderly scene followed by a suspension, and an opportunity to go home and make stirring speeches, may not be an undesirable form of protest.

Apart from occasional outbursts chiefly, though not exclusively, on the part of the Irish members, a stranger in the gallery is much impressed by the respect paid to the Speaker, [262]and by his moral control over the House.[262:1] His emoluments are in proportion to the dignity of his position. He enjoys a salary of five thousand pounds a year, with an official residence in the Houses of Parliament and other perquisites; and although standing aloof from political leadership, he is regarded as the first commoner of the realm. He is, indeed, on the threshold of the House of Lords, for it has been the habit of late years to make him a peer when he retires.

As late as 1870 the Speaker occasionally took part in debate, when the House was in Committee of the Whole where he does not preside;[262:2] but it would now be thought inconsistent with his position of absolute impartiality to speak or vote in committee. He therefore never votes unless he is obliged to do so by a tie occurring when he is in the chair. It is commonly said that he always gives his casting vote in such cases so as to keep the question open; but this is not strictly true. When, however, his vote involves a final decision, he bases it, not upon his personal opinion of the merits of the measure, but upon the probable intention of the House as shown by its previous action, or upon some general constitutional principle;[262:3] and it may be added that the chairman of a Committee of the Whole, when called upon to break a tie, follows the same practice.[262:4] The chair in Committee of the Whole is regularly taken by the Chairman of the Committee of Ways and Means—commonly called for that reason the Chairman of Committees—who, like the Speaker, withdraws, on his appointment, from political contests, speaking and voting in the House nowadays only on questions relating to private bills. He is nominated at the beginning of the Parliament by the ministry, from among [263]their prominent supporters, and retires from the position when they resign. Considering that his duties consist in presiding, like the Speaker, with strict impartiality, and in a purely non-partisan supervision of private bill legislation, it is somewhat strange that he should go in and out of office with the cabinet, but in fact one hears no criticism of his conduct on that score, largely, no doubt, because he always takes the Speaker as his model. Since 1855 he has acted as deputy speaker, when the Speaker is unavoidably absent,[263:1] and in order to prevent any possible inconvenience from the absence of both of these officers from the House, or of the Chairman of Ways and Means from the Committee of the Whole, provision was made in 1902 for the election of a deputy chairman who can fill the vacant place.[263:2]

The only other officers of the House that need be mentioned here are the Sergeant-at-Arms, who acts as the executive officer and chief of police of the House under the direction of the Speaker; the Clerk of the House; and the Counsel to Mr. Speaker, who is a legal adviser, and has important duties in connection with private bill legislation. It is a curious survival that the Sergeant-at-Arms,[263:3] and the Clerk of the House with his chief assistants,[263:4] are appointed by the Crown, and hold office permanently. Their work is, of course, of a non-partisan character, and they do not always belong to the party of the ministry that appoints them. Sir Courtenay Ilbert, for example, the present Clerk of the House, although a Liberal, was appointed by the Conservative government, and not by way of promotion in the service of the House, for he was at the time Parliamentary Counsel to the Treasury.

FOOTNOTES:

[264]

CHAPTER XIII

PROCEDURE IN THE HOUSE OF COMMONS

Committees and Public Bills

No great representative assembly at the present day can do all its work in full meeting. It has neither the time, the patience nor the knowledge required. Its sittings ought not to be frittered away in discussing proposals that have no chance of success; while measures that are to be brought before the whole body ought to be threshed out beforehand, their provisions carefully weighed and put into precise language, objections, if possible, met by concession and compromise, or brought to a sharp difference of principle. In short, they ought to be put into such a shape that the assembly is only called upon to decide a small number of perfectly definite questions. To enable it to do so intelligently it may be necessary also to collect information about doubtful facts. Modern assemblies have sought to accomplish these results mainly by committees of some kind; and in England where the parliamentary form of government has reached a higher development than anywhere else, the chief instrument for the purpose is that informal joint committee of the Houses, known as the cabinet. But unless Parliament were to be very nearly reduced to the rôle of criticising the ministers, and answering yes or no to a series of questions propounded by them, it must do a part of its work through other committees. The reasons why those committees have not become—as in some other European nations that have adopted the system of a responsible ministry—dangerous rivals of the cabinet, at times frustrating its objects and undermining its authority, will be discussed in the chapters on the relation between the cabinet and the [265]House of Commons. We must consider here their organisation and duties.

The most important committee, the Committee of the Whole, is not in this sense a committee at all. It is simply the House itself acting under special forms of procedure; the chief differences being that the Chairman of Committees presides, and that the rule of the House forbidding a member to speak more than once on the same question does not apply. But the fact that a member can speak more than once makes it a real convenience for the purpose for which it is chiefly used, that is, the consideration of measures in detail, such as the discussion and amendment of the separate clauses of a bill, or the debates upon different items of appropriations. The Committee of the Whole has had a long history.[265:1] It is called by different names according to the subject-matter with which it deals. For ordinary bills it is called simply the Committee of the Whole. When engaged upon appropriations it is called Committee of the Whole on Supply, or in common parlance the Committee of Supply. When providing money to meet the appropriations it is called the Committee of Ways and Means; and when reviewing the revenue accounts of India it is named from that subject. The committees of the whole called by these names are so far distinct that each of them can deal only with its own affairs, and the House must go into committee again in order to take up any other matter. But the simple Committee of the Whole can take up one bill after another which has been referred to it without reporting to the House and being reconstituted.[265:2]

Of the real committees the most numerous are the select committees. Their normal size is fifteen members, although they are often smaller, and occasionally, by special leave of the House,[265:3] they are somewhat larger. They may be nominated from the floor, and elected by the House,[265:4] or chosen by ballot; but in order to avoid loss of time, and to [266]secure impartiality, the appointment of a part, at least, of the members is usually intrusted to the Committee of Selection.

Some of the select committees are appointed regularly every year, and are therefore known as sessional committees. One of these, the Committee of Selection, has already been mentioned. It has been enlarged from time to time, and now consists of eleven members, chosen by the House itself at the beginning of the session.[266:1] The members are, in fact, designated by an understanding between the leaders of the two great parties in the House. But the object is to create an impartial body, and so far is this object attained that in the memoir of Sir John Mowbray, who was its chairman continuously for thirty-two years, we are told that divisions in the committee are rare, and never on party lines.[266:2] Its duties, so far as public business is concerned, consist in appointing members of select and standing committees. It appoints also the committees on all private and local bills, and divides those bills among them.[266:3] This is, indeed, the primary object of its existence, but, together with a description of the various committees employed in private bill legislation, it must be postponed to a later chapter. It may, however, save confusion in the mind of a reader unfamiliar with parliamentary practice to insist here upon the distinction between a private member's bill and a private bill. The former is a bill of a public nature introduced by a private member, whereas a private bill is one dealing only with a matter of private, personal, or local interest.

The remaining sessional committees are the Committee on Public Accounts,[266:4] which goes through the report of the Auditor and Comptroller General, considers in detail objections to the legality of any expenditures by the public departments, examines witnesses thereon, and reports to the House; the Committee on Public Petitions, appointed to inspect the numerous petitions presented to the House;[266:5] and [267]the Committee on the Kitchen and Refreshment Rooms, which has importance for the members of the House, though not for the general public.[267:1]

The other select committees are created to consider some special matter that is referred to them, either a bill, or a subject upon which the House wishes to institute an inquiry.[267:2] In either case the chief object of the committee is to obtain and sift information. Even where a particular bill is referred to it the primary object is not to take the place of debate in the House, and in fact by the present practice a select committee saves no step in procedure, a bill when reported by it going to the Committee of the Whole for discussion in detail, precisely as if no select committee had been appointed.[267:3] Select committees are the organs, and the only organs, of the House for collecting evidence and examining witnesses;[267:4] and hence they are commonly given power to send for persons, papers and records. They summon before them people whose testimony they wish to obtain; but although a man of prominence, or a recognised authority on the subject, would, no doubt, be summoned at his own request, there is nothing in their procedure in the least corresponding to the public hearings customary throughout the [268]United States, where anybody is at liberty to attend and express his views—a practice that deserves far more attention than it has yet received.

In select committees the procedure follows as closely as possible that of a Committee of the Whole;[268:1] but they choose their own chairman, who has no vote except in case of a tie. They keep minutes, not only of their own proceedings, but also of all evidence taken before them; and these, together with the report of their conclusions, are laid before the House,[268:2] and published among the parliamentary papers of the session. Strictly speaking, a minority report is unknown to English parliamentary usage, although the habit of placing upon select committees representatives of the various groups of opinion in the House makes a disagreement about the report very common. Practically, however, the minority attain the same object by moving a substitute for the report prepared by the majority, and as the standing orders provide that every division in a select committee must be entered upon its minutes,[268:3] the substitute with the names of those who voted for it, are submitted to the House, and have the effect of a minority report.

The fact that men with all shades of opinions sit upon these committees, and have an opportunity to examine the witnesses, lifts their reports, and still more the evidence they collect, above the plane of mere party documents, and gives them a far greater permanent value. Many committees are not directly concerned with legislation, that is, with a bill actually pending, but only with inquiry into some grievance, some alleged defect in the law or in administration, yet their reports often lay the foundation for future statutes; and, indeed, a large part of the legislative or administrative reforms carried out by one or both of the great parties in the state, have been based upon the reports of select committees or royal commissions.

From obvious motives of convenience joint select committees from the Lords and Commons have been occasionally [269]appointed,[269:1] but owing to the different standing of the two Houses they are used chiefly for private bills, and for regulating the intercourse between the two bodies.[269:2] The principal exceptions of late years have been the joint committees on statute law revision bills and on the subject of municipal trading.

As the pressure for time in the House of Commons grew more intense, select committees that collected information were not enough. Something was needed that would save debate in the House, and for this purpose resolutions were adopted on Dec. 1, 1882, for setting up two large committees on bills relating to law and to trade, whose deliberations should take the place of debate in the Committee of the Whole. Such committees were at first an experiment, tried for a couple of sessions, but in 1888 they were revived by standing orders, and made permanent organs of the House.[269:3] As distinguished from select committees, which expire when they have made a report upon the special matters committed to their charge, they were made standing bodies, lasting throughout the session, and considering all the bills from time to time referred to them; one of them being created to deal with bills relating to law, courts of justice, and legal procedure; the other with those relating to trade, shipping, manufactures, agriculture, and fishing. They consist of not less than sixty nor more than eighty members of the House, appointed by the Committee of Selection, which has power to discharge members and substitute others during the course of the session. In order to secure the presence of persons who may throw light on any particular bill, the same committee can also appoint not more than fifteen additional members for the consideration of that bill.

A peculiar provision was made for the designation of the chairman. At the beginning of each session the Committee of Selection appoints a chairman's panel of not less than four nor more than six members, and this body selects [270]from among its members the chairmen of the standing committees[270:1]—a device intended to secure continuity of traditions and experience in the presiding officer. For the rest, the standing orders prescribed that the procedure in standing committees should be the same as in select committees;[270:2] but it would be more accurate to say, as May does,[270:3] that their proceedings were assimilated, as far as possible, to those of a Committee of the Whole House, for they were created to do precisely the same work.[270:4] They were to collect no evidence, examine no witnesses, but simply to debate the clauses of the bill in detail, being in fact a substitute for the Committee of the Whole; that step in the procedure upon a bill being entirely omitted when a bill goes to a standing committee. For this reason they are miniatures of the House itself, representing all the parties there in proportion to their numbers. They are samples that stand for the complete House, and like the Committee of the Whole they do not report their opinions, but report the bills referred to them with or without amendments.

In one respect only does their position differ materially from that of a Committee of the Whole. If the Committee of the Whole makes any amendments in a bill, they can be considered again, and further amendments can be made, upon the report stage. But if it makes no amendments, there is no report stage. This was equally true of the standing committees, so that if they did not amend a bill referred to them, the House never had an opportunity to do so, but must pass or reject the bill as first introduced; and, in fact, standing committees have been charged with refraining from minor changes in order to prevent amendments, which might hinder or delay the passage of the bill, from being proposed in the House itself.[270:5] This raised so much objection that in 1901 the standing orders were changed so as to [271]require a report stage in the House on all bills from standing committees whether amended or not.[271:1]

The standing committees were designed primarily to deal with a technical class of bills, where the discussion of details would not be of general interest.[271:2] For reasons that will be described hereafter, it has been recognised that the bills referred to them ought to be of a non-contentious nature, that contentious measures, which arouse strong party feelings, are not suited for their consideration. This is the general principle, not always observed in practice, and there is sometimes a sharp difference of opinion upon the question whether a particular bill is contentious or not.

Within their limits the utility of the standing committees in legislation cannot be doubted. On the average about one seventh of the public bills enacted year by year have passed through their hands, and the proportion has shown a slight tendency to increase.[271:3] Moreover, the pressure for time in the House of Commons has become so great that a bill has a better chance of getting through if referred to a standing committee than if it has to undergo the ordeal of a long debate in Committee of the Whole. Every year the government is obliged by lack of time to drop something like one third of the bills it has introduced, but those of its bills that are referred to the standing committees rarely fail to be enacted. In the case of bills brought in by private members the contrast is even more striking; for while scarcely one tenth of all such bills become law, more than one half of those among them fortunate enough to reach a standing committee are enacted.[271:4] In fact these committees furnish [272]by far the best chance of passing private members' bills through the House of Commons.[272:1]

When the two great committees were revived in 1888, motions were made to create others to consider bills relating to Scotland and Wales. The motions were all rejected at the time; but in 1894 the Liberal government took the matter up in the case of Scotland, and in that year and the next carried resolutions establishing such a committee for the session. It consisted of all the members for Scotch constituencies, seventy-two in number, and of fifteen or twenty others appointed by the committee of selection. On each occasion the plan was vigorously opposed,[272:2] the chief objections being; that it tended toward legislative dismemberment of the United Kingdom; that such a committee would not, like the other standing committees, reflect fairly the proportion of the parties in the House, because two thirds of the Scotch members were Liberals;[272:3] and that the bills referred to it would not be exclusively of a non-contentious nature. When the Conservatives came to power they quietly dropped this committee. Even had they felt no other reason for doing so, it would, no doubt, have been enough that, in spite of considerable losses at the general election of 1895, the Liberals were still in a majority among the Scotch members. The creation of such a body illustrates, however, the exceptional position of Scotland in the British Parliament; and any one who has followed a debate on an ordinary Scotch bill, and observed how largely it is confined to Scotch members, will realise that practically the resolution of 1894 did little more than sanction formally by means of a standing committee the kind of discussion that habitually takes place in the Committee of the Whole.

[273]

With a view to enlarging the legislative capacity of Parliament a select committee on Procedure in the House of Commons reported on May 25, 1906, in favour of increasing the number of standing committees from two to four, and making the reference of bills to them the normal, instead of an exceptional, proceeding. In pursuance of this recommendation the House on April 16, 1907, changed standing orders 46, 47, and 48[273:1] so that there should be four standing committees, one of which is in effect the former Scotch Committee, while the other three are to consider any bills that may be referred to them, and not as heretofore only those relating to law or to trade.[273:2] All bills, except money bills and bills for confirming provisional orders, are to be referred to one of the standing committees, unless the House otherwise order on a motion to be decided without amendment or debate; and the bills are to be distributed among the committees by the Speaker.

The object of the change was to give a better chance of enactment for measures which there is not time to debate in Committee of the Whole; and the provision that the House may vote not to send a bill to a standing committee was designed chiefly for the great party measures of the government which must always be debated in the House itself. The new procedure has not been in operation long enough to judge of its effects, but something will be said of its relation to the parliamentary form of government in the chapter on the "Cabinet's Control of the Commons."

The steps through which an ordinary public bill must still pass are very numerous, but while formerly a debate and division might take place at each of them, of late years the opportunity for this—and practically the number of steps—has been much reduced by causing some of them to be taken as a matter of course without a vote, and by permitting [274]no debate on others. This is well illustrated at the outset of a bill's career, where, indeed, an old complex procedure and a later and simpler one continue to exist side by side.

A bill may be introduced in one of three ways. A motion may be made for an order for leave to bring it in, accompanied by a speech explaining its objects, and followed by a debate and vote. This was formerly the only method, and debates lasting over several days have occurred at this stage.[274:1] Amendments might be moved hostile to the provisions of the bill. In fact the adoption of such an amendment to a militia bill caused the fall of Lord John Russell's ministry in 1852. Now only important government bills are introduced in that way; for by a standing order adopted in 1888 a motion to bring in a bill may be made at the commencement of public business, and after brief explanatory statements by the mover and one opponent the Speaker may put the question.[274:2] From the length of time taken by the speeches this is known as the ten-minute rule. After an order to bring in a bill has been obtained in either of these ways, the question that the bill be read a first time is voted upon without amendment or debate.[274:3] Finally, in 1902, a still more expeditious process was established. It permits a member to present his bill, which is read a first time without any order or vote of the House whatever.[274:4]

The next step, and, except on great party measures, the first occasion for a debate, is the second reading. This is the proper stage for a discussion of the general principles of the bill, not of its details, and amendments to the several clauses are not in order. The methods of opposing the second reading are somewhat technical. The form of the question is "that this bill be now read a second time"; and a negative vote does not kill the bill, because it does not prevent a motion to read it being made on a subsequent day.[274:5]

[275] In order to shelve the bill without forcing a direct vote upon it, the habit formerly prevailed of moving the previous question;[275:1] but this was open to the same objection, and had, in fact, the effect of the American practice of moving to lay the bill upon the table. A similar difficulty arises when an amendment is moved stating some special reason for not reading the bill. It may express the sense of the House, but it does not necessarily dispose of the measure. Of late years, therefore, it has been customary to move that the bill be read this day six months, or three months, the date being such as to fall beyond the end of the session. On the general principle that a question which the House has decided cannot be raised again, such a vote kills the bill. Nor does it make any difference that the House happens to be sitting at the end of six months, for that date is treated as a sort of Greek calends that never comes.[275:2]

After the second reading a bill, until 1907, went normally to the Committee of the Whole, with or without instructions,[275:3] and now it goes there if the House so decides. When the order of the day for the Committee of the Whole is reached the Speaker leaves the chair, and the House goes into committee without question put.[275:4] This is the stage for consideration of the bill in detail, and the clauses are taken up one after another, the amendments to each clause being [276]disposed of in their order. Then new clauses may be proposed, and finally the bill is reported back to the House.

Normally a bill goes either to the Committee of the Whole or to a standing committee, but after it has been read a second time a motion may be made to refer it to a select committee. Such a reference simply adds a step to the journey of the bill, for when reported it goes to a standing committee or to the Committee of the Whole. A standing committee, on the other hand, is, as already explained, a substitute for the Committee of the Whole. It deals with the bill in precisely the same way, reporting it back to the House amended or unchanged.

When a bill has been reported from the Committee of the Whole with amendments,[276:1] and when it has been reported from a standing committee whether amended or not,[276:2] it is considered by the House in detail, upon what is known as the report stage. The object is to give the House an opportunity to review the work done in committee, and see whether it wishes to maintain the amendments there adopted. But the House is not restricted to confirming or reversing the changes made in the bill, and although the process of going through the measure clause by clause is not repeated, fresh amendments may be proposed and new clauses added.[276:3]

If the bill is reported from a Committee of the Whole without amendments, it is assumed that the details are satisfactory to the House, and there is no report stage.

The next, and now the last, stage of a bill in the House of Commons is the third reading. Like the second reading, this raises only the question whether or not the House approves of the measure as a whole, and the moves for compassing its defeat are the same. Verbal amendments alone are in order, and any substantial alteration can be brought about only by moving to recommit.

[277] Usually the several steps in the enactment of a bill are taken on different days,[277:1] but there is nothing in the rules of the House of Commons to require this, and urgent measures have at times passed through all their stages in both Houses in one day. The last case was that of the Explosive Substances Bill passed in 1883 under the pressure of the dynamite scare.[277:2]

When a bill passed by one House is amended by the other, it is sent back for the consideration of those amendments. If they are agreed to, the bill is ready for the royal assent. If not, the bill is returned, and a committee is appointed to frame a message to the other House, stating the reasons for disagreement.[277:3] The other House may, of course, waive its amendments, insist upon them or modify them, and the bill might thus, with new changes, go back and forth between the Houses indefinitely. Formerly it was the habit, when the Houses failed to agree, to appoint managers to hold a conference, but this practice has fallen into disuse,[277:4] and in the case of government bills—almost all important bills to-day are government bills—negotiations are carried on between the ministers and the leading peers who oppose them.

Leaving out of account the first reading, which rarely involves a real debate, the ordinary course of a public bill through the House of Commons gives, therefore, an opportunity for two debates upon its general merits, and between them two discussions of its details, or one debate upon the details if that one results in no changes, or if the bill has been referred to a standing committee. When the House desires [278]to collect evidence it does so after approving of the general principle, and before taking up the details. Stated in this way the whole matter is plain and rational enough. It is, in fact, one of the many striking examples of adaptation in the English political system. A collection of rules that appear cumbrous and antiquated, and that even now are well-nigh incomprehensible when described in all their involved technicality, have been pruned away until they furnish a procedure almost as simple, direct and appropriate as any one could devise. Many old forms remain, but they have been shorn of their meaning, and often amount to nothing but entries in the journal. Even the first reading, which seems anomalous, has its use. A real debate at that stage occurs only in the case of great party measures, where both sides of the House want to be familiar with the scope of the bill, the objections that may be made to it, and the way it strikes the public, before the first effective debate upon its merits opens. The procedure upon money bills, which appears at first sight still more arbitrary, and complex, is perfectly rational also, and the differences from the method of passing ordinary measures arise from the nature of the case. There can be no doubt about the general principle of the annual appropriation bill. Supplies must be voted to carry on the government, and the only questions arise over particular grants. Hence there is no object in opening with a first or second reading, and the procedure begins in committee. But in order to understand how this works out one must again go back to the technical rules.

FOOTNOTES:

[279]

CHAPTER XIV

PROCEDURE IN THE HOUSE OF COMMONS

Money Bills and Accounts

The procedure in the case of financial measures differs in important respects from that followed in passing other bills. It will be remembered that, with some exceptions already described, all the national revenues are first paid into the Consolidated Fund, and then drawn out of it to meet the expenditures of the government. The financial work of Parliament, like that of the administration, turns, therefore, upon the processes of getting money into and out of that fund. The second process comes first in the order of parliamentary business, and its nature is fixed by two standing orders, which date from the early years of the eighteenth century. One of them, adopted in 1707, provides that the House will not proceed upon any petition or motion for granting money but in Committee of the Whole House;[279:1] the other, that it will not receive any petition, or proceed upon any motion, for a grant or charge upon the public revenue unless recommended from the Crown.[279:2]

This last rule, first adopted by a resolution in 1706, and made a standing order in 1713,[279:3] was designed to prevent improvident expenditure on private initiative. It has proved not only an invaluable protection to the Treasury, but a [280]bulwark for the authority of the ministry.[280:1] Its importance has been so well recognised that it has been embodied in the fundamental laws of the self-governing colonies;[280:2] while some foreign countries, like France and Italy, that have copied the forms of parliamentary government, without always perceiving the foundation on which they rest, have suffered not a little from its absence.[280:3]

Even in England the rule has been at times evaded. About the middle of the last century, it was the habit to bring in bills involving the expenditure of public funds, and avoid a violation of the rule by inserting a clause that the expenses incurred should be "defrayed out of moneys to be hereafter voted by Parliament." But a vote in favour of such a bill was clearly an expression of opinion that well-nigh compelled the ministers to include the expense in their next estimates. This practice was stopped in 1866 by changing the standing order so as to provide that the House will not "proceed upon any motion for a grant or charge upon the public revenue, whether payable out of the consolidated fund, or out of moneys to be provided by Parliament, unless recommended from the Crown."[280:4] The change, however, [281]does not absolutely prevent the House from forcing the hands of the government. A resolution can be passed in abstract and general terms in favour of a certain kind of expenditure, the construction of harbours of refuge, for example; or an address to the Crown can be adopted asking for an expenditure, and promising "that this House will make good the same," a procedure followed in erecting statues on the death of great leaders of the House.[281:1]

As late as 1877 Mr. Gladstone lamented the loss of financial control by the Crown, complaining that, by addresses, resolutions, and even bills, the House pledged itself to expenditure for local claims or the interests of classes and individuals, and that the government was morally bound to redeem the pledges. This he thought was carried so far as to be a great public mischief.[281:2] Whether such a statement was an exaggeration at that time or not, it would hardly be repeated now; for on the one hand the control of the cabinet over the House, and on the other the obstacles encountered by private members in passing measures, have increased so much that it is very difficult, without the help of the Treasury Bench, to get the House to adopt anything to which there is serious opposition.

Although in terms the rule applies only to a motion for making a grant, it has been construed to cover any amendment for increasing a grant beyond the amount recommended from the Crown,[281:3]—an extension certainly needed to protect both the Treasury and the authority of the ministers. When, therefore, the minister moves that a sum of money be granted for a definite purpose, no amendment is in order either to increase that sum or to alter its destination.[281:4] But the rule does not forbid a reduction. It follows that if any member deems the sum named too small, his only course is [282]to move to reduce it in order to draw attention to its insufficiency. Reductions of one hundred pounds are, in fact, constantly moved to make an occasion for discussing some grievance connected with the service in question, and they afford a ready means of protest, free from peril to the Treasury.[282:1]

A still greater extension of the rule is made in its application to taxes; but this depends not upon the standing order, but upon a general constitutional principle which has gradually been evolved therefrom. The principle has, in fact, been expanded until it may be stated in the general form that no motion can be made to raise or expend national revenue without a recommendation from the Crown, or to increase the sum asked for by the Crown. The government has accordingly the exclusive right to propose fresh national taxation, whether in the form of new taxes or of higher rates for existing ones,[282:2] and no private member can move to augment the taxes so proposed.[282:3] He can, however, move to [283]reduce them, and he is even free to bring in a bill to repeal or reduce taxes which the government has not proposed to touch.[283:1] Moreover, as the principle merely forbids him to urge an increase of the burdens upon the people beyond the point at which they stand, or the point at which the ministers propose to place them, he can, when the government suggests a reduction of a tax, move an amendment to reduce it less,[283:2] and when the government brings in a plan for a revision of taxation, he can move to substitute a somewhat different tax for the one proposed, provided the amount of revenue yielded will not be greater.[283:3] But these rights are seldom used, and almost never with success; otherwise they would, no doubt, be found objectionable and swept away.

The House of Commons, at the present day, certainly stimulates extravagance, rather than economy; but this is done by opinions expressed in debate, not by specific proposals made by the members. It is done by criticising the administration, by complaints, for example, that the Army and Navy are insufficient for the defence of the empire. The result is a growth in the budgets prepared by the ministry; but this is a very different thing from expenditure directly caused by the irresponsible action of private members. The former is deliberate and reflects public opinion, the latter may originate in personal or local feelings, and then be adopted through heedless good nature or skilful log-rolling.

As grants of money can be taken up only in Committee of the Whole, and only on the recommendation of the Crown,—that is, of a minister—the House resolves itself, early in the session, into Committee of the Whole on Supply, to consider the estimates submitted by the government.[283:4]

[284]

Now it will be remembered that certain charges, such as the interest on the national debt, the royal civil list, and the salaries of the judges, are payable by statute out of the Consolidated Fund, and hence do not require an annual vote of Parliament, or come before the Committee of Supply. The estimates for the rest of the expenditures for the coming year, known as the supply services, are divided into three parts, relating to the Army, the Navy, and the civil services. The last of the three is divided into classes, and all of them are divided into grants or votes, which are in turn subdivided into subheads and items. Each grant is the subject of a separate vote in Committee of Supply, and amendments may be moved to omit or reduce any item therein.

The English financial system aims at precision. It is deemed of great importance that the estimates should be as accurate as they can be made, and hence they must be prepared as short a time as possible before going into effect. They are made up in the several departments late in the autumn, then submitted for revision to the Treasury, and laid before Parliament shortly after it meets about the middle of February. But as the financial year begins on April 1, it is manifest that the Committee of Supply cannot finish its discussion of them by that time. With the work it must do in passing upon supplementary estimates for the current year, it can, in fact, make little progress with those of the coming year during March, and yet money must be spent, and there must be legal authority to spend it, especially as the unspent balances of appropriations lapse at the close of the financial year in which they are voted. The committee, therefore, passes votes on account to cover the time until the regular appropriations are made. The reader will, perhaps, recall the fact that in the military and naval services an excess on one grant may, with the approval of the Treasury, be used to cover deficiencies on other grants, and hence it is the habit in the case of those services to vote in March the grant for the pay and wages of the men for the whole year, and use the money so obtained for [285]all purposes until the appropriations have been completed. In the civil services, where this is not allowed, votes on account are passed for all the grants, large enough to carry on the government for four or five months.

With the utmost effort at accuracy in the estimates they will always prove to be insufficient in some branch of the service, or an unexpected need for expenditure will arise; and to provide funds in such cases supplementary estimates must be presented and voted before the close of the financial year.

There may also be other expenses outside the estimates, which have, by the authority vested in the Treasury, been temporarily met by advances from the Civil Contingencies Fund or the Treasury Chest Fund, or from extra receipts of the department. These do not require an immediate appropriation; but they are reported to the Committee on Public Accounts at the next regular session after the close of the financial year, and then presented to the Committee of Supply to be covered at once by an excess grant.

Before the end of March, therefore, the Committee of Supply must pass the supplementary grants for the year then coming to a close, the excess grants for the preceding year, the votes on account for the coming year, and make such progress as it can with the regular estimates for that year.

But the committee merely passes and reports to the House resolutions in favour of those grants, and the money cannot be paid out of the Consolidated Fund without the authority of a statute. The next step is taken in the Committee of the Whole on Ways and Means, where on the motion of a minister another resolution is passed, that to make good the supply already voted, the sum required be granted out of the Consolidated Fund. This in turn must be reported to and confirmed by the House.[285:1] A bill called a Consolidated Fund Bill is then brought in to give effect to the resolution. The bill, with the separate grants annexed in a schedule, goes [286]through the ordinary stages; but the time spent upon it is short, because its only object being to authorise the issue of money to cover the supply already voted, no amendment can be moved to reduce the amount, or change the destination, of the grants.[286:1]

The first Consolidated Fund Act must be passed in time to receive the royal assent before April 1. One or two more follow from time to time as the Committee of Supply makes its way slowly through the estimates.[286:2] Finally, after the whole supply for the year has been voted, the Appropriation Bill is brought in, which sums up and embodies all the grants for the services of the year, prescribes their application by means of the schedules annexed, and authorises their payment out of the Consolidated Fund. This is usually passed on the last day of the session.

So much for the process of getting money out of the Consolidated Fund. That of getting money into the fund goes on at the same time, but independently. It is usually early in April that the Chancellor introduces his budget in the Committee of Ways and Means. In an elaborate speech he reviews the finances of the past year, comparing the results with the estimates, and dealing with the state of trade and the national debt. He then refers to the estimates already submitted, and coming to the gist of his speech, and the part of it that is awaited with curiosity, he explains how he proposes to raise the revenue required to meet the expenditures. As he could have no right to take the floor without a motion before the House, he concludes by moving one or more of a series of resolutions containing the changes in taxation, or the continuation of temporary taxes, that he desires.

About three quarters of the revenue is derived from permanent taxes, which are rarely changed, and require no action by Parliament from year to year. But in order to [287]adjust the income closely to expenses, certain taxes are voted for a year at a time, their rates being raised or lowered as may be required to balance the budget. For many years the only imposts so treated were the income tax and the duty on tea; one of them being regarded as a direct tax levied upon property, and the other as an indirect tax resting upon the mass of the people. Recently, however, the duties on tobacco, beer and spirits, and the corresponding excises on beer and spirits, have been increased, and the additions so made have been voted from year to year.

The budget speech of the Chancellor of the Exchequer is followed by a general discussion of the questions he has raised, and either at once, or on subsequent days, by debates and votes upon the resolutions he has brought in. The resolutions when adopted are reported to the House for ratification, but as in the case of supply, they have no legal effect until enacted in the form of a statute. Perhaps it would be more correct to say that they have no legal validity; because in order to prevent large importations made to avoid a projected increase in a duty, it is customary to prescribe in the resolution a date near at hand when the tax shall take effect, and to collect it from that date if the resolution has been agreed to by the House on report. The collection is quite unauthorised by law at the time, but it is afterward ratified by a statute which fixes the same date for the operation of the tax; and this gives the transaction complete legal validity, because Parliament has power to pass a retroactive law. If for any reason the provision for the tax fails of enactment, the duties that have been collected are, of course, refunded.

It was formerly the habit to include in the fiscal resolutions based upon the budget, and in the act to give them effect, the annual and temporary taxes alone; the permanent taxes, and especially those imposed rather for economic reasons than for the purpose of revenue, being dealt with by special acts.[287:1] But the use of taxation for revenue [288]only, and still more a quarrel with the House of Lords, brought about a change of system. In 1860 the government determined to repeal the paper duties, which hindered the publication of cheap newspapers, and were decried as a tax on knowledge. The loss of revenue was taken into account in the financial plans of the year; but according to custom the repeal of the duties was contained in a separate bill by itself. The Lords, after passing the act to give effect to the rest of the budget, rejected this bill. At the moment the Commons could do nothing save express their opinions; but the next year they included the repeal of the paper duties in the annual tax bill, and the Lords were constrained to pass it; for although the Peers do not formally admit the claim of the Commons that they must accept or reject money bills without alteration, they never venture to amend them. The policy of including all the taxes in one bill has developed into a permanent practice, and under the name of the Finance Bill this now includes all fiscal regulations relating both to the revenue and to the national debt.[288:1]

The whole initiative, as regards both revenue and expenditure, lies with the government alone. The House has merely power to reject or reduce the amounts asked for, and it uses that power very little. Financially, its work is rather supervision than direction; and its real usefulness consists in securing publicity and criticism rather than in controlling expenditure. It is the tribunal where at the opening of the financial year the ministers must explain and justify every detail of their fiscal policy, and where at its close they must render an account of their stewardship. This last duty is highly important. The House receives every year reports of the administration of the finances from three independent bodies, or to be more accurate, it receives two distinct sets of accounts and one report.

[289]

As soon as possible after the close of the financial year, the Treasury submits the Finance Accounts, which cover all receipts paid into, and all issues out of, the Consolidated Fund, giving the sources from which the revenue was derived and the purpose for which the issues were made.[289:1] As these accounts are based, not upon the sums expended by the different branches of the government, but upon the amounts transferred to their credit at the Banks of England and Ireland, they can be compiled quickly; and, in fact, they are laid before Parliament near the end of June, about three months after the close of the financial year to which they relate.

Meanwhile the Comptroller and Auditor General—who holds his office during good behaviour, with a salary paid by statute directly out of the Consolidated Fund, and who considers himself in no sense a servant of the Treasury, but an officer responsible to the House of Commons[289:2]—examines the accounts of the several departments. This is a matter requiring much time, and it is not until the opening of the next regular session that he presents what are known as the Appropriation Accounts,[289:3] covering in great detail the actual expenditures in all the supply services, with his reports and comments thereon.[289:4]

His accounts and reports are referred to the Committee of Public Accounts, which consists of eleven members of the House chosen at the beginning of the session,[289:5] and includes [290]the Financial Secretary of the Treasury, some one who has held a similar office under the opposite party, and other men interested in the subject. It inspects the accounts and the Comptroller and Auditor General's notes of the reason why more or less than the estimate was spent on each item. It inquires into the items that need further explanation, examining for the purpose the auditing officers of the departments, and other persons; and it makes a series of reports to the House, which refer in detail to the cases where an excess grant must be made by Parliament, or a transfer between grants in the military departments must be approved.[290:1]

The Committee of Public Accounts has undoubtedly great influence in keeping the expenditures very strictly within the appropriations, and from time to time it expresses its opinions strongly about any laxity in that respect—remarks that are not forgotten by the officials. But there has been much complaint that the House itself, while criticising the administrative conduct of the government freely in the discussion of the estimates, takes little interest in their financial aspect; and, therefore, the recent Committee on National Expenditure has suggested that one day, at least, should be set apart for the discussion of the report of the Committee on Public Accounts.[290:2]

There are a couple of anomalous cases where, by statute, the estimates for a service are not voted by Parliament, but the accounts are afterward submitted to it for approval. This is true of India; and the provision is a wise one, for it allows the government of that country to be conducted by the authorities on the spot, who are alone competent to do it, and yet it reserves to the House of Commons an [291]opportunity for supervision and criticism. On one of the last days of the session a motion is made to go into Committee of the Whole to consider these accounts, and on that motion a general debate on Indian affairs is in order. In the committee itself only a formal motion is made certifying the total revenue and expenditure, and debate is confined to the economic and financial condition of the dependency.[291:1] In the same way the expenses of Greenwich Hospital are, by statute, defrayed out of its revenues, but the accounts are submitted to the House annually, with a resolution for their approval.[291:2]

FOOTNOTES:

[292]

CHAPTER XV

PROCEDURE IN THE HOUSE OF COMMONS

Closure

Almost all great legislative bodies at the present day have been forced to adopt some method of cutting off debate, and bringing matters under discussion to a decisive vote. They have been driven to do so partly as a defence against wilful obstruction by minorities, and partly as a means of getting through their work. Although following the path with great reluctance, the House of Commons has been no exception to the rule. With the evolution of popular government it has become more representative and less self-contained. Formerly an important public measure gave rise to one great debate, conducted mainly by the leading men, and the vote that followed was deemed to settle the question. The case had been argued, Parliament had rendered its verdict, and that ended the matter. But now every one has his eye upon the country outside. The ordinary member is not satisfied to have the case argued well; he wants to take part in the argument himself. He wants the public, and especially his own constituents, to see that he is active, capable, and to some extent prominent.[292:1] He watches, therefore, his chance to express his views at some stage in the proceedings.

[293] Moreover, the strategy of the leaders of the Opposition has changed. They are not trying merely to persuade the House, or to register their protests there. They are speaking to the nation, striving to convince the voters of the righteousness of their cause, and of the earnestness, devotion, and tenacity with which they are urging it. Hence they take every opportunity for resistance offered by the rules, and fight doggedly at every step. Just as in war the great battle that settled a campaign has been replaced by a long series of stubborn contests behind intrenchments; so in the important issues of parliamentary warfare, the single conclusive debate has given way to many struggles that take place whenever the rules afford a means of resistance. This may not be done for the sake of obstruction or delay, but it consumes time, and it has made some process of cutting off debate and reaching a vote an absolute necessity.

The first resort to such a process was brought about by deliberate obstruction. This had been felt to be an evil for a dozen years,[293:1] and was made intolerable by the tactics of the Irish members in opposing the introduction of the coercion bill of 1881. Several nights of debate were followed by a continuous session of forty-one hours; when the Speaker, on his return to the chair, of which he had been for a time relieved by his deputy, interrupting the discussion, said that the dignity, the credit and the authority of the House were threatened, and that he was satisfied he should but carry out its will by putting the question forthwith.[293:2] His action was not authorised by standing order or by precedent, but whether justifiable or not, it marked an epoch in parliamentary history.

Brand, the Speaker, had not come to his decision without consulting Gladstone, then Prime Minister; and had made his action conditional upon the introduction of some regular process for coping with obstruction.[293:3] Gladstone at once gave notice of an urgency resolution, which was speedily [294]adopted, thanks to the suspension of all the Irish members for interrupting debate contrary to the orders of the chair. The resolution enabled a minister to move that the state of public business with regard to any pending measure was urgent. This motion was to be put forthwith without debate, and if carried by a majority of three to one in a House of not less than three hundred members, was to vest in the Speaker, for the purpose of proceeding with such measure, all the powers of the House for the regulation of its business.[294:1]

The language was vague, but the intent was clear. The urgency resolution sanctioned for the future the authority recently assumed by the chair. The Speaker, however, not wishing to make what might appear to be an arbitrary use of his new powers, laid before the House a number of rules by which he should be guided;[294:2] and these have furnished the suggestions for much of the later procedure for curtailing debate.[294:3] The one dealing with the primary object of the resolution provided that when it appeared to the Speaker, or to the Chairman in Committee of Supply or Ways and Means, to be the general sense of the House that the question should be put, he might so inform the House, and then a motion made to that effect should be voted upon without debate, and if carried by a majority of three to one, the original question should be put forthwith. The urgency motion was used at once to push through a couple of bills relating to Ireland; but the resolution expired with the session, and after being revived for a short time the next year, it was replaced in the autumn of 1882 by a standing order [295]based upon the Speaker's rules.[295:1] The new order made, however, two changes in the procedure. Instead of being applicable only after urgency had been voted, on a motion by a minister, in regard to some particular measure, it could be used at any time; and instead of requiring a vote of three to one, it required either a bare majority, if two hundred affirmative votes were cast, or one hundred affirmative votes, if there were less than forty votes against it. Instead, therefore, of being a weapon that could be used only in cases of exceptional obstruction by a small group, it became a process applicable at any time to limit debate by the minority. But although apparently a regular part of the procedure of the House, the motion to cut off further debate could be made only on the suggestion of the Speaker, and this vested in him an arbitrary initiative which he was loth to exercise. The standing order was, in fact, put into operation on two occasions only, on Feb. 24, 1885, and on Feb. 17, 1887.

The difficulty that had been felt in using the procedure was avoided by the adoption in 1887 of a new standing order[295:2] transferring the initiative to the members of the House, while securing fair play to minorities by leaving with the Speaker a power of veto. The rule provides that any member may claim to move that the question pending be now put, "and unless it shall appear to the chair that such motion is an abuse of the rules of the House, or an infringement of the rights of the minority," it shall be put forthwith. If carried, the pending question, and following it the main question before the House, with all others depending upon it, must be put without further amendment or debate.[295:3] The process, now entitled for the first time "closure," was [296]modified in 1888, so that the only requirement about the size of the majority was that one hundred votes must be cast in the affirmative. In this form it has ever since remained, and it has been freely used, having been actually applied from one score to four score times each year.[296:1]

The requirement of the Speaker's assent has proved to be no mere formality. This is especially true where closure has been moved by private members, for his consent, or that of the Chairman of Committees, has been refused in one third of such cases.[296:2] Largely for that reason, no doubt, the use of closure by private members has become far less common than it was formerly. During the first ten years after 1887 it was moved by private members on the average about forty times a year, but since that period the average has been only twelve. Even in the case of motions made by a minister, consent has often been withheld. It happened very frequently during the earlier years, but of late has been much less common.[296:3] Evidently the Treasury Bench and the Speaker have come to adopt very nearly the same standard for determining when a matter has been sufficiently debated. To a spectator in the gallery the discussion seems to proceed until the House must be thoroughly weary of it before closure is moved; and, indeed, the House itself very rarely rejects the motion when it gets a chance to vote upon it—a fact which shows that if the Speaker had not power to withhold his consent, the majority would cut short debate more drastically than it does now. But although debate may have gone on until the House is weary, and the benches are nearly empty, until the speeches consist mainly [297]of the reiteration of arguments in less incisive form, yet there are almost always members who are longing in vain for a chance to make a few remarks. In great debates the order of the chief speakers on each side is commonly arranged between the whips, and given to the presiding officer; who usually follows it, though not without occasional exceptions. For the rest he gives the preference, among the members who try to catch his eye, to those who have the ear of the House, or who are likely to say something worth hearing, not forgetting to call on a new man who rises to make his maiden speech. By seizing on the dull hours, when the House is not full, an undistinguished member can often get his chance. Still, there are many men who sit impatiently with what they believe to be effective little speeches ready to be fired off upon an appreciative public, and see their chance slipping away.[297:1] Perhaps they are bores, but on them the closure falls as a blight, and they raise the bitter cry of the curtailment of the rights of private members.

The closure can be moved at any time, even when a member is speaking, but perhaps its most effective use is at the close of the sitting. A standing order adopted in 1888 provides[297:2] that when the hour arrives for the cessation of debate—technically known as the interruption of business,—the closure may be moved upon the main question under consideration, with all others dependent upon it. This gives an opportunity of finishing a bit of work without appearing to cut off discussion arbitrarily, and it is especially valuable now that the new rules of 1902 have established on four days of the week[297:3] two regular sittings with an interruption at the end of each.

[298]

While the closure is effective in bringing to an end debate on a single question, or in getting past some one particularly difficult point in the career of a bill, it is quite inadequate for passing a great, complicated government measure that provokes relentless opposition. Here it is as useless as the sword of Hercules against the Hydra. Amendments bristle by the score at every clause, and spring up faster than they can be cut off. The motion that certain words "stand part of a clause," or that a "clause stand part of the bill," was intended to work like the hero's hot iron, because if the motion is adopted no amendment can afterward be moved to that word or that clause. But in practice such motions cannot be used ruthlessly. The government discovered the insufficiency of the closure under the Standing Order of 1887, during the debates on the very bill whose enactment it had been adopted to secure, and resorted to a procedure which had already been used by Mr. Gladstone on a couple of Irish coercion bills in 1881.[298:1] Five days had been consumed on the first reading of the Irish Crimes Act of 1887, seven on the second reading, and fifteen days more had been spent in Committee of the Whole on four out of the twenty clauses of the bill; when the government moved that at ten o'clock on June 17, being the end of the next week, the Chairman should, without further debate, put all questions necessary to bring the committee stage to an end.[298:2] The motion was [299]adopted, and from its trenchant operation the process was known as the "guillotine." It served its purpose, but from the point of view of parliamentary deliberation it was a very imperfect instrument, for all the clauses after the sixth were put to vote without amendment or debate.[299:1]

The defect of the guillotine, that it resulted in needlessly long discussions on a few early clauses, to the entire neglect of the rest, was largely remedied in the case of the Home Rule Bill of 1893. After twenty-eight nights had been spent in committee on the first four clauses, the House, on June 30, adopted a resolution that debate on clauses five to eight should close on July 6, on clauses nine to twenty-six on July 13, on clauses twenty-seven to forty on July 20, and on the postponed and new clauses on July 27.[299:2] This form of procedure, sometimes called closure by compartments, has the merit of distributing the discussion over different parts of the measure, and of affording at least a probability that any provision exciting general interest will receive some measure of attention. It was used again on the Evicted Tenants Bill in 1894,[299:3] and the Education Bill in 1902;[299:4] and may now be said to have become a regular, because a necessary, practice in the case of difficult and hotly contested measures. But save in the case of supply, it has been the subject of a special resolution passed for a particular bill, under what have been treated as exceptional conditions, and it has found no mention in the standing orders.[299:5]

The guillotine has been applied more systematically to supply. Formerly the estimates were taken in their order, with the result that much time was wasted early in the session over trivial matters, like the repairs of royal palaces in [300]Class I.; while great appropriations of important departments were rushed through at the fag end of the session.[300:1] But at the instance of Mr. Balfour a sessional order was passed in 1896 allowing in that session twenty days for supply, with a provision for taking a vote, without further debate, on every grant left when the days expired, the time allowed being, he thought, about the average amount heretofore devoted to the subject.[300:2] As the grants in supply, unlike the clauses of a bill, can be brought before the House in any order that the minister may choose, there was not the same need of a closure by compartments; but in order to remove any fear that the government might hold back certain appropriations, Mr. Balfour said that the important grants, and those which any group of members wanted to discuss, would be taken first.[300:3] The resolution was renewed from year to year[300:4] until by the new rules of 1902 it was permanently embodied in the standing orders.[300:5]

As the rule now stands, twenty days,[300:6] all to come before Aug. 5, are allotted for the consideration of the estimates,[300:7] and on the days so allotted no other business can be taken before midnight.[300-8] At ten o'clock on the last day but one the Chairman must put to vote every question needed to [301]dispose of the grant under consideration; and then put in succession all the outstanding grants by classes, those in each class being taken together and put as a single question. At ten o'clock on the last day the Speaker follows the same process for closing the report stage of the estimates.

The real object of the debates in supply at the present day is not financial discussion, but criticism of the administration of the departments, their work being brought under review as their estimates are considered.[301:1] In that light the new procedure has worked very well. Complaint has been made that the government no longer cares what grants are brought forward for debate—leaving that to the Opposition,—or how long the discussion upon them may take, or whether it ends with a vote upon them or not, knowing very well that all these grants must be adopted under closure when the twenty days expire.[301:2] This is perfectly true; but on the other hand the procedure gives the fullest opportunity for criticising the administration, and forcing a discussion of grievances, the matters to be criticised being selected by the critics themselves. Although the Opposition, as in duty bound, resisted the adoption of some portions of the rule, it may be safely said that the rule itself will not be repealed by any government that may come to power.

FOOTNOTES:

[302]

CHAPTER XVI

PROCEDURE IN THE HOUSE OF COMMONS

Sittings and Order of Business

After describing the processes of legislation, a word must be said about the order of business for each day and for the session as a whole. On Monday, Tuesday, Wednesday, and Thursday the House now meets at a quarter before three, and sits until half-past eleven, when it is automatically adjourned unless business specially exempted is under consideration. But the sitting is divided by the mystic hour of a quarter past eight into two parts which are reserved on certain days for quite different kinds of business. On Friday the House sits from noon till half-past five, and on Saturday it does not meet at all unless by special vote on very rare occasions.[302:1]

[303]

With the exception to be noted in a moment, all business upon which the House may be engaged is interrupted at half-past five o'clock on Friday, and eleven on other days; but unopposed business may still be taken up until the hour arrives for adjournment. During that interval the orders of the day are read, and each of them may in turn be debated and even voted upon, unless a division is challenged, or some member objects.[303:1] In short, work can be done after the time for interruption only by universal consent, a single member having power to prevent the consideration of any measure to which he is opposed. Yet a certain amount of business is transacted at these times; and, in fact, a private member's bill would stand little chance, even if no one had any serious objection to it, unless it could pass through some of its stages in this way.

To the rule that no opposed business can be taken after eleven o'clock there is an important exception. A minister may move at the beginning of the afternoon sitting that any [304]specified business shall not be interrupted at that hour, and the question must be put without amendment or debate. This is often done toward the close of the session, and results in sittings that run far into the night. Bills originating in Committee of Ways and Means, and proceedings taken in pursuance of a statute[304:1] or standing order, are also exempted from the rules about interruption, about taking up no opposed business after eleven o'clock, and about adjournment at half-past eleven o'clock.[304:2] It must be remembered also that closure may be moved after the hour for interruption has struck.[304:3]

The first sitting of each day is opened with prayer. The Speaker then takes the chair, and certain formal or routine business that occupies little time is taken up in the following order.

1. Private business, that is, bills relating to private or local matters. Private business, which is unopposed, and therefore takes no appreciable time, is taken up first. Opposed private business is not taken up at all on Friday, and if not finished by three o'clock on other days is postponed to a quarter past eight on such day as the Chairman of Ways and Means may determine.[304:4]

2. Presentation of public petitions (if presented orally instead of being dropped silently into a bag behind the Speaker's chair). As a rule no debate is in order, and hence this process is also short,[304:5] and must be finished by three o'clock.[304:6]

[305] 3. At that hour, on the afternoon sittings, the important business of putting questions to ministers begins.[305:1] The character and political effect of these questions will be examined in Chapter XVIII, but from the point of view of parliamentary time it may be noted that the practice has grown so much during the last thirty years as to require some limitation. In 1901 the questions asked numbered 7180, and consumed 119 hours, or the equivalent of fifteen parliamentary days of eight hours each.[305:2] The new rules of 1902 sought to check the tendency in two ways; by giving the option of requiring an oral or a written answer, the question in the former case being marked in the notice paper with an asterisk; and by fixing a strict limit to the time consumed. Forty minutes are allowed for putting questions, the answers to those not reached by a quarter before four, like the answers to questions not starred, being printed with the votes of the day.[305:3]

4. If there is a vacant moment before three o'clock, or between the time questions come to an end and a quarter before four o'clock, it may be used by motions for unopposed returns, for leave of absence, or for similar unopposed matters that would otherwise have to be taken up after the interruption of business.[305:4]

5. Immediately after questions, a member rising in his place may make the portentous motion "for the adjournment of the House for the purpose of discussing a definite matter of urgent public importance."[305:5] This is usually, but not necessarily, made in consequence of a highly unsatisfactory answer that has just been given to a question. It may seem strange to move to adjourn before serious business has begun, but as such a motion has not been carried for nearly a score of years that feature is unimportant, and its [306]real significance in giving a chance to discuss at short notice some action of the government will be explained in Chapter XVIII. Formerly the debate upon the motion took place immediately; but now the member merely obtains—by the support of forty members, or by vote of the House—leave to make his motion, while the debate itself is postponed to a quarter past eight o'clock.

6. Then come what are called "matters taken at the commencement of public business." These are the presentation of bills without an order of the House or under the ten-minute rule, and motions by a minister relating to the conduct of business to be decided without amendment or debate.

7. Finally comes the regular business of the sitting, in the form of notices of motions or orders of the day. The distinction between these two classes of business is not easy to explain with precision;[306:1] but for our purpose it is unimportant, except so far as one class has precedence over the other. Now the government has authority to arrange the order of its own business as it pleases;[306:2] and in relation to private members, orders of the day practically mean bills, and notices of motion mean resolutions and other matters that are not bills. The application of the distinction comes, therefore, to this, that of the sittings set apart for private members, Friday is reserved for their bills, and Tuesdays and Wednesdays after a quarter past eight o'clock for their other motions.[306:3]

At a quarter past eight o'clock the first business is a motion for adjournment on an urgent matter of public business, in the occasional instances where leave has been obtained at the afternoon sitting to make it. Next follows any postponed private business that may have been assigned [307]to that evening; and then come the notices of motions and orders of the day.

By the new arrangement with its definite time for certain business, the work of the House is better distributed. There is no longer the same danger that the discussion of a private bill or of a motion to adjourn, or an interminable series of questions, will unexpectedly cut a great piece out of the hours when the House is most crowded, and the leading men are waiting to debate a great public measure. At the afternoon sitting the regular business of the day is reached at a quarter before four, or very little later, and it proceeds without interruption until a quarter before eight. After that hour—unless there is an opposed private bill, which does not often take long, or by chance a motion to adjourn—the regular business, which may not be the same as at the afternoon sitting, begins again, and goes on until eleven. With the habits of slack attendance when nothing is expected, and the necessity for a presence in force when a division that touches the Treasury Bench may be taken, it is a matter of no small import to be able to forecast the business of a sitting.

The severe pressure for time has thus brought about a minute allotment of the hours at each sitting for definite kinds of business, and the same cause has produced a similar, although less exact, distribution in the work of the session as a whole.

The regular session of Parliament opens about the beginning of February, and the first business is the address in reply to the King's speech. Formerly it was an elaborate affair, which referred to the clauses of the speech in succession, but since 1890 it has taken the form of a single resolution expressing simply the thanks of the Commons for his Majesty's most gracious speech. Amendments are moved by the various sections of the Opposition in the shape of additions thereto, pointing out how the government has done things it ought not to have done, and left undone things it ought to have done; and even members of the [308]majority, who are disgruntled because their pet hobbies have been left unnoticed, follow the same course. The debates on the address take practically the whole time of the House for two or three weeks.[308:1] As soon as they are over, the Committee of Supply is set up, and sits one or two days each week, the rest of the sittings being taken up with government measures, and with business introduced by private members.

Hope springs eternal in the legislative breast, and every assembly undertakes more work than it can accomplish thoroughly. In some legislatures this results in a headlong rushing through of measures almost without discussion at the end of the session. But while, under closure by compartments and the supply rule, this may be true in England of certain clauses of bills and of large parts of the appropriations, it is not true of bills as a whole. Parliament is, primarily, a forum for debate, rather than a machine for legislation, and bills that cannot be discussed at some length are dropped. After the Whitsuntide recess every year, the leader of the House announces that owing to lack of time the government has found it necessary to abandon such and such measures, a proceeding familiarly known as the slaughter of the innocents. But it is not their own bills alone that the ministers are obliged to slay. In order to get through their own remaining work they have long been in the habit of taking by special order, after the Easter recess, a part of the sittings reserved for private members, and of seizing all the rest soon after Whitsuntide. The practice was regulated and made systematic by the new rules of 1902; but this brings us to the relation of the cabinet and of private members to the work of the House, which forms the subject of the following chapter.

FOOTNOTES:

[309]

CHAPTER XVII

THE CABINET'S CONTROL OF THE COMMONS

For the purpose of collective action every body of men is in the plight of M. Noirtier de Villefort in "Monte Cristo," who was completely paralysed except for one eye. Like him it has only a single faculty, that of saying Yes or No. Individually the members may express the most involved opinions, the most complex and divergent sentiments, but when it comes to voting, the body can vote only Yes or No. Some one makes a motion, some one else moves an amendment, perhaps other amendments are superimposed, but on each amendment in turn, and finally on the main question, the body simply votes for or against. Where a body acts by plurality it can, of course, choose which of several propositions it will adopt, which of several persons, for example, it will elect.[309:1] But this depends upon the same general principle, that the body can act collectively only on propositions laid before it by an individual, or a group of men acting together as an individual. Ordinarily it can only answer Yes or No to questions laid before it one at a time in that way.

Obviously, therefore, it is of vital importance to know who has power to ask the question; and, in fact, one of the great arts in managing bodies of men consists in so framing questions as to get the best possible chance of a favourable [310]reply. In small bodies that have limited functions and an abundance of time, the members are free to propose any questions they please; but in large assemblies, all of whose proceedings are of necessity slower, this freedom is curtailed by lack of time, especially if the range of activities is wide. Hence the legislatures of all great states have been constrained to adopt some process for restricting or sifting the proposals or bills of their members. The most common device is that of referring the bills to committees, which can practically eliminate those that have no serious chance of success, and can amend others, putting them into a more acceptable form. In such cases the committees enjoy, if not the exclusive privilege of proposing questions to the legislature, at least the primary right of framing the questions that are to be submitted, and this gives them a momentous power. An organisation by committees is the most natural evolution of a legislative body, if there is nothing to obstruct it. Now in Parliament there has been something to obstruct it, and that is the system of a responsible ministry.

The cabinet has been said to be a committee, and the most important committee of the House; but it is really far more. Unlike an ordinary committee, it does not have the bills of members referred to it. On the contrary it has the sole right to initiate, as well as to frame, the measures it submits to the House; and these comprise, in fact, almost all the important bills that are enacted. By far the greater part of legislation originates, therefore, exclusively with the ministers. The system of a responsible ministry has obstructed the growth of committees; because, in the case of government measures, the chief function of such committees, that of sifting bills and putting them into proper shape, is performed by the cabinet itself; and also because, as will be shown hereafter, the authority of the cabinet would be weakened if other bodies, not necessarily in accord with it, had power to modify its proposals. In this connection it may be observed that in the domain of private and local [311]bills, where the responsibility of the cabinet does not extend, there has developed a most elaborate and complete set of committees, to which all such bills are referred.

The relation of the cabinet to the House of Commons may be conveniently treated under three heads: the initiative left to private members; the direct control of the cabinet over legislation with its effects; and the control of the House over the administration and the general policy of the government.

It may appear strange that the existence of a responsible ministry should obstruct the growth of committees on public bills brought in by private members. Nevertheless it has done so; partly by reducing those bills to a position of secondary importance; and partly because if the committees were under the control of the government the private member would be even more helpless than he is now, and if they were not they might be at times inconvenient rivals to the ministry. As the House of Commons is organised, therefore, the committees play a minor part. The most important legislation of a public nature originates with the ministers, and is entirely in their charge, save for an occasional reference to a committee under exceptional circumstances; while private members are free to bring their public bills before the House, unfettered by any committee, provided they can find a chance to do so in the extremely meagre allowance of time at their disposal. In short the Commons have solved the question of time by giving most of it to the government to use as it pleases, and leaving the private members to scramble for the rest.

Under the new rules of 1902 and 1906 government business has precedence, from the opening of the session until Easter, at every sitting, except after a quarter past eight o'clock on Tuesday and Wednesday and at the sitting on Friday. Until Easter, therefore, these three periods in the week are reserved for the private members. Between Easter and Whitsuntide the government is given the whole of Tuesday for its own use, and after Whitsuntide it has all the time [312]except the third and fourth Fridays next following.[312:1] As the private members have no time reserved for them until the close of the debate on the address, the arrangement gives them in a normal year about thirty parts of the session out of a couple of hundred. It must be remembered also that the part of a sitting after quarter past eight is shorter than that which goes before; is never, on private members' nights, prolonged beyond the hour of interruption; and is liable to be broken into by opposed private bills, and motions to adjourn on a matter of urgent public importance.[312:2] It is clear, therefore, that the share of time reserved for private members is small. But although their lamentations over confiscation of their sittings by the government have been constant, the actual time at their disposal has not, in fact, been seriously diminished of late years. An examination of the parliamentary papers shows that in the ten years from 1878 to 1887 government business actually had precedence on the average in eighty-three per cent. of the sittings, and during the following decade in about eighty-four and a half per cent.[312:3] This is very little less than the proportion that now prevails. The recent rules have merely sanctioned by permanent standing order a practice that had long been followed in an irregular way by special resolutions adopted during the course of the session.

[313]

When, as Hobbes remarked, there is not enough of any article to satisfy everybody, and no one has authority to apportion it, the most obvious means of distribution is the lot. This primitive method is still employed for dividing among the private members the time reserved for their use. Their sittings are devoted to two different objects. On Tuesday and Wednesday evenings notices of motions have precedence, while Friday is the day for bills. At the beginning of a session members who want to introduce bills send in their names, and in the order in which the lots are drawn they set down their bills for second reading on a Friday, selecting, of course, the earliest unoccupied day. In this way every Friday before Whitsuntide is taken, and although there will probably not be time to deal with more than one bill in a day, less successful competitors place their measures second or third on the lists, hoping that they may be reached.

The first bill on the list usually comes to a vote on the second reading, but when that point has been passed it is difficult to find an opportunity for any of its subsequent steps. A reference to a standing committee affords the best chance, because it avoids the committee stage in the House. If a bill is not so referred, it is almost certainly doomed, unless it can pass some of its stages, unopposed, after the hour for the interruption of business; and, in fact, any bill is well-nigh hopeless that does not take at least one step in this way.[313:1] On the two Fridays remaining after Whitsuntide private members' bills are given precedence in the order of their progress,[313:2] the most advanced obtaining the right of way. The leader of the House may, however, star any bill, that is, give to it a fraction of the government time, but this is very rarely done, and never till near the close of a session.

As there are only about a dozen Fridays before Whitsuntide, [314]a private member must be very fortunate in the ballot, or he must have a number of friends interested in the same bill, to get it started with any prospect of success; and even then there is scarcely a hope of carrying it through if a single member opposes it persistently at every point. Ten or fifteen such bills are enacted a year, and of these only a couple provoke enough difference of opinion to lead to a division during their course in the House.[314:1] But while many private members loudly bewail their wrongs, they make no organised effort for mutual protection. These men are, in fact, separate units without a basis for combination. They have not even that spirit of the golden rule, which does much harm in legislation. They show neither the good nature, nor the instinct for log-rolling, which prompts men to vote for one another's bills, hoping for like favours in return. Hence their labours produce little fruit, either sweet or bitter. In short, the public legislation initiated by private members is neither large in amount, nor important in character, and it cannot be passed against serious opposition,—a condition that tends to become more marked as time goes on.

The privilege on the part of private members of bringing forward motions on Tuesday or Wednesday evenings is, like that of having bills considered on Friday, determined by lot; with this difference, that a notice of motion cannot be given more than four motion days ahead, and hence the first ballot covers only two weeks, and is followed by fresh balloting every week until Easter.[314:2] In order to improve the chance of getting a hearing, a number of members interested in the same question will often send in their names, with the understanding that any one of them who is lucky enough to be drawn shall set down the motion. This practice was introduced by the Irishmen; but it has [315]now become common among members of all kinds who take, or wish to appear to take, an interest in a subject. It is called "syndicating," and has resulted in making the motions not infrequently reflect the views of a considerable section of the House.

The motions on these nights take the form of resolutions, and are of every kind. Some of them express aspirations of an abstract nature, such as that the government ought to encourage cotton-growing in the British colonies, or that the greater part of the cost of training teachers ought to be borne by the national exchequer.[315:1] Others demand more definite legislation about matters on which the parties are not prepared to take sides. A motion, for example, was carried in 1904 that the franchise for members of Parliament ought to be extended to women. But a resolution adopted in that way, without opposition from the government, is commonly regarded as a mere aspiration, and has hardly a perceptible effect. Others again deal with the hobbies of individuals, and in that case the members are apt to go home, so that after an hour or two of desultory talk the House is counted out for lack of a quorum; the frequency with which that occurs depending, of course, upon the amount of general interest attaching to the motions that happen to appear on the list.[315:2] Finally there are motions which attack the cabinet or its policy, motions, for example, condemning preferential tariffs on food, or the control by the central government of the police in Ireland. Motions of that sort are, of course, strenuously resisted by the Treasury Bench, and they will be discussed hereafter when we come to the methods of criticising the action of the ministry.[315:3] Apart from cases of this last class, the motions [316]of private members have even less practical importance than their bills. Occasionally a real popular demand may find expression in that way, but it is uncommon, and the chief value of the Tuesday and Wednesday evening sittings would seem to lie in helping to keep alive the salutary fiction that members of Parliament still possess a substantial power of independent action.

All the sittings not reserved for private members are at the disposal of the government, and it can arrange the order of its business as it thinks best.[316:1] The responsibility of the ministers for legislation is a comparatively recent matter.[316:2] Before the Reform Act of 1832 their functions were chiefly executive; but the rapid demand for great remedial measures, and later the complexity of legislation due to the extended control and supervision by the administrative departments, and not least the concentration of power in the cabinet by the growth of the parliamentary system, brought about a change. By the middle of the century that change was recognised, and at the present day the ministers would treat the rejection of any of their important measures as equivalent to a vote of want of confidence.[316:3]

Moreover, the government is responsible not only for introducing a bill, but also for failing to do so. At a meeting in the autumn the cabinet decides upon the measures it intends to bring forward, and announces them in the King's speech at the opening of the session. Amendments to the address in reply are moved expressing regret that His Majesty has not referred to some measure that is desired, and if such an amendment were carried it would almost certainly cause the downfall of the ministry. This happened, indeed, in 1886, when the resignation of Lord Salisbury's [317]cabinet was brought about by the adoption of an amendment regretting that the speech announced no measure for providing agricultural labourers with land.

Following upon the responsibility for the introduction and passage of all important measures has come an increasing control by the ministers over the details of their measures. It was formerly maintained that the House could exercise a great deal of freedom in amending bills, without implying a loss of general confidence in the cabinet.[317:1] But of late amendments carried against the opposition of the Treasury Bench have been extremely rare.[317:2] In fact only four such cases have occurred in the last ten years. This does not mean that the debates on the details of bills are fruitless. On the contrary, it often happens that the discussion exposes defects of which the government was not aware, or reveals an unsuspected but widespread hostility to some provision; and when this happens the minister in charge of the bill often declares that he will accept an amendment, or undertakes to prepare a clause to meet the objection which has been pointed out.[317:3] But it does mean that the [318]changes in their bills are made by the ministers themselves after hearing the debate, and that an amendment, even of small consequence, can seldom be carried without their consent. This is the natural outcome of the principle that the cabinet is completely responsible for the principal public measures, and hence must be able to control all their provisions so long as it remains in office.

From the same point of view the relation of the government to the various committees of the House is a matter of great importance. If the cabinet is to be responsible for the policy of the state, and must resign when defeated, it is manifestly entitled to frame the policy on which it stands. But if, as in some countries that have copied the parliamentary form of government, and notably in France, the bills of the cabinet are referred for consideration and amendment to committees not under its control, then it may have to face the alternative of opposing its own bill on account of the amendments made therein, or of standing upon a measure of which it can no longer wholly approve. It may be put in the awkward position of defending a policy that has been forced upon it, instead of one of its own selection. Such a condition of things has sapped the authority of the ministry, and weakened the government in more than one nation of continental Europe.[318:1] This danger has been avoided in England by the very limited use of committees on public bills, and by the influence of the Treasury Bench over those that exist.

[319]

The most important government bills, and especially those of a highly controversial nature, are not referred to committees at all. They are debated only in the House itself; and in Committee of the Whole, which is merely the House sitting with slightly different rules, and not a committee in the sense in which the word is used in this chapter. To select committees few public bills are referred, and those as a rule are certainly not of a controversial character.[319:1] The only difficulty arises in the case of the standing committees. When he first proposed these in 1882, Mr. Gladstone said that they were not intended to consider measures of a partisan character;[319:2] and it has been generally recognised ever since that very contentious bills ought not to be referred to them.[319:3] A long debate on the subject took place recently, on the occasion when the bill to restrict alien immigration was sent to the Standing Committee on Law in 1904.[319:4] All the members who took part in the discussions, except Mr. Chamberlain,[319:5] agreed on the general principle; but they did not agree upon any test of contentiousness, and were sharply divided on the question whether the Aliens Bill was contentious or not. Mr. Balfour himself took the ground that the controversial character of a bill is a matter of degree, and that this bill was near the border line. The obstacles in its path proved in the end so serious that it had to be dropped for the session.

That a bill is non-contentious clearly does not mean that it is unopposed, or even that the opposition has no connection with party. Every one of the six government bills referred to standing committees in 1899, for example, had a [320]party vote at some stage in its passage through the House.[320:1] These committees are expected to deal, not with questions of political principle, but with details that require technical skill or careful consideration, in bills where the general principle is either non-contentious, or may be regarded as settled by the House itself. They were intended to be used for measures on which the committee stage is not likely to raise any important questions of policy. The original intention, however, has not been wholly carried out. Highly contentious bills have not infrequently been "sent upstairs,"[320:2] as the expression goes, although this has never been done in the case of the most important government measures. Many people feel that the departure is unfortunate, and hence there was no little opposition in 1907 to raising the number of standing committees to four, and providing that all bills should be referred to them unless the House ordered otherwise. An amendment, to the report of the committee, that the provision should not apply to bills containing general controversial matter was rejected by a strict party vote,[320:3] and the change in procedure was put through the House itself by the use of closure.[320:4] If the standing committees were confined to non-contentious measures, they could create no serious embarrassment for the ministry, even if quite free from its control.

But in fact the committees are a good deal under the influence of the government. In the first place the government party is always given a majority of the members. Formerly it had on select committees a majority of one only,[320:5] but now it has become a general rule that both select and standing committees shall reflect as nearly as may be the party complexion of the House itself. Thus in 1894, when [321]the parties were nearly evenly balanced in the House, the government majority on the committees was usually very small, but after the Conservatives came into power with a much larger majority, their share of members in the committees was correspondingly great.[321:1] The standing committees, and often the select committees also, are appointed by the Committee of Selection, which contains usually six adherents of the party in power, and five from the other side of the House. But they are members of great experience. They know the principles they are expected to apply, and with their discretion in the choice of individuals the ministers make no attempt to interfere.[321:2]

The mere possession of a majority upon a committee is not always enough, unless the government can bring pressure to bear upon its followers. In select committees on bills this is not a matter of much consequence, because, as we have seen, they rarely have charge of important, or at least of contentious, measures. In select committees of inquiry one hears nothing of pressure—to the credit of statesmen be it said—and although the report of an English committee or commission of inquiry is often a variation on the theme that "no one did anything wrong, but they had [322]better not do it again," still there are reports that contain severe criticism on the public administration.[322:1] In the standing committees the influence of the government is palpable. In fact these committees, when dealing with government bills, are miniatures of the House in arrangement as well as in composition. There are the same rows of benches facing each other; and the minister in charge of the bill sits in the corner seat at the chairman's right hand, accepting, or refusing to accept, amendments on behalf of the government.[322:2] Absent members are fetched in the same way to take part in divisions;[322:3] and when the Conservatives were in power, whips were sometimes issued imploring them to be present on the morrow, because an important vote was expected. The Liberals do not do this, and often have trouble in getting their partisans to attend. Moreover, a difficulty sometimes arises from the fact that the members who are most strongly interested in a bill and hence least under the control of the minister—the Labour men or the Irish Nationalists, for example, in the case of bills affecting their constituents—attend far more regularly than the rest. But although the influence of the government over a standing committee is distinctly less than over the House itself,[322:4] it is certainly very considerable.

Nevertheless the voting in both select and standing committees runs little on party lines, decidedly less than it does in the House itself. Taking two recent years, 1894 and 1899, for which the writer has had statistics prepared, it appears that in 1894 there were in the select committees twenty-three party votes out of eighty-four divisions; and [323]in the Standing Committees on Law and Trade[323:1] there were only seven divisions in all, of which only two were on party lines; whereas in the House itself there were one hundred and eighty-four party votes out of a total of two hundred and forty-six divisions. Moreover, the party votes in committees were mainly confined to a very few subjects. Thus seventeen of the twenty-three party votes in the select committees were given in the committee on the work of the Charity Commission, and four of the remainder were in that on Scotch Feus and Building Leases.[323:2] For 1899 the comparison is even more striking. In the select committees there was one party vote out of sixty-three divisions; in the standing committees six out of fifty-three—and those six were all on one bill[323:3]—while in the House there were two hundred and forty-two party votes out of three hundred and fifty-seven divisions.[323:4]

The reasons why the votes run on party lines less in the committees than in the House itself are self-evident. First there is the fact that the most contentious measures, those where party feeling runs highest, are not referred to [324]committees. Another reason, not less important, is that a defeat of the government, even in a standing committee, cannot directly imperil the life of the ministry, and hence the final means of pressure is lacking. In fact an amendment is occasionally carried against the government in a standing committee, and in that case the minister either makes up his mind to accept the change or tries to get it reversed in the House on report. But this very condition, which is embarrassing for the minister, shows that there is a limit to the work standing committees can be set to do, without imperilling the authority of the cabinet.

A similar danger would attend the use of committees on the estimates. The creation of such committees has often been suggested,[324:1] and for a very good reason. The debates on the estimates in the House of Commons have become an opportunity for criticising the conduct of the administration, while the financial aspect of the matter, the question whether the grants are excessive and ought to be reduced or not, has largely fallen out of sight. It has not unnaturally been felt that this function, which the House itself is disinclined to discharge, might be effectively performed by a select or standing committee. But if the committee were really to revise the estimates, it would, like the committees on the budget in continental parliaments, encroach upon the power of the government to frame its own budget. It would imperil the exclusive initiative in money matters, which is the corner-stone both of sound finance, and of the authority of a responsible ministry. That the Committee on Accounts should scrutinise the disbursements with care, to see that they correspond with the votes, is most salutary; and that special committees should be appointed from time to time, to review the expenditures, and suggest possible lines of saving, is also excellent. These are in the nature of criticism of past actions, with suggestions of a general character [325]for the future, and they do not affect the freedom of the cabinet to lay down its own policy and prepare its own budget.

The last committee on national expenditure reported in 1903 in favour of having a select committee examine each year one class or portion of the estimates; but there was a sharp difference of opinion on the question whether such a committee would or would not interfere with the responsibility of ministers, and the recommendation was adopted only by a vote of seven to five.[325:1] In view of the experience in other countries, one cannot help feeling that the minority was right; that while the proposed committee would be far less of a thorn in the side of the Treasury Bench than one on the estimates as a whole, yet that if it really exerted any authority, and ventured to report reductions, it would stand to just that extent in a position of antagonism and rivalry with the ministers.

One of Mr. Gladstone's objects in proposing the standing committees was to increase the legislative capacity of the House, by enabling it to do a part of its work by sections sitting at the same time.[325:2] Such a process of making one worm into two by cutting it in halves is well enough with an organism whose nervous system is not too highly centralised; and in England it seems to have been carried about as far as is consistent with a responsible ministry. The standing committees have to some extent fulfilled this purpose, but it is extremely doubtful whether they can wisely be charged with bills of a more contentious nature than are sent to them now. In order to increase the legislative output the number of standing committees was raised to four, on April 16, 1907, with a provision that bills should be regularly referred to them unless the House directed the contrary. How far this change will result in placing in their hands more controversial bills, and how far it will increase the power of the House to pass laws, remains to be [326]seen. There can be no doubt, however, that the legislative capacity of Parliament is limited; and the limit would appear to be well-nigh reached, unless private members are to lose their remnant of time, or debate is to be still further restricted, so that the members will no longer be free, until closure is moved, to speak at such length as they please, and to discuss every conceivable detail, great or small, often several times over. But upon the preservation of these things the position of the House of Commons largely depends.

To say that at present the cabinet legislates with the advice and consent of Parliament would hardly be an exaggeration; and it is only the right of private members to bring in a few motions and bills of their own, and to criticise government measures, or propose amendments to them, freely, that prevents legislation from being the work of a mere automatic majority. It does not follow that the action of the cabinet is arbitrary; that it springs from personal judgment divorced from all dependence on popular or parliamentary opinion. The cabinet has its finger always on the pulse of the House of Commons, and especially of its own majority there; and it is ever on the watch for expressions of public feeling outside. Its function is in large part to sum up and formulate the desires of its supporters, but the majority must accept its conclusions, and in carrying them out becomes well-nigh automatic.

FOOTNOTES: