*36. Cabinet Origins.*--In the third place, the period under review is important by reason of the development within it of the most remarkable feature of the English const.i.tutional system to-day, namely, the cabinet. The creation of the cabinet was a gradual process, and both the process and the product are utterly unknown to the letter of English law. It is customary to regard as the immediate antecedent of the cabinet the so-called "cabal" of Charles II., i.e., the irregular group of persons whom that sovereign selected from the Privy Council and took advice from informally in lieu of the Council itself. In point of fact, by reason princ.i.p.ally of the growing unwieldiness of the Privy Council, the practice of deferring for advice to a specially const.i.tuted committee, or inner circle, of the body far antedated Charles II. By some it has been traced to a period as remote as the reign of Henry III., and it is known that not only the thing itself, but also the name "cabinet council," existed under Charles I. The essential justification of the creation of the cabinet was stated by Charles II. in 1679 in the declaration that "the great number of the Council has made it unfit for the secrecy and despatch that are necessary in many great affairs." The growing authority of the select circle of advisors was the object of repeated attacks, and the name "cabinet" (arising from the king's habit of receiving the members in a small private room, or cabinet, in the royal palace) was applied at first as a term of reproach. The device met, however, a genuine need, and by 1689 its perpetuation was a.s.sured. The larger (p. 038) Privy Council was continued in existence, and it exists to-day; but its powers became long ago merely nominal.[40]

[Footnote 40: H. W. V. Temperley, The Inner and Outer Cabinet and the Privy Council, 1679-1683, in _English Historical Review_, Oct., 1912.]

*37. Principles of Cabinet Government Established.*--Under William III.

the cabinet took on rapidly the character which it bears to-day.

Failing in the attempt to govern with a cabinet including both Whigs and Tories, William, in 1693-1696, gathered about himself a body of advisers composed exclusively of Whigs, and the principle speedily became established for all time that a cabinet group must be made up of men who in respect to all important matters of state are in substantial agreement. Before the close of the eighteenth century there had been fixed definitely the conception of the cabinet as a body necessarily consisting (a) of members of Parliament (b) of the same political views (c) chosen from the party possessing a majority in the House of Commons (d) prosecuting a concerted policy (e) under a common responsibility to be signified by collective resignation in the event of parliamentary censure, and (f) acknowledging a common subordination to one chief minister.[41] During the eighteenth-century era of royal weakness the cabinet acquired a measure of independence by which it was enabled to become, for all practical purposes, the ruling authority of the realm; and, under the limitation of strict accountability to the House of Commons, it fulfills substantially that function to-day. Its members, as will appear, are at the same time the heads of the princ.i.p.al executive departments, the leaders in the legislative chambers, and the authors of very nearly the whole of governmental policy and conduct.[42]

[Footnote 41: H. D. Traill, Central Government (London, 1881), 24-25.]

[Footnote 42: On the rise of the cabinet see, in addition to the general histories, M. T. Blauvelt, The Development of Cabinet Government in England (New York, 1902), Chaps. 1-8; E. Jenks, Parliamentary England; the Evolution of the Cabinet System (New York, 1903); and H. B. Learned, Historical Significance of the Term "Cabinet" in England and the United States, in _American Political Science Review_, August, 1909.]

*38. Beginnings of Political Parties.*--A fourth phase of governmental development within the period under survey is the rise of political parties and the fixing of the broader aspects of the present party system. In no nation to-day does party play a role of larger importance than in Great Britain. Unknown to the written portions of the const.i.tution, and all but unknown to the ordinary law, party management and party operations are, none the less, of constant and fundamental importance in the actual conduct of government. The origins of political parties in England fall clearly within the seventeenth century. It was the judgment of Macaulay that the (p. 039) earliest of groups to which the designation of political parties can be applied were the Cavalier and Roundhead elements as aligned after the adoption of the Grand Remonstrance by the Long Parliament in 1641.

The first groups, however, which may be thought of as essentially a.n.a.logous to the political parties of the present day, possessing continuity, fixity of principles, and some degree of compactness of organization, were the Whigs and Tories of the era of Charles II.

Dividing in the first instance upon the issue of the exclusion of James, these two elements, with the pa.s.sage of time, a.s.sumed well-defined and fundamentally irreconcilable positions upon the essential public questions of the day. Broadly, the Whigs stood for toleration in religion and for parliamentary supremacy in government; the Tories for Anglicanism and the prerogative. And long after the Stuart monarchy was a thing of the past these two great parties kept up their struggles upon these and other issues. After an unsuccessful attempt to govern with the co-operation of both parties William III., as has been pointed out, fell back definitely upon the support of the Whigs. At the accession of Queen Anne, in 1702, however, the Whigs were turned out of office and the Tories (who already had had a taste of power in 1698-1701) were put in control. They retained office during the larger portion of Queen Anne's reign, but at the accession of George I. they were compelled to give place to their rivals, and the period 1714-1761 was one of unbroken Whig ascendancy. This was, of course, the period of the development of the cabinet system, and between the rise of that system and the growth of government by party there was an intimate and inevitable connection. By the close of the eighteenth century the rule had become inflexible that the cabinet should be composed of men who were in sympathy with the party at the time dominant in the House of Commons, and that the returning by the nation to the representative chamber of a majority adverse to the ruling ministry should be followed by the retirement of the ministry.[43]

[Footnote 43: For references on the history of English political parties see pp. 144, 160, 166.]

III. THE SCOTTISH AND IRISH UNIONS

*39. The Union with Scotland, 1707.*--Finally may be mentioned the important changes in the governmental structure which arose from the Act of Union with Scotland, in 1707, and the Act of Union with Ireland, in 1801. Except during a brief portion of the period of the Protectorate, the legal relation of England and Wales, on the one side, and the kingdom of Scotland, on the other, was from 1603 to (p. 040) 1707 that simply of a personal union through the crown. Scotland had her own parliament, her own established church, her own laws, her own courts, her own army, and her own system of finance. By the Act of 1707 a union was established of a far more substantial sort. The two countries were erected into a single kingdom, known henceforth as Great Britain. The Scottish parliament was abolished and representation was accorded the Scottish n.o.bility and people in the British parliament at Westminster. The quota of commoners was fixed at forty-five (thirty to be chosen by the counties and fifteen by the boroughs) and that of peers (to be elected by the entire body of Scottish peers at the beginning of each parliament) at sixteen. All laws respecting trade, excises, and customs were required to be uniform throughout the two countries, but the local laws of Scotland upon other subjects were continued in operation, subject to revision by the common parliament. The Scottish judicial system remained unchanged;[44] likewise the status of the established Presbyterian Church.[45]

[Footnote 44: Save that appeals might be carried from the Scottish Court of Session to the House of Lords.]

[Footnote 45: J. Mackinnon, The Union of England and Scotland (London, 1896). This scholarly volume covers princ.i.p.ally the period 1695-1745.]

*40. The Union with Ireland, 1801.*--The history of Ireland, in most of its phases, is that of a conquered territory, and until late in the eighteenth century the const.i.tutional status of the country approximated, most of the time, that of a crown colony. During the Middle Ages the Common Law and the inst.i.tutions of England were introduced in the settled portions of the island (the Pale), and a parliament of the English type began to be developed; but Poynings's Law of 1494, by requiring the a.s.sent of the English king and council for the convening of an Irish parliament, by enjoining that all bills considered by the Irish parliament must first have been considered by the English parliament, and by declaring all existing statutes of the English parliament to be binding upon Ireland, effectually stifled, until its repeal in 1782, Irish parliamentary development. From the middle of the seventeenth century Catholics were debarred from membership, and, from the early eighteenth, from voting at parliamentary elections. The repeal of Poynings's Law in 1782 and the removal of the Catholic disqualification ten years later bettered the situation, yet at the close of the eighteenth century Irish governmental arrangements were still very unsatisfactory. Parliament was independent in the making of laws, but not in the control of administration; and it was in no true sense a national and representative body. The policy urged by Pitt, namely, the establishment of a (p. 041) legislative union on the plan of that which already existed between England and Scotland, gradually impressed itself upon the members of Parliament as more feasible than any other.

An Act of Union creating the "United Kingdom of Great Britain and Ireland" was adopted by the Irish parliament in February, 1800, and by the British parliament five months later, and, January 1, 1801, it was put in operation. Under the terms of this measure the Irish parliament was abolished, and it was arranged that Ireland should be represented in the common parliament[46] by four spiritual lords and twenty-eight temporal peers, chosen by the Irish peerage for life, and by one hundred members (sixty-four sitting for counties, thirty-five for boroughs, and one for the University of Dublin) of the House of Commons. The Anglican Church of Ireland was amalgamated with the established Church of England, though, subsequently in 1869, it was disestablished and disendowed. The union with Ireland was in the nature of a contract, and while in a number of respects the conditions which were involved in it have been altered within the past hundred years, its fundamentals stand to-day unchanged. It is these fundamentals, especially the a.s.similation of Ireland with Great Britain for legislative purposes, which are the object of relentless attack on the part of the Home Rule and other nationalistic and reforming elements.[47]

[Footnote 46: Styled "the Parliament of the United Kingdom of Great Britain and Ireland."]

[Footnote 47: An abridgment of the text of the Act of Union with Scotland is printed in Adams and Stephens, Select Doc.u.ments, 479-483; of that of the Act of Union with Ireland, ibid., 497-506. The full text of the former will be found in Robertson, Select Statutes, Cases, and Doc.u.ments, 92-105; that of the latter, ibid., 157-164. On Ireland before the Union see May and Holland, Const.i.tutional History of England, II., Chap. 16.]

IV. THE NATURE AND SOURCES OF THE CONSt.i.tUTION

*41. The Elusiveness of the Const.i.tution.*--The description of the British governmental system which is hereafter to be undertaken will be clarified by a word of comment at this point upon the character which the English const.i.tution of to-day has a.s.sumed, upon the form in which it exists, and upon the sources from which it has been drawn.

The term "const.i.tution," as is familiarly understood, may be employed to denote a written instrument of fundamental law which has been framed by a const.i.tuent a.s.sembly, drafted by an ordinary legislative body, or promulgated upon the sole authority of a dictator or monarch; or, with equal propriety, it may be used to designate a body of (p. 042) customs, laws, and precedents, but partially, or even not at all, committed to writing, in accordance with which the machinery of a given governmental system is operated. The const.i.tution of the United Kingdom of Great Britain and Ireland is of this second type. The student who desires to bring together the principles and to tabulate the working details of the British const.i.tutional order will find no single doc.u.ment, nor any collection of doc.u.ments, in which these things are wholly, or even largely, set down. For the accomplishment of such a task it would be necessary to review intensively a thousand years and more of history, to lay hold of a statute here and of a judicial decision there, to take constant cognizance of the rise and crystallization of political usages, and to probe to their inmost recesses the mechanisms of administration, law-making, taxation, elections, and judicial procedure as they have been, and as they are actually operated before the spectator's eyes. Foremost among its compeers in antiquity, in comprehensiveness, and in originality, the British const.i.tution is at once the least tangible and the most widely influential among European bodies of fundamental law.

*42. Const.i.tuent Elements: the Law.*--The elements of which this const.i.tution is to-day composed have been cla.s.sified in various ways.

For present purposes they may be gathered in five princ.i.p.al categories. In the first place, there are treaties and other international agreements, which in Great Britain as in the United States are invested with the character of supreme law of the land. In the second place, there is a group of solemn engagements which have been entered into at times of national crisis between parties representing opposed, or contracting, political forces. Of such character are the Great Charter, the Pet.i.tion of Right, and the Bill of Rights. A third and larger category comprises parliamentary statutes which add to or modify governmental powers or procedure.

Statutes of this type include clearly the Habeas Corpus Act of 1679, the Act of Settlement of 1701, the Septennial Act of 1716, Fox's Libel Act of 1792, the Reform Acts of 1832, 1867, and 1884, the Munic.i.p.al Corporations Act of 1835, the Parliamentary and Munic.i.p.al Elections Act of 1872, the Local Government Acts of 1888 and 1894, and the Parliament Act of 1911. In the fourth place there is the Common Law, a vast body of legal precept and usage which through the centuries has acquired fundamental and immutable character. The first three elements mentioned, i.e., treaties, solemn political engagements, and statutes, exist solely, or almost so, in written form. The rules of the Common Law, however, have not been reduced to writing, save in so far as they are contained in reports, legal opinions, and, more particularly, authoritative decisions of the courts, such as those (p. 043) on the rights of jurymen, on the prerogative of the crown, on the privileges of the houses of Parliament and of their members, and on the rights and duties of the police.

*43. Const.i.tuent Elements: the Conventions.*--Finally, there are those portions of the const.i.tution which have been denominated with aptness by Mr. Dicey "the conventions."[48] The "law" of the const.i.tution, comprising the four categories of elements which have been enumerated, is at all points, whether written or unwritten, enforceable by the courts; the conventions, although they may and not seldom do relate to matters of vital importance, are not so enforceable. The conventions consist of understandings, practices, and habits by which are regulated a large proportion of the actual operations of the governmental authorities. They may have acquired expression in written form, but they do not appear in the statute-books or in any instrument which can be made the basis of action in a court of law. For example, it is a convention of the const.i.tution which forbids the king to veto a measure pa.s.sed by the houses of Parliament. If the sovereign were in these days actually to veto a bill, the political consequences might be serious, but there could be no question of the sheer legality of the deed. It is by virtue of a convention, not a law, of the const.i.tution, that ministers resign office when they have ceased to command the confidence of the House of Commons; that a bill must be read three times before being finally voted upon in the House of Commons; that Parliament is convened annually and that it consists of two houses. The cabinet, and all that the cabinet, as such, stands for, rests entirely upon convention. To these things, and many others, the student who is concerned exclusively with the const.i.tutional law of the British nation may give little or no attention. But by one who is seeking to understand the const.i.tutional system as it is and as it operates attention must be fixed upon the conventions quite as steadily as upon the positive rules of law. If the conventions are not to be regarded as technically parts of the const.i.tution, they are at least not infrequently as binding in practice as are these rules; and they may be even more determinative of the operations of the public powers.[49] The English const.i.tution is indeed, as Mr. Bryce has described it, "a ma.s.s of precedents carried in men's minds or recorded in writing, dicta of lawyers or statesmen, customs, usages, (p. 044) understandings and beliefs, a number of statutes mixed up with customs and all covered over with a parasitic growth of legal decisions and political habits."[50] At no time has an attempt been made to collect and to reduce to writing this stupendous ma.s.s of scattered material, and no such attempt is likely ever to be made. "The English," as remarks the French critic Boutmy, "have left the different parts of their const.i.tution where the waves of history have deposited them; they have not attempted to bring them together, to cla.s.sify or complete them, or to make of it a consistent or coherent whole."[51]

[Footnote 48: Introduction to the Study of the Law of the Const.i.tution (7th ed., London, 1908), 22-29.]

[Footnote 49: Convention occupies a large place in most political systems, even in countries which are governed under elaborate written const.i.tutions.

Their importance in the government of the United States is familiar (see Bryce, American Commonwealth, 3d ed., I., Chaps. 34-35). On the influence of conventions in France see H. Chardon, L'Administration de la France; les fonctionnaires (Paris, 1908), 79-105.]

[Footnote 50: J. Bryce, Flexible and Rigid Const.i.tutions, in Studies in History and Jurisprudence (London and New York, 1901), No. 3.]

[Footnote 51: E. Boutmy, Studies in Const.i.tutional Law: France--England--United States, trans. by E.

M. Dicey (London, 1891), 6.]

V. THE FLEXIBILITY OF THE CONSt.i.tUTION

*44. Aspects of Continuity and of Change.*--In pursuance of what has been said two observations, representing opposite aspects of the same truth, are pertinent. The first is that in respect to the principles and many of the practices of the English const.i.tution it is pre-eminently true that, to employ a familiar phrase of Bishop Stubbs, the roots of the present lie deep in the past.[52] The second is that the English const.i.tution is a living organism, so constantly undergoing modification that any description of it which may be attempted is likely to be subject to correction almost before it can be completed. At no time, as Mr. Freeman wrote, "has the tie between the present and the past been rent asunder; at no moment have Englishmen sat down to put together a wholly new const.i.tution in obedience to some dazzling theory."[53] On the contrary, each step in the growth of the const.i.tutional system has been the natural consequence of some earlier step. Great changes, it is true, have been wrought. To mention but the most obvious ill.u.s.tration, autocratic kingship has been replaced by a parliamentary government based upon a thoroughgoing political democracy. None the less, transitions have been regularly so gradual, deference to tradition so habitual, and the disposition to cling to ancient names and forms, even when the spirit had changed, so deep-seated, that the const.i.tutional history of England presents elements of continuity which cannot be paralleled in any other country of Europe.

[Footnote 52: Const.i.tutional History of England, I., prefatory note.]

[Footnote 53: Growth of the English Const.i.tution, 19.]

The letter of a written const.i.tution may survive through many decades unchanged, as has that of the Italian _Statuto_ of 1848, and as did that of the American const.i.tution between 1804 and 1865. No (p. 045) const.i.tutional system, however, long stands still, and least of all one of the English variety, in which there exists but little of even the formal rigidity arising from written texts. Having no fixed and orderly shape a.s.signed it originally by some supreme authority, the const.i.tution of the United Kingdom has retained throughout its history a notably large measure of flexibility. It is by no means to-day what it was fifty years ago; fifty years hence it will be by no means what it is to-day. In times past changes have been accompanied by violence, or, at least, by extraordinary manifestations of the national will.

Nowadays they are introduced through the ordinary and peaceful processes of legislation, of judicial interpretation, and of administrative practice. Sometimes, as in the instance of the recent overhauling of the status of the House of Lords, they are accompanied by heated controversy and widespread public agitation. Not infrequently, however, they represent inevitable and unopposed amplifications of existing law or practice and are taken note of scarcely at all by the nation at large.

*45. The Const.i.tuent Powers of Parliament.*--The princ.i.p.al means by which changes are wrought in the English const.i.tution to-day is that of parliamentary enactment. It is to be observed that in Great Britain there is not, nor has there ever been, any attempt to draw a line of distinction between powers that are const.i.tuent and powers that are legislative. All are vested alike in Parliament, and in respect to the processes of enactment, repeal, and revision there is no difference whatsoever between a measure affecting the fundamental principles of the governmental system and a statute pertaining to the commonest subject of ordinary law. "Our Parliament," observes Mr. Anson, "can make laws protecting wild birds or sh.e.l.l-fish, and with the same procedure could break the connection of Church and State, or give political power to two millions of citizens, and redistribute it among new const.i.tuencies."[54] The keystone of the law of the const.i.tution is, indeed, the unqualified omnipotence which Parliament possesses in the spheres both of const.i.tution-making and of ordinary legislation.

In Parliament is embodied the supreme will of the nation; and although from time to time that will may declare itself in widely varying and even inconsistent ways, at any given moment its p.r.o.nouncements are conclusive.

[Footnote 54: Law and Custom of the Const.i.tution, 4th ed., I., 358.]

*46. What are "Const.i.tutional" Laws?*--From this unrestricted competence of Parliament arise two highly important facts. One of them is that the distinction between "const.i.tutional" laws, on the one hand, and ordinary statutes, on the other, is neither so obvious nor so essential as under most governmental systems. The concept, (p. 046) even, of const.i.tutional law has developed but slowly among the English, and the phrase is as yet seldom employed in legal discussion.

In the United States const.i.tutional amendments or addenda, in so far at least as they a.s.sume written form, emanate from sources and by processes different from those that obtain in the enactment of ordinary statutes. In most continental nations the const.i.tuent process is at least somewhat different from that employed in the enactment of simple laws. And these specially devised processes are designed to emphasize the essential differentiation of the product from the handiwork of the ordinary legislative bodies. In Great Britain, however, there is, as has appeared, no difference of process, and the distinction between the law of the const.i.tution and ordinary statute law is not infrequently all but impossible to trace. If it is to be traced at all, it must be derived from the circ.u.mstances of enactment.

Some measures, e.g., the Habeas Corpus Act, the Act of Settlement, and the Parliament Act of 1911, relate obviously to the most fundamental and enduring aspects of state. Others just as clearly have to do with ephemeral and purely legislative concerns. Precisely where the line should be drawn between the two no man can say. It is, in the opinion of Mr. Bryce, because of this obstacle primarily that no attempt has been made to reduce the English const.i.tution to the form of a single fundamental enactment.[55]

[Footnote 55: Studies in History and Jurisprudence, I., No. 3.]

*47. All Parts of the Const.i.tution subject to Amendment.*--In the second place, no portion whatsoever of the const.i.tution is immune from amendment or abrogation at the hand of Parliament. So forcefully was the French observer De Tocqueville impressed with this fact that he went so far as to a.s.sert that there really is no such thing as an English const.i.tution at all.[56] De Tocqueville wrote, however, from the point of view of one who conceives of a const.i.tution as of necessity an "instrument of special sanct.i.ty, 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";[57] and this conception is recognized universally nowadays to be altogether inadequate. There is, in every proper sense, an English const.i.tution. No small portion of it, indeed, is in written form. And it is worth observing that in practice there is tending to be established in England in our own day some measure of that (p. 047) distinction between const.i.tuent and legislative functions which obtains in other countries. There is no disposition to strip from Parliament its const.i.tuent powers; but the feeling is gaining ground that when fundamental and far-reaching innovations are contemplated action ought not to be taken until after there shall have been an appeal to the nation through the medium of a general election at which the desirability of the proposed changes shall be submitted as a clear issue. The principle, broadly stated, is that Parliament ought to exercise in any important matter its const.i.tuent powers only under the sanction of direct popular mandate. It was essentially in deference to this principle that the elections of December, 1910, turning squarely upon the issue of the reform of the House of Lords, were ordered.

Thus, while in numerous continental countries the distinction between const.i.tuent and legislative functions is being nowadays somewhat relaxed, in Great Britain there is distinctly a tendency to establish in a measure a differentiation in this matter which long has been in practice non-existent.

[Footnote 56: "In England the Parliament has an acknowledged right to modify the const.i.tution; as, therefore, the const.i.tution may undergo perpetual changes, it does not in reality exist (_elle n'existe point_); the Parliament is at once a legislative and a const.i.tuent a.s.sembly." OEuvres Completes; I., 166-167.]

[Footnote 57: Lowell, Government of England, I., 2.]

In effect, every measure of Parliament, of whatsoever nature and under whatsoever circ.u.mstances enacted, is "const.i.tutional," in the sense that it is legally valid and enforceable. When an Englishman a.s.serts of a measure that it is unconst.i.tutional he means only that it is inconsistent with a previous enactment, an established usage, the principles of international law, or the commonly accepted standards of morality. Such a measure, if pa.s.sed in due form by Parliament, becomes an integral part of the law of the land, and as such will be enforced by the courts. There is no means by which it may be rendered of no effect, save repeal by the same or a succeeding parliament. In England, as in European countries generally, the judicial tribunals are endowed with no power to pa.s.s upon the const.i.tutional validity of legislative acts. Every such act is _ipso facto_ valid, whether it relates to the most trivial subject of ordinary legislation or to the organic arrangements of the state; and no person or body, aside from Parliament itself, possesses a right to override it or to set it aside.[58]

[Footnote 58: For brief discussions of the general nature of the English const.i.tution see A. L.

Lowell, Government of England, 2 vols. (New York, 1909), I., 1-15; T. F. Moran, Theory and Practice of the English Government (new ed., New York, 1908), Chap. 1; J. A. R. Marriott, English Political Inst.i.tutions (Oxford, 1910), Chaps. 1, 2; J. Macy, The English Const.i.tution (New York, 1897), Chaps. 1, 9; and S. Low, The Governance of England (London, 1904), Chap. 1. A suggestive characterization is in the Introduction of W.

Bagehot, The English Const.i.tution (new ed., Boston, 1873). A more extended and very incisive a.n.a.lysis is Dicey, Introduction to the Study of the Law of the Const.i.tution, especially the Introduction and Chaps. 1-3, 13, 14-15.]

CHAPTER III (p. 048)

THE CROWN AND THE MINISTRY