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LIBRARY 

UNIVERSITY  Of 
CALIFORNIA 

SAN  DIEGO 


* 


THE  LAW  AND   CUSTOM 

OP    THE 

CONSTITUTION 

ANSON 


LONDON 
HENRY    FROWDE,   M.A. 

PUBLISHER   TO  THE   UNIVERSITY   OF  OXFORO 


STEVENS   AND    SONS,    LIMITED 


THE 

LAW  AND  CUSTOM 

OF   THE 

CONSTITUTION 


BY 


SIR  WILLIAM  R.  ANSON,  BART.,  D.C.L. 

OF   THE    INNER    TEMPLE,    BARRISTER-AT-LAW 
WARDEN  OF  ALL  SOULS  COLLEGE,  OXFORD 


IN  THREE  VOLUMES 
VOL.  II :  THE   CROWN.     PART  I 


THIRD  EDITION 


OXFORD 

AT  THE  CLARENDON  PRESS 
LONDON  NEW  YORK  AND  TORONTO :   HENRY  FROWDE 

ALSO   SOLD   BY 

STEVENS  &  SONS,  LIMITED,  119  &  120  CHANCERY  LANE,  LONDON 

1907 


OXFORD 
PRINTED    AT  THE  CLARENDON   PRESS 

BY  HORACE   HART,    II. A. 
PRINTER   TO   THE   UNIVERSITY 


PREFACE  TO  THE  THIRD  EDITION 

IN  consequence  of  unavoidable  delay  in  bringing  out  the 
third  edition  of  this  book,  which  has,  I  fear,  been  for  some 
time  out  of  print,  I  have  thought  it  well  to  publish  the 
first  four  chapters  at  once.  These  are  in  some  respects 
the  most  important,  and  they  are  certainly  the  most  difficult 
to  present  in  a  satisfactory  form.  I  have  added  consider- 
ably to  the  chapter  on  the  Councils  of  the  Crown,  and  have, 
I  hope,  been  able  to  throw  some  fresh  light  on  the  beginnings 
of  Cabinet  Government  at  the  close  of  the  seventeenth 
and  commencement  of  the  eighteenth  centuries.  I  have 
also  transposed  the  order  of  the  chapters,  because  I  thought 
that  the  Councils  of  the  Crown  and  the  Departments  of 
Government  followed  more  naturally  upon  the  chapter 
dealing  with  the  Prerogative  than  did  the  subject  of  the 
Title  to  the  Crown  and  the  relation  of  Sovereign  and 
Subject. 

I  reprint  the  Preface  to  the  first  edition  as  I  wrote  it  in 
1892,  because  it  shows  the  purpose  and  scope  of  the  work. 

In  conclusion,  I  would  thank  the  friends  who  have  so 
kindly  helped  me  with  information  and  advice  in  the  pre- 
paration of  this  edition. 

WILLIAM  R.  ANSON. 

ALL  SOULS  COLLEGE, 
November,  1907. 


PREFACE  TO  THE  FIRST  EDITION 

I  REGRET  that  the  second  part  of  my  work  on  the 
Constitution  should  have  been  so  long  in  following  its 
predecessor,  and  that  it  should  not  be  better  worth  wait- 
ing for.  For  the  delay  I  am  not  wholly  in  fault ;  for  the 
shortcomings  I  can  only  plead  a  capacity  unequal  to  the 
task  which  I  undertook  with  a  light  heart,  which  I  have 
pursued  with  interest  and  pleasure,  and  now  conclude  with 
misgiving. 

I  have  tried  to  show  how  the  executive  government  of 
this  Empire  is  conducted — to  draw  a  picture  of  the  executive 
as  distinct  from  the  legislature,— of  the  Crown  in  Council 
as  distinct  from  the  Crown  in  Parliament. 

Of  the  difficulties  which  I  have  experienced,  two  stand 
out  prominently  before  me. 

I  think  that  any  one  will  find  it  difficult  to  describe 
faithfully  the  daily  working  of  a  business  with  which 
he  is  not  practically  conversant.  I  have  found  it  so  in 
the  course  of  my  endeavour  to  describe  the  working  of  the 
departments  of  government.  In  spite  of  the  kindest  and 
most  generous  help  from  many  friends  who  have  the  details 
at  their  command,  I  fear  that  I  have  not  done  justice  to 
their  efforts  on  iny  behalf. 

But  my  greatest  difficulty  has  been  to  arrange  my 
subject.  I  wished  to  show  how  the  business  of  govern- 
ment is  carried  on ;  who  settles  what  is  to  be  done ;  who 
acts ;  on  what  authority ;  and  in  what  manner.  In  order 
to  do  this,  and  to  do  it  within  reasonable  compass,  I  have 
omitted  two  matters,  which  I  have  found  to  occupy  a  place 
in  other  treatises.  The  royal  prerogatives  set  forth  at  length 
by  Blackstone  are  either  attributes  ascribed  to  royalty  by 
lawyers,  or  are  powers  exercised  through  departments  of 
government.  As  such  I  have  dealt  with  them,  and  my 


PREFACE   TO   THE   FIRST   EDITION  Vll 

chapter  on  the  prerogative  will  be  found  to  contain,  apart 
from  history,  only  an  account  of  what  the  Crown  actually 
does,  at  the  present  day,  in  the  choice  of  ministers,  the 
settlement  of  policy,  and  the  business  of  administration. 

Another  matter  with  which  I  have  not  specially  dealt  is 
the  conflict  which  has  from  time  to  time  arisen  between  the 
rights  of  the  subject  and  the  assertion  of  rights  by  the  execu- 
tive officer.  It  does  but  illustrate  the  working  of  that  '  rule 
of  law '  which,  as  Mr.  Dicey  has  impressed  upon  his  readers, 
is  a  marked  feature  in  our  constitution.  I  have  noted  the 
exceptional  position  of  persons  subject  to  ecclesiastical  or 
military  law,  and  I  have  noted  also  the  circumstances 
under  which  the  Crown  and  its  servants  enjoy  any  special 
privileges  or  immunities  in  the  administration  of  justice ; 
but  having  once  stated  the  principle  that  the  King's  com- 
mand cannot  excuse  a  wrongful  act,  and  the  fact  that  the 
Crown  has  no  longer  the  power  to  control  the  action  of  the 
Courts,  I  have  not  made  these  matters  the  subject  of  any 
special  treatment  or  illustration.  I  could  but  have  said  over 
again,  what  Mr.  Dicey  has  set  forth  once  for  all,  that  in 
the  relations  of  the  Crown  and  its  servants  to  the  subjects 
of  the  Queen  the  rules  of  Common  Law  prevail. 

Omitting  these  topics,  which  I  conceived  to  be  either 
useless  or  irrelevant  to  my  purpose,  I  had  still  to  arrange, 
in  their  proper  places,  the  parts  which  the  Crown  plays 
in  the  work  of  government ;  the  composition  and  action 
of  the  Cabinet — the  determining  power  in  the  constitution ; 
the  departments  of  government  which  carry  out  the  policy 
accepted  by  the  Crown,  on  the  advice  of  the  Cabinet ;  and 
the  working  of  these  departments  over  the  vast  area  of  the 
Queen's  dominions ;  finally  I  had  to  state  the  relations  in 
which  the  Crown  stands  to  the  Churches,  and  to  the  Law 
Courts  of  the  United  Kingdom  and  the  Empire. 

Of  the  arrangement  which  I  have  adopted,  I  will  only 
say  that  it  represents  an  anxious  effort  to  supply  the 
student  with  the  information  which  he  requires,  and  to 
supply  it  in  the  place  and  order  in  which  he  might  reason- 
ably expect  to  find  it. 

As  to  the  information  itself,  I  have  had  to  collect  it  from 


Vlll  PREFACE   TO   THE   FIRST   EDITION 

many  sources.  Of  books  dealing  with  the  subject  in  its 
entirety,  I  have  found  the  fullest  and  the  most  serviceable 
to  be  the  work  of  Mr.  Alpheus  Todd  '  on  Parliamentary 
Government  in  England,'  but  for  the  most  part  I  have  had 
to  go  to  special  treatises,  to  Parliamentary  papers,  or, 
directly,  to  the  various  government  offices.  For  the  kind- 
ness of  members  of  many  of  the  departments  of  government, 
I  find  it  hard  to  express  my  gratitude  in  terms  satisfactory 
to  myself.  If  I  do  not  make  more  than  this  general  acknow- 
ledgement now,  it  is  because  I  am  unwilling  to  associate 
their  respected  names  with  a  work  which  may  perhaps 
prove  to  be  a  failure.  If  my  book  should  meet  with  such 
approval  as  to  need  another  edition,  it  will  be  my  pleasure 
as  well  as  my  duty  to  thank  them  individually. 

It  may  be  thought  that  the  historical  matter  which  I 
have  found  it  necessary  to  introduce,  occupies  too  large  a 
space.  I  can  only  say  that  I  found  it  impossible  to  explain 
the  present,  without  such  reference  to  the  past.  Nor  can 
I  regret  that  this  should  be  so.  For  when  we  contemplate 
our  institutions  in  their  monumental  dignity,  and  the 
world-wide  span  of  our  Empire,  it  is  well  to  remember  the 
patience  and  courage  of  our  forefathers,  and  the  long  line 
of  kings  and  queens  and  statesmen,  often  conspicuously 
great  in  force  of  purpose  and  vigour  of  intellect,  to  whom 
we  owe  what  we  now  possess  It  would  be  a  mean  thing, 
even  if  it  were  possible,  to  take  stock  of  our  inheritance 
without  asking  how  we  came  by  it.  But  it  is  not  possible. 
If  it  is  difficult  to  dissociate  law  from  history  in  any  branch 
of  legal  study,  least  of  all  can  this  be  done  in  describing 
the  fabric  and  machinery  of  an  ancient  state.  I  will  not 
therefore  apologize  either  to  lawyers  or  to  historians  for 
trespassing  on  the  domain  of  history ;  I  will  only  express 
a  regret  that  I  have  not  trespassed  with  greater  knowledge 
and  a  surer  foot. 


WILLIAM   R.  ANSON. 


ALL  SOULS  COLLEGE, 
January,  1893. 


TABLE    OF    CONTENTS 

CHAPTER   I 

PREROGATIVE   OF   THE   CROWN 

PAGE 

1.  The  Nature  of  Prerogative. 

Executive  and  Legislative  Sovereignty i 

Suggested  Definitions  of  Prerogative    ......  3 

Sources  of  Prerogative 3 

The  Kingship  of  legal  theory 4 

Summary      .                  •         •  5 

2.  The  King  before  Parliaments. 

The  Saxon  King .  6 

The  Normans  and  Feudalism       .... 

The  Norman  King,  his  Council  and  Ministers     ....  9 

The  Curia  and  Exchequer .10 

The  Angevin  Kings I2 

The  Administration  of  Henry  II J3 

Definition  of  Rights  in  the  Great  Charter    .....  J4 

The  Officers  and  Council  of  Henry  III         .....  J5 

3.  Parliament  and  Prerogative l& 

Increased  strength  of  the  Crown .16 

Definition  of  Prerogative  by  Parliament *9 

The  choice  of  Ministers         ......••  2O 

The  detail  of  Administration        .......  2° 

The  Council  under  the  Lancastrians    ......  22 

Their  administrative  weakness 23 

The  strength  of  the  Tudor  Government 24 

How  far  due  to  Parliament a5 

To  the  judicial  action  of  Council 35 

To  the  creation  of  new  Constituencies 3^ 

The  Stuarts  and  Divine  Right a8 

The  Long  Parliament 31 

The  Bill  of  Rights  and  Act  of  Settlement 33 

4.  The  Prerogative  since  1688. 

Constitutional  Monarchy -33 

The  Commons  and  the  King's  Ministers 35 

How  far  the  King  can  choose  his  own  Ministers  36 

How  far  the  King  can  determine  the  policy  of  his  Ministers      .  39 

The  King  leaves  the  Cabinet 4° 


X  CONTENTS 

PAGE 

And  becomes  irresponsible  for  Policy 41 

Historical  Contrasts 43 

The  King  cannot  act  alone -45 

Reasons  for  this  . 46 

The  Value  of  Kingship 49 

Appendix. 

Forms  in  which  the  royal  pleasure  is  expressed          ...  50 

An  Order  in  Council 50 

A  Sign  Manual  Warrant 50 

Instruments  under  the  Great  Seal — Proclamations  and  Writs  .  53 

Letters  Patent  and  Treaties 53 

Persons  responsible  for  the  expression  of  royal  pleasure     .         .  54 

Necessity  for  observance  of  Forms 58 

Occasions  of  their  omission 58 


CHAPTER  II 

THE    COUNCILS   OF   THE    CROWN 

1.  Councils  before  I860. 

The  Three  Councils 60 

The  Councils  of  Coke  and  Hale 61 

The  Continual  Council 63 

Its  relation  to  the  Commons          .                 64 

The  Ordinary  and  Privy  Council t -65 

The  legal  element 65 

Changes  in  the  Tudor  Councils 66 

The  Judicial  Powers  of  the  Council .68 

The  Whitehall  and  the  Court  of  Requests 69 

The  Star  Chamber 71 

Privy  Council  and  Star  Chamber          ......  73 

Different  in  procedure  and  composition       .         ....  73 

The  legislation  of  1641 74 

Council  and  Parliament 74 

Presence  of  Ministers  in  the  Commons 75 

A  better  security  than  Impeachment 76 

2.  The  Supersession  of  the  Council. 

Evolution  of  the  Cabinet 76 

The  Council  after  the  Restoration 77 

Growth  of  departments -78 

Committees  of  Council 79 

The  inner  Council  not  a  Cabinet 81 

Sir  William  Temple's  scheme       ...                 ...  8s 

The  later  Cabinets  of  Charles  II 83 

The  Cabinet  of  William  III 84 

His  view  of  Cabinet  responsibility 84 

Tht  Cabinet  and  the  Commons 87 

Difficulty  of  fixing  responsibility 88 


CONTENTS  XI 

PAGE 

Remedies  attempted  in  the  Act  of  Settlement    ....  91 

The  Cabinets  of  Anne 93 

The  Foreign  Committee 94 

Need  of  departmental  responsibility 95 

3.  The  Cabinet. 

The  Council  and  the  Cabinet 97 

Beginning  of  Cabinet  Government  on  accession  of  George  I       .  97 

Effect  of  absence  of  King  from  Cabinet 97 

Difference  in  title  between  Cabinet  and  Council          ...  98 

And  in  action 98 

Difference  in  summons         ........  99 

Collective  Responsibility  of  the  Cabinet 100 

Irresponsibility  of  eighteenth-century  Cabinets  ....  100 

The  formal  and  the  efficient  Cabinet    .        .         .               •  .        .  101 

The  titular  Cabinet 101 

The  confidential  Cabinet      ........  103 

Opposition  in  the  Cabinet 104 

Disappearance  of  titular  Cabinet 105 

The  grand  Cabinet 105 

Collective  responsibility  in  1782,  in  1806.  and  in  1902        .         .  107 

Unanimity  of  advice  to  the  King 109 

Secrecy  of  Cabinet  proceedings no 

No  record  of  Cabinet  proceedings         .        .        .        .        .        .  1 1 1 

Only  Privy  Councillors  may  attend  as  members .        .        .         .  na 

The  relations  of  the  Cabinet  to  the  Prime  Minister,  Hie  Crown,  and  the 

Commons .  na 

Prime  Minister  a  modern  institution iia 

Walpole  first  Prime  Minister  in  modern  sense    .        .        .        .114 

The  sources  of  Walpole's  power 115 

Development  of  party  management 116 

Prime  Minister  not  recognized  as  necessary  until  Pitt's  time      .  117 

Conditions  of  Premiership  before  1832 117 

Size  of  Cabinets  in  eighteenth  century 118 

Effect  of  extension  of  franchise  on  position  of  Prime  Minister   .  119 
The  Prime  Minister  and  his  Colleagues          .        .         .         .         .         .120 

Mode  of  appointment  of  Prime  Minister 120 

His  departmental  duties 120 

Cabinet  Committees 122 

Inner  circle  of  Cabinet 122 

Prime  Minister's  duties  to  his  colleagues 124 

His  power  of  dismissal 124 

Dismissal  of  Thurlow  and  Palmerston 126 

Effect  of  resignations 127 

Precedence  of  Prime  Minister 127 

Relations  of  the  Cabinet  to  the  Crown 128 

Cabinet  entitled  to  King's  confidence 128 

Duties  of  Cabinet  to  King 129 

Queen  Victoria  and  Lord  Palmerston            129 

Tlie  relations  of  the  Cabinet  and  the  House  of  Commons            .         .         .  130 

How  majorities  obtained  in  eighteenth  century          .        .        .  131 


Xll  CONTENTS 

PAGE 

Causes  of  fall  of  Ministers 133 

Changed  relations  of  Cabinet  and  Commons        ....  133 

Causes  of  increased  power  of  Cabinet 135 

The  Imperial  Defence  Committee 136 

4.  The  House  of  Lords  and  the  Privy  Council. 

The  House  of  Lords  as  a  Council  of  the  Crown    ....  136 

The  Privy  Council  does  not  advise  the  Crown     ....  137 

Except  in  Committees  .........  138 

Appointment  and  Oath  of  Privy  Councillors        ....  138 

Composition  of  the  Council 139 

Its  members  are  on  the  Commission  of  the  Peace        .         .         .  140 


CHAPTER  III 

THE   DEPARTMENTS    OF    GOVERNMENT   AND   THE   MINISTERS 
OF   THE   CROWN 

The  Cabinet  the  motive  power     .......  141 

The  Departments  the  executive  power          .        .         .        .         .143 

1.  The  growth  of  departments  of  Government. 

Household  offices,  ancient  and  modern 143 

Political  offices .  144 

2.  The  Privy  Council. 

Proclamations  and  Orders  in  Council 147 

3.  The  Chancery  and  the  Secretariat. 

The  Chancellor 150 

His  duties  :  judicial IS1 

Political 153 

Administrative 153 

The  Crown  Office  in  Chancery •  X53 

The  religious  disability 155 

The  Lord  Keeper *55 

The  Lord  Privy  Seal i56 

The  Secretariat  .  . 157 

The  King's  Secretary i58 

The  Principal  Secretary  .  .  .  .  .  •  •  159 

The  Principal  Secretary  of  State 161 

The  Secretaries  and  the  Cabinet 163 

The  Northern  and  Southern  departments  .  .  .  .164 

The  Home  Office  and  Foreign  Office 165 

The  Five  Secretaries *6? 

Their  seals  and  the  uses  of  them 169 

The  Secretary  for  Scotland    ....  .         .  170 

The  Chief  Secretary  to  the  Lord  Lieutenant  .  .  .  171 


CONTENTS  Xlll 


4.  The  Treasury  and  its  Officers. 

History  of  the  Treasury 173 

The  Norman  Exchequer 173 

The  Treasurer 174 

The  Exchequer 174 

The  Lord  High  Treasurer  .  .  .  .  •  .  .175 

The  Commission  of  the  Treasury 175 

Severance  of  Treasury  and  Exchequer  .  .  •  .  .176 

The  Treasury  in  Commission 176 

Prime  Minister  as  First  Lord 176 

Duties  of  First  Lord 178 

Business  of  Treasury  Board 178 

The  Chancellor  of  the  Exchequer 179 

Duties  of  Chancellor  .  . 179 

Increased  importance  of  office 179 

His  judicial  powers 181 

Appoints  sheriffs  .  • 181 

The  Parliamentary  Staff  .  .  .  .  .  .  .  -182 

The  Junior  Lords 182 

The  political  and  financial  Secretaries  ....  183 

The  Permanent  Staff 183 

Departments  connected  with  the  Treasury  .  .  .  .185 

Control  and  Audit 185 

Parliamentary  Council  . 186 

Woods  and  Forests  . 186 

Customs  and  Inland  Revenue  ......  187 

The  Post  Office 187 

Its  history 187 

The  Postmaster-General 187 

His  powers  and  their  limitations 188 

5.  The  Commission  of  the  Admiralty. 

Its  history 190 

The  Admiralty  Board .  190 

Its  constitution 191 

Position  of  First  Lord    .        .         ......  191 

Duties  of  Sea  Lords 192 

Distribution  of  Business 192 

General  constitution  of  Admiralty 193 

6.  The  Boards. 

The  Board  of  Trade 194 

Its  history 194 

Its  consultative  duties 195 

Its  regulative  duties  .  .  .  .  .  .  .  .196 

The  Board  of  Works 199 

The  First  Commissioner  .......  200 

The  Local  Government  Board 201 

The  Board  of  Agriculture  and  Fisheries 201 

The  Board  and  the  Land  Commissioners  ....  202 


XIV  CONTENTS 


The  Board  of  Education 303 

Its  constitution  and  duties    .  203 

Educational  duties  of  other  departments 305 

7.  Miscellaneous,  Subordinate,  and  Non-political  Offices. 

The  Chancellor  of  the  Duchy  of  Lancaster  .....  006 

The  Law  Officers  of  the  Oown     .......  907 

Subordinate  Offices ao8 

Ministers  and  Cabinet  . aio 

Ministers  and  Parliament 211 

Non-Political  Departments aia 

Offices  connected  with  the  Treasury aia 

The  Ecclesiastical  Commission 313 

The  Charity  Commission 313 

8.  The  Civil  Service  and  the  Terms  of  Official  Tenure. 

The  Permanent  Civil  Service        .......  ai6 

Its  relation  to  the  parliamentary  chief.        ....  217 

Value  of  the  system 218 

Conditions  of  Tenure 221 

At  pleasure 221 

During  good  behaviour 232 

Liability  to  removal  on  address  of  both  Houses  .  .  .  222 

Modes  of  dismissal 223 


CHAPTER    IV 

THE   TITLE   TO   THE   CROWN   AND   THE   RELATION    OP 
SOVEREIGN    AND   SUBJECT 

1.  The  History  of  the  Title  to  the  Crown. 

Title  by  Election 225 

Title  by  Inheritance 226 

Effect  of  Coronation 237 

Parliamentary  Title  and  Hereditary  Right          ....  228 

The  Declaration  of  Rights 231 

The  Settlement  of  1700 232 

2.  Modern  Forms. 

The  Proclamation  of  Edward  VII 234 

The  Coronation 335 

The  Coronation  Oath 236 

3.  Allegiance ...  238 

Nature  of  Allegiance 339 

Naturalization  and  Alienage 340 

4.  Treason .        .  242 

The  Statute  of  Treasons 343 

Modern  Changes «44 


CONTENTS  XV 

PAGE 

5.  Incapacity  of  the  King 345 

Absence 246 

Infancy 247 

Insanity 248 

Moral  Incapacity 250 

6.  The  Demise  of  the  Crown. 

Does  not  affect  duration  of  Parliament 951 

Tenure  of  office  at  death  of  Sovereign  .        .        .        .        .        .251 

Demise  of  the  Crown  Act 254 

7.  The  King's  Family. 

A  King's  Wife 255 

A  Queen's  Husband 255 

The  Royal  Children 257 


APPENDIX 

1.  Letters  Patent 259 

2.  Sign  Manual  Warrants 261 

3.  Commissions  and  Royal  Orders 265 

4.  Oaths 268 

INDEX 27I 


INTRODUCTION 

THE  writer  who  sets  about  the  task  of  describing  the  Modes  of 
Constitution  of  his  country  may  follow  more  ways  than  constitu 
one.  tion. 

There  are,  at  any  rate,  three  distinct  methods  of  treat- 
ment. He  may  take  the  characteristic  principles  which  Dicey, 
distinguish  our  Constitution  from  those  of  other  states. 
He  may  show  how  historical  antecedents  and  traits  of 
national  character  lead  us  to  approach  constitutional 
problems  from  a  point  of  view  different  to  that  of  other 
nationalities.  Treatment  of  this  sort,  setting  forth  deep- 
seated  principles  and  illustrating  their  action  from  history 
and  from  the  present  time,  is  perhaps  of  more  permanent 
value  than  any  other  mode  of  describing  a  given  constitu- 
tion. This  is  the  method  adopted  by  Mr.  Dicey  in  his  work 
on  the  Law  of  the  Constitution. 

Another  method  is  that  followed  by  Mr.  Bagehot  in  his  Bagehot 
English  Constitution  and  Mr.  Low  in  his  Governance  of and  Low< 
England.  They  do  not  describe  in  detail  the  structure 
or  the  relations  of  the  various  parts  of  our  Constitution. 
They  assume  a  knowledge  of  the  general  law  and  pro- 
cedure of  Parliament,  of  the  nature  of  the  Cabinet,  of  the 
departments  of  Government.  They  draw  vivid  and  life- 
like pictures  of  a  Constitution  in  being.  Mr.  Dicey  deals 
rather  with  the  relations  of  the  individual  to  the  sovereign 
power  of  the  state ;  his  rights  as  to  freedom  of  the  person, 
freedom  of  speech,  freedom  of  public  meeting ;  his  subjection 
to  Parliament  in  the  matter  of  legislation.  Mr.  Bagehot 
and  Mr.  Low  are  not  concerned  with  these  matters.  They 
show  us  how  the  machine  works,  what  parts  are  played  by 
the  King,  by  the  Cabinet,  the  Prime  Minister,  the  two 
Houses  of  Parliament.  The  pictures,  no  doubt,  are  of  the 
sort  described  as  impressionist,  but  they  live  all  the  same. 

AK8OK.    CROWN  V| 


xviii  INTRODUCTION 

Th«  There  is  a  third  method,  that  which  I  have  adopted,  and 

frTJSJi.     !  think  that  it  offers  the   most  ungrateful  task  of   the 

three.     I  have   tried  to  describe   these   institutions   with 

enough  history  to  explain  their  existence,  and  enough  of 

their  working  to  show  what  they  are  intended  to  do. 

Necessarily  I  have  been  obliged  to  enter  into  details 
some  of  which  are  dry  and  wearisome  to  the  reader.  Often 
I  fear  that  I  may  not  have  observed  a  due  proportion 
between  the  history  of  an  institution  and  its  present  state. 
The  history  of  the  Government  departments  has  yet  to  be 
written,  but  those  of  our  institutions  which  are  less  definite 
in  character — the  Cabinet,  the  Prime  Minister — must  be 
treated  historically  if  they  are  to  be  treated  at  all;  for 
the  present,  in  these  cases,  is  a  dissolving  view ;  the  changes 
are  constant,  often  almost  imperceptible,  but  nevertheless 
very  real. 

The  Con-  This  is  what  renders  so  attractive  the  pictures  drawn  for 
iu^beVng,  ^  ^y  ^r>  Bagehot  and  Mr.  Low  ;  they  represent  the  work- 
ing of  the  Constitution  at  a  given  time,  but  only  for  a  time. 
They  tell  us,  what  no  dry  record  of  institutions  and 
their  changes  could  tell  us,  how  the  thing  which  we  call 
our  Constitution  lived  and  moved.  They  suggest  many 
questions  as  to  how  the  changes  have  come  about  which 
we  see  but  cannot  at  once  explain.  The  great  framework 
in  1868,  of  Government  is  much  the  same  in  1868  and  in  1904. 
Political  power  has  been  extended  to  a  larger  electorate 
by  acts  dealing  with  the  representation  of  the  people ;  con- 
stituencies have  been  rearranged  by  the  Redistribution  Act 
of  1885;  Local  Government  has  been  democratized.  But 
apart  from  Local  Government  our  institutions  remain  the 
same,  and  yet  the  balance  of  power  has  shifted.  Bagehot 
describes  the  institutions  of  to-day,  but  we  feel  that  they  are 
in  1904.  changed.  Mr.  Low  describes  the  same  institutions  thirty- 
six  years  later,  and  we  feel  that  they  are  changing  even  now. 
This  is  the  way  of  constitutions  written  or  unwritten,  and 
our  Constitution,  so  largely  dependent  upon  conventions,  so 
scantily  expressed  in  written  form,  is  peculiarly  susceptible 
to  such  changes.  Yet  it  is  worth  while  to  ask  what  they 
are  arid  how  they  have  come  about,  for  this  book  deals 


INTRODUCTION  XIX 

with  the  Crown,  the  Councils  of  the  Crown,  and  the  Changes 
Ministers  of  the  Crown,  and  necessarily  with  the  relations  ° 
of  these  to  Parliament.  Nineteenth-century  legislation, 
though  it  has  extended  the  possession  and  altered  the  dis- 
tribution of  political  power  as  regards  the  choice  of  members 
to  serve  in  the  House  of  Commons,  has  never  touched  the 
relations  of  the  King  and  his  Cabinet  to  Parliament.  Statute 
has  embodied  much  of  the  Common  Law  prerogative  of 
the  Crown,  and  has  for  many  purposes  conferred  necessary 
executive  powers  upon  the  King  and  his  Ministers.  But  Changes 
the  altered  relations  of  the  Cabinet  and  the  Commons  which 
we  may  observe  if  we  follow  the  political  history  of  the 
last  thirty  years,  cannot  be  described  as  resulting  from 
the  deliberate  action  of  the  Legislature.  If  we  note  these 
changes  and  try  to  explain  them  it  may  serve  to  warn  us 
that  while  the  machinery  of  the  Constitution  may  be 
described  in  the  same  terms  at  two  periods  fairly  remote 
from  one  another,  yet  that  the  working  of  the  machine 
may  be  very  different.  There  may  be  a  change  in  the 
motive  power,  and  the  results  may  differ  correspondingly. 

Bagehot  describes  the  Constitution  as  it  was  when  Compare 
Palmerston  was  Prime  Minister.  His  book  is  an  analysis 
of  the  motive  powers  of  the  Government  of  this  country, 
none  the  less  searching  and  profound  because  written 
in  a  familiar  style.  In  a  Preface  to  the  second  edition, 
which  came  out  in  1872,  he  admits  that  much  had 
changed  in  the  previous  seven  years ;  that  the  disappearance 
of  Palmerston,  Derby,  and  Russell,  the  statesmen  of  the  days 
before  the  first  Reform  Bill,  made  a  marked  difference  in 
the  atmosphere  of  politics,  independent  of  any  legislative 
change,  and  that  the  extension  of  the  franchise  in  1867 
had  altered,  and  would  probably  alter  still  further,  the 
character  of  the  electorate.  But  he  reprinted  his  book  as 
it  was  written,  subject  to  reservations  in  the  Preface ;  and 
useful  as  it  may  be  to  compare  the  Bagehot  of  1872  with 
the  Bagehot  of  1 868,  it  is  more  important  to  compare  these 
with  the  work  of  Mr.  Low  writing  in  1904. 

There  can  be  no  doubt  that  Bagehot,  whether  he  was 
writing  in  1872  or  in  1868,  regarded  the  House  of  Commons 

b2 


XX  INTRODUCTION 

Bagehot     as  the  centre  of  political  power  and  of  political  influence. 
macyPof     ^7  ^"s  ^  mean  n°t  merely  that  it  was  the  strongest  and 
Commons,  most  necessary  part  of  the  machine,  but  that   it   formed 
public  opinion  on  great  political  subjects. 

As  one  reads    the   book  it  becomes  evident  that   this 
Its  causes:  supremacy  of  the  House  of  Commons  is  indicated  by  three 
features. 

The  electorate,  before  the  changes  of  1867,  was  what  he 
describes  as  '  deferential.'  The  House  of  Commons  chose 
the  executive,  and  kept  a  constant  supervision  over  the 
action  of  Ministers.  Government  was  what  he  calls 
'  Government  by  discussion,'  and  discussion  conducted  in 
the  House. 

(a)  defer-  By  a  deferential  electorate  Bagehot  means  that  the 
electorate-  elec^°rs  were  prepared  to  believe  that  those  who  offered  to 
represent  them  had  better  opportunities  of  knowledge,  more 
experience,  and  more  leisure  than  themselves,  hence  they 
chose  men  of  means  and  social  position  in  preference  to 
others.  To  use  his  own  words,  he  means : — '  that  the  mass 
of  ten-pound  householders  did  not  really  form  their  own 
opinions,  and  did  not  exact  of  their  representatives  an 
obedience  to  those  opinions ;  that  they  were,  in  fact,  guided 
in  their  judgment  by  the  better  educated  classes;  that  they 
preferred  representatives  from  those  classes,  and  gave  those 
representatives  much  licence  V 

Whether  this  attitude  of  the  electorate  towards  its  repre- 
sentatives was  likely  to  continue  after  1867  he  regards  as 
open  to  question,  and  a  body  of  critical  and  insistent  electors 
must  necessarily  alter  to  some  extent  the  character  of  the 
House  of  Commons,  and  affect  the  independence  of  the  indi- 
vidual member.  But  this  leaves  untouched  the  other  two 
features  of  the  Constitution  :  the  power  possessed  by  the 
Commons  to  choose  and  control  the  Ministers  of  the  Crown, 
and  the  conduct  of  Government  by  discussion,  that  is,  dis- 
cussion taking  place  in  the  House  of  Commons. 

The  choosing  and  controlling  power  of  the  House  of 
Commons  is  again  and  again  insisted  upon.  '  The  House  of 

1  Bagehot.  introduction  to  2nd  edition,  p.  x. 


INTRODUCTION  XXI 

Commons  is  an  electoral  chamber;  it  is  the  assembly  which  (5)  control 
chooses  our  President.'     He  compares  it  with  the  electoral  °l,er01 
college  in  the  constitution  of  the  United  States.     The  mem-  Ministers; 
bers  of  that  college  are  sent  there  to  vote  for  a  particular 
candidate,  and  when  they  have  voted  their  work  is  done : 
they  have  no  further  control  over  his  action. 

'  But  our  House  of  Commons  is  a  real  choosing  body ;  it 
elects  the  people  it  likes.  And  it  dismisses  whom  it  likes  too. 
No  matter  that  a  few  months  since  it  was  chosen  to  support 
Lord  Aberdeen  or  Lord  Palmerston  ;  upon  a  sudden  occasion 
it  ousts  the  statesman  to  whom  it  first  adhered,  and  selects 
an  opposite  statesman  whom  it  at  first  rejected.  Doubtless  in 
such  cases  there  is  a  tacit  reference  to  probable  public  opinion; 
but  certainly  also  there  is  much  free  will  in  the  judgment  of  the 
Commons  V 

Later  he  speaks  of  the  continuous  control  of  the  Com- 
mons arising  from  its  power  of  dismissal.  '  Its  relations  to 
the  Premier  are  incessant.  They  guide  him,  and  he  leads 
them.'  He  contrasts  the  merits  of  the  House  and  the  whole 
body  of  the  electorate  as  a  choosing  body ;  a  man  chosen 
by  the  whole  electorate  '  is  not  the  choice  of  the  nation,  he 
is  the  choice  of  the  wire-pullers  V  Elsewhere  he  expresses 
apprehensions  which  sound  strange  to  us  as  to  the  risk 
of  'the  caprice  of  Parliament  in  the  choice  of  a  Ministry. 
A  nation  can  hardly  control  it  here ;  and  it  is  not  good  that 
except  within  wide  limits  it  should  control  it  V 

So  much  for  the  powers  of  the  House  of  Commons  in  the 
selection  and  control  of  Ministers.  Now  as  to  government 
by  discussion.  '  No  State,'  he  says, '  can  be  first  rate  which  sion. 
has  not  a  Government  by  discussion.'  It  is  '  a  distinguish- 
ing feature  of  Parliamentary  Government  that  in  each  stage 
of  a  public  transaction  there  is  a  discussion  V  The  House 
of  Commons  is  '  a  great  and  open  Council  of  considerable 
men  which  cannot  be  placed  in  the  middle  of  a  society 
without  altering  it.  It  ought  to  alter  that  society  for  the 
better.  It  ought  to  teach  the  nation  what  it  does  not 

1  Bagehot,  p.  131.  •  ibid.,  p.  26.  '  ibid.,  p.  249. 

4  Ibid.,  and  edition,  pp.  lix  and  Ixxi. 


XX  11  INTRODUCTION 

know  V  Elsewhere  he  speaks  of  the  apparent  anomaly  of 
'  government  by  public  meeting.'  It  is,  he  says,  only 
rendered  possible  by  party  organization,  and  that  again  is 
only  permanently  efficient  because  the  parties  are  noo  com- 
posed of  warm  partisans.  But  for  this,  he  says,  party 
government  would  be  sectarian  government,  a  government 
in  which  each  party,  when  in  power,  endeavours  to  push  its 
tenets  to  their  logical  results  2. 

Estimate       Such,  then,  was  the  House  of  Commons  in  the  Palmer- 

hot  a  stonian  period  in  the  eyes  of  a  political  critic  at  once  acute 
and  profound.  A  body  of  men  treated  with  respectful 
deference  by  the  electorate  ;  choosing,  supervising,  dismiss- 
ing at  pleasure,  the  Ministers  of  the  Crown  :  parties  to 
discussions  on  which  the  fate  of  a  Government  may  depend, 
and  by  which  the  mind  of  the  country  is  informed  on  all 
matters  of  current  political  interest. 

No  wonder  that  a  seat  in  the  House  of  Commons  was  an 
object  of  ambition.  Bagehot  tells  us  that  he  heard  a  man 
say,  '  I  wrote  books  for  twenty  years,  and  I  was  nobody  ; 
I  got  into  Parliament,  and  before  I  had  taken  my  seat 
I  had  become  somebody.' 

and  Low  In  1904  Mr.  Low  forms  a  very  different  estimate  of  the 
situation  as  regards  the  prestige  attaching  to  a  seat  in  the 
House  of  Commons.  '  In  these  days,'  he  says,  '  one  would 
be  more  likely  to  hear  testimony  of  a  very  different  cha- 
racter. "  I  sat  in  Parliament  for  twenty  years.  I  voted 
steadily.  I  even  made  a  speech  occasionally.  But  outside 
my  constituency  nobody  ever  seemed  to  have  heard  of  me. 

of  import-  Then  I  wrote  a  flashy  novel  and  some  flippant  essays,  and 

Commons.  I  became  a  sort  of  celebrity  at  once  3."  ' 

If  we  ask  how  the  change  has  come  about  —  and  though 
Mr.  Low  puts  the  matter  hypothetically  and  somewhat 
incisively,  it  is  impossible  to  deny  that  there  has  been  a 
change  —  we  may  go  back  to  the  three  characteristic  features 

Reasons  which  mark  Bagehot's  estimate  of  the  House  of  Commons, 
an^  as^  ^  the  are  8^^  ^n  existence. 


change 

First,  the  electorate,  enormously  extended  by  the  Fran- 

1  Bagehot,  p.  133.  *  ibid.,  pp.  142,  143. 

*  Low,  Governance  of  England,  p.  98. 


INTRODUCTION  XXlll 

chise  Act  of  1 884,  is  no  longer '  deferential.'   A  constituency  Altered 
does  not  send  a  man  to  Parliament  because  it  is  thought  of  elector- 
that  he  can  form  a  better  opinion  on  the  topics  of  the  day  ate. 
than  the  voters  who  sent  him  there.     He  is  sent  to  vote  for 
the  Minister,  and  for  the  measures,  acceptable  to  the  party 
organization  by  whose  exertions  he  has  been  returned.    We 
have   moved   a   long  way  from   Bagehot's   conception   of 
Parliamentary  government.     The  representative  assembly 
has   ceased,  from  his  point   of  view,  to  be   independent, 
because  it  is  dominated  by  the  constituencies,  and,  to  use  his 
own  words,  '  constituency  government  is  the  precise  oppo- 
site of  Parliamentary  government.     It  is  the  government 
of  immoderate  persons  far  from  the  scene  of  action,  instead 
of  the  government  of  moderate  persons  close  to  the  scene  of 
action  V 

This  may  explain  why  the  House  has  become  less  attrac- 
tive to  the  average  man  of  public  spirit  who  is  willing  to 
give  up  a  great  deal  of  his  leisure  to  the  service  of  his 
country.  Constituencies  are  exacting  as  to  the  vote  and 
speech  of  their  member  in  the  House ;  they  are  exacting  also 
in  their  demands  upon  his  attention  when  Parliament  is 
not  sitting.  The  choice  and  supervision  of  Ministers  which 
Bagehot  assigns  to  the  House  of  Commons  may  be  said 
to  have  passed,  as  regards  choice,  to  the  constituencies,  as 
regards  supervision,  to  the  Press. 

We  come  then  naturally  to  this  next  point.     The  House  Loss  of 
is  no  longer  '  an  electoral  chamber.'   The  capricious  exercise  oVerr° 
of  its  powers  of  choice,  as  exemplified  by  the  fall  of  Lord  ministers. 
Palmerston's  Government  in  1 857  and  of  Lord  Russell's  in 
1866,  would  no  longer  be  possible  now.     Mr.  Low  put  this 
very  plainly. 

'  It  is  the  constituencies  which  in  fact  decide  on  the  com- 
bination of  party  leaders  to  whom  they  will,  from  time  to 
time,  delegate  their  authority.'  '  The  member  of  Parliament, 
sent  to  the  House  of  Commons  by  his  constituents,  goes  there 
under  a  pledge  that  he  will  cast  his  vote,  under  all  normal 
conditions  during  the  life  of  the  Parliament,  for  the  authorized 
leaders  of  his  party4.' 

1  Bagehot,  p.  146.  J  Low,  pp.  101,  103. 


XXIV  INTRODUCTION 

selective  In  one  respect  the  House  retains  a  certain  selective 
Hous«0  function.  A  man  must  show  in  debate  that  he  has  some 
powers  of  speech,  some  dexterity  in  the  handling  of  a 
subject,  some  readiness  of  reply,  in  order  to  constitute  him- 
self a  candidate  for  office.  A  Prime  Minister,  in  filling  the 
subordinate  offices  of  Government,  will  probably  choose 
men  who  have  shown  themselves  acceptable  to  the  House. 
These  are  cases  in  which  neither  the  man  nor  the  office 
occupy  to  an  appreciable  extent  the  attention  of  the 
electorate,  and  to  this  extent  the  House  of  Commons  does 
exercise  a  real  though  not  a  dominating  influence  upon  the 
choice  of  Ministers l. 

The  active  part  played  by  the  constituencies  in  the  selec- 
tion of  the  leaders  who  are  to  be  followed,  and  the  policy 
to  be  pursued,  naturally  confers  a  great  increase  of  power 
upon  the  Cabinet  or  Prime  Minister.  They  and  their 
policy  represent  the  choice  of  the  majority,  for  the  moment, 
of  the  electorate,  and  the  voters  see  to  it  that  their  repre- 
sentatives give  effect  to  their  choice. 

Limits-          An  indication  of  this  increased  power  of  the  Cabinet  is 
tionof       to  ^  foun(j  in  the  virtual  disappearance  of  the  third  of 

discussion  rr 

by  rules  of  those  features  which  Bagehot  described  as  essential  to 
cl'inT  our  constitution — '  Government  by  discussion.'  Successive 
codes  of  Procedure  have  placed  the  control  of  the  time  of 
the  House  more  and  more  in  the  hands  of  the  Govern- 
ment. There  are,  no  doubt,  good  reasons  why  the 
Government  should  demand  more  time.  The  topics  for 
Their  legislation  and  discussion  have  increased  with  the  exten- 
sion of  the  King's  dominions,  with  the  larger  concern  of 
the  State  in  matters  which  were  in  time  past  left  to  the 
individual,  with  the  development  of  industry  and  com- 
merce. Discussion  itself  is  prolonged.  The  Councils  of 
counties  and  boroughs  now  send  up  men  who  have  played 
a  part  in  local  affairs,  and  who  consider  that  the  House 
should  have  the  benefit  of  their  acquired  facility  of 
expression.  Obstruction,  which  came  into  existence  in 
the  year  of  Bagehot's  death,  gives  a  valid  reason  for 

1  See  a  letter  written  by  the  late  Lord  Salisbury  to  Mr.  Low,  and 
printed  on  p.  na  of  the  Governance  of  England. 


INTRODUCTION  XXV 

some  control  of  debate,  and  the  result  of  this  combination 
of  causes  has  had  a  marked  and  not  very  happy  influence  on 
the  rights  of  members  to  discuss  matters  of  public  interest. 

Firstly,  the  initiative  in  legislation  and  discussion  which  Their 
private  members  once  enjoyed  has  been  greatly  reduced  result 
by  rules  of   Procedure.    A  Bill  introduced  by  a  private 
member  has  little  chance  of  passing  unless  the  Govern-  on  initia- 
ment  assist  its  passage  ;   if  he  introduce  a  resolution  the  p^v^te 
discussion  is   little  more  than  academical,  and  its  result  members  : 
has  no  practical  outcome;  a  motion  for  the  adjournment 
of  the  House  may  be  met  by  a  blocking  resolution. 

And  again,  not  only  does  the  Government  appropriate  the  °n  dis- 
time  of  the  House  in  large  measure  to  its  own  business,  but  Govern- 


the  way  in  which  that  time  may  be  expended  is  also  marked 

.       .         it  •,  business. 

out.  The  various  forms  or  bringing  debate  to  a  close,  more 
especially  the  closure  by  compartments,  or  the  guillotine, 
necessary  as  they  may  sometimes  become  if  discussion  is 
to  be  kept  within  reasonable  limits,  have  occasionally  this 
startling  result,  that  large  portions  of  an  important  and 
contentious  measure  may  be  passed  without  any  discussion 
at  all.  If  they  are  to  obtain  consideration  at  all  they 
must  obtain  it  in  the  House  of  Lords,  where  debate  is 
brief,  businesslike,  and  unrestricted  by  the  closure. 

The  tendency  of  every  change  of  Procedure,  for  many 
years  past,  has  been  to  impair  the  rights,  restrict  the 
independence,  and  so  diminish  the  importance  of  the 
private  member.  But,  excepting  those  who  hold  office, 
the  House  of  Commons  is  made  up  of  private  members. 

Parliament  exists,  as  its  name  implies,  for  discussion  :  so 
if  the  right  of  initiating  discussion  is  limited  in  order  to 
give  time  for  Government  measures,  and  if  discussion  on 
these  is  again  limited  practically  at  the  pleasure  of  the 
Ministry,  it  seems  plain  that  the  power  of  the  Cabinet  has 
grown  at  the  expense  of  the  House  of  Commons. 

And  thus,  while  the  power  of  choosing  ministers,  which  Increased 
Bagehot  regarded  as  the  great  function  of  the  House  of  cabinet. 
Commons,  has  passed  in  large  measure  to  the  electorate, 
Government  by  discussion,  which  in  Bagehot's  view  was 
essential  if  a  constitution  was  to  be  first-rate  in  quality, 


XXVI 


INTRODUCTION 


has  come,  so  far  as  the  Commons  are  concerned,  to  be  Govern- 
ment by  just  so  much  discussion  as  the  Cabinet  pleases. 
The  power  The  weapon  by  which  the  Prime  Minister  or  the  Cabinet 
enforces  its  will  upon  the  Commons  is  the  threat  of  a  dis- 
solution. The  mere  intimation  that,  if  the  necessary  support 
is  not  given  to  a  Government,  its  careless  or  lukewarm 
supporters  may  be  sent  to  explain  their  conduct  to  their 
constituents  has  been  known  to  produce  the  desired  results l. 
But  why  is  it  so  effective?  Why  cannot  the  candidate 
plead  his  own  merits,  explain  the  causes  of  his  conduct,  and 
satisfy  his  constituents  of  his  loyalty  to  the  principles  which 
he  has  professed  ? 

Mr.  Low  supplies  the  reason,  though,  curiously  enough,  he 
describes  it  as  a  result  and  not  a  cause  of  the  power  thus 
exercised  by  a  Minister. 

'It  follows  also,'  he  says,  'that  one  cannot,  at  any  given 
moment,  except  in  the  few  months  immediately  succeeding 
a  general  election,  say  that  the  House  of  Commons  represents 
the  opinion  of  even  the  majority  of  the  electorate.  It  may  have 
done  so,  roughly  speaking,  when  it  was  chosen ;  but  it  may 
have  lost  that  character  long  before  it  has  seemed  fit  to  the 
Premier  to  recommend  a  dissolution2.' 


Why 
effective. 


The 
single  - 
member 
consti- 
tuency. 


This  is  what  makes  the  threat  of  a  dissolution  effective. 
Members  know  that  under  the  present  conditions  of  a 
general  election  the  opinion  of  the  country,  as  expressed  by 
the  result  of  the  polls,  can  only  be  very  roughly  described  as 
genuine,  and  is  almost  certainly  short-lived.  They  know, 
therefore,  that  a  dissolution  means  an  election  contest,  with 
a  certainty  of  expense  and  a  probability  of  defeat. 

The  causes  of  this  probability  are  to  be  found  partly  in 
law,  partly  in  custom.  The  law  is  the  Redistribution  Act 
of  1 885 ;  the  custom  is  the  modern  development  of  party 
organization.  The  Redistribution  Act  based  our  repre- 
sentative system  on  the  single-member  constituency,  and 
party  organization  has  practically  reduced  the  choice  of  the 
elector  to  two,  or  possibly  three,  candidates,  no  one  of  whom 
may  be  altogether  satisfactory  to  him. 


1  Low,  Governance  of  England,  p.  no. 


2  Ibid.  p.  iia. 


INTRODUCTION  XXV11 

Every  party  worthy  of  the  name,  every  party  which 
professes  great  principles  and  is  not  limited  in  its  efforts 
and  interests  to  some  one  topic  in  the  range  of  politics, 
embodies  various  elements :  its  members  differ  on  various 
points  within  the  range  of  those  principles  which  are  of 
the  essence  of  the  party  creed.  But  as  a  single-member 
constituency,  ex  vi  termini,  can  only  elect  one  member,  it 
follows  that  if  a  number  of  persons  compete  for  a  privilege 
which  can  only  be  accorded  to  one,  the  choice  of  the  con- 
stituency, as  determined  by  a  ballot  in  which  each  voter 
votes  once  for  all  for  one  candidate,  may  not  express  even 
the  passing  opinions  of  the  majority  of  the  electors. 

If  we  can  suppose  such  a  constituency  contested  by  six 
persons,  two  representatives  of  the  Unionist  party,  a  Free 
Trader,  and  a  Tariff  Reformer,  two  Liberals,  one  of  whom 
would  abolish,  and  the  other  reform,  the  House  of  Lords, 
a  Nationalist,  and  a  representative  of  the  Independent 
Labour  Party,  the  result  would  probably  be  a  victory  for 
the  representative  of  that  party  whose  internal  divisions 
were  least  acute.  There  would  almost  certainly  be  some 
one  of  the  candidates  whom  a  large  majority  of  the  electors 
would  have  placed  second  if  they  had  ranged  the  candidates 
in  the  order  of  their  choice,  or  would,  at  any  rate,  have 
preferred  to  the  person  elected. 

Organization,  or  '  the  caucus/  has  come  into  existence  to  Party 
remove  this  difficulty,  but  the  result  remains  unsatisfactory.  °j 
Without  organization  the  elector,  confused  by  a  wide  range 
of  choice,  may  vote  for  the  man  whom  he  would  place  first, 
and  may  find,  not  only  that  he  is  one  of  a  minority,  but 
that  he  has  helped  to  ensure  the  defeat  of  the  man  whom 
he  would  have  placed  second  if  his  views  could  have  found 
full  expression.  With  organization  the  elector  may  find 
his  choice  so  narrowed  that  neither  candidate  is  satisfactory 
to  him,  and  he  may  abstain  or  even  vote  against  his  party. 
It  is  not  every  voter  who  has  definite  opinions  or  convictions 
on  the  issues,  large  or  small,  which  divide  the  great  parties 
in  the  State.  There  is  a  class  of  indifferent  voter  who  is 
disposed  to  think  that  each  party  should  have  its  turn,  and 
there  is  yet  another  who  likes  to  be  on  the  winning  side. 


XXV111  INTRODUCTION 

Their  All   these   elements  of   uncertainty  are  present  to  the 

'  °f  ^ne  member  who  is  threatened  with  a  dissolution 


pendence  by  the  leaders  of  his  party.  He  knows  that  the  narrow 
bers.  choice  afforded  to  the  electors  may  have  made  him  barely 
acceptable  to  many  who  voted  for  him  on  the  occasion  of 
his  return.  Party  organization  outside  the  House,  and 
party  discipline,  controlling  discussion  inside  the  House, 
combine  to  make  him  feel  that  he  cannot  depend  for 
re-election  on  individual  merits  which  he  may  have  had 
little  opportunity  of  displaying  in  debate.  He  may  have 
displeased  the  party,  or  the  party  organizers  ;  he  will  cer- 
tainly do  so  if  he  votes  against  his  leaders  ;  his  party  may 
have  become  unpopular  in  the  constituency  ;  while  he  has 
been  occupied  in  Parliament  an  opponent  may  have  capti- 
vated the  electors;  and  if  the  polling  in  his  constituency 
comes  late  and  matters  go  ill  with  his  party,  he  may  suffer 
for  the  misfortunes  of  his  friends  and  go  out  with  the  tide. 
If  this  were  a  place  to  discuss  electoral  statistics,  it 
would  not  be  difficult  to  show  how  great  are  the  uncertain- 
ties, and  how  unrepresentative  are  the  results  of  our  present 
electoral  system  1.  All  these  things  are  present  to  the 
mind  of  the  member  who  at  cost  of  money,  time,  and  pains 
has  won  his  seat,  and  is  therefore  prepared  to  make  some 
sacrifice  of  independence  to  avoid  the  risks  of  a  general 
election.  And  this  is  why  the  Cabinet  holds  its  followers 
in  a  firmer  grip  than  was  possible  in  days  when  single- 
member  constituencies  were  rare,  and  the  'caucus'  was 
unknown. 

General         Thus  have  events  altered  the  phenomena  which  under- 

results.      went   the   searching  diagnosis  of   Bagehot.     The  electors, 

not  the  Commons,  choose  the  Government:   the  Govern- 

ment, not  the  Commons,  determines  the  limits  of  discussion. 

1  At  the  general  election  in  1886  a  majority  of  votes  was  given  for 
candidates  who  were  in  favour  of  Home  Rule,  but  the  Parliamentary 
result  was  a  Unionist  majority  of  104.  In  1895  the  difference  between 
the  two  great  parties  at  the  polls  was  not  a  quarter  of  a  million  votes  out 
of  four  millions  and  three-quarters  cast  in  favour  of  the  Unionists,  but 
the  Parliamentary  result  was  to  change  a  Radical  majority  of  43  into 
a  Unionist  majority  of  152.  The  results  of  the  general  election  of  1906 
have  been  matter  of  recent  discussion. 


INTRODUCTION  XXIX 

Parliamentary  discussion  ceases  to  be  interesting,  even  to 
those  who  take  part  in  it,  when  its  extent  is  thus  con- 
trolled and  its  issues  determined.  The  result  of  a  Parlia- 
mentary debate  is  a  vote  on  strict  party  lines,  and  the 
public  regard  with  more  interest  the  political  discussion 
which  is  provided  by  the  platform  and  the  Press. 

All  these  things  invest  the  executive  with  an  immense 
accession  of  power,  a  power  which  may  be  wielded  by  the 
Prime  Minister  alone  if  his  influence  controls  the  Cabinet  or 
if  his  presence  secures  its  cohesion  :  but  whether  the  form 
of  government  is  a  dictatorship  or  an  oligarchy  the  result 
is  the  same.  The  pressure  which  the  Government  of  the  day 
can  now  exercise  upon  the  House  of  Commons  may  ensure 
the  continuance  of  a  Ministry  in  office  until  a  Parliament 
expires  by  afflux  of  time.  If  we  might  assume  conditions 
under  which  the  House  of  Lords  was  deprived  of  the  power 
of  rejecting  Bills,  the  Government  of  the  day  would  be 
supreme  in  legislation,  as  in  administration.  The  country, 
at  a  general  election,  would  put  its  fortunes  into  the  hands 
of  an  individual  or  a  group  of  men  who  ruled,  subject  only 
to  the  intervention  of  the  prerogative,  until  the  stated  term 
at  which  the  electorate  again  chose  its  rulers.  The  pre- 
rogative of  the  Crown  might  still  be  brought  into  play  to 
dismiss  a  Ministry,  or  to  dissolve  a  House  of  Commons 
whose  docility  in  support  of  the  Government  of  the  day 
arose  from  a  knowledge  that  the  House  and  the  ministers 
alike  had  ceased  to  represent  the  wishes  of  the  people,  and 
that  a  dissolution  would  involve  the  retirement  of  many 
of  its  members  into  private  life. 

It  is  curious  and  not  uninstructive  to  note  how  the 
leading  traits  of  our  Constitution,  as  drawn  by  Bagehot, 
have  disappeared  or  are  disappearing, — the  deference  of  the 
electorate,  the  moderation  of  parties,  the  choice  of  the 
Ministry  by  the  Commons,  their  continued  control  and 
immediate  power  of  change,  the  value  of  Parliamentary 
discussion  in  determining  political  results  and  informing  the 
country.  And  yet  the  great  framework  of  our  institutions 
endures,  and  these  changes  have  come  upon  us  almost 
unnoticed.  The  lesson  which  the  student  may  deduce  is 


XXX  INTRODUCTION 

that  he  has  only  half  learned,  perhaps  wholly  misunder- 
stood, the  working  of  a  constitution  when  he  has  mastered 
the  Statutes  and  recognized  textbooks  which  set  forth  its 
legal  outline. 

Since  this  book  and  introduction  were  written,  the  Letters 
of  Queen  Victoria  have  been  given  to  the  public ;  I  regret 
that  I  have  not  been  able  to  avail  myself  of  the  mass  of 
material  for  modern  constitutional  history  which  they  con- 
tain. I  am  glad,  however,  to  find  that  I  should  have  used 
them  not  so  much  to  correct  as  to  emphasize  and  illustrate 
what  I  have  written.  But  some  points  which  are  brought 
out  in  the  Letters  may  properly  be  called  to  the  notice  of 
the  reader,  even  in  the  fragmentary  mode  of  treatment 
which  alone  is  possible  at  this  stage  of  my  book. 

The  prerogative  of  Dissolution  is  frequently  discussed, 
and  one  may  note  with  interest  that  the  meaning  and  con- 
ditions of  its  exercise  seem  to  have  undergone  some  change 
in  the  mind  of  the  Queen.  Lord  Melbourne  impressed  upon 
her  that  a  dissolution  was  not  so  much  an  invitation  to  the 
electors  to  decide  between  contending  political  parties  and 
leaders  as  an  appeal  to  them  on  behalf  of  the  ministry 
which  at  the  moment  was  in  the  service  of  the  Crown.  In 
advising  the  Queen  in  1841  that  it  would  be  better  for  his 
ministry  to  resign  than  to  dissolve,  he  is  reported  in  the 
Queen's  diary  as  saying :  '  I  am  afraid  that  for  the  first 
time  the  Crown  would  have  an  opposition  returned  smack 
against  it;  and  that  would  be  an  affront  to  which  I  am 
very  unwilling  to  expose  the  Crown.'  '  This,'  says  the 
Queen, '  is  very  true  V 

This  view  of  a  Dissolution  is  repeated  in  a  letter,  evidently 
considered  with  care,  addressed  to  Lord  John  Russell  in 
1 846  :  '  As  Lord  John  touches  in  his  letter  on  the  possibility 
of  a  Dissolution,  the  Queen  thinks  it  right  to  put  Lord 
John  in  possession  of  her  views  generally.  She  considers 
the  power  of  dissolving  Parliament  a  most  valuable  and 
powerful  instrument  in  the  hands  of  the  Crown,  but  one 
which  ought  not  to  be  used  except  in  extreme  cases  with 

1  Letters  of  Queen  Victoria,  i.  348. 


INTRODUCTION  XXXI 

a  certainty  of  success.  To  use  this  instrument  and  be 
defeated  is  a  thing  most  lowering  to  the  Crown  and  hurtful 
to  the  country  V 

The  question  arose  again  in  1858,  when  Lord  Derby, 
whose  ministry  was  threatened  by  a  vote  of  censure  in  the 
Commons,  asked  the  Queen  to  give  him  authority  to  say 
that  if  he  was  defeated  Parliament  would  be  dissolved. 
The  Queen  declined  to  make  this  contingent  promise,  but 
she  consulted  Lord  Aberdeen  in  confidence  on  the  point,  and 
he,  while  entirely  approving  the  Queen's  refusal  to  allow 
her  name  to  be  used  in  order  to  influence  debate,  went  on  to 
say  that  he '  had  never  entertained  the  slightest  doubt  that 
if  the  minister  advised  the  Queen  to  dissolve  she  would,  as 
a  matter  of  course,  do  so.' 

He  points  out  that  if  a  minister  pressed  for  a  Dissolution, 
as  an  alternative  to  resignation,  the  refusal  of  the  Crown 
would  be  tantamount  to  a  dismissal,  and  he  goes  on  to  say, 
in  a  passage  which  is  instructive  both  as  to  the  prerogative 
of  the  Crown  and  the  responsibility  of  ministers,  'There 
was  no  doubt  as  to  the  power  and  prerogative  of  the  Crown 
to  refuse  a  dissolution — it  was  one  of  the  few  things 
which  the  Queen  of  England  could  do  without  responsible 
advice  at  the  moment ;  but,  even  in  this  case,  whoever  was 
sent  for  to  succeed  must  assume  the  responsibility  of  the 
act,  and  be  prepared  to  defend  it  in  Parliament  V 

It  seems  clear  that  this  view  of  the  subject  prevailed  with 
the  Queen  when,  in  1874,  Mr.  Gladstone  somewhat  unex- 
pectedly asked  for  a  dissolution :  the  Queen  assented  at 
once,  thinking  '  that  in  the  present  circumstances  it  would 
be  desirable  to  obtain  an  expression  of  the  national  opinion  V 

It  would  seem,  therefore,  that  a  dissolution  is  now  invari- 
ably granted  on  the  request  of  the  minister,  and  involves  no 
rebuff  to  the  sovereign  if  the  minister  is  defeated  at  the  polls. 

Another  point  bearing  on  the  pages  that  follow  concerns 
the  relations  of  the  Cabinet  with  Ministers  of  the  Crown. 

1  Letters  of  Queen  Victoria,  ii.  108. 

*  Ibid.,  iii.  p.  364.  This  responsibility  for  past  action  of  the  sovereign 
under  similar  circumstances  was  recogni/ed  by  Sir  Robert  Peel.  Memoirs, 
ii.  31.  See  post,  p.  44.  s  Morley,  Life  of  Gladstone,  ii.  485. 


XXXU  INTRODUCTION 

The  Cabinet,  as  I  have  shown  elsewhere,  is  collectively 
responsible  for  the  acts  of  its  members,  but  the  minister  is 
individually  responsible  for  the  business  of  his  office.  He 
must  not  make  the  Cabinet  a  party  to  business  with  which 
it  is  not  concerned,  or  quote  the  Cabinet  as  an  authority  for 
his  acts. 

Lord  John  Russell  in  1851  consulted  the  Cabinet  as  to  the 
appointment  of  Lord  Granville  to  the  Foreign  Office,  after 
the  dismissal  of  Palmerston.  The  Cabinet  preferred  Lord 
Clarendon.  The  Queen  protested,  and  with  reason,  against 
the  Cabinet '  taking  upon  itself  the  appointment  of  its  own 
members  V  The  Prime  Minister  chooses  and  recommends 
his  colleagues  for  the  approval  of  the  Crown.  In  the  end 
Lord  Granville  was  appointed. 

Thus  too,  when  Lord  Clarendon  in  a  draft  dispatch  stated 
that '  he  acts  by  the  unanimous  desire  of  the  Cabinet,'  he 
was  reminded  that '  he  acts  constitutionally,  under  authority 
of  the  Queen,  and  not  on  that  of  the  Cabinet  V  The  remark 
is  suggestive.  The  approval  of  his  colleagues  may  deter- 
mine the  advice  which  a  minister  gives  to  the  Crown,  but 
in  action  he  is  the  king's  servant,  and  in  communicating  the 
king's  pleasure  a  reference  to  the  views  of  the  Cabinet  is 
irrelevant. 

Beyond  this  the  Letters  demonstrate,  in  almost  every 
page,  what  has  been  indicated  in  the  following  chapters — 
the  unceasing  attention  paid  by  the  Sovereign  of  this 
country  to  its  interests,  and  more  especially  to  all  that  con- 
cerns our  relations  with  foreign  powers.  It  is  impossible 
to  read  these  Letters  and  not  to  be  impressed  with  the 
value  of  the  advice  given  and  the  influence  exercised  by 
one  who,  standing  outside  the  strife  of  parties,  was  able  to 
survey  the  field  of  politics  with  calmness,  with  knowledge, 
and  with  the  ever-increasing  experience  of  a  life  given  to 
active  participation  in  the  affairs  of  the  Empire. 

1  Letters  of  Queen  Victoria,  ii.  419.  A  similar  case  is  recorded  by  the 
Duke  of  Argyll  &n  having  occurred  in  Lord  Palmerston's  ministry  of 
1855  (Autobiography,  i.  541,  543).  As  to  whether  the  offer  was  ever 
made  to  Clarendon,  see  Greville  Memoirs,  vi.  431. 

-  Ibid.,  iii.  48. 


CHAPTER  I 

THE   PREROGATIVE   OF   THE   CROWN 

SECTION  I 
THE  NATURE  OF  PREROGATIVE 

WHERE  we  find  a  body  of  persons  independent  of  external  Executive 
control,  united  for  the  maintenance  of  that  independence  t  ?ve 
against  force  from  without,  and  for  the  security  of  certain 
common  interests,  we  may  say  that  this  is  a  political  society 
or  State.  We  may  frame  what  ideal  we  please  for  such 
a  society.  We  may  assume  that  it  exists  in  order  to  protect 
its  members  from  invasion  or  anarchy,  from  violence  ex- 
ternal or  internal :  or  we  may  consider  the  object  of  such 
a  society  to  be  not  only  that  each  man  may  live  secure,  but 
that  each  may  live  the  best  life  of  which  he  is  capable. 
But  in  any  event,  and  in  every  political  society,  there  must 
be  some  person  or  body  to  represent  the  State  in  its  dealings 
with  other  States,  and  to  call  forth  and  command  the  avail- 
able force  of  the  society,  when  needed,  for  defence  or  attack. 

Again,  in  every  such  community  rules  of  conduct  must 
be  made,  and  sometimes  changed,  with  a  view  to  internal 
security  and  order;  and  the  observance  of  these  rules 
must  be  enforced.  If  the  fact  of  observance  or  breach 
should  be  called  in  question  some  recognized  authority 
must  exist  for  the  purpose  of  answering  the  question,  and 
here  again  the  decisions  of  such  an  authority  must  be 
enforced.  Thus  we  find  that  there  are  three  sorts  of 
machinery  necessary  to  a  political  society :  a  legislature  to 
make  law,  a  judicature  to  interpret  law,  an  executive  to 
wield  the  force  of  the  community  for  the  maintenance  of 
security  without,  and  for  the  enforcement  of  law  and  order 
within. 

The  forces  which  work  this  machinery  are  found  to  be 
differently  disposed  in  different  communities  and  at 


ANSOS.     CBOWH      < 


2  THE   PREROGATIVE   OF   THE   CROWN        Chap.  I 

different  times.  They  may  be  centralized  in  one  person 
or  dispersed  among  many.  To  compare  one  polity  with 
another,  or  to  consider  how  constitutional  forces  may  best 
be  disposed,  and  to  what  end,  is  the  business  of  the  political 
student ;  I  have  here  to  deal  only  with  the  structure  and 
working  of  our  own  constitution. 
Legisla-  The  law-making  power  in  this  country  is  the  Crown 
*u  Parliament;  Parliament,  convened  by  the  Crown  and 
making  laws  with  the  royal  assent,  can  alone  change  the 
constitution  of  the  State  and  give  or  take  away  legal  or 
The  political  rights.  The  interpretation  of  law  is  the  work 

judiciary.  Q£  ^ne  Qrown  jn  fa  Courts,  done  through  judges  who  have 
been  and  are  the  councillors  and  representatives  of  the 
Crown.  The  enforcement  of  law  within  the  community, 
the  maintenance  of  its  safety  and  dignity  as  regards 
The  external  relations,  is  also  the  duty  of  the  Crown.  The 
o^Crown6  Ministers  of  the  King,  collectively  in  the  Cabinet,  deter- 
in  CouncU.  mine  matters  of  policy;  while  this  policy  is  carried  into 
effect,  and  the  everyday  business  of  government  is  trans- 
acted, by  the  same  ministers  or  their  subordinates  in  the 
various  departments  which  carry  out  the  work  of  the 
Executive.  My  object  is  to  describe  the  construction  and 
practical  working  of  these  various  departments  or  institu- 
tions, and  to  show  how  they  are  connected  with  the  central 
executive  force.  But  that  force  itself,  the  Crown,  whence 
justice  and  administration  alike  proceed,  stands  at  the 
threshold  of  our  inquiry. 

The  Pre-  Some  of  the  powers  exercised  by  the  Crown  are  con- 
rogative.  ferre(j  or  definecl  by  Statute,  but  some  also  exist  in  virtue 
of  custom  or  Common  Law.  The  term  Prerogative  may 
be  applied  to  the  whole  of  these,  but  it  should  properly 
be  limited  to  the  ancient  customary  powers  of  the  Crown. 
I  will  deal  at  once  with  the  meaning  of  a  term  which  has 
caused  some  difficulty  in  the  past. 

Black-  Blackstone  defines  prerogative  as  '  a  special  pre-eminence 

(fefini-       which  the  king  hath,  over  and  above  all  other  persons,  and 
tion.         out  of  the  ordinary  course  of  the  common-law  in  right  of 
his  royal  dignity.' 


Sect,  i  SOURCES    OF    PREROGATIVE 

Mr.   Dicey  defines  prerogative  more   precisely  as   '  the  Mr. 
discretionary  authority  of  the  executive/  and  he  explains 
this  to  mean  everything  which  the  King  or  his  servants 
can  do  without  the  authority  of  an  Act  of  Parliament. 

Blackstone's  definition  of  prerogative  is  obviously  too 
vague  to  be  of  practical  value.  The  powers  of  the  Crown 
in  its  executive  character  are  twofold,  consisting  in  those 
which  it  possesses  at  Common  Law  and  those  which  are 
conferred  on  it  by  statute.  The  Common  Law  powers  are 
not,  as  Blackstone  says,  '  out  of  the  ordinary  course  of  the 
Common  Law  ' ;  they  are  a  part  of  the  Common  Law,  and 
as  capable  of  ascertainment  and  definition  by  the  courts  as 
any  other  part  of  the  unwritten  law  of  the  land.  These 
Common  Law  powers  make  up  what  Mr.  Dicey  calls  '  the 
discretionary  authority  of  the  executive.'  The  statutory 
powers  cannot  strictly  be  classed  under  the  head  of  Pre- 
rogative. They  may  be  creations  of  statute  or  definitions 
or  modifications  of  powers  previously  existing  at  Common 
Law :  but  they  markedly  differ  from  those  powers  the 
nature  of  which  is  only  ascertainable  by  precedent,  and 
the  exercise  of  which  is  limited  by  discretion.  And,  besides 
these,  there  are  certain  attributes  of  the  Crown  from  which 
legal  results  necessarily  flow,  and  certain  incidental  rights, 
not  perhaps  of  the  first  importance,  yet  proper  to  be 
treated  of  in  a  book  on  constitutional  law.  The  common 
law  powers  of  the  executive  do  not  therefore  exhaust  the 
meaning  of  this  complex  and  difficult  term. 

One  may  with  some  approach  to  truth  ascribe  the  various  Sources  of 
rights,  privileges,  and  attributes  which  make  up  the  Pre-  tjve™8*" 
rogative  to  three  sources. 

First,  there  is  the  residue  of  that  executive  power  which  The  tribal 
the  king  in  the  early  stages  of  our  history  possessed  in  all 
the  departments  of  government ;  when  he  led  his  people  in 
war,  administered  their  affairs  in  peace,  was  their  judge 
in  the  last  resort.  This  power,  reduced  in  compass  by 
statute  and  limited  in  exercise  by  many  conventional  and 
practical  restrictions,  remains  as  that  discretionary  authority 
of  the  executive  spoken  of  by  Mr.  Dicey. 

Secondly,  there  are  parts  of  the  prerogative  which  trace 

B  a 


4  THE   PREROGATIVE   OF   THE   CROWN         Chap.  I 

The  feudal  their  origin  from  the  position  of  the  king  as  the  feudal 
p*  chief  of  the  country,  as  the  ultimate  landowner  and  the 
lord  of  every  man.  Hence  arise  those  rights  of  the  Crown 
which  are  in  relation  to  the  kingdom  what  a  seignory  is  in 
relation  to  a  manor,  the  right  to  escheat,  to  treasure  trove, 
to  the  custody  of  idiots  and  lunatics — these  are  topics  which 
should  fall,  some  under  the  head  of  revenue,  some  under 
that  of  jurisdiction.  Hence  too  comes  the  early  conception 
of  Treason  as  a  breach  of  the  feudal  tie  which  binds  the 
man  to  his  lord.  We  now  regard  Treason  as  an  offence 
not  so  much  against  the  person  of  the  King  as  against 
the  constitution  of  the  State  which  he  represents ;  and 
Allegiance,  as  a  test  of  nationality  rather  than  an  assurance 
of  loyalty  to  an  individual ;  but  these  ideas  begin  in  feudal 
times,  and  spring  from  the  feudal  relation  in  which  the 
subject  stood  to  the  sovereign. 

The  king-  Thirdly,  there  are  attributes  with  which  the  Crown  has 
legal  °  been  invested  by  legal  theory.  These  attributes,  which  take 
theory.  their  origin  in  notions  of  practical  convenience,  in  their 
turn  harden  into  legal  rules  which  give  rise  to  deductions 
sometimes  of  an  unexpected  and  inconvenient  character. 
The  king  Such  is  the  attribute  of  perpetuity.  It  was  important  that 
ie9'  one  king  should  succeed  to  another  with  the  shortest 
possible  interregnum ;  that  the  king's  peace  should  not  be 
in  abeyance  for  however  short  a  time.  As  hereditary  right 
came  to  be  more  strictly  regarded,  the  process  of  election 
which  intervened  between  the  death  of  one  king  and  the 
completed  title  of  another,  grew  less  and  less  important. 
At  length  Edward  IV  was  held  to  have  begun  his  reign  so 
soon  as  his  title  by  descent  was  proved,  and  thenceforward 
perpetuity  is  regarded  as  a  royal  attribute ;  the  king,  it  is 
said,  never  dies,  and  the  throne  is  never  vacant.  The  legal 
theory,  though  based  on  practical  convenience,  was  found  to 
be  extremely  inconvenient  wh^n  James  II  fled  the  country, 
and  it  became  necessary  in  the  interests  of  good  govern- 
ment to  declare  that,  in  spite  of  legal  theory,  the  throne 
was  vacant.  The  object  is  now  attained  by  different 
means.  Provision  is  made  by  statute  for  continuity 
in  the  administration  of  justice  and  the  course  of 


Sect,  i  SOURCES   OF   PREROGATIVE  5 

executive  government,   independently   $f    the    demise    of 
the  Crown. 

Such  too  is  the  attribute  of  perfection  of  judgement.  The  king 
'  The  king,'  says  Blackstone,  '  is  not  only  incapable  of  doing  n° 


wrong,  but  even  of  thinking  wrong  ;  he  can  never  mean  to 
do  an  improper  thing  ;  in  him  is  no  folly  or  weakness.' 
Hence  the  king's  ministers  are  held  to  be  responsible  for  in  public 
the  acts  of  the  king.  There  was  much  practical  conveni-  aw' 
ence  in  this  theory  of  ministerial  responsibility  :  misgovern- 
ment  is  more  easily  visited  upon  the  officer  who  advises 
than  upon  the  king  who  acts  or  authorizes  action  upon  his 
advice.  The  servant  can  suffer  without  any  such  convulsion 
of  the  body  politic  as  would  ensue  if  the  master  were  held 
liable.  The  doctrine  took  its  rise  when  Henry  III  reigned 
though  still  a  child,  and  it  has  been  worked  out  on  its 
political  side  in  such  a  manner  as  to  contribute  alike  to 
the  stability  of  the  throne  and  the  popular  character  of 
our  government.  But  the  maxim  in  which  it  is  expressed, 
'the  king  can  do  no  wrong,'  has  lent  itself  to  some 
deductions  which  not  only  limit  the  freedom  of  royal 
action,  but  also  affect  rules  of  private  law.  Coke  tells  us  in  private 
that  there  are  things  which  the  king  may  not  do  in  person  a 
because  if  he  were  in  the  wrong  the  party  aggrieved  would 
have  no  remedy  l.  And  there  are  injuries  for  which  the 
subject  can  obtain  no  redress  from  the  Crown,  or,  what  is 
the  same  thing,  from  a  department  of  government,  because 
a  master  is  only  liable  for  the  acts  of  his  servants  on  the 
principle  that  their  wrong-doing  is  his  wrong-doing  ;  so  if 
the  master  '  can  do  no  wrong,"  he  cannot  be  made  liable  for 
the  wrongful  acts  of  the  persons  in  his  employment  2. 

Of  these  three  aspects  of  prerogative  the  most  ancient  Summary. 
and  by  far  the  most  important  are  the  customary  rights, 
legislative  and  executive,  which  the  Crown  possesses,  in 
relation  to  Parliament,  to  the  executive  and  to  the  Courts. 
The  feudal  rights  of  the  Crown  are  mere  incidents  of  the 
prerogative  ;  they  add,  here  and  there,  features  which  can 
only  be  explained  when  we  conceive  of  the  king  as  being  in 
relation  to  the  kingdom  what  the  lord  was  to  the  manor. 
1  Coke,  Inst.  ii.  p.  186.  -  See  chap.  x. 


6  THE   PREROGATIVE   OF   THE   CROWN         Chap.1 

The  artificial  rules  deduced  by  lawyers  from  attributes 
ascribed  to  the  sovereign  have  doubtless  important  effects 
traceable  in  the  working  and  conventions  of  the  constitution : 
but  these  are  merely  attributes  associated  with  a  certain 
conception  of  monarchy,  and  are  not  fundamentally  con- 
cerned with  the  government  of  the  country.  The  powers 
of  the  Crown,  legislative,  executive,  and  judicial,  are  what 
concern  us  here.  I  have  treated  elsewhere  of  the  Crown 
in  relation  to  Parliament:  I  will  endeavour  here  to  treat 
of  the  Crown  as  acting  for  the  State  through  the  various 
departments  of  Government,  or  in  its  judicial  capacity 
through  the  Courts. 

The  legal  powers  of  the  Crown  seem  wide  in  theory  and 
limited  in  practice :  the  influence  of  the  Crown  is  some- 
thing not  easy  to  define  either  in  theory  or  in  practice :  to 
trace  the  process  by  which  this  power  and  influence  have 
come  into  existence  and  have  varied  in  extent  from  time 
to  time  would  be  to  write  the  history  of  the  monarchy  in 
this  country.  This,  even  if  I  were  capable  of  doing  it, 
I  would  not  do  here :  yet  it  may  be  useful  to  mark  in 
outline  the  periods  of  growth  and  limitation  of  the  royal 
power,  because  the  present  law  and  custom  upon  the  subject 
have  been  slowly  defined,  and  their  definition  must  be 
illustrated  by  precedents  which  it  is  not  easy  to  under- 
stand without  some  general  knowledge  of  our  history. 


SECTION  II 

THE  KING  BEFORE  PARLIAMENTS 
§  1.    The  Saxon  King. 

The  Saxon      The  Saxon   king  was   a  representative    chief.     To  the 

kingship    lrembers  of  his  community  he  was  the  embodiment  of  its 

dignity  and  its  history.     For  this  purpose  the  kingly  office 

was   endowed  with   special  sources  of  revenue  from  the 

land  of  the  community  and  was  adorned  with  the  insignia 

of  royalty,  the  throne,  the  crown,  the  sceptre,  standard  and 

represen-   lance.     The  king  represented  the  order  and  the  justice  of 

ltlve>       the  community  since  he  was  bound  to  preserve  its  peace 


Sect.  ii.  §  1  THE   SAXON   KING  7 

and,  in  the  last  resort,  to  declare  its  customs  upon  appeal. 
He  represented  the  force  of  the  community  in  its  dealings 
with  other  kingdoms,  in  the  conduct  of  war,  in  the  making  of 
peace  and  of  treaties.  The  sheriffs,  the  bishops,  the  ealdor- 
men,  that  is  to  say  the  great  local  officers,  secular  and 
spiritual,  were  his  officers.  In  conjunction  with  the  Witan 
he  made  laws  and  imposed  taxes,  but  the  laws  were  his 
laws,  and  he  appropriated  to  such  purposes  as  he  thought 
fit  the  money  raised  by  taxation. 

The  Saxon  king  had  therefore  a  position  of  great  dignity 
and  a  wide  discretionary  power:   but  in  the  exercise  of 
this  discretion  he  was  constantly  checked  by  the  necessity 
of  acting  with  and  through  the  Witan,  and  was  ultimately  respon- 
controlled  by  his  responsibility  to  the  community  whose 
collective  wisdom  the  Witan  was  supposed  to  represent.  The  Witan 
For  it  has  been  a  marked  and  important  feature  in  our 
constitutional  history  that  the  king  has  never,  in  theory, 
acted  in  matters  of  state  without  the  counsel  and  consent  in  action, 
of  a  body  of  advisers J,  varying  in  constitution  from  time 
to  time,  but  always  invested  with  something  of  a  repre- 
sentative character. 

The  Witan  consisted  of  officials,  of  ealdormen  and  bishops, 
of  king's  thegns  and  nominees  of  the  king  :    it  can  only 
therefore  by  a  figure  of  speech  be  said  to  have  represented 
either  the  wisdom  or  the  general  opinion  of  the  community. 
But  in  its  relation  to  the  king  the  Witan  was  a  powerful 
body.     It  took  part  with  him  in  legislation  and  taxation, 
in  the  deliberations  which  determined  the  policy  of  the  in  legisla- 
country,  in  the  appellate  jurisdiction  which  he  exercised  lon' 
in  the   last  resort,  in   the  grant  of   public  land,  in    the 
appointment   of    ealdormen   and    bishops.      And   further, 
though  royalty  was  in  theory  confined  to  one  family,  the 
Witan  in  the  assembly  of  the  nation  made  choice  of  the 
most  fitting  member  of  that  family  to  be  king.     The  king  in  elec- 
went  through  the  formal  process  of  election,  his  responsi- tlon* 
bilities  were  formulated  in  the  coronation  oath 2  and  were 
enforced  by  the  possibility  of  his  deposition. 

1  Stubbs,  Const.  Hist.  i.  127,  194,  276,  370.     (§§  53,  76,  98,  125.) 

2  Stubbs,  Hist.  i.  146.     (§  61.)     Documents,  p.  62. 


8  THE    PREROGATIVE   OF   THE   CROWN         Chap.  I 

The  Saxon  king,  then,  though  his  dignity  was  great  and 
his  discretionary  power  wide,  was  not  a  hereditary 
monarch,  as  we  understand  the  term  hereditary,  was  not 
supreme  landowner,  was  not  irresponsible  for  acts  done  by 
his  command. 


§  2.     The  Norman  king,  his  ministers  and  Council. 

The  Nor-  The  position  of  the  Norman  king  was  very  different 
a  lng  from  that  of  the  Saxon,  and  this  was  partly  the  necessary 

aeon-  result  of  a  position  acquired  by  conquest,  partly  the  con- 
ror'  sequence  of  feudal  ideas  derived  from  the  continent  *. 
Anxious  as  William  I  undoubtedly  was  to  avoid  the  appear- 
ance of  an  adventurer  and  to  figure  as  the  rightful  heir  to 
the  inheritance  of  Edward  the  Confessor,  his  title  was 
established  and  upheld  by  force  and  arms.  When  resis- 
tance was  overcome,  the  institutions  of  the  land  were  at  his 
mercy,  and  he  used  them  as  seemed  to  him  most  prudent 
for  the  security  of  his  throne. 

a  feudal         Feudalism,  which   was  based   on  the   holding  of   land 

1  '  subject  to  certain  obligations  of  fealty  and  service,  at  once 
made  the  king  the  supreme  landowner  and  invested  the 
relation  of  king  and  subject  with  a  contractual  character, 
a  right  on  the  one  side  to  service,  on  the  other  to  protection. 
This  new  position  of  the  king  in  relation  to  land  had 
various  effects.  In  respect  of  the  great  landowners  who 
held  of  the  king  it  established  a  personal  tie  between  him 
and  them  which  tended  to  strengthen  his  hold  upon  their 
fidelity  and  service;  in  respect  of  the  royal  revenue  it 
made  the  king  the  immediate  owner  of  all  the  unappropri- 
ated land  of  the  community  and  the  inheritor  of  every 
tenant-in-chief  who  died  without  heirs  or  forfeited  his 
land  for  misconduct2;  in  respect  of  title  to  the  Crown 
the  close  association  of  the  rights  of  the  Crown  with  the 
ownership  of  land  tended  to  assimilate  the  descent  of  the 
Crown  to  the  descent  of  an  estate  in  land,  and  thus  in- 

1  To  this  one  may  add  that  the  Norman  Duke  was  practically  absolute, 
though  he  acted  in  the  presence  of  a  Council  of  barons  chosen  by  himself. 

2  'Ultimi  heredes  aliquorum  sunt  eorum  domini.'     Glanvill.  vii.  17. 


Sect.  ii.  §  2      THE   XORMAN   ADMINISTRATION  9 

evitably   increased  the  hereditary  at  the  expense  of  the 
elective  character  of  kingship. 

But  William  was  not  content  that  the  feudal  relation  Features 
should  exist  only  between  himself  and  the  tenants-in-chief . 
He  established  the  rule  that  every  man,  of  whomsoever  he 
might  hold  his  land,  should  reserve  his  fealty l  to  the  king, 
and  should  owe  to  the  king  whatever  military  service  was 
due  upon  his  fief.  Thus  was  created  a  direct  relation 
between  the  king  and  every  landowner  in  the  kingdom, 
a  relation  far  more  precise  than  had  existed  when  the  king 
was  regarded  by  the  community  as  its  representative 
merely.  The  great  feudal  lords  could  no  longer  call  their 
vassals  to  arms  on  their  behalf  against  the  king,  for  their 
vassals  were  the  king's  men.  The  king  did  not  lose  his 
representative  character;  but  the  coronation  oath  on  the 
one  side,  the  undertaking  to  be  faithful  on  the  other,  made 
up  the  terms  of  a  contract  in  which  the  fidelity  of  the 
subject  was  the  consideration  for  a  promise  of  good  govern- 
ment by  the  king. 

With  these  changes  in  the  relation  of  king  and  subject  The  Com- 
came  changes  in  the  character  of  the  consultative  body  ™]"^Con 
through  and  with  whom  the  king  professed  to  act.  The 
Witan,  as  I  have  said,  represented,  by  a  figure  of  speech, 
the  wisdom  of  the  community.  The  Commune  Concilium 
of  the  Norman  kings  was  in  theory,  and,  on  state  occasions, 
in  practice,  an  assemblage  of  the  feudal  tenants-in-chief. 
The  more  limited  circle  of  earls,  barons,  and  bishops  who 
were  consulted,  or  at  any  rate  informed,  when  the  king 
proposed  to  act,  to  legislate,  or  to  tax,  formed  an  inner 
group  of  habitual  counsellors.  In  either  case  the  qualifi- 
cation for  membership  was  tenure :  and  if  the  Norman 
assembly  represented  anything,  it  represented  what  we 
should  now  call  the  '  landed  interest.'  The  time  came,  as 
we  shall  see  in  the  Great  Charter,  when  the  larger  assem-  m0re  r«- 
blage  of  tenants-in-chief  became  an  important  check  upon 
the  Crown  ;  but  this  was  not  yet.  Witan. 

There  came  too,  with  the  Conquest,  a  great  change  in 
the  administrative  system.    In  the  ill-compacted  monarchy 

1  Glanvill.  ix.  c.  i.     Littleton,  ii.  c.  i. 


10 


THE   PREROGATIVE    OF   THE   CROWN         Chap.  I 


Character 
of  admin- 
istration. 


The 

Saxon 

ministers 


and  the 
Norman. 


The 
Justiciar. 


The  Curia 
and  the 
Ex- 
chequer. 


of  the  Saxons  each  shire  was  a  complete  administrative 
unit  very  slightly  connected  with  the  central  government. 
When  the  duties  of  administration  became  too  heavy  for 
the  king  to  discharge  them  in  person,  no  attempt  was  made 
to  classify  and  divide  those  duties,  to  assign  them  to  de- 
partments and  create  a  staff  to  discharge  them.  The 
Saxon  kingdom  was  divided  into  ealdormanries,  and  thus 
the  tendency  to  disunion,  inherent  in  the  Saxon  polity, 
was  increased.  The  great  offices  of  the  household  were 
merely  decorative.  The  High  Reeve  of  Ethelred,  the  sup- 
posed counterpart  of  the  later  Justiciar,  is  a  shadowy  and 
uncertain  figure.  The  Chancellor  of  Edward  the  Confessor 
indicates,  we  may  be  sure,  a  liking  for  foreign  customs, 
rather  than  a  move  in  the  direction  of  administrative 
reform. 

But  under  the  system  initiated  by  the  Conqueror,  and 
more  fully  developed  by  Henry,  justice  and  finance  were 
dealt  with  as  two  departments  of  government,  manned  by 
a  staff  of  officials  and  superintended  by  the  great  household 
officers  and  by  the  ministers  who  now  begin  to  assume 
definite  functions — the  Justiciar,  the  Chancellor,  the 
Treasurer. 

When  the  king  was  abroad  or  absent  from  Curia  or 
Exchequer  he  was  represented  by  the  Justiciar,  primus 
post  regem  in  regno ;  indeed  the  very  existence  of  the 
office  was  largely  due  to  the  frequent  absence  of  the  king 
upon  the  continent.  Moreover  the  Norman  king  dared  not 
entrust  large  powers  to  local  magistrates.  Where  he  had 
to  delegate  plenary  executive  powers,  he  delegated  them  to 
a  representative  of  himself  for  the  whole  kingdom :  the 
very  magnitude  of  the  office  made  its  holder  a  minister 
acting  for  the  king,  not  a  local  potentate  setting  up  in- 
dependent local  powers. 

But  the  need  to  specialize  duties  became  apparent  as 
administrative  requirements  widened.  A  strong  judicial 
staff  was  needed  to  enforce  the  king's  justice,  and  to 
make  his  courts  more  attractive  to  the  suitor  than  those 
of  the  local  or  seignorial  jurisdiction.  A  strong  financial 
staff  was  needed  to  secure  that  good  administration  should 


Sect.  ii.  §  2      THE   NORMAN   ADMINISTRATION  1 1 

be  accompanied  by  a  solvent  Exchequer,  independent  of  Officers  of 
the  feudal  liabilities  of  the  tenants-in-chief.    The  two  were  £uria  and 

JiX- 

so  intimately  combined — the  profits  and  costs  of  asserting  chequer, 
and  administering  justice  and  the  incomings  and  out- 
goings of  the  Exchequer — that  the  same  men  acted  in 
a  twofold  capacity.  The  justices  of  the  Curia  sat  as  barons 
of  the  Exchequer.  The  Chancellor  was  great  alike  in  Curia 
and  Exchequer.  The  Treasurer's  duties  and  anxieties 
were  so  engrossing  as  '  hardly  to  be  set  forth  in  words  V 
Thus  the  Curia  and  the  Exchequer  consisted  of  the  same 
officers  discharging  different  functions  as  justitiarii  or 
barones.  But  the  Curia  stood  in  closer  relation  to  the  Curia  and 
Commune  Concilium,  since  both  were  courts  in  which Coxmci1- 
the  king  sat  to  administer  justice;  nor  is  it  possible  to 
say  that  there  was  a  difference  of  jurisdiction  between  the 
two.  The  functions  of  the  Curia  would  seem  to  have 
been  entirely  judicial,  while  the  great  Council  dealt  with 
questions  of  general  policy,  with  legislation,  with  taxation, 
and,  above  all,  with  the  election  to  the  Crown. 

In  two  ways  these  institutions  are  of  permanent  interest.  Central 
The  administration  of  Curia  and  Exchequer  knit  together  ™ov^* 
local  and  central  government.     The  justices  of  the  Curia,  ment. 
itinerant  throughout  the  land,  declared  and  enforced  the 
king's  law,  assessed  and  levied  the  king's  taxes :  the  sheriffs, 
who  remained,  as  of  old,  the  presiding  officers  of  the  Court 
of  the  shire,  appeared  twice  in  each  year  at  the  Exchequer 
to  render  account  to  the  barons  of  the  sums  due  from  the 
shires. 

And  again,  we  can  trace  the  beginning  of  the  distinction  Legisia- 
between  the  executive  part  of  our  institutions  and  the  ^mUiL 
legislative  or  deliberative,  when  we  find  a  great  Council  tration. 
meeting  for  general  legislative  and  political  as  well  as  for 
judicial  business,  while  the  permanent  administrative  staff' 
is  in  constant  session  at  the  Curia  and  the  Exchequer. 

For  our  present  purposes  the  Curia  is  an  institution  of 
greater  interest  than  the  Commune  Concilium.  The  Com- 
mune Concilium,  even  in  its  most  developed  form,  as  set 
forth  in  Magna  Charta,  is  only  the  feudal  conception  of 

1  Dialogue  de  Scaccario,  i.  6. 


12  THE   PREROGATIVE   OF   THE   CROWN         Chap.  I 

a  law-making  and  taxing  body;  it  is  not  so  much  the 
parent  as  the  feudal  counterpart  of  the  assembly,  repre- 
sentative of  shire  and  town,  which  was  called  into  being 
by  Simon  de  Montfort,  which  was  organized  and  per- 
petuated by  Edward  I,  which,  renovated  and  adapted  to 
modern  conditions  by  the  legislation  of  the  nineteenth 
century,  exists  as  the  Parliament  of  to-day.  But  the 
Curia,  the  administrative  centre,  is  the  germ  from  which 
have  developed  the  departments  of  Government.  Whether 
we  regard  it  collectively  as  a  Council  of  the  Crown,  or 
whether  we  regard  it  as  a  group  of  officials — the  holders 
of  the  new  political  offices  created  by  the  Norman  kings — 
we  can  trace  from  it  our  Executive  of  to-day. 

Thus  we  may  say  that  the  Norman  monarchy,  though 
practically  absolute,  nevertheless  maintained  the  form  of 
counsel  and  consent,  enlarged  the  area  from  which  the 
Common  Council  of  the  realm  should  be  drawn,  and  gave 
a  definite  qualification,  that  of  tenure,  to  its  members ; 
above  all  it  created  a  strong  central  administration  dis- 
tinguishable from  the  larger  Council,  and  drawing  together 
by  its  vigorous  action  the  local  institutions  of  the  country. 

§  3.  The  Angevin  kings. 

Kingship  We  have  not  yet  reached  Prerogative  in  the  modern 
century!*  meaning  of  the  term,  because  Prerogative  is  the  result  of 
a  definition  more  or  less  complete  of  royal  privilege  and 
power,  and  the  age  of  definition  has  not  yet  come.  The 
ill-organized  Saxon  community  put  itself  into  the  hands  of 
a  king  and  a  body  of  non-representative  advisers  for  all 
but  local  purposes.  The  Norman  king  tightened  his  hold 
on  the  community :  he  used  the  personal  relation  of  feudal- 
ism, the  moral  bond  of  society  in  the  middle  ages,  to  bind 
every  landowning  man  to  himself ;  he  used  the  territorial 
bond  of  feudalism  to  make  him  the  ultimate  lord  of  every 
man  and  the  immediate  lord  of  the  great  men  of  the  king- 
dom ;  but  he  restrained  the  tendency  of  feudalism  to  break 
up  a  kingdom  into  independent  lordships ;  and  he  did  this 
by  means  of  the  vigorous  administration  which  checked 
the  growth  of  local  jurisdictions  and  brought  the  central 


Sect.  ii.  §3    CHANGES   UNDER   ANGEVIN    KINGS  13 

power  into  close  touch  with  local  institutions  throughout 
the  country.  And  yet  we  can  see  that  the  community 
possessed  the  rudiments  of  a  control  on  the  use  of  royal 
power.  The  Commune  Concilium  does  represent  the  feudal 
society,  and  it  is  a  machine  regularly  constituted,  though 
not  in  regular  working,  for  purposes  of  legislation  and 
taxation,  criticism  and  control. 

And  though  it  is  true  to  say  that  until  Parliament  comes 
into  existence  we  have  not  the  means  of  defining,  or  even 
approximating  to  a  definition  of  Prerogative,  as  we  under- 
stand the  term,  yet  between  the  accession  of  Henry  II  and 
the  Parliament  of  1295  we  can  trace  continuous  progress, 
first  in  the  development  and  the  definition  of  executive 
functions — in  less  abstract  terms,  the  growth  of  depart- 
ments of  government;  and  next  in  the  control  or  super- 
vision of  the  exercise  of  these  functions  by  a  body  more  or 
less  representative  of  the  community.  Three  points  in  the 
history  of  the  executive  stand  out  prominently  in  this 
period  of  our  history.  The  first  is  the  increase  of  depart- 
mental activity  in  the  reign  of  Henry  II ;  the  second  is  the 
definition  of  royal  power  and  the  rights  of  freemen  in 
Magna  Charta ;  the  third  is  the  dawn  of  the  conception  of 
a  responsible  executive  traceable  during  the  minority  and 
through  the  reign  of  Henry  III. 

Henry  II  found  a  nation  wearied  out  with  the  miseries  Adminis- 
of  anarchy,  and  the  nation  found  in  Henry  II  a  king  with  ^j1^11 
a  passion  for  administration.     Henry  was  determined  to  Henry  II. 
make   his    law    prevail  throughout  the  land,  hence   his 
attempt    to    define   the  jurisdiction   of   the   ecclesiastical 
courts  in  the  Constitution  of  Clarendon ;  his  insistence  in 
the  Assize  of  Clarendon  that  no  franchise  or  local  juris- 
diction should  exclude  his  sheriff  from  entering  therein ; 
his  requirement  that  his  writ  should  initiate  every  suit 
relating  to  the  freehold.     All  this  needed  a  development  of 
the  judicial  system,  and  we  find  this  effected  in  two  ways, 
from  above,  and  from  below. 

The  royal  administration  of  justice  was  strengthened  and  The 
elaborated  by  the  system  of  itinerant  justices  constantly 
modified  throughout  the  reign,  and  surviving  to  the  present 


14  THE   PREROGATIVE   OF   THE   CROWN         Chap.  I 

day  in  the  modern  system  of  circuits ;  and  further  by  the 
severance  from  the  general  work  of  the  Curia  of  a  body 
of  judges  who  were  to  form  a  permanent  court  in  banco,  to 
hear  all  complaints,  and  to  reserve  cases  of  special  difficulty 
to  be  heard  by  the  King  in  Council. 

and  use  But  the  royal  administration  of  justice  was  further 
machin-  strengthened  by  its  connexion  with  local  machinery,  the 
6I7-  twelve  lawful  men  of  the  hundred  and  four  of  the  town- 

ship who  presented  criminals  to  the  king's  justices,  and  the 
jury  of  sworn  recognitors  selected  by  the  sheriff,  who 
determined  questions  of  fact  as  to  the  right  to  the  freehold. 
Everything  was  done  to  make  the  King's  Courts  and  the 
royal  justice  more  attractive  to  the  suitor  and  to  enlarge 
their  jurisdiction  and  increase  their  business  at  the  expense 
of  the  local,  or  communal,  and  the  seignorial  or  feudal 
courts.  The  same  system  prevailed  in  finance.  New  forms 
of  taxation  needed  a  better  organized  system  for  assess- 
ment and  collection.  Such  a  system  was  worked  out  by 
a  further  development  of  official  machinery,  and  the  em- 
ployment of  a  local  jury  to  determine  local  liabilities, 
bringing  local  and  central  administration  into  yet  closer 
connexion.  In  the  use  of  a  representative  jury  to  settle 
the  liabilities  of  the  locality  to  the  central  government  we 
see  the  beginnings  of  the  representation  of  the  Commons 
for  the  grant  of  supplies  to  the  Crown. 

The  growth  of  the  official  staff  indicates  the  increase  of 
departmental  business,  and  the  details  of  administration 
pass  beyond  the  immediate  control  of  the  king,  even  of 
a  king  so  busy  and  so  acute  as  was  Henry  II. 

The  Great      Next    in   order  of   time   comes    Magna    Charta.      The 
dhfirtsF     promises  of  the  Coronation  oath  were  vague  and  general : 
rights.       the  terms  of  the  Charter  are  precise.     Many  things  have 
been  read  into  the  Charter  of   which   its  framers  never 
dreamed.     Provisions  which  dealt  with  immediate  griev- 
ances, or  were  limited  by  the  conditions  of  the  time,  came 
to  be  expanded  in  interpretation  until  they  embodied  those 
principles  of  constitutional  freedom  which  were  at  issue 
in  the  seventeenth  century.      But  after  making  all  due 


Sect.  ii.  §3     THE    COUNCILLORS    OF   HENRY    III  15 

allowance  for  the  exaggeration  of  political  enthusiasts  the 
Charter  stands  out  as  a  formulated  definition  of  liberties  to 
which  every  freeman  could  refer  for  proof  of  his  right  to 
freedom  from  arbitrary  taxation  and  arbitrary  punishment. 

Lastly,  we  find  in  the  reign  of  Henry  III  the  beginning  Minis- 
of  our  modern  ideas  as  to  the  relation  of  king  to  minis-  terial 

responsi- 

ters,  of  ministers  to  the  Common  Council  of  the  realm.          bility. 

Tedious    and    inconclusive    as    are    the   struggles   and  Henry 
bickerings  which  make  up  the   history  of  this  reign,  its  m' 
constitutional  results   are    of  great   interest,   quite  apart 
from  the  development  of  the   representative   system   by 
Simon  de  Montfort. 

Out  of  the  Curia  of  the  earlier  period  proceed  on  the  one  The 
hand   specific   departments  of  government  and  adminis-  ^ ^epart- 
tration,  on  the  other  a  body  of  councillors  through  whom  and  ments  of 
with  whose  advice  the  king  acts  in  matters  of  state.     The  men^" 
Chancery,  the  Exchequer,  the  Common  Law  Courts  separate 
from  one  another.     The  Exchequer  has  its  own  Chancellor  to 
aid  and  check  the  Treasurer.     The  Courts  acquire  different 
jurisdictions   administered   by   different  bodies  of  judges. 
The  Chancellor  affixes  the  great  seal  to  formal  manifesta- 
tions of  the  royal  will,  while  the  secretarial  portion  of  his 
duties    passes  into  the  hands   of  the  king's  secretary,  an 
official  who  from  humble  beginnings  is  to  develop  ulti- 
mately into  the  Secretary  of  State. 

As  the  departments  of  government  begin  to  assume  of  a  defi- 
definite  shapes,  the  circle  of  royal  advisers  with  whom  ™jte ' 
questions  of  general  policy  are  discussed  and  determined 
acquires  a  distinct  character.  The  infancy  of  Henry  III 
brought  into  existence  a  Council  different  on  the  one  hand 
from  the  Common  Council  of  the  nation,  and  on  the  other 
from  the  central  group  of  administrators.  This  Council, 
intended  in  the  first  instance  to  conduct  the  affairs  of  the 
kingdom  while  the  king  was  a  child,  outlasted  the  tem- 
porary needs  to  which  it  owed  its  origin,  and  became  a 
permanent  and  striking  feature  among  our  institutions. 
From  this  period  some  modern  principles  take  their  rise. 
The  responsibility  of  ministers  for  the  acts  of  the  king 


16  THE   PREROGATIVE   OF   THE   CROWN        Chap.  I 

dates  from  the  time  when  the  child  Henry  was  the 
nominal  head  of  executive  government1.  With  the  respon- 
sibility of  ministers  comes  the  rule  that  '  the  king  can  do 
no  wrong.' 

Then  again  there  arose  with  the  conception  of  a  respon- 
sible ministry  a  desire  on  the  part  of  the  larger  assembly, 
the  Great  or  Common  Council  of  the  realm,  to  control  the 
choice  and  the  action  of  the  king's  ministers.  This  Council 
had  chosen  the  regent  and  those  who  were  to  act  with  him 
on  the  death  of  John,  and  it  would  seem  that  the  baronage 
were  not  willing  to  forego  the  position  which  they  then 
assumed.  Of  this  the  Provisions  of  Oxford  (1358)  bear 
evidence2.  It  is  true  that  this  claim  was  made  by  the 
barons  on  behalf  of  their  order,  and  not  for  the  Common 
Council  as  representing  the  community  at  large ;  but  con- 
cessions thus  made  and  rights  thus  acknowledged  could 
readily  be  adapted  to  the  larger  and  more  representative 
body  which  shortly  came  into  existence,  and  reasserted  on 
its  behalf. 


SECTION  III 
PARLIAMENT  AND  PREROGATIVE 

§  1.     Limitations  on  royal  action. 

It  may  be  said  that  the  definition  of  Prerogative  begins 
with  the  existence  of  Parliament.  In  spite  of  the  negli- 
gence or  the  errors  of  the  later  Angevin  kings  the  tendency 
of  political  life  was  towards  the  growth  of  royal  power. 
The  feudal  king  had  ceased  to  regard  himself  as  the  official 
representative  of  the  community.  The  Saxon  king  had 
been  more  than  this  :  the  dignity  of  a  long  pedigree  and 
the  sentiment  of  the  comitatus  combined  to  invest  his 
position  with  a  reverence  which  does  not  attach  to  an 
elected  chairman  or  president. 

Feudalism  enhanced  the  power  and  the  position  of  the 
Crown  by  introducing  something  more  both  of  moral  and 

1  Stubbs'  Const.  Hist.  ii.  41.     (§  171.) 
8  Ibid.  ii.  76-78.     (§  176.) 


Sect.  iii.  §  1  THE   FEUDAL   KING  1 7 

legal  force  into  the  relation  of  king  and  subject.  The  by  the 
sentiment  of  fidelity  due  from  the  vassal  to  his  lord  relation  • 
strengthened  the  loyalty  due  to  the  king.  The  rule  of  the 
Conqueror  was  maintained  that  no  man  might  swear 
fealty  to  his  immediate  lord  without  reserving  the  fealty 
which  he  owed  to  the  king ;  and  to  the  mind  of  the 
middle  ages  the  rebel  was  not  merely  a  disturber  of  the 
public  peace ;  he  was  a  traitor  to  the  lord  whose  man  he 
had  sworn  to  be.  Then  too  the  legal  aspect  of  feudalism 
was  a  practical  service  to  royalty.  The  king,  who  held 
the  royal  domain,  was  entitled  to  the  services  of  his 
tenants  by  precisely  the  same  right  as  the  tenants-in-chief 
and  lesser  landowners  held  their  lands  and  were  entitled  to 
their  services.  And  since  it  was  the  tendency  of  feudalism 
to  connect  jurisdiction  with  land,  to  bind  the  feudal  tenant 
to  suit  and  service  in  the  lord's  court,  the  king's  title  to 
inherit  the  Crown  lands,  to  hold  them,  to  demand  the 
services  due  to  him,  to  be  supreme  landlord,  and,  as  keeper 
of  the  peace  of  the  community,  its  supreme  judge,  came  to 
be  regarded  as  a  proprietary  right.  But  this  right  was  of 
exactly  the  same  character  in  its  relation  to  the  tenants-in- 
chief  as  their  rights  were  in  relation  to  their  vassals,  and 
so  the  interests  of  the  feudal  society  were  to  some  extent 
enlisted  in  the  maintenance  of  the  rights  of  the  Crown. 

To  the  strength  given  by  feudalism  to  royalty  we  must  by  ecclesi- 
add   the   sanctity  attached   to   the   kingly   office  by  the  sanction, 
ceremonial  of  coronation  and  the  voice  of  the  Church.     The 
king  was   not  merely  the  chosen  of   the  people,  he  was 
the  anointed  of  God.     Besides  all  this,  the  king,  if  he  was 
a  capable  man,  was  the  strongest  man  in  his  dominions ; 
he  had  the  machinery  of  administration  at  his  disposal, 
and   could  probably  at   any  given   time  command   more 
money,  and  put  more  men  into  the  field,  than  any  one  of 
his  barons. 

It  is,  then,  small  matter  for  wonder  that  men  had  come  to 
forget,  if  indeed  they  had  ever  clearly  realized,  that  the 
king  existed  for  certain  purposes  necessary  to  the  com- 
munity, as  its  representative  in  the  maintenance  of  internal 
peace  and  order,  of  external  dignity  and  security.  The 


ANSON.      CKOWN 


18  THE   PREROGATIVE   OF   THE   CROWN         Chap.  I 

Repre-  promises  of  the  Coronation  oath  and  the  definitions  of  the 
character  Great  Charter  were  evidence,  and  not  much  more,  of  the 
of  king-  duty  of  the  king  to  govern  according  to  law  and  to  observe 
gotten.r"  those  limitations  on  royal  power  which  the  Charter  pre- 
scribed. The  rights  of  the  king  as  law-maker,  judge,  and 
administrator  were,  no  doubt,  limited  by  the  customary 
rule  that  he  must  act  through  and  with  his  Council :  but 
these  rights  had  come  to  be  regarded  as  inherent,  not 
delegated:  just  as  the  hereditary  character  of  the  title  to 
the  Crown  grew  at  the  expense  of  the  elective.  And  while 
the  conception  of  the  kingly  office  tended  to  grow  in 
majesty  and  force,  the  Council  varied  greatly  in  efficiency 
as  a  restraining  power:  sometimes  its  composition  was 
settled  by  a  powerful  baronage  designedly  as  a  check  upon 
the  king  :  sometimes  a  strong  king  would  form  a  Council  of 
royal  nominees,  new  men  on  their  promotion,  who  were 
merely  exponents  of  the  royal  will. 

Inade-  Something  more  than  this  was  needed  to  enforce  the 

check3°  theoretical  limitations  on  the  power  of  the  Crown,  and  to 
make  the  king  the  true  representative  of  the  national  will. 
The  Commune  Concilium,  as  contemplated  in  s.  14  of  the 
Charter,  was  not  a  representative  assembly ;  practically  it 
consisted  of  the  tenants-in-chief :  it  was  not  summoned  for 
general  purposes  of  counsel  and  consent ;  the  king  only 
undertook  to  summon  it  in  the  case  of  a  special  demand 
for  aid  or  scutage  made  upon  the  feudal  tenants :  it  had 
no  control  over  the  action  of  the  executive  unless  such 
a  demand  was  made  and  terms  could  be  obtained  for  com- 
pliance. Where  this  assembly  was  in  a  position  to  make 
terms  with  the  king  its  interests  were  not  bound  up  with 
those  of  the  community,  they  were  the  interests  of  the  class 
of  landowners  who  held  of  the  Crown.  And  at  best  the 
Concilium  of  the  Charter  was  merely  an  expansion  of  the 
Council  with  which  the  king  habitually  acted,  an  executive 
and  deliberative  body  temporarily  enlarged  for  a  special 
object, 
before  To  define  the  prerogative  of  the  Crown  a  force  was 

Pariia-       needed  which  should  be  distinct  from  the  executive,  em- 
inent. 

bodied  in  an  assembly  which  should  represent  the  com- 


Sect.  iii.  §1     PARLIAMENT   AND   PREROGATIVE  19 

munity  in  its  entirety,  and  possessed  of  means  for  ultimately 
putting  constraint  on  the  royal  will. 

Such  a  force  was  found  in  Parliament  as  constituted  by  Source  of 
Edward  I ;  an  assembly  representative  of  the  clergy,  baron-  Parli*- 
age,  and  commons,  the  three  estates  of  the  realm  ;    and  the  power, 
constraining  power  which  it  possessed  was  the  power  of 
the  purse.     The  king's  revenue  was  insufficient  to  meet  the 
needs  of  the  State ;  the  necessary  supplement  to  this  income 
could  only  be  obtained  by  the  goodwill  of  the  community ; 
and  the  community  of  the  thirteenth  century  might  be  re- 
garded as  fairly  represented  in  the  Model  Parliament  of  1 295. 

Parliament  was  not  slow  in  asserting  its  powers.     In  the  Claims  of 
right  to  tax,  to  make  laws,  to  choose  the  ministers  of  the 
king  it  claimed  to  have  a  concurrent  if  not  a  dominating 
voice. 

Time  was  needed  to  show  the  insufficiency  of  a  bare 
insistence  on  these  rights.  It  was  not  enough  to  be 
a  necessary  party  to  taxation  unless  Parliament  could 
determine  the  nature  of  the  expenditure  to  be  incurred,  and 
could  ensure  that  the  money  granted  was  spent  on  the 
purpose  for  which  it  was  voted.  It  was  not  enough  to  be  a 
necessary  party  to  legislation,  unless  the  Courts  by  whom 
laws  were  interpreted  were  free  from  the  influence  of  the 
Crown.  It  was  not  enough  to  appoint  the  king's  ministers 
unless  Parliament  could  exercise  some  control  over  their 
action. 

The  appropriation  of  supply  and  the  audit  of  accounts, 
the  independence  of  the  judges,  and  the  whole  theory  of 
ministerial  responsibility,  are  constitutional  questions  which 
evolved  themselves  and  were  settled  after  centuries  of 
political  strife  or  discussion.  They  were  very  dimly  realized, 
if  at  all,  by  the  Parliaments  of  the  thirteenth  and  four- 
teenth centuries.  The  right  to  tax  and  the  right  to  legis- 
late form  part  of  the  history  of  Parliament.  But  the 
insistence  on  the  right  of  Parliament  in  these  respects  was 
effective,  if  indeed  it  was  not  essential,  for  the  limitation 
of  the  discretionary  power  of  the  Crown  in  the  choice  of 
Ministers,  in  the  determination  of  general  policy,  in  control 
over  the  details  of  administration.  The  first  struggles 

C  2 


20  THE   PREROGATIVE   OF   THE   CROWN         Chap.  I 

The  king's  begin  over  the  choice  of  ministers.     This  becomes  more 
discretion,  inipOrt/ant  to   the  king  as  the  sphere  of   administration 
becomes  wider  and  its  details  more  complex. 

The  claim  made  by  the  Commune  Concilium  in  the 
reign  of  Henry  III,  and  by  the  magnates  in  the  reign  of 
Edward  II,  to  have  a  voice  in  the  nomination  of  the  king's 
ministers  and  to  control  their  action,  was  revived  by 
Parliament  in  1371,  when  the  old  age  and  failing  powers  of 
Edward  III  and  the  minority  of  Richard  II  had  given 
increased  importance  to  the  executive  powers  of  the  Council. 
The  Commons  desired  to  control  these  executive  powers  by 
securing  the  nomination  and  election  in  Parliament  of  the 
chancellor  and  the  lord  privy  seal,  through  whom  chiefly 
in  choice  the  royal  will  was  expressed ;  of  the  treasurer,  who  was 
isters"  responsible  for  the  public  income  and  expenditure ;  of  the 
chamberlain,  whose  official  duties  were  varied  and  impor- 
tant ;  and  of  the  steward  of  the  household,  who  was 
responsible  for  the  economy  of  the  Court  and  the  mainten- 
ance of  the  royal  state. 

But  in  1385  Richard  refused  point-blank  to  name  his 
intended  ministers  to  the  House  of  Commons;  and  the 
nomination  of  ministers  in  Parliament  does  not  recur 
in  his  reign.  By  requiring  an  audit  of  accounts  the 
Commons  endeavoured  to  enforce  ministerial  responsibility 
and  the  right  use  of  public  money.  By  the  process  of 
Impeachment1  they  dealt  with  such  political  offences  as 
were  outside  the  ordinary  course  of  law. 

in  detail  But  very  early  in  its  existence  the  House  of  Commons 
seems  to  have  become  aware  that  for  the  control  of  the 
Crown  in  administration  it  was  of  supreme  importance  to 
secure  the  independence  of  the  Courts  and  the  publicity  of 
judicial  procedure. 

The  king  might  delay  a  cause  or  withdraw  it  from  the 
Courts  by  writs  issued  under  his  lesser  or  privy  seal 2,  or 

1  See  Part  I :  Parliament,  ch.  x.  $  a. 

a  28  Ed.  I,  c.  6.  No  writ  concerning  the  Common  Law  was  to  go  out 
under  the  little  seal. 

a  Ed.  Ill,  c.  8.  Neither  great  nor  little  seal  should  be  used  to  delay 
common  right ;  if  so  used  the  justices  should  pay  no  attention  to 
such  commandments. 


Sect.  iii.  §  1     PARLIAMENT    AND   PREROGATIVE  21 

he  might  grant  charters  of  pardon  so  wide  in  their  terms 
as  to  amount  to  a  dispensation  to  commit  crime.  These 
were  the  earliest  grievances,  and  they  were  dealt  with  by 
Statute l. 

Or  a  man  might  be  summoned  by  writ  of  subpoenu 
before  the  Council,  where  the  king  continued  to  preside 
after  he  had  ceased  to  sit  in  the  King's  Bench.  The 
powers  of  the  Council  were  undefined  and  arbitrary,  and 
its  procedure  differed  in  many  respects  from  that  of  the 
Common  Law  Courts.  It  was  in  vain  that  the  Commons 
sought  to  destroy  this  jurisdiction  or  to  control  its  exercise 2. 
It  developed  in  spite  of  the  Statutes  and  the  protests  of 
the  fourteenth  and  fifteenth  centuries  until  opposition  died 
away,  to  return  with  conclusive  effect  in  the  legislation  of 
1641. 

But  the  instinct  of  the  Commons  was  a  true  one.  The 
prerogative  must  be  limited  by  law  if  it  was  not  to  be 
limited  by  force,  and  legal  restraints  were  of  no  avail  if  the 
king  could  constitute  or  control  the  Courts  which  inter- 
preted the  law. 

1  a  Ed.  Ill,  c.a;  10  Ed.  Ill,  st.  r,  c.  a  ;  14  Ed.  Ill,  c.  15;  13  Ric.  II, 

St.  2,  C.  I. 

1  Statutes  on  this  subject  are  numerous.    They  begin  with  generalities. 
5  Ed.  Ill,  c.  9.     None  shall  be  attached  or  forejudged  contrary  to  the 

Great  Charter  or  the  law. 

28  Ed.  Ill,  c.  3.     None  to  be  put  out  of  his  lands  or  imprisoned,  disin- 
herited or  put  to  death  but  by  due  process  of  law. 
Then  they  become  more  explicit. 

42  Ed.  Ill,  c.  3.     No  man  to  be  made  to  answer  before  the  King's 

Council  on  accusation  to  the  king  without  presentment  before  justice 

or  matter  of  record,  or  by  due  process  and  writ  original  according 

to  the  law  of  the  land. 

4  Hen.  IV,  c.  23.     No  man  to  be  brought  before  the  King's  Council  or 

king  himself  after  judgment  given  in  the  Common  Law  Courts. 
15  Hen.  VI,  c.  4.     The  writ  of  subpoena  only  to  be  issued  after  security 

given  for  costs. 

The  protests  of  the  Commons  are  very  numerous  ;  but  if  a  petition  was 
in  the  first  instance  addressed  to  Parliament  they  were  not  unwilling  that 
it  should  be  referred  to  the  Council.  In  14  Ed.  Ill,  c.  5,  they  legalize  such 
reference  in  case  of  delay  of  justice  ascertained  by  a  committee  of  five  (one 
bishop,  two  earls,  and  two  barons),  and  in  31  Hen.  VI,  c.  2,  they  gave 
power  to  the  Council  to  deal  in  a  summary  way  with  great  offenders 
against  public  order,  saving  in  a  somewhat  ineffectual  proviso  the  rights 
of  the  Common  Law  Courts. 


22  THE   PREROGATIVE   OF   THE   CROWN         Chap.  I 


§  2.     The  Lancash'ians. 

The  Coun-  The  growth  of  the  collective  powers  of  the  Council  is, 
constitutionally,  not  less  important  than  the  growth  of 
individual  departments  of  government.  In  the  reign  of 
Richard  II  it  had  '  become  a  power  co-ordinate  with  the 
king  rather  than  subordinate  to  him,  joining  with  him  in 
all  business  of  state,  and  not  merely  assisting  but  restricting 
Parlia-  his  action  V  In  this  capacity  it  is  recognized  by  the 
corrtrolT  Commons,  who,  early  in  the  reign  of  Henry  IV,  ask  that 
the  Lords  of  the  Council,  as  well  as  individual  ministers, 
should  be  nominated  in  Parliament  (1404),  that  they  should 
be  properly  paid  for  their  services,  and  that  the  procedure  of 
the  Council  should  be  settled  by  fixed  rules  (1406).  In  every 
department  of  the  executive,  it  was  the  duty  of  the  Council 
to  advise  the  Crown ;  and  there  soon  follows  the  assumption 
by  the  Council  of  judicial  powers  which  to  some  extent 
supplemented,  to  some  extent  superseded,  the  action  of 
the  Courts. 

as  to  the  During  the  infancy  of  Henry  VI  the  Council  added  to 
its  consultative  functions  those  of  a  Council  of  Regency ; 
and  during  this  time  it  was  nominated  not  merely  in  Parlia- 
ment but  by  Parliament.  On  the  attainment  of  his  majority 
by  the  king,  this  practice  ceased ;  the  Commons  relaxed 
their  attempts  at  control,  and  the  Council  became  the 
nominees  of  the  Court.  Under  the  weak  rule  of  Henry  VI 
the  commoners  and  men  of  business  became  fewer  at  the 
Council  Board 2.  Great  lords  of  the  Lancastrian  side  took 
their  place,  and  the  powers  both  of  the  Commons  and  of  the 
Council  at  this  period  increased  at  the  expense  of  the 
personal  influence  of  the  Crown.  But  this  limitation  of 
royal  power  and  influence  was  not  accompanied  by  the 
practical  advantages  of  good  government. 

as  to  taxa-  The  Commons  had  acquired  an  increased  and  extensive 
leg?sfa"  control  over  taxation  and  legislation,  and  by  the  practice  of 
tion.  impeachment  they  could  strike  an  individual  minister,  but 

1  Stubbs,  Const.  Hist.  iii.  247. 

*  Fortescue  on  the  Governance  of  England,  ed.  Plummer,  p.  146 ;  and 
see  Mr.  Plurnmer's  note,  pp.  295,  296. 


Sect.  iii.  §  2        THE   LANCASTRIAN   COUNCILS  23 

as  yet  they  had  not  learned  to  use  this  power  so  as  to  keep 
a  steady  and  consistent  criticism  at  work  on  the  action  of 
the  executive. 

The  Council  had  become  a  committee  for  the  discharge  of 
executive  functions,  irresponsible,  except  in  so  far  as  respon- 
sibility was  secured  by  the  royal  power  of  appointment  and 
dismissal,  and  by  the  possibility  that  the  Commons  might 
exercise  in  individual  cases  their  right  to  impeach.  The  Disorders 
range  of  duties  undertaken  by  the  Council  was  practically 
co-extensive  with  the  powers  of  the  Crown.  In  judicial 
matters  the  complaints  that  the  Council  interfered  with 
the  action  of  the  Common  Law  Courts  continued  for  a  while, 
but  cease  after  the  reign  of  Henry  IV ].  The  lawlessness 
of  the  country,  and  the  difficulty  of  obtaining  justice  by 
the  ordinary  procedure  of  the  Courts  when  great  lords  set 
the  common  law  at  nought,  may  well  have  reconciled  the 
Commons  to  the  intervention  of  the  Council. 

In  truth  at  this  time  we  get  an  outline  of  constitutional 
government  which  seems  to  disappear  when  we  look  into 
details.  The  king  reigned  by  a  strict  Parliamentary  title ; 
the  House  of  Commons  had  acquired  a  control  over  legisla- 
tion and  taxation  * ;  the  royal  Council  was  exercising  with 
apparent  vigour  the  administrative  powers  of  the  Crown  3 ; 
and  yet '  the  Treasury  was  always  low,  the  peace  was  never 
well  kept,  the  law  was  never  well  executed ;  individual  life 
and  property  were  insecure  ;  whole  districts  were  in  a  per- 
manent alarm  of  robbery  and  riot4.'  This  local  anarchy 
was  wrought  by  great  and  rich  nobles  with  the  bodies  of 
armed  retainers  who  had  followed  them  in  the  French  wars, 
and  now  wore  their  livery  and  were  maintained  by  their 
bounty.  The  ordinary  course  of  justice  was  impotent 
against  these  men :  the  king  himself  could  scarcely  resist 
any  combination  of  them.  The  Wars  of  the  Roses  were 
a  sequel  to  the  long  disorders  of  the  fifteenth  century. 

1  Stubbs,  Const.  Hist.  iii.  252.  2  Ibid.  250. 

8  Ibid.  255.  '  Ibid.  270. 


24  THE   PREROGATIVE   OF   THE   CROWN         Chap.  I 

§  3.     The  Tudors. 

Desire  for  From  the  conclusion  of  the  Wars  of  the  Roses  to  the 
executive  ^me  °^  ^e  Stuarts,  from  Fortescue  to  Bacon,  the  minds  of 
political  thinkers,  practical  or  theoretical,  seem  to  have 
turned  towards  the  construction  of  a  strong  administration. 
Not  only  had  the  turmoil  of  the  dynastic  struggle  created 
a  longing  for  peace:  the  preceding  disorder,  and  the  in- 
security of  life  and  property  which  was  not  inconsistent 
with  great  constitutional  progress,  made  men  realize  that 
an  increase  in  the  power  and  influence  of  the  House  of 
Commons  was  not  all  that  was  needed  to  make  a  nation 
prosperous  and  free. 

The  constitution  of  the  king's  Council  for  purposes  of 
administration  was  the  problem  set  to  himself  by  Sir  John 
Fortescue,  who  troubles  himself  little  as  to  the  relations  of 
Parliament  to  the  servants  of  the  Crown,  but  much  as  to  the 
organization  of  the  executive.  The  distribution  of  the  work 
of  the  Council  received  much  attention  from  Henry  VIII 
and  Edward  VI ;  the  course  of  its  business  was  regulated : 
the  precedence  of  its  important  members  determined  by 
Statute :  committees  of  the  Council  were  formed  for  special 
purposes  or  for  attendance  upon  the  king. 

And  since  the  great  nobles  had  been  reduced  by  the 
Wars  of  the  Roses  in  numbers,  power,  and  prestige,  the 
Council  possessed  no  members  of  such  individual  weight  or 
importance  as  would  enable  them  to  resist  the  royal  will. 
It  was  an  administrative  machine  of  vast  power,  entirely  in 
the  hands  of  the  Crown. 

Popular         The  period   fancifully  styled   the   New  Monarchy,  the 
cenoeTn     period  during  which  the   Crown   stands   forth   in   active 
Tudor        personal  government   more   distinctly  than   at   any  time 
since  the  reign  of  Henry  II,  was  at  once  the  outcome  of 
the  executive  weakness  of  the  Lancastrians,  and  the  source 
of  the  violent  collision  of  Crown  and  Parliament  under  the 
Stuarts.      But  it  should  be  remembered  that  the  people 
were  as  willing  to  be  governed  as  the  Tudor  kings  and 
queens  were  able  and  willing  to  govern,  and  that  through- 
out the  reign  of  Henry  VIII  Parliament  seemed  ready  to 


Sect.  ui.  §  3  THE   TUDORS  25 

confer  upon   the   Crown  any  powers  which  Henry  VIII 
might  be  pleased  to  ask. 

Henry  borrowed  money  without  consent  of  Parliament,  statutory 
but  he  obtained  from  Parliament  a  release  from  the  obliera-  £rer°8a- 

r>  tives  con- 

tions  incurred  to  the  lenders.  Parliament  gave  him  the  ferred. 
power  of  devising  the  Crown,  enabled  him  to  issue  Pro- 
clamations which  should  have  the  force  of  law,  and  enacted 
that  a  king,  when  he  reached  the  age  of  twenty-four,  might 
repeal  any  statutes  made  since  his  accession ;  above  all,  it 
was  Parliament,  embodying  the  acts  of  Convocation,  that 
made  the  king  the  legal  head  of  the  national  Church,  and  it 
was  Parliament  that  passed  the  many  acts  of  attainder 
which  give  a  tragic  colour  to  the  concluding  years  of  this 
reign. 

In  two  respects  we  see  the  Crown  in  the  reign  of  Other 
Henry  VIII  developing  a  policy  and  exercising  powers 
which  became  formidable  when,  as  happened  in  the  sue- tive- 
ceeding  reigns,  individuals  began  to  desire  a  free  expression 
of  opinion  on  matters  affecting  Church  and  Commonwealth, 
and  when  Parliament  revived  its  interest  in  public  affairs. 
One  of  these  developments  of  executive  power  is  manifested 
in  the  judicial  action  of  the  Council.  The  administration  (a)  Judi- 
of  the  Common  Law  had  been  committed  to  the  three  great 
Courts,  the  King's  Bench,  the  Common  Bench,  and  later  to 
the  Exchequer.  The  imperfections  of  the  Common  Law 
were  supplemented  in  the  Chancery,  where  the  Chancellor 
was  the  mouthpiece  of  the  king's  grace,  but  the  indefinite 
residue  of  the  judicial  powers  of  the  king  was  administered 
by  the  Council.  Of  the  obscurity  which  overhangs  the 
growth  of  these  powers,  and  of  the  relations  of  the  Council 
and  the  Star  Chamber,  I  will  speak  in  a  later  chapter.  Here 
it  is  enough  to  note  the  compass  and  detail  of  the  judicial 
work  which  the  Council  is  found  to  be  doing  when,  after 
a  long  gap  in  its  records,  we  can  once  more  follow  its  action 
in  the  reign  of  Henry  VIII '. 

1  No  regular  record  of  the  proceedings  of  the  Council  is  extant  between 
1435  and  1540.  As  to  the  variety  of  judicial  business  transacted  by  the 
Council  in  the  reign  of  Henry  VIII,  see  Proceedings  and  Ordinances  of 
the  Privy  Council,  vol.  viL  p.  xxv. 


26  THE   PREROGATIVE   OF   THE   CROWN        Chap.  I 

These  powers  do  not  seem  at  first  to  have  been  de- 
signedly exercised  by  the  Crown  at  the  expense  of  the 
liberties  of  the  subject.  The  Common  Law  Courts  were 
costly  and  difficult  of  access  to  poor  men,  they  were  not 
always  effective  against  rich  or  powerful  wrong-doers l ; 
conspiracies  which  survived  from  the  dynastic  wars  needed 
to  be  met  by  prompt  and  secret  action ;  ecclesiastical 
changes,  and  the  growth  of  a  Press,  raised  new  questions 
to  which  existing  rules  of  law  supplied  no  answer. 
Petitions  for  redress  of  grievances  were  laid  before  the 
Council;  often  it  was  only  here  that  justice  could  be 
obtained  speedily  and  at  small  cost  by  the  poor ;  often  too 
it  was  only  here  that  justice  could  be  obtained  at  all  by 
the  weak.  It  was  only  by  degrees  that  the  Court  of  Star 
Chamber  became  a  Court  for  the  restraint  by  an  arbitrary 
procedure  of  the  free  expression  of  opinion  on  political 
subjects,  that  it  enforced  illegal  proclamations  by  un- 
authorized penalties,  that  it  no  longer  supplemented  but 
interfered  with  the  ordinary  course  of  justice  in  the  Courts 
of  Common  Law. 

Thus  the  jurisdiction  of  the  Council,  dangerously  in- 
definite, but  on  the  whole  salutary  in  its  exercise  under 
Henry  VII,  had  become  a  formidable  engine  of  oppression 
before  the  death  of  Elizabeth. 

(&)  Addi-        And,  secondly,  Henry  VIII  began  the  practice  of  in- 
thTconsti  creasing   the   numbers    of    the    House    of    Commons    by 
tuencies.    additions  to  the  constituencies,  a  policy  which  was  de- 
veloped, in  the  hands  of  his  successors,  by  a  free  use  of 
the  prerogative  in  granting  charters  to  towns. 

The  statutory  requirement  that  a  member  should  be 
resident  in  his  constituency  had  fallen  into  disuse2,  and 
a  seat  in  Parliament  had  not  yet  begun  to  be  an  object  of 
ambition.  Henry  VIII  had  therefore  no  great  difficulty 
in  procuring  the  election  to  the  House  of  Commons  of 
many  members  who  held  places  at  the  pleasure  of  the 
Crown,  or  who  hoped  to  obtain  such  places,  or  who  for  one 
reason  or  another  were  willing  to  vote  as  the  king  or  his 

1  Collectanea  luridica,  vol.  ii.  p.  14. 

2  See  Part  I :  Parliament,  pp.  87,  319. 


Sect.  iii.  §  3  THE   TUDORS  27 

minister  might  direct.  The  successors  of  Henry  VIII1 
were  not  content  to  rely  upon  influence  over  existing  con- 
stituencies; they  issued  writs  of  summons  to  boroughs 
which  had  never  heretofore  sent  members,  a  process 
followed  usually  by  a  charter  of  incorporation,  conferring 
upon  the  borough  the  privilege  of  sending  members,  and 
regulating  the  rights  of  election.  In  this  way  the  numbers 
of  the  House  of  Commons  were  increased  by  more  than  one 
hundred  members  in  the  reigns  of  Edward,  Mary,  and 
Elizabeth,  and  the  growing  independence  of  Parliament 
was  sought  to  be  restrained  by  a  larger  infusion  of  nominees 
of  the  Crown. 

The  raising  of  loans  without  consent  of  Parliament,  the  Preroga- 
exercise  of  a  wide  and  indefinite  jurisdiction  through  the          1 


Privy  Council,  and  the  acquisition  of  a  Parliamentary  VIII. 
influence  by  an  increase  of  the  representation  and  by  the 
introduction  of  placemen  and  courtiers  into  the  House  of 
Commons,  constitute  the  chief  exercise  of  prerogative  in 
the  reign  of  Henry  VIII.  Many  deeds  undoubtedly  cruel 
and  unjust  were  done,  and  laws  were  passed  which  placed 
a  dangerous  power  in  the  hands  of  the  Crown  ;  but  to  these 
matters  Parliament  was  made  a  party,  and  the  blame  must 
be  divided  in  such  proportions  as  the  student  of  history 
may  see  fit  between  a  king  who  loved  his  own  way,  a  com- 
plaisant legislature,  and  a  people  which  was  willing  to 
forego  some  measure  of  constitutional  liberty  for  the  sake 
of  order  and  peace. 

Under  Edward  VI  and  the  Tudor  queens  the  jurisdiction  Under  his 
of   the   Council   pressed   more   heavily   upon   freedom   of  81 
opinion,  and  the  franchise  was  conferred  upon  boroughs 
which  were   never   intended  to    exercise  an  independent 
choice  of  members.     Yet,  in  spite  of  the  exceptional  influ-  Restraint* 
ence  and  control  which  these  monarchs  exercised  in  Council  jstrative 
and  in  Parliament,  we  find  that  a  complicated  machinery  is  action  of 
growing  up  which  needs  to  be  put  in  motion  before  effect 

1  The  constituencies  added  by  Henry  VIII,  though  considerable  in 
number,  were  places  which  might  reasonably  demand  representation  : 
Cheshire  and  Chester,  Monmouthshire  and  Monmouth,  the  towns  and 
counties  of  Wales. 


28  THE   PREROGATIVE   OF   THE   CROWN         Chap.  I 

can  be  given  to  the  king's  decision  in  the  detail  of  adminis- 
tration ;  his  will  is  all-powerful,  but  it  must  be  expressed 
through  his  servants.  Edward  IV  had  been  told  already 
that  he  could  not  effect  an  arrest  in  person  l,  and  James  I 
had  to  learn  that  the  king  could  not  sit  as  judge  in  his  own 
Courts  2.  An  Act  of  Henry  VIII  3  requires  the  concurrence 
of  three  of  the  king's  servants  for  affixing  the  great  seal, 
and  the  recorded  Acts  of  the  Council  in  the  reign  of 
Edward  VI  make  various  provisions  as  to  the  official 
signatures  necessary  to  authenticate  a  document  signed 
under  the  king's  own  hand4.  It  was  held  in  Elizabeth's 
reign  that  a  royal  order  was  not  a  sufficient  authority  for 
the  issue  of  the  royal  treasure  6. 

§  4.     The  Stuart*. 

The  exer-       When  James  I  came  to  the  throne  it  was  no  longer  easy 
^°  m^nage  Parliament  as  it   had   been  managed   by  the 


tive  by  the  Tudors.     The  House  of  Commons  had  questioned  some  of 

Stuarts 

the  additions  made  by  Elizabeth  to  the  representation. 
It  took  an  early  opportunity  of  disputing  the  right  of  the 
Crown  to  interfere  in  elections  or  to  determine  disputed 
returns.  The  Stuarts  did  not  venture  to  use  to  any  extent 
the  prerogative  which  the  Tudors  had  so  freely  exercised 
of  summoning  boroughs  by  writ  or  conferring  the  right  to 
representation  by  Charter.  The  additions  to  the  repre- 
sentation made  in  the  reign  of  James  I  were  in  almost  all 
cases  revivals  of  rights  fallen  into  disuse.  But  James  I 
and  Charles  I  raised  other  and  bolder  issues.  The  judicial 
powers  of  the  Privy  Council  exercised  in  the  Star  Chamber, 
and  the  power  of  appointing  and  dismissing  at  pleasure 
the  judges  of  the  superior  Courts,  enabled  the  Crown  to 
interfere  with  the  freedom  of  the  subject,  to  legislate  and 
to  tax  in  defiance  of  statutes  passed  in  earlier  times,  in 
defiance  even  of  the  Petition  of  Right,  which  was  aimed  at 
existing  encroachments  of  the  Prerogative. 

1  Coke,  Inst.  ii.  p.  186.  *  12  Coke,  Rep.  p.  64. 

=  27  Hen.  VIII,  c.  n. 

•  Acts  of  the  Privy  Council,  iii.  366.  411,  500. 

5  1  1  Coke,  Rep.  p.  93. 


Sect.  Hi.  §4        THE   KING   AND   THE   COURTS  29 

It  is  possible  that  the  difficulty  of  managing  Parliament  aided  by 
or  increasing  the  number  of  its  members  may  have  induced  J^ne  ° 
the  Stuarts  to  fall  back  upon  unparliamentary  methods,  right, 
But  the  circumstances  of  the  time  offered  some  justification 
for  these  methods.  The  decay  of  feudalism  left  men  in  want 
of  some  theory  of  political  duty  which  should  supply  the 
place  of  the  feudal  bond,  and  the  Reformation,  which 
broke  up  the  unity  of  Western  Christendom,  created  the 
new  problem  of  a  national  Church.  The  theory  of  the 
divine  right  of  kings  offered  a  solution  of  these  difficulties, 
and  it  was  eagerly  embraced  by  the  Stuarts  and  accepted 
by  many  of  their  subjects.  Under  the  Tudors  a  desire  for 
settled  government  had  reconciled  men  to  encroachments 
on  liberty  of  person  and  security  of  property,  and  had 
encouraged  the  king  to  use  the  royal  powers  with  freedom 
and  boldness. 

But  those  powers  did  not  rest  on  imagination  only  :  they  but  based 
had  a  firm  basis  in  the  control  which  the  Crown  possessed  °"  judicial 
over  the  course  of  law. 


So  long  as  the  king  could  use  the  indefinite  jurisdiction 
of  the  Star  Chamber  for  the  infliction  of  punishments  for 
political  offences,  it  was  possible  for  him  to  issue  proclama- 
tions which  would  be  enforced  by  fine  or  imprisonment  in 
the  Star  Chamber,  although  disobedience  to  them  might  The  star 
not  constitute  any  offence  recognizable  by  the  Common 
Law  Courts1.  It  is  true  that  the  use  of  this  power  by 
James  I  led  to  a  precise  definition  by  Sir  E.  Coke  of  the 
legal  effect  of  such  proclamations,  a  definition  which,  as 
I  have  elsewhere  pointed  out,  is  the  locus  claasicus  for  the 
statement  of  the  relations  of  Parliament  and  Crown  in 
the  making  and  enforcement  of  law  2.  But  so  long  as  the 
Star  Chamber  was  available  for  the  enforcement  of  pro- 
clamations there  existed  a  judicial  power  residing  in  the 
executive,  limited  by  no  settled  rules,  exercisable  at  the 
royal  discretion,  and  alleging  the  interests  of  government 
as  the  ground  of  its  exercise. 

Nor  did  the  king's  control  of  justice  stop  at  the  Star 

1  Gardiner,  History  of  England,  viii.  73,  77. 

2  Part  I  :  Parliament,  p.  294. 


30  THE   PREROGATIVE   OF   THE   CROWN        Chap.  T 

The  Chamber.     He  had  an  absolute  power  in  the  appointment 

Bench-  and  dismissal  of  judges :  the  judicial  bench  was,  as  to 
tenure  of  office,  at  his  mercy;  without  exaggerating 
charges  of  corruption  and  subserviency,  it  is  plain  that 
self-interest  as  well  as  the  traditions  of  a  hundred  years 
would  lead  the  judges  to  take  a  broad  view  of  the  extent 
of  their  master's  prerogative.  And  the  course  taken  by 
the  judges  went  far  beyond  mere  latitude  in  the  inter- 
pretation of  the  law;  it  led  them  to  a  point  at  which 
the  sanction  and  validity  of  the  law  might  be  called  in 
question. 

The  duty  When  a  subject  refused  to  pay  a  duty  imposed  or  a  tax 
judges  levied  without  consent  of  Parliament,  the  Courts,  if  they 
did  their  duty  as  we  understand  it,  were  bound  only  to 
consider  whether  there  was  authority  by  Statute  or  at 
Common  Law  for  the  demand  made  by  the  Crown.  If 
an  emergency  necessitated  the  raising  of  money  without 
the  consent  of  Parliament,  the  Courts  were  not  concerned 
with  the  existence  of  such  an  emergency;  their  business 
was  to  interpret  Statute  and  Common  Law.  Imminent 
peril  might  justify  the  Crown  in  overstepping  its  legal 
powers,  but  the  justification  should  be  recognized,  not  in 
a  decision  by  the  Courts  that  in  such  cases  as  he  might 
consider  to  be  of  national  emergency  the  law  did  not  bind 
the  king,  but  in  an  act  of  indemnity  passed  by  Parliament 
to  relieve  those  who  had  done  the  royal  bidding  in  breach 
of  the  law. 

and  their  Nevertheless,  the  judges  of  James  I  and  of  Charles  I 
were  for  the  most  part  of  the  opinion  of  Bacon 1,  that  their 
of  it,  business  was  not  merely  to  declare  the  law  but  to  support 
the  government.  Acting  on  this  theory  they  developed 
a  doctrine  of  the  discretionary  prerogative  which  virtually 
set  the  king  above  the  law.  If,  whenever  a  subject  re- 
sisted an  illegal  demand,  the  Courts  held  that  the  demand 
was  justified  by  a  discretionary  power  resident  in  the  king, 
they  reduced  themselves  to  a  choice  of  difficulties.  Either 
they  must  consider  the  circumstances  of  each  case,  must 
determine  whether  the  use  of  this  discretionary  power 

1  Gardiner,  ii.  191  ;  iii.  2-8. 


Sect.  iii.  §  4  THE   LONG   PARLIAMENT  31 

was  needed,  and  so  must  assume  the  deliberative  functions 
of  a  Council  of  the  Crown,  or  they  must  leave  it  to  the 
king  to  say  when  this  power  should  be  used,  and  in  that 
way  must  set  the  Crown  above  the  law. 

The  last  was  the  course  which  the  judges  adopted l.  and  its 
They  thereby  made  the  king  independent  of  Parliament  so  results- 
far  as  revenue  was  concerned.  Nor  did  their  action  affect 
revenue  alone :  all  attempts  to  define  the  prerogative  by 
rules  of  law  were  rendered  nugatory  when  the  Courts  held 
that  it  was  of  the  essence  of  prerogative  to  decide  whether 
or  no  the  law  of  the  land  should  be  observed.  The  powers 
in  respect  of  legislation  which  the  Star  Chamber  gave  to 
the  king,  by  the  enforcement  of  proclamations,  contrary 
to  law,  the  Common  Law  Courts  gave  him,  and  as  little  in 
accordance  with  the  rules  of  law,  where  the  money,  or  the 
liberty,  of  the  subject  were  concerned. 

The  Long  Parliament  took  away  the  jurisdiction  of  the  Effect  of 
Privy  Council  in  civil  and  criminal  matters,  and  in  so  doing 
struck  oft'  a  formidable  branch  of  the  royal  prerogative,  ment ; 
It  also  in  unmistakable  terms    precluded   the  king  from 
raising  money  without  consent  of  Parliament.     But  the 
episode  of  the  Commonwealth  did  far  more  than  legislation  and  of  the 
could  do  to  affect  the  powers  of  the  Crown  as  then  existing, 

The  prerogative  of  the  English  king  had  not  rested  on  an 
armed  force  for  its  maintenance,  but  on  custom  and  respect 
for  law,  and  to  some  extent  on  imagination,  and  an  accep- 
tance of  the  existing  order  of  things  as  a  part  of  the  scheme 
of  nature.  The  issue  of  the  war  between  King  and  Parlia- 
ment showed  that  there  was  no  such  miraculous  attribute 

1  '  In  cases  touching  the  prerogative,  the  judgement  shall  not  be  accord- 
ing to  the  rules  of  Common  Law.1 

'  The  king's  power  is  two-fold,  ordinary  and  absolute  .  .  .  The  absolute 
power  of  the  king  is  applied  for  the  general  benefit  of  the  people,  and  is 
solus  populi,  as  the  people  is  the  body  and  the  king  the  head  ;  and  as  the 
constitution  of  the  body  varies  with  time,  so  varies  this  absolute  law, 
according  to  the  wisdom  of  the  king,  for  the  common  good.'  Judgement 
of  Court  of  Exchequer  in  Bate's  case,  a  St.  Tr.  371. 

'  That  which  is  now  to  be  judged  by  us  is,  whether  one  committed  by 
the  king's  authority,  no  cause  of  commitment  being  set  forth,  ought  to  be 
delivered  on  bail,  or  to  be  remanded  to  prison."  The  Court  of  King's 
Bench  held  that  one  so  committed  ought  not  to  be  delivered.  Darnel's  case, 
3  St.  Tr.  i. 


32 


THE   PREROGATIVE   OF   THE   CROWN         Chap.  I 


in  raising 
til--  ques- 
tion of  a 
standing 
army. 


The  last 
Stuarts. 


Corrup- 
tion of 
Parlia- 
ment. 


Control 
of  the 
Bench. 


The  stand 
ing  army. 


in  the  prerogative  as  would  enable  the  king  and  his 
followers  to  resist  superior  numbers  or  superior  organiza- 
tion. The  nation  learned  that,  in  the  last  resort,  force 
could  keep  the  king  within  the  bounds  of  law  unless  he 
had  a  greater  force  at  his  back.  This  greater  force,  now 
that  feudalism  had  passed  away,  was  represented  by 
a  standing  army.  The  right  to  maintain  a  standing  army 
became  a  practical  question  from  the  time  of  Cromwell. 

And  there  remained  within  the  limits  of  law  a  formid- 
able weapon, — the  king  could  still  dismiss  the  judges  at 
pleasure.  No  attempt  was  made  by  Charles  II  to  use  this 
power  in  order  to  raise  money :  it  would  have  been 
dangerous  here  to  trifle  with  the  stringent  legislation  of 
the  Long  Parliament,  and  Charles,  alike  from  levity  of 
temper  and  practical  cleverness,  was  disinclined  to  run 
risks  or  to  disturb  his  enjoyment  of  life  for  a  mere  ex- 
tension of  the  powers  of  the  Crown.  The  conniption  of 
the  House  of  Commons  and  the  establishment  of  a  system 
of  Parliamentary  influence  were  a  safer  and  more  effective 
way  of  getting  what  he  wanted.  When  this  failed  he  used 
his  influence  over  the  Courts  to  attack  the  charters  of  the 
boroughs,  and  the  charters,  when  forfeited  or  surrendered, 
were  remodelled  so  as  to  secure  the  ascendancy  of  royal 
will  in  the  choice  of  members.  When  the  unhappy  James  II 
desired  to  get  rid  of  the  Statutes  passed  for  the  security 
of  the  English  Church,  the  powers  of  the  Crown  over  the 
judges  were  again  used  to  obtain  a  judicial  sanction  for 
illegal  acts.  The  king  desired  to  dispense  with  the  operation 
of  a  Statute  and  to  do  so  with  the  sanction  of  the  Courts 
of  law :  he  raised  the  question  by  means  of  a  suit  brought 
against  the  man  in  whose  favour  the  dispensation  was 
given,  and  secured  such  a  decision  as  he  desired  from 
a  Bench  reconstituted  for  the  purpose1.  Nor  was  he 
content  with  the  misuse  of  the  dispensing  and  suspending 
powers :  the  Commonwealth  had  taught  him  the  importance 
of  a  standing  army,  and  a  standing  army  was  in  course  of 
creation  when  the  Revolution  came  upon  him. 

The  Bill  of  Rights  recited  all  the  outstanding  points  of 

1  Godden  v.  Hale*,  a  Shower,  375. 


Sect.iv.  §1          CONSTITUTIONAL  MONARCHY  33 

dispute  between  king  and  subject,  the  right  to  maintain  a  The  Bill 
standing  army  among  others,   and  decided  them   against  of  Rl8hts- 
the  king;  and  the  Act  of  Settlement  took  from  the  king 
the  last  of  the  prerogatives  which  enabled  him  to  interfere 
with  the  course  of  the  Common  Law,  or  to  override  Statute, 
when  it  provided  that  the  judges  should  hold  their  office 
during  good  behaviour,  but  might  be  dismissed  upon  address 
of  both  Houses  of  Parliament. 

Henceforth  the  theory  of  divine  hereditary  right  lived 
on  only  in  the  imaginations  of  those  who  mingled  politics 
with  romance.  The  Crown  becomes  the  official  representa- 
tive of  the  community,  to  carry  out  its  wishes  so  far  as 
they  are  expressed  or  can  be  ascertained. 


SECTION  IV 
THE  PREROGATIVE  SINCE  1688 

§  1.    The  dependence  of  the  Crown  upon  Parliament. 

The  legislation  of  the  reign   of  William  III  had   done  Constitu- 
two  things   in  respect  of  the  royal  prerogative.     It  had  Monarchy 
defined  the  legal  rights  of  the  Crown,  and  it  had  taken  iWiil. 
from  the  Crown  the  means  of  controlling  the  interpreta-  <,<,.  3j  c>  a. ' 
tion  of  those  rights.     The  king  was  forbidden  by  Statute 
to  raise  money  or  keep  a  standing  army  in  time  of  peace 
without   consent   of   Parliament,   to   suspend   laws   or  to 
dispense  with  their  operation  as  James  had  done  ;  but  this 
was  not   enough.     Judges   who  owed  their  places  to  the 
king's  favour,  and  risked  them  by  incurring  his  displeasure, 
had  been  able  to  disregard  the  Petition  of  Right  in  Hanip- 
den's  case  and  the  Test  Act  in  Hale's.     From  the  day  that  12  &  13 
the  Act  of  Settlement  gave  to  the  judges  security  of  tenure 
quam  diu  bene  se  gesserint — subject  to  good  behaviour  in 
their  office — and  brought  their  action  within  the  cognizance 
of  Parliament,  the  king's  Courts  existed  no  longer  to  do 
the  king's  pleasure,  but  to  interpret  and  enforce  the  law 
of  the  land. 

But    although    in    all   administrative    acts   the    king's 

ANSON,      CROWN  D 


31  THE  PREROGATIVE    OF   THE   CROWN        Chap.  I 

Depeu-  pleasure  could  only  be  expressed  through  officers  amenable 
CrowVon  ^°  ^ne  Courts  °^  ^aw>  ^he  determination  of  matters  of 
Parlia-  general  policy,  and  the  choice  of  ministers  remained  un- 
affected by  the  restrictions  which  I  have  described.  In 
respect  of  these  two  things  remained  to  be  done  in  order  to 
bring  the  exercise  of  the  prerogative  under  the  criticism 
and  supervision  of  the  estates  of  the  realm.  The  first  of 
these  was  to  compel  the  Crown  to  have  frequent  recourse 
to  Parliament,  the  second  was  to  bring  the  choice  and  the 
action  of  the  King's  ministers  under  some  sort  of  Parlia- 
mentary control. 

for  money:  The  first  of  these  objects  was  attained  when  Parliament 
limited  the  king's  life  revenue  to  such  a  sum  as  would 
barely  enable  him  to  conduct  the  civil  business  of  govern- 
ment ;  when  it  legalized  the  standing  army,  and  granted 
supplies  for  the  national  armed  force,  every  year,  and  for 
no  more  than  a  year. 

for  The  second  was  the  gradual  result  of  all  the  preceding 

approval  limitations,  whereby  the  King  was  made  dependent  upon 
the  goodwill  of  Parliament  for  money  and  for  legislation. 
From  the  Revolution  onwards  the  King  was,  as  heretofore, 
forbidden  by  Statute  to  tax  without  consent  of  Parlia- 
ment ;  but  this  was  not  all ;  his  power  over  the  purse 
was  further  limited  by  the  appropriation  of  supply  and  by 
the  reduction  of  that  portion  of  supply  which  was  left  under 
his  personal  control  to  just  so  much  as  would  suffice  to 
conduct  the  business  of  the  country  for  a  year  at  a  time. 
Not  only  had  he  no  longer  a  Court  of  Star  Chamber  to 
enforce  his  Proclamations — his  power  to  suspend  and  dis- 
pense with  Statutes  was  declared  to  be  unlawful.  The  Act 
of  Settlement  made  it  impossible  for  him  to  rely  upon 
a  packed  bench  of  judges  who  would  hold  that  he  might 
break  Statutes  in  virtue  of  his  discretionary  prerogative; 
nor  could  a  pardon  granted  beforehand  shelter  a  Minister 
from  impeachment  behind  the  irresponsibility  of  the  Crown. 
He  could  not  add  to  the  borough  representation  by  giving 
charters,  for  the  Commons  were  prepared  to  question  his 
right  to  add  to  their  number :  he  could  not  tamper  with 
existing  boroughs  by  the  forfeiture  and  remodelling  of  their 


Sect.  iv.  §  1      THE   REVOLUTION   SETTLEMENT  35 

charters,  for  the  judges  before  whom  the  validity  of  such 
charters  would  be  contested  were  no  longer  under  his 
control. 

Thus  between  1688  and  1701  the  King  was  precluded 
from  the  use  of  force,  the  misapplication  of  public  money 
the  perversion  of  law ;  and  was  compelled  to  have  recourse 
continually  to  a  House  of  Commons  whose  composition  he 
could  not  alter,  and  whose  members  he  could  not  intimidate. 
He  might,  indeed,  attempt  the  corruption  of  the  con- 
stituencies, but  his  powers  in  this  respect  were  no  more 
than  those  of  a  distinguished  person  who  held  landed 
property  and  had  money  available.  George  III  was  the 
last  king  who  used  this  advantage.  He  might  also  in- 
fluence individual  members  by  inducements  of  personal 
advantage.  Hence  the  clause  in  the  Act  of  Settlement, 
which  never  came  into  force,  making  office  or  place  of 
profit,  held  of  the  Crown,  incompatible  with  a  seat  in  the 
House  of  Commons,  and  hence  the  legislation  of  1707,  and 
the  official  disqualifications  created  by  subsequent  Statutes l. 

The  House  of  Commons,  in  thus  disabling  office-holders,  The 
failed,  to  see  that  it  had  more  to  gain  by  bringing  the 
King's   ministers  into    dependence    upon    itself    than    by  King's 
cutting  itself  adrift  from  the  executive  in  fear  of  royal  m 
influence  upon  legislation.     Through  Ministers  alone  could 
the  Crown  effectually  communicate   its  wants  to  Parlia- 
ment, and  Parliament,  by  the  readiness  or  reluctance  with 
which  it  met  the  needs  of  the  Crown,  could  indicate  the 
amount  of  satisfaction  with  which  it  regarded  the  persons 
whom  the  Crown  employed  to  conduct  the   business   of 
government. 

Since  the  Bill  of  Rights  and  the  Act  of  Settlement  have 
brought  the  prerogative  within  legal  bounds  which  the 
King  cannot  transgress,  it  remains  to  ask,  What  is  the  dis- 
cretionary power  of  the  King,  as  the  executive  of  the 
country,  within  those  bounds  ?  And  the  questions  to  be 
asked  are  three — 

(i)  Is  the  King  free  to  appoint  and  retain  such  Ministers 
as  he  chooses  ? 

1  Part  I  :  Parliament,  pp.  76,  90. 
D  2 


36  THE   PREROGATIVE   OF   THE   CROWN        Chap.  I 

(2)  What  is  the  influence  of  the  King  in  the  settlement 
of  general  policy  ? 

(3)  How  may  the  King  act  in  matters  of  administration  ? 


§  2.    Parliament  and  the  choice  of  the  Ministers  of  the 

Crown. 

Here  is  the  only  important  point  of  contention  between 
Crown  and  Parliament  since  the  Revolution.  The  King 
has  claimed  to  choose  Ministers  irrespective  of  the  wishes 
of  the  House  of  Commons;  the  Commons  have  insisted 
that  the  Ministers  of  the  Crown  shall  be  chosen  from  the 
political  party  which  is  in  a  majority  in  the  House,  and 
that  their  tenure  of  office  shall  depend  on  the  retention  of 
the  confidence  of  that  majority. 

The  The  composite  Ministries  of  1689-1696  gave  way  to  the 

of'wniiam  Whig  Ministry  of  1697,  as  Sunderland  made  William  III 
nl-  understand  that  he  must  rely  upon  one  party  or  another  if 

he  wanted  the  support  of  a  majority  of  the  House  of 
Commons  for  his  policy;  the  Whig  Ministry  of  1697 
passed  by  degrees  into  the  Tory  Ministry  of  1700,  as 
William  perceived  that  a  change  of  feeling  in  the  country, 
represented  by  a  change  in  the  balance  of  power  in  the 
House  of  Commons,  necessitated  a  corresponding  change  in 
his  advisers.  But  it  was  in  the  reign  of  Anne  that  the 
necessary  dependence  of  the  Queen  and  her  advisers  upon 
one  or  other  of  the  two  great  political  parties  became 
strongly  marked. 

Anne  and  Godolphin,  the  Lord  High  Treasurer,  and  Marlborough, 
Godolphin.  the  Captain  General,  in  the  first  ministry  of  Anne,  found 
the  country  committed  to  a  European  war  the  policy  of 
which  they  approved.  In  this  they  differed  from  the  bulk 
of  the  Tory  party  to  which  they  belonged.  They  tried  to 
create  out  of  existing  parties  a  following  for  themselves, 
but  they  had  to  learn  by  experience  that  it  is  difficult  for 
more  than  two  parties  to  exist  where  political  feeling  is 
strong.  At  this  time  there  were  two  parties  and  no  more- 
The  Whigs  were  for  war  with  France,  for  religious  tolera- 
tion, and  for  the  Hanoverian  succession.  The  Tories  were 


Sect.  iv.  §  2          THE   CHOICE   OF   MINISTERS  37 

for  peace,  were  averse  to  standing  armies,  staunch  upholders 
of  the  privileges  of  the  Church,  and  somewhat  lukewarm 
in  their  sentiments  towards  the  Electress  Sophia. 

At  the  beginning  of  Anne's  reign  the  war  was  the  Party 
dominating  feature  in  the  policy  of  the  country,  and  Marl-  ^nt" 
borough  and  Godolphin  on  this  point  were  not  in  accord  under 
with  the  bulk  of  the  Tory  party :  they  could  not  convert 
their  friends  nor  form  an  independent  party  of  their  own, 
and  they  were  thus  compelled  to  rely  upon  the  support 
of  the  Whigs.  In  time  the  Whigs  claimed  office  as  the 
price  of  support.  But  Anne  was  a  Tory,  and  though 
her  chief  Ministers  were  willing  to  ally  themselves  with 
their  political  opponents,  the  Queen  resented  their  demand 
that  she  should  employ  persons  whose  opinions  she  disliked. 
When  in  the  full  tide  of  military  success  Godolphin  and 
Marlborough  made  the  dismissal  of  Harley  a  condition  of 
their  retaining  office,  the  Queen  reluctantly  dismissed 
Harley,  and  with  equal  reluctance  allowed  the  great  offices 
of  state  to  be  filled  by  Whigs.  But  she  watched  the  turn 
of  popular  feeling,  and  when  she  became  assured  that  this 
was  running  in  her  favour,  and  that  the  Whigs  were 
unpopular,  she  dismissed  them  one  by  one  and  recalled 
Harley  and  St.  John. 

In  the  history  of  the  time  the  rudiments  of  party  govern- 
ment appear.  The  personal  wishes  of  the  Queen  have 
great  influence  ;  a  ministry  does  not  stand  or  fall  together, 
but  ministers  of  one  party  replace  ministers  of  another  by 
a  gradual  process  of  change.  And  yet  the  opinion  of  the 
country  represented  by  a  majority  in  the  House  of  Com- 
mons determines  the  Queen's  choice,  and  by  that  opinion 
she  must  abide. 

The  first  two  Hanoverian  kings  were  necessarily  de-  under  the 
pendent  upon  the  party  which  had  placed  their  dynasty 
upon  the  throne.  Political  interest  had  languished  through- 
out the  country,  but  Parliamentary  management  in  the 
hands  of  Walpole  became  a  means  of  securing  a  working 
majority  to  a  minister  who  knew  its  secrets.  Thus  the 
House  of  Commons  was  used  by  the  party  managers  to 


38  THE   PREROGATIVE   OF   THE   CROWN         Chap.  I 

put  pressure  upon  the  king,  and  George  II  was  constrained, 
not  without  grumbling,  at  one  time  to  part  with  Carteret 
whom  he  liked,  at  another  to  employ  Pitt  whom  he  detested. 
George  III  tried,  and  not  without  success,  to  get  the 
machinery  of  Parliamentary  corruption  into  his  hands,  to 
break  up  parties,  and  to  destroy  all  sense  of  collective 
responsibility  in  his  ministers.  But  the  jealousy  which 
was  stirred  by  this  extension  of  royal  influence  gave  a  new 
life  to  party  loyalty.  For  the  first  time  since  the  Jacobites 
had  fallen  out  of  practical  politics,  we  now  find  a  party, 
the  Rockingham  Whigs,  bound  together,  not  as  embarked 
in  a  joint  adventure  in  search  of  office,  but  as  sharing  some 
sort  of  common  opinion  as  to  the  relations  of  King  and 
ministers  in  the  constitution. 

Increase  Little  as  the  Parliaments  of  the  eighteenth  century  could 
m  Parlm-  ])e  ^jj  ^o  represent  the  wishes  of  the  people,  yet  the  revival 
inde-  '  of  political  interest,  stimulated  by  the  war  of  American 
:  Independence,  did  put  some  constraint  upon  the  inclina- 
tions of  the  King.  Public  opinion  compelled  the  retirement 
of  North  (1782);  confirmed  the  King's  action  in  dismissing 
the  Coalition  Ministry  (1783);  and  gave  to  the  younger 
Pitt  a  majority  in  the  Parliament  of  1784,  which  made 
him  independent  of  royal  intrigues.  This  awakening  of 
public  opinion  was  intermittent,  but  as  the  eighteenth 
century  closed,  the  House  of  Commons  became  more  inde- 
pendent ;  the  grosser  forms  of  corruption  disappeared  with 
Lord  North.  Still  the  likes  or  dislikes  of  George  III  could 
make  or  mar  the  fortunes  of  statesmen,  and  the  influence 
of  the  royal  wishes,  though  waning,  was  still  perceptible 
throughout  the  Regency  and  the  reign  of  George  IV. 

The  Reform  Bill  of  1832  made  the  House  of  Commons 
representative  of  the  rising  middle  class  and  the  manu- 
hesion  of   facturing  interest.     Weight  was  thus  given  to  a  Parlia- 
s'  mentary  majority,  and  the  increased  interest  in  politics 
which  creates  and  enforces  party  loyalty  held  the  majority 
together.     The  pressure  of  such  majorities  upon  the  choice 
of  the  Crown  now  became  irresistible.     William  IV  did  not 
resist  it.     The  statement  often  made  and  long  believed, 
that  he  dismissed  Lord  Melbourne's  Ministry  upon  personal 


Sect.  iv.  §  3    THE   DETERMINATION   OF   POLICY  39 

grounds,  can  no  longer  be  accepted  after  the  full  account 
given  by  Lord  Melbourne  of  the  circumstances  under  which 
his  Ministry  came  to  an  end  '.  Queen  Victoria  invariably 
accepted  the  decision  of  the  country  as  shown  by  a  general 
election  or  a  vote  in  the  House  of  Commons.  Ministers 
are  the  King's  servants,  but  they  are  chosen  for  him  by 
the  unmistakable  indication  of  the  popular  wishes  given 
at  the  polling  booth  or  in  the  division  lobby.  Legal  theory 
and  actual  practice  here,  as  elsewhere  in  our  constitution, 
are  divergent.  The  occasions  when  the  choice  of  a  Prime 
Minister  has  practically  rested  with  the  Sovereign  are  not 
real  exceptions  to  this  statement.  Party  lines  may,  for 
a  time,  become  indefinite.  They  were  so  after  the  break 
up  of  the  Conservative  party  in  1 846,  when  the  Coalition 
Government  of  Whigs  and  Peelites  was  formed  by  Lord 
Aberdeen  in  1852.  Or  the  leader  of  the  party  may  not  be 
obvious  and  paramount.  Such  was  the  case  in  1859,  when 
Queen  Victoria,  doubting  if  either  Lord  Palmerston  or  Lord 
John  Russell  would  consent  to  serve  under  the  other,  asked 
Lord  Granville  to  make  an  attempt,  which  proved  in- 
effectual, to  form  a  Government  in  which  these  two 
magnates  would  consent  to  serve  under  him.  So  again 
in  1894,  when  Mr.  Gladstone  retired,  the  Queen  did  not 
consult  him  on  the  choice  of  a  successor,  but  invited  Lord 
Rosebery  to  become  Prime  Minister 2. 

But  in  these  cases  it  is  plain  that  the  Queen  did  not 
follow  political  or  personal  likings,  as  Anne  and  George  III 
had  done,  and  that  the  choice  exercised  was  really  an 
endeavour  to  find  ministers  acceptable  to  the  majority  of 
the  House  of  Commons  and  to  the  people,  who  had  sent 
that  majority  to  Parliament. 

§  3.   The  Crmwi  and  its  Ministers  in  the  Detemnination  of 

Policy. 

The   business  of   government,  like    all    other   business,  Policy 
passes  through  two  stages — the   determination  of  policy 

1  Melbourne  Papers,  pp.  220-6. 

2  Morley,  Life  of  Gladstone,  iii.  512,  513. 


40  THE   PREROGATIVE   OF   THE   CROWN        Chap.  T 

or  principle,  and  the  working  out  of  detail ;  the  settlement 
of  what  is  to  be  done,  and  the  doing  of  it. 

Absence  The  general  policy  of  the  country,  its  foreign  relations, 
fromm§  proposed  legislation,  the  principles  of  departmental  manage- 
Cabinet  ment,  are  discussed  and  settled  at  the  meetings  of  those 
great  officers  of  state  who  are  at  the  same  time  leading 
politicians  and  party  leaders,  and  who  constitute  the  body 
known  as  the  Cabinet,  of  which  more  hereafter.  At  these 
meetings  the  Sovereign  has  ceased  to  be  present  since  the 
death  of  Anne.  At  meetings  of  the  Privy  Council  the 
Sovereign  has  been  and  is  personally  present,  but  the 
business  at  such  meetings  is  of  a  formal  character.  When 
first  the  discussion  of  general  questions  of  policy  passed 
from  the  Privy  Council  to  that  inner  circle  of  advisers 
which  we  call  the  Cabinet,  a  period  which  we  may  fix  at 
the  commencement  of  the  reign  of  Charles  II,  the  Sove- 
reign presided  alike  in  Cabinet  and  Council :  the  personal 
opinion  and  wishes  of  Charles,  of  William  and  of  Anne a, 
formed  an  important  factor  in  the  discussions  which  took 
place  and  in  the  conclusions  reached.  George  I  had 
difficulties  in  understanding  our  language,  which  made 
his  attendance  at  these  meetings  alike  useless  and  irk- 
some. He  absented  himself,  and  his  example  has  been  so 
consistently  followed  as  to  have  become  a  settled  custom  2. 
Effect  of  But  the  custom  introduced  by  George  I  had  far-reaching 
absence,  effects.  The  absence  of  the  Sovereign  from  the  meetings 
of  Ministers  at  which  the  general  policy  of  government 
is  discussed  and  settled  does  not  alter  the  legal  rights  of 
the  Crown,  the  legal  liabilities  of  its  Ministers,  or  their  legal 
relations  to  one  another ;  but  if  Ministers  are  to  settle  affairs 
of  state  at  meetings  from  which  the  King  is  absent,  some 

1  See  a  curious  note  by  the  editor  of  the  Hardwicke  Papers,  ii.  482. 

2  Mr.  Todd  (Parliamentary  Government  in  England,  ii.  115)  records 
three  instances  of  occasions  on  which  the  King  has  been  present  at  a 
Cabinet  meeting  since   the  accession  of  George  I.      Two  of  these  are 
formal  meetings  to  lay  before  the  King  the  draught  of  the  speech  to  be 
made  at  the  opening  of  Parliament  (Hardwicke,  Life,  ii.  231  ;  Hervey, 
Court  of  George  II,  ii.  555)  :   the  third  is  of  very  doubtful  authority 
(Waldegrave  Memoirs,  86).     As  exceptions  from  the  established  rule  they 
are  wholly  unimportant 


Sect.  iv.  §3    THE   DETERMINATION   OF   POLICY  41 

one  must  preside  at  these  meetings.  The  Prime  Minister 
comes  into  existence,  and  the  Crown  recedes  into  the  back- 
ground. 

No  doubt  it  is  through  the  agency  of  the  Crown  that  Loss  of 
Ministers  carry  a  policy  into  effect.  If  the  King  refuse  to  trolling 
sign  the  necessary  documents,  or  give  the  necessary  assent,  Power, 
the  thing  which  Ministers  wish  to  be  done  cannot  be  done. 
But  Ministers  may  say  that  they  will  riot  remain  Ministers 
unless  their  policy  is  carried  out ;  and  Parliament  may  say, 
and  the  electorate  may  support  it  in  saying,  that  it  will 
have  no  other  Ministers  and  no  other  policy.  The  absence 
of  the  King  from  the  Cabinet  deprives  him  of  a  voice  in 
the  determination  of  that  policy.  A  King  who  presides  at 
a  discussion  upon  which  a  decision  is  formed,  exercises  an 
influence  obviously  greater  than  that  of  a  King  who  merely 
receives  the  decision  of  his  Ministers  as  the  result  of  their 
collective  opinion.  The  position  of  affairs  has  been  reversed 
since  1714.  Then  the  King  or  Queen  governed  through 
Ministers,  now  Ministers  govern  through  the  instrument- 
ality of  the  Crown. 

Another  result  of  this  retirement  of  the  Sovereign  from  His  free- 
meetings  of  the  Cabinet  was  to  make  him  as  free  from  re8pon- 
responsibility  in  the  determination  of  general  policy  as  he 
had  been  for  a  long  time  in  executive  action.  This  could 
not  be  while  the  King  took  an  active  part  in  the  discussions 
at  which  the  policy  of  the  country  was  settled.  He  was 
not  regarded  as  free  from  such  responsibility  by  his 
Ministers,  nor  did  he  so  regard  himself.  Danby,  in  1678, 
formally  pleaded  a  pardon  under  the  Great  Seal  in  bar  of 
an  impeachment.  Somers,  in  1701,  alleged  the  King's 
command  as  his  warrant  for  affixing  the  Great  Seal  to 
powers  to  treat  and  ratifications  of  treaties,  and  disavowed 
all  responsibility  for  the  terms  of  the  treaties l.  William  III 
complained  that  the  hesitating  advice  of  his  Ministers  threw 
upon  him  the  responsibility  of  directing  the  movements  of 
the  fleet 2.  Yet  he  was  not  usually  wanting  in  self-reliance, 
and  Sunderland  regretted  that  he  did  not  oftener  '  bring 

1  Parl.  Hist.  v.  1272. 

2  Shrewsbury  Correspondence  (Coxe),  68. 


42 


THE   PREROGATIVE   OF   THE   CROWN        Chap.  I 


recog- 
nized. 


his  affairs  to  be  debated '  before  the  Cabinet l.  It  would 
have  seemed  as  though  the  provision  of  the  Act  of  Settle- 
ment, that  a  pardon  should  not  be  pleaded  in  bar  of  an 
impeachment,  was  designed  rather  to  secure  the  liability  of 
the  Minister  than  to  remove  that  of  the  King. 

Gradually  The  beginning  of  the  change  is  noticeable  in  a  curious 
debate2  in  1711  on  a  motion  of  censure  on  the  Queen's 
Ministers  for  the  mode  in  which  they  had  carried  on  the 
war.  '  For  several  years  past,'  said  Lord  Rochester, '  they 
had  been  told  the  Queen  was  to  answer  for  everything; 
but  he  hoped  that  time  was  over;  that  according  to  the 
fundamental  constitution  of  this  kingdom  Ministers  are 
accountable  for  all.' 

It  was  doubtless  largely  due  to  the  position  occupied  by 
the  first  Hanoverian  kings  that  the  non-intervention  of 
the  Crown  in  active  political  discussion  passed  so  rapidly 
into  a  settled  convention.  But  it  was  also  inevitable  that 
when  the  primary  responsibility  of  Ministers  came  to  be 
acknowledged,  the  King  could  not  continue  to  act  alone. 
If  Ministers  are  responsible  for  every  act  of  the  Crown 
they  may  fairly  insist  that  such  responsibility  should  not 
be  laid  upon  them  without  their  knowledge  and  consent. 
Hence  there  has  come  about  a  change  in  the  whole 
character  of  the  relations  of  the  Crown  to  its  Ministers, 
since  the  reign  of  Anne.  No  act  of  State  can  be  approached, 
resolved  upon,  or  done,  without  the  inevitable  intervention 
of  the  responsible  Minister. 

William  III  arranged  the  terms  of  the  first  Partition 
Treaty  and  induced  Somers  and  Vernon  to  send  him  powers 
in  blank,  to  enable  him  to  conclude  a  peace  with  France  on 
terms  to  which  they  were  only  permitted  to  give  a  hurried 
and  formal  approval.  Anne  wrote  dispatches  and  inter- 
viewed foreign  Ministers 3.  Neither  George  I  nor  George  II 
seem  to  have  acted  independently  of  their  Ministers  in 
matters  of  executive  government,  foreign  or  domestic. 
Complications  might  well  have  arisen  out  of  the  martial 
instincts  of  George  II,  combined  with  his  position  as  Elector 

1  Hardwicke  State  Papers,  ii.  461.  2  Parl.  Hist.  vi.  972. 

3  Bolingbroke  Letters,  26  Dec.  1710-23  Oct.  1711. 


Indepen- 
dence in 
political 
action, 


ceases 
after 


Sect.  iv.  §  3    THE   DETERMINATION   OF    POLICY  43 

of  Hanover.  But  he  acted  on  the  advice  of  his  responsible 
Ministers,  and  refrained,  in  1729,  from  challenging  the 
King  of  Prussia  to  a  personal  combat,  and  refused,  in  1735, 
the  flattering  offer  that  he  should  take  command  of  the 
Imperial  army  of  the  Rhine l. 

George  III,  though  he  used  all  the  resources  of  pre-  in  foreign 
rogative  in  the  choice  of  Ministers  and  in  appointments  to  relatlons ; 
offices,  never  held    private   communications  with  foreign 
Ministers.     George  IV  for  a  short  time  broke  through  this 
rule,  but    Canning   when    he   became   Foreign   Secretary 
insisted  on  its  observance  2.     '  I  should  be  very  sorry,'  he 
says  in   1825,  'to  do  anything  at  all   unpleasant  to  the 
King,  but  it  is  my  duty  to  be  present  at  every  interview 
between  His  Majesty  and  a  foreign  Minister.' 

The  Sovereign  does  not,  constitutionally,  take  independent 
action  in  foreign  affairs :  everything  which  passes  between 
him  and  foreign  princes  or  ministers  should  be  known  to 
his  own  Ministers,  who  are  responsible  to  the  people  for 
policy,  and  to  the  law  for  acts  done.  The  private  letters 
addressed  by  Queen  Victoria  and  the  Prince  Consort  to 
foreign  princes,  or  received  from  them,  if  they  touched 
upon  politics,  were  shown  to  the  Prime  Minister  or  to  the 
Foreign  Secretary,  or  to  both  3. 

But  though  the  Sovereign  of  this  country  takes  no 
independent  action  in  foreign  politics,  his  interest  in  such 
questions  is  necessarily  keen,  his  knowledge  extensive,  and 
the  extent  to  which  he  may  influence  or  assist  his  Ministers 
in  the  settlement  of  diplomatic  issues  is  considerable. 

The  circumstances  attending  Lord  Palmerston's  dismissal 
in  1851  show  that  Queen  Victoria  required  to  be  clearly 
informed  as  to  all  communications  with  foreign  powers, 
and  to  have  an  opportunity  of  expressing  an  opinion 
before  any  action  was  taken  by  her  Ministers  4.  And  the 
memoirs  of  the  years  1859,  1861,  and  1864  furnish 
abundant  evidence  of  the  influence  which  the  Sovereign 

1  Lord  Hervey,  Court  of  George  II,  i.  127  ;  ii.  6. 
4  Stapylton,  George  Canning  and  his  Times,  433. 

3  Martin,  Life  of  the  Prince  Consort,  iv.  433. 

4  Hansard,  cxiz.  90. 


44  THE   PREROGATIVE   OF  THE   CROWN         Chap.  I 

of  this  country  may  exercise  on  diplomatic  issues.  In 
I8591  and  in  i8642  Queen  Victoria  pressed  upon  Lord 
Palmerston  and  Lord  John  Russell  the  views  entertained 
by  a  majority  of  the  Cabinet,  in  opposition  to  the  adven- 
turous or  meddlesome  lines  of  conduct  to  which  those  two 
distinguished  statesmen  were  respectively  inclined.  Royal 
influence  saved  the  country  from  the  risk,  at  any  rate,  of 
becoming  involved  in  a  European  war.  In  1861  a  grave 
crisis  in  our  relations  with  the  United  States  resulted  in 
a  happy  issue,  largely  owing  to  the  re-drafting  of  a  dispatch 
by  the  Prince  Consort,  who  was  at  that  moment  stricken 
with  mortal  illness3. 

in  do-  The  same  rule  applies  in  domestic  affairs.     When  George 

adminis-  IV  desired  that  the  prerogative  of  mercy  should  be  exer- 
tration.  cised  in  the  case  of  a  person  sentenced  to  death  in  Ireland, 
and  wrote  privately  to  that  effect  to  the  Lord  Lieutenant, 
Sir  Robert  Peel,  at  that  time  Home  Secretary,  remon- 
strated with  him  strongly,  on  the  impolicy  of  his  action  ; 
intimating  also,  very  plainly,  that  the  advice  of  the 
Minister  responsible  for  the  exercise  of  this  prerogative 
ought  to  have  been  taken  before  the  king  wrote  to  the 
Lord  Lieutenant.  The  king  gave  way  *. 

And  this  responsibility  is  clearly  understood  and  accepted 
by  Ministers.  When,  in  1834,  Sir  Robert  Peel  accepted 
office  in  succession  to  Lord  Melbourne,  he  believed,  errone- 
ously, that  Melbourne  had  been  dismissed  by  the  king, 
and  he  recognized  that  by  taking  office  he  had  made  the 
dismissal  his  own  act.  '  I  should/  he  says,  '  by  my  accep- 
tance of  the  office  of  First  Minister,  become  technically,  if 
not  morally,  responsible  for  the  dissolution  of  the  preceding 
Government,  though  I  had  not  the  remotest  concern  in  it 5.' 

§  4.  The  Crown  and  its  Ministers  in  Action. 

Legal  irre-      The  King  is  practically  irresponsible  for  the  conduct  of 
Government.     '  Ministers,'  in  the  words  of  Lord  Rochester, 

1  Fitzmaurice,  Life  of  Lord  Granville,  i.  349-61.  *  Ibid.  459-70. 

3  Martin,  Life  of  the  Prince  Consort,  v.  422. 

*  Wellington  Dispatches,  Civil  S.  vi.  313,  319  ;  Parker,  Sir  Robert  Peel, 
ii.  146-51.  s  Sir  Robert  Peel's  Memoirs,  ii.  31. 


Sect.iv.  §4       THE   KING   IN  ADMINISTRATION  45 

'  are  accountable  for  all.'  If  the  affairs  of  the  nation  are 
ill  conducted ;  if  the  policy  of  the  Foreign  Office  involves  us 
in  war,  or  otherwise  complicates  our  relations  with  other 
States ;  if  the  War  Office  and  Admiralty  leave  us  insuffi- 
ciently provided  with  men,  arms,  and  ships ;  if  the  Home 
Secretary  misdirects  the  use  of  the  prerogative  of  mercy, 
the  Ministers  of  the  day  collectively  or  individually  suffer 
in  the  public  esteem.  An  individual  Minister  may  be 
forced  to  resign,  or  the  representatives  of  the  people  in 
Parliament,  or  the  people  themselves  at  a  general  election, 
may  withdraw  their  confidence  from  the  Ministry  as  a 
whole;  a  vote  in  the  House  of  Commons,  by  the  choice 
of  representatives  at  a  general  election,  may  effect  a  transfer 
of  political  power  to  another  party  in  the  State.  Any  of 
these  things  may  happen,  but  no  one  would  attribute  blame 
to  the  King. 

But  responsibility  for  policy,  and  for  the  general  results 
which  follow  upon  such  policy,  is  a  moral  responsibility, 
enforced,  it  may  be,  only  by  loss  of  esteem,  at  worst  by  loss 
of  place  and  power,  if  the  advice  given  and  the  consequent 
action  taken  is  unwise  and  results  in  disaster. 

Legal  irresponsibility  is  a  different  matter.  The  maxim 
'  the  King  can  do  no  wrong '  has  two  meanings.  The  King 
is  not  responsible  for  mistakes  of  policy  however  gross; 
he  acts  on  the  advice  of  his  Ministers.  And  further,  the 
King  is  not  responsible  when  he  acts  on  the  advice  of  his 
Ministers  even  though  the  action  thus  taken  is  contrary  to 
law.  And  yet  the  King  is  not  above  the  law  ;  every  act  of 
a  department  of  Government  is  the  King's  act,  and  to 
many  important  acts  of  State  the  King  is  directly  a  party. 
He  summons,  prorogues,  and  dissolves  Parliament ;  appoints 
to  all  the  great  executive,  judicial,  and  spiritual  offices; 
makes  peace,  war,  and  treaties ;  confers  dignities,  grants 
charters,  authorizes  the  spending  of  public  money,  sets  in 
motion  the  judicial  circuits :  for  these  and  any  other  acts 
which  the  King  must  do  in  his  official  capacity  some  one  is 
responsible,  and  if  the  law  is  broken  legal  responsibility 
attaches  to  the  law-breaker.  But  the  King  is  not  legally  how  it  acts 
liable  for  acts  done  in  his  service  or  by  his  command,  and  "  a  check 


46  THE   PREROGATIVE   OF   THE   CROWN         Chap.  I 

on  the       we  find  the  practical  check  on  royal  action  in  the  rule  that 
the  King's  command  is  no  excuse  for  a  wrongful  act. 

The  consequence  of  this  freedom  from  legal  liability  does 
not  promote — indeed  it  tends  to  fetter — the  independent 
action  of  the  Sovereign. 

(a)  Reluct-  The  legal  irresponsibility  of  the  King  may  not  unnatur- 
forCanirre-  a^y  cause  a  reluctance  on  the  part  of  his  servants  to  carry 
sponsible  out  commands,  in  matters  of  doubtful  legality,  since  they, 
and  not  he,  would  be  liable  for  the  consequence  of  acts 
done.  For  the  fact  that  the  matters  complained  of  were 
done  by  a  Minister  of  the  Crown  or  an  officer  of  some 
department  of  Government,  that  they  were  done  in  the 
service  of  the  Crown,  or  even  by  express  royal  command,  is 
no  answer  to  the  complainant. 
(6)  King's  The  King's  command  is  no  excuse  for  a  wrongful  act, 
and  whether  the  wrongful  act  takes  place  at  the  direct 

•*• 

instance  and  instruction  of  the  King,  or  is  done  in  the 
course  of  the  service,  civil  or  military,  of  the  Crown,  he 
who  has  committed  the  crime  or  done  the  wrong  is  personally 
liable.  Our  constitution  has  never  recognized  any  dis- 
tinction between  those  citizens  who  are  and  those  who  are 
not  officers  of  the  State  in  respect  of  the  law  which 
governs  their  conduct  or  the  jurisdiction  which  deals  with 
them l.  Such  exceptions  to  this  general  statement  as  may 
be  found  in  our  books  depend  on  rules  of  Statute  or 
Common  Law  limited  in  character  and  clear  in  principle. 
With  these  I  will  deal  hereafter.  For  present  purposes  it 
is  enough  to  say  that  to  proceedings  for  a  wrong  or  a 
crime  it  is  no  answer  that  the  offence  was  committed  at 
the  request  of  another:  that  in  the  case  of  such  offences 
against  the  State  as  have  led  to  impeachment  by  the 
Commons,  neither  the  King's  command  nor  a  pardon,  how- 
ever formally  expressed,  will  furnish  a  defence  at  the  bar 
of  the  House  of  Lords :  and  that  in  the  ordinary  course  of 
law  the  King  can  grant  no  pardon  for  a  civil  wrong  whereby 
an  individual  has  suffered,  and  if  he  pardon  a  crime  or  an 
offence  of  a  public  nature  the  prerogative  of  mercy  must 
be  exercised  through  a  responsible  Minister. 

1  Dicey,  Law  of  the  Constitution,  ed.  3,  ch.  xii. 


Sect.iv.  §4      THE   KING   IN    ADMINISTRATION  47 

But  there  are  acts  of  executive  government  which  must  (c)  j-or. 
be  done   directly  by  the   King,   and  here   we   find  that  mality  |u 
ministerial   responsibility  is   secured  by  the  requirement  royal  wiih 
that  a  seal  should  be  used  of  which  a  Minister  has  the 
custody,  or  that  the  counter-signature  of  a  Minister  should 
be  affixed  to  the  document  which  gives  authority  for  the  act. 

It  may  be  said  at  once  that  there  is  hardly  anything  iuformai 
which  the  Sovereign  can  do  without  the  intervention  of  personal 

acts 

written  forms,  and  nothing  for  which  a  Minister  is  not 
responsible. 

Ministers  enter  the  service  of  the  Crown  by  kissing  the 
King's  hands,  but  there  are  formalities  which  attend  the 
assumption  of  all  offices,  the  delivery  of  seals,  a  key,  or 
a  staff,  the  execution  of  a  document  involving  the  use  of 
the  sign  manual  and  counter-signature  of  one  or  more 
Ministers1,  in  some  cases  the  employment  of  the  Great 
Seal 2.  The  President  of  the  Council  is  appointed  by  simple 
declaration,  and  members  of  the  Privy  Council  are  admitted 
without  form  on  kissing  the  King's  hands  and  taking  the 
Privy  Councillor's  oath,  but  these  things  are  done  at 
a  meeting  of  the  Council 3 ;  and  a  register  is  kept  of  every 
transaction  which  takes  place  at  these  meetings. 

But  there  is  a  limited  range  within  which  a  king  may 
act  without  formality  and  yet  with  effect.  The  great 
political  offices  are  held  during  pleasure,  and  the  King 
might  no  doubt  send  for  a  Secretary  of  State  and  desire 
him  to  deliver  up  the  Seals,  or  for  the  book  of  the  Privy 
Council  and  strike  out  the  name  of  a  Councillor. 

The  King  might  also,  while  Parliament  was  sitting,  enter 
the  House  of  Lords,  take  his  place  on  the  throne,  desire 
the  House  of  Commons  to  be  summoned  to  the  bar  of  the 
House,  and  then  and  there  dissolve  or  prorogue  Parliament. 

1  The  First  Commissioner  of  Works  is  appointed  by  sign  manual  warrant 
countersigned  by  two  Lords  of  the  Treasury. 

2  The  Postmaster-General  is  appointed,  and  the  Commissions  of  the 
Treasury  and  Admiralty  constituted,  by  Letters  Patent  under  the  Great 
Seal. 

3  An  extract  from  Lord  Iddesleigh's  diary  gives  a  lively  description  of 
the  formalities  of  taking  office  :  see  Life  of  Lord  Iddesleigh,  by  Andrew 
Lang,  vol.  i.  p.  262. 


48  THE   PREROGATIVE   OF   THE   CROWN         Chap.  I 

These  acts  would  be  operative,  but  the  King's  Ministers 
would  be  held  responsible,  and  would  decline  to  accept 
responsibility  for  acts  done  without  their  advice.  A  capri- 
cious use  of  the  prerogative  in  these  respects  meets  a 
practical  check :  for  a  king  would  experience  much  diffi- 
culty in  finding  Ministers  to  serve  him  under  conditions  in 
which  they  were  credited  by  the  public  with  acts  done 
without  their  knowledge  and  probably  contrary  to  their 
judgment. 

Depart-  We  may  therefore  dismiss  from  consideration  these  in- 
procedure.  formal  acts,  and  we  may  next  dismiss  those  orders  more  or 
less  formal  which  proceed  from  the  judicial  or  adminis- 
trative departments  of  government,  and  the  acts  done  by 
such  departments,  in  virtue  of  a  delegated  authority  from 
the  Crown,  often  regulated  by  Statute. 

Formal  ex-  There  remain  numerous  acts  of  State  to  which  the 
Sovereign  is  an  immediate  party,  varying  greatly  in  their 
importance,  from  a  proclamation  for  the  summons  of 
a  Parliament  or  the  ratification  of  a  treaty,  to  a  licence 
for  a  theatre.  These  formal  expressions  of  the  royal  will 
are  made  in  various  forms  and  on  the  responsibility  of 
various  persons.  I  propose  in  an  appendix  to  this  chapter 
to  describe  the  forms  by  which  these  acts  are  done,  and  to 
note  the  officials  who  become  responsible  for  them.  Enough 
has  now  been  said  to  show  the  limitation  which  law  and 
custom  have  set  to  the  exercise  by  the  Crown  of  its 
executive  powers,  whether  those  powers  are  used  in  the 
choice  of  Ministers,  the  determination  of  policy,  or  the 
doing  of  acts  of  State. 

In  theory  the  Crown  chooses  its  Ministers;  in  practice 
the  wishes  of  the  country,  of  the  House  of  Commons,  of 
the  party  leader  to  whom  the  formation  of  a  Ministry  is 
entrusted,  greatly  limit  the  royal  choice.  In  theory  the 
Crown  does  every  important  act  of  executive  government ; 
in  practice  every  such  act  must  be  done  in  conjunction 
with  a  Minister  responsible  for  the  act  and  its  consequences, 
and  must  be  done  in  such  a  way  as  to  ensure  that  this 
responsibility  is  real. 

And   yet  although  the  discretionary  exercise   of  legal 


Sect.iv.  §4  THE   VALUE   OF   KINGSHFP  49 

powers  has  passed  from  the  Crown,  though  it  has  become 
the  instrument  through  which  his  Ministers  give  effect  to 
the  policy  which  they  believe  to  be  approved  by  the 
country,  the  real  influence  of  the  Sovereign  of  this  country 
is  not  to  be  estimated  either  by  his  legal  or  his  actual 
powers  as  the  executive  of  the  State.  The  King  or  Queen 
for  the  time  being  is  not  a  mere  piece  of  mechanism,  but 
a  human  being  carefully  trained  under  circumstances  which 
afford  exceptional  chances  of  learning  the  business  of  politics. 
Such  a  personage  cannot  be  treated  or  regarded  as  a  mere 
instrument:  it  is  evident  that  on  all  matters  of  State, 
especially  on  matters  which  concern  the  relations  of  our 
own  with  other  States,  he  receives  full  information,  and  is 
enabled  to  express  if  not  to  enforce  an  opinion l.  And  this 
opinion  may,  in  the  course  of  a  long  reign,  become  a  thing 
of  great  weight  and  value.  It  is  impossible  to  be  con- 
stantly consulted  and  concerned  for  years  together  in 
matters  of  great  moment  without  acquiring  experience,  if 
not  wisdom.  Ministers  come  and  go,  and  the  policy  of  one 
group  of  Ministers  may  not  be  the  policy  of  the  next,  but 
all  Ministers  in  turn  must  explain  their  policy  to  the 
Executive  Sovereign,  must  effect  it  through  his  instrument- 
ality, must  leave  upon  his  mind  such  a  recollection  of  its 
method  and  of  its  results  as  may  be  used  to  inform  and 
influence  the  action  of  their  successors.  It  is  true  that  our 
Kings  and  Queens  can  no  longer  exercise  at  their  pleasure 
the  executive  powers  of  the  State,  nor  enjoy  a  perfectly 
free  choice  of  the  Ministers  who  are  to  exercise  those 
powers.  They  still  remain  the  instrument  without  whose 
intervention  Ministers  cannot  act;  they  still  remain  ad- 
visers who  have  enjoyed  unusual  opportunities  for  acquiring 
the  knowledge  which  makes  advice  valuable,  who  may  be 
possessed  of  more  than  ordinary  experience,  whose  warnings 
must  be  listened  to  with  more  than  ordinary  courtesy. 

1  Illustrations  of  this  statement  are  furnished  by  the  memorandum 
communicated  at  the  Queen's  desire  to  Lord  Palmerston  in  1851,  post, 
ch.  iii.  sect.  iii.  §  3  (p.  129)  :  and  by  the  correspondence  which  passed 
between  the  Queen  and  Archbishop  Tait  in  1869  as  to  the  action  of  the 
House  of  Lords  in  respect  of  the  Bill  for  the  Disestablishment  of  the  Irish 
Church.  (Davidson,  Life  of  Archbishop  Tait,  vol.  ii.  ch.  xix.) 

AHSOS.      CBOWK  £ 


50  THE  PREROGATIVE  OF  THE  CROWN        Chap.  I 

APPENDIX  TO  CHAPTER  I 

EXECUTIVE  ACTS  DONE  BY  THE  CROWN 
Forms  in  which  the  King's  Pleasure  is  expressed. 
Instru-          The    King's   pleasure   is   expressed   for    administrative 

ments 

of  ex-        purposes  in  one  of  three  ways : — 

pression.  j     fiy  Qrder  jn  Council. 

2.  By  order,  commission,  or  warrant  under  the  sign 
manual. 

3.  By  Proclamations,  Writs,  Letters  Patent,  or  other 
documents  under  the  Great  Seal. 

(i)  Order       (i)  An  Order  in  Council  is,  practically,  a  resolution  passed 

'  by  the  King  in  Council,  communicated  by  publication  or 

otherwise  to  those  whom  it  may  concern.     It  runs  thus : — 

At  the  Court  at ,  the  ist  day  of  June,  1907. 

Present, — 

The  King's  most  excellent  Majesty  in  Council. 
His  Majesty,  by  and  with  the  advice  of  his  Privy  Council, 
doth  order  and  it  is  hereby  ordered  .  .  . 

Then  the  substance  of  the  order  follows.    Such  a  resolution 
may  be  embodied  in  a  Royal  Proclamation. 

Proclama-  A  royal  Proclamation  is  a  formal  announcement  of  an 
executive  act,  such  as  a  "dissolution  or  summons  of  Parlia- 
ment, a  declaration  of  war  or  peace,  the  enforcement  of  the 
provisions  of  a  statute  the  operation  of  which  is  left  to  the 
discretion  of  the  Crown  in  Council.  The  act  is  a  resolution 
of  the  King  in  Council,  but  the  document  by  which  it  is 
promulgated— the  Proclamation — passes  under  the  Great 
Seal !. 

(a)  Passing  on  to  those  documents  which  do  not  proceed 
from  the  Privy  Council,  but  from  the  department  of  a  re- 
sponsible Minister  or  Ministers,  we  find  that  they  consist 
of  sign  manual  warrants,  commissions  and  royal  orders. 
(a)  Sign         A  sign  manual  warrant  may  be  an  executive  act,  or  may 
warrant     be  merely  an  authority  for  affixing  the  Great  Seal. 

1  I  have  set  forth  the  form  of  a  Proclamation  in  vol.  i.  ch.  iv.  §  4. 


Appendix        THE   CROWN   IN   ADMINISTRATION  51 

Under  the  first  head  fall  appointments  to  various  offices. 
For  instance,  in  the  case  of  stipendiary  magistrates  the  sign  as  an  exe- 
manual  warrant  is  countersigned  by  the  Home  Secretary :  cutlve  act» 
in  the  case  of  the  Paymaster-General,  the  First  Commissioner 
of  Works,  and  the  Commissioner  of  Woods  and  Forests,  the 
warrant  is  countersigned  by  two  Lords  of  the  Treasury. 

Under  the  same  head  falls  the  exercise  of  various 
statutory  powers  by  the  Crown ;  as  for  instance  the  abolition 
of  purchase  in  the  army  by  royal  warrant,  when  Queen 
Victoria  acted  under  the  provisions  of  49  Geo.  Ill,  c.  126  :  or 
the  exercise  of  the  prerogative  of  pardon,  in  this  form,  as 
provided  by  5  Geo.  IV,  c.  84. 

But  a  very  frequent  use  of  the  sign  manual  warrant  is  as  author- 
to   authorize   the   affixing   of  the   Great  Seal  to  Letters  ag[XfoK 
Patent.     There  is  then  transmitted  by  the  Crown  office  Seal, 
through  a  responsible  Minister  to  the  King,  a  document, 
consisting  of  three  parts,  (i)  the  warrant  which  must  be 
signed  by  the  King  and  countersigned  by  a  Secretary  of 
State,  and  which  constitutes  the  authority  for  affixing  the 
seal,  (2)  the  patent,  to  which  the  seal  is  to  be  affixed,  and 
(3)  the  docket. 

The  docket l  is  a  short  note,  for  the  information  of  the 
King,  of  the  purport  of  the  Letters  Patent,  and  the  name  of 
the  Secretary  of  State  by  whose  order  they  are  prepared. 
It  runs  thus : — 

May  it  please  your  most  excellent  Majesty. 

This  contains  a  warrant  to  the  Lord  High  Chancellor  to 
pass  letters  patent,  [the  object  is  here  shortly  stated.] 

And  this  warrant  is  prepared  according  to  your  Majesty's 

command,  signified  by  Mr.  Secretary . 

J.  M.  Clerk  of  the  Crown. 

A  royal  order  under  the  sign  manual,  as  distinct  from  Royal 
a  sign  manual  warrant,  seems  to  occur  only  in  the  case  of  01 
an  order  for  the  expenditure  of  public  money,  as  appro- 

1  There  is  another  sort  of  docket,  which  is  a  separate  instrument,  accom- 
panying all  Letters  Patent  and  descriptive  of  their  tenor.  It  is  not  sent 
to  the  King,  but  is  stamped  as  required  by  the  Stamp  Act  (54  &  55  Viet, 
c.  39),  and  is  kept  by  the  sealer  as  an  authority  for  sealing.  For  forms  of 
letters  patent  and  sign  manual  warrant,  see  Appendix  i. 

E   2 


52  THE    PREROGATIVE   OF   THE   CROWN        Chap.  I 

priated  for  the  service  of  the  year.  It  has  taken  the  place 
of  a  number  of  sealings  and  warrants  which  were  once 
required l. 

Com-  An  appointment  to  office  by  commission  where  the  com- 

mission is  not  conferred  by  Letters  Patent  under  the  Great 
Seal,  differs  but  little  from  an  appointment  by  sign  manual 
warrant.     The  Viceroy  of  India  is  appointed  by  u'arrant 
under  the  sign  manual,  the  governor  of  a  colony  by  com- 
mission under  the  sign  manual  and  signet;   the  first  ap- 
pointment of  an  officer  in  the  army  is  by  commission  under 
the  sign  manual  and  the  second  secretarial  seal. 
(3)Instru-      (3)  The  documents  to  which  the  Great  Seal  is  affixed  are 
under        Proclamations,  Writs,  Letters  Patent,  and  the  documents 
Great        which  give  power  to  sign  and  ratify  treaties. 
Proclama-      ^  Proclamation  as  described  above  is  an  announcement 
tions.        of  some  matter  which  the  King  in  Council  desires  to  make 

generally  known  to  his  subjects. 

Writs.  A  Writ  is  a  mandate  addressed  by  the  executive  to  an 

individual  requiring  him  to  do,  or  forbear  from  doing,  some 
act.  The  great  majority  of  writs  issue  from  the  High 
Court  of  Justice,  or  from  inferior  Courts,  in  virtue  of  the 
delegated  judicial  power  of  the  Crown.  But  certain  writs 
pass  the  Great  Seal,  and  are  a  more  direct  expression  of  the 
royal  will ;  such  are  writs  for  the  election  of  members, 
addressed  to  the  returning  officers  of  boroughs  and  counties, 
and  writs  of  summons  to  individual  peers 2. 

Letters  Letters  Patent  are  an  open  document  to  which  the  Great 
Patent.  geaj  jg  af£xe(j  .  sucn  a  document  is  used  for  various  purposes. 
It  may  be  used  to  put  into  Commission  powers  of  various 
sorts  inherent  in  the  Crown — legislative  powers,  as  when 
the  King  entrusts  to  others  the  opening  of  Parliament,  or 
the  duty  of  assenting  to  Bills ;  judicial  powers,  as  when  the 
judges  are  sent  upon  circuit,  to  clear  the  gaols,  to  hear  and 
determine  felonies  and  the  like,  or  to  take  assizes  ;  executive 
powers,  as  when  the  duties  of  Treasurer  and  Lord  High 

1  29  &   30  Viet.  c.    39,    s.   4.     For  the  form   of  such   an   order    see 
Appendix  iii. 

2  For  many  purposes  the  Crown  Office  Act,  1877,  enables  a  wafer  im- 
pression of  the  Great  Seal  to  be  used. 


Appendix        THE   CROWN   IN   ADMINISTRATION  53 

Admiral  are  assigned  to  commissioners  of  the  Treasury  and 
Admiralty.  It  is  used  to  constitute  a  corporate  body  by 
charter ;  to  confer  offices,  as  judgeships  of  the  High  Court, 
or  professorships  of  Civil  Law  or  Divinity  at  Oxford,  or 
places  in  the  College  of  Anns ;  or  to  confer  dignities,  as  for 
the  creation  of  peers ;  or  to  pardon  one  charged  with  crime 
who  is  required  as  a  witness  for  the  Crown.  It  is  used  to 
grant  to  a  Dean  and  Chapter  a  licence  to  elect  a  bishop,  or 
to  Convocation  a  licence  to  confer  for  the  purpose  of 
amending  or  altering  canons l. 

For  the  purpose  of  making  a  Treaty,  the  first  stage  in  Treaties, 
the  proceedings  is  the  grant  of  powers  to  representatives  of 
the  Crown  to  negotiate  and  conclude  the  treaty.  For  this 
purpose  an  instrument  is  prepared  containing  full  powers  Powers, 
to  the  Minister  representing  the  Crown  to  negotiate  or 
conclude  a  treaty,  or  convention,  with  the  Minister  who  is 
invested  with  similar  powers  to  act  for  the  State  which  is 
the  other  party  to  the  transaction.  To  this  instrument  the 
Great  Seal  is  affixed  on  the  authority  of  a  sign  manual 
warrant  countersigned  by  the  Secretary  of  State  for  Foreign 
Affairs. 

When  a  treaty  is  concluded  it  is  signed  and  sealed  in  Signature 

and  seal- 
duplicate  by  the  Ministers   representing  their  respective  ing 

countries  with  their  own  seals.  If  the  treaty  contains,  as 
is  usual,  a  clause  providing  that  it  shall  be  ratified  and 
ratifications  exchanged  at  some  future  date  and  specified 
place,  then  until  ratification  neither  side  is  bound  by  it.  If 
there  is  no  such  clause,  the  treaty  may  take  effect  in 
accordance  with  the  terms  therein  contained 2.  The  power 
to  ratify  or  reject  is  vested  in  different  parts  of  the  Sovereign 
power,  according  to  the  constitution  of  different  countries— 
in  a  popular  assembly,  as  the  Cortes  in  Portugal ;  in  a  second 

1  It  should  be  borne  in  mind  that  in  the  case  of  appointments  to  offices 
the  Minister  responsible  for  the  appointment  ascertains  the  King's 
pleasure  before  the  preparation  of  the  more  formal  documents  which 
I  have  described.  The  name  of  the  person  to  be  appointed  is  submitted 
in  writing,  which  if  approved  is  initialed  by  the  King. 

*  For  the  usages  as  to  ratification,  the  distinction  between  tacit  and 
express  ratification,  and  the  moral  obligation  not  arbitrarily  to  refuse  to 
ratify,  see  Ilall,  International  Law,  ed.  3,  pp.  3a9~34- 


64  THE   PREROGATIVE  OF   THE   CROWN         Chap.  I 

chamber,  as   the   Senate  in   the  United   States;    in   the 
Executive,  as  the  Crown  in  England. 

Ratifica-  And  so  a  warrant  is  again  issued  under  the  sign  manual, 
tion-  countersigned  by  the  Secretary  of  State,  for  affixing  the  Great 
Seal  to  an  instrument  ratifying  the  treaty.  The  instru- 
ment of  ratification,  which  is  in  fact  the  treaty  with  the 
Great  Seal  affixed  to  it,  is  then  exchanged,  by  the  Minister 
empowered  to  do  so,  for  a  ratification  with  corresponding 
forms  from  the  other  side.  The  Ministers  who  exchange 
ratifications  execute  at  the  same  time  in  duplicate  a  docu- 
ment of  a  less  formal  but  very  important  character, 
a  statement,  sealed  with  their  respective  seals,  that  the 
ratifications  have  been  exchanged.  The  document  of 
ratification  of  the  treaty  by  the  foreign  power  with  whom 
we  are  dealing,  and  the  document  attesting  the  fact  that 
.  ratifications  have  been  exchanged,  are  then  deposited  in 
the  Foreign  Office. 

It  is  possible  that  a  treaty  may  require  legislation  in 
order  to  bring  it  into  effect.  Such  is  the  case  with  treaties 
involving  fiscal  changes  which  cannot  be  brought  about 
without  the  consent  of  Parliament.  The  ratification  is 
then  postponed  till  the  required  legislation  has  taken  place, 
or  the  treaty  must  contain,  express  or  implied,  a  condition 
subsequent  that  its  operation  is  dependent  on  the  action  of 
Parliament. 

Persons  responsible  for  the  Expi^ession  of  the  Royal  Pleasure. 

PHvy  The  order  in  Council  is  made  by  the  King  '  by  and  with 

the  advice  of  his  Privy  Council.'  Those  persons  who  are 
present  at  the  meeting  of  the  Council  at  which  the  order 
is  made  assume  the  responsibility  for  what  is  done. 
Responsi-  The  sign  manual  warrant  or  other  document  to  which 
te^  '  s"  the  sign  manual  is  affixed  bears  the  counter-signature  of 
one  or  more  responsible  ministers.  In  case  of  Instructions 
given  to  a  colonial  governor,  where  no  such  counter-signa- 
ture appears,  the  document  is  authenticated  by  the  use  of 
the  Signet,  one  of  the  three  seals  for  the  use  of  which  a 
Secretary  of  State  is  responsible. 


Appendix        THE   CROWN   IN   ADMINISTRATION  55 

The  Great  Seal  is  affixed  on  the  responsibility  of  the  The  Chan- 
Chancellor,  but  though  he  is  primarily  responsible,  there  c€llor- 
are  in  most  cases  certain  forms  by  which  he  is  authorized 
or  directed  to  use  this  final  authentic  expression   of  the 
royal  will. 

These  forms  used  until  lately  to  be  very  complicated ;  Ancient 
their   complication    was     due    to    the    conflict    between  mode3  of 

.  .  §iymg 

kings  and  their  advisers  in  the  fourteenth  and  fifteenth  authority, 
centuries.  The  King  wished  to  order  the  use  of  the  Great 
Seal  without  the  intervention  of  any  Minister  but  the 
Chancellor ;  the  Council  and  the  Parliament  were  deter- 
mined that  at  least  one  other  officer  of  State,  the  keeper 
of  the  Privy  Seal,  should  be  a  party  to  the  transaction  1. 

An  act  of  1535 2  settled  the  forms  necessary  for  the  most 
important  purposes  in  which  the  Great  Seal  needed  to  be 
employed.  Every  gift,  grant,  or  writing  signed  with  the 
sign  manual  and  intended  to  pass  under  any  of  the  great 
Seals 3,  was  to  be  brought  to  the  King's  Principal  Secretary 
or  to  one  of  the  Clerks  of  the  Signet ;  a  warrant  under  the 
Signet  was  then  to  accompany  the  document  to  the  Lord 
Keeper  of  the  Privy  Seal,  who  in  turn  transmitted  it  with 
a  like  warrant  under  the  Privy  Seal  to  the  Chancellor  or 
other  officer,  in  order  that  effect  might  be  given  in  due  form 
to  the  King's  pleasure  as  expressed  in  'gift,  grant,  or 
writing.'  At  some  date  subsequent  to  1689  the  Law 
Officers  of  the  Crown  were  introduced  into  the  transaction 
at  its  earliest  stage.  Legislation  of  the  present  reign  has 
reduced  these  forms  to  reasonable  limits  4. 

1  Proceedings  of  the  Pfivy  Council,  vol.  vi,  Preface,  pp.  clxxxiv,  clxxxviii, 
cxcii,  cxcvi. 

2  27  Hen.  VIII,  c.  n. 

8  There  were  Great  Seals  for  England,  Ireland,  the  Duchy  of  Lancaster, 
the  Counties  Palatine  of  Durham  and  Chester  and  the  Principality  of  Wales. 

4  Before  1851  a  patent  under  the  authority  of  a  Secretary  of  State  might 
pass  through  the  following  forms  : — 

1.  Warrant,  signed  by  King  and  countersigned  by  Secretary  of  State 
addressed  to  Attorney-  or  Solicitor-General  to  prepare  a  Bill. 

2.  Bill  prepared,  signed  by  Attorney-General  and  taken  to  Secretary 
of  State's  office  for  the  King's  signature.   There  called  the  Attorney- 
General's  Bill. 

3.  Bill  signed  by  the  King,  taken  to  Signet  Office,  there  called  the 


56  THE  PREROGATIVE  OF  THE  CROWN        Chap.  I 

Existing        We  can  therefore  consider,  within  these  limits,  the  modes 

modes  of   jn  which  authority  is  given  for  affixing  the  Great  Seal. 

giving 

authority.      They  are  four : — 

A.  fiat  of  the  Chancellor  or  Attorney-General,  or  war- 
rant of  the  Speaker  of  the  House  of  Commons. 
An  Order  in  Council. 
A  sign  manual  warrant l. 

A  sign   manual   warrant   preceded   by   an   Order   in 
Council. 

Chancel-        For  certain  purposes  the  Chancellor  may  order  the  use  of 
the  Seal  without  any  previous  signification  of  the  King's 
pleasure.     This  is  done  in  the  case  of  some  of  the  Commis- 
sions for  holding  circuits  in  England  and  Wales 2,  of  Corn- 
King's  Bill,  and  there  deposited.     For  a  description  of  the  Signet 
Office,  which  was  really  a  branch  of  the  office  of  the  southern,  after- 
wards Home,  Secretary,  see  Thomas,  Departments  of  Government. 

4.  An  attested  transcript  sealed  with  Signet,  handed  on  to  Lord  Privy 
Seal's  Office,  bidding  him  direct  Chancellor  to  make  Letters  Patent 
in  prescribed  form,  taken  to  Privy  Seal  Office,  and  there  deposited. 

5.  An  attested  transcript  of  the  above,  sealed  with  Privy  Seal,  with 
request  for  direction   was  lodged  at  Crown  or  Patent  Office   in 
Chancery.    There  an  engrossment  was  made  of  it,  and  the  Privy 
Seal  and  engrossment  left  at  the  Lord  Chancellor's. 

6.  If  Lord  Chancellor  saw  no  objection,  he  wrote  his  name  under  the 
grant,  and  the  Great  Seal  was  then  affixed.   (Nicolas,  vi.  pp.  ccviii- 
ccx.) 

The  changes  are  as  follows  : — 

14  &  15  Viet.  c.  82.     Necessity  for  Signet  abolished. 

43  &  44  Viet.  c.  103.     Attorney-  and  Solicitor-General  not  to  prepare 

warrants  for  Letters  Patent. 

47  &  48  Viet.  c.  30.     Necessity  for  Privy  Seal  abolished  ;  and  a  warrant 
under   II. M.  sign  manual,  prepared  by  the  Clerk  of  the  Crown, 
countersigned  by  Lord  Chancellor,  one  of  the  principal  Secretaries 
of  State,  the  Lord  High  Treasurer,  or  two  of  the  Commissioners  of 
the  Treasury,  is  authority  for  affixing  the  Great  Seal. 
This  is  not  to  affect  cases  where  the  fiat,  authority,  or  direction  of 
Chancellor  is  sufficient. 

1  In  the  case  of  Letters  Patent  empowering  Commissioners  to  open 
Parliament,  or  to  give  the  royal  assent  to  Bills,  the  sign  manual  warrant 
is  a  part  of  the  document,  or  rather,  the  King's  signature,  as  well  as  the 
Great  Seal,  is  affixed  to  the  Letters  Patent.  This  is  under  33  Hen.  VIII, 
c.  21,  s.  5. 

8  This  is  true  of  the  autumn  assizes,  and  of  the  intermediate  assize  after 
Easter  in  Lancashire  and, Yorkshire.  For  the  purpose  of  other  circuits, 
the  King  signs  two  warrants,  one  to  assign  the  judges  to  their  respective 
circuits,  the  other  containing  the  names  of  the  King's  counsel  and  of 
others  who  are  to  be  put  into  the  Commission. 


Appendix        THE   CROWN   IN    ADMINISTRATION  57 

missions  of  the  Peace,  of  writs  of  summons  to  peers  to 
attend  Parliament  on  succeeding  to  the  Peerage,  of  writs  of 
dedimus,  sujwrsedeas,  mittimus l. 

Writs  for  bye-elections  to  fill  vacancies  in  the  House  of  Speaker's 
Commons  are  issued  from  the  Crown  Office  on  the  authority  warrant- 
of  a  warrant  from  the  Speaker,  Commissions  of  Escheat  on 
the  fiat  of  the  Attorney-General. 

In  certain  cases  the  authority  of  an  Order  in  Council  is  Order  in 
sufficient.  A  royal  proclamation  passes  the  Great  Seal  in 
virtue  of  such  an  order,  and  though  writs  for  a  new  Parlia- 
ment are  in  practice  issued  on  the  authority  of  the  pro- 
clamation for  the  summons  of  a  Parliament,  an  Order  in 
Council  is  usually  made,  directing  the  Chancellors  of 
England  and  Ireland  to  issue  the  necessary  writs. 

In  the  great  majority  of  cases  the  mode  in  which  the  Sign 
authority  is  given  is  by  a  sign  manual  warrant  counter- 
signed  by  one  of  the  principal  Secretaries  of  State  when 
Letters  Patent  are  used  to  signify  the  royal  pleasure,  or 
when  powers  are  given  to  conclude  or  ratify  a  treaty.  On 
certain  occasions  the  Lord  Chancellor  countersigns  the 
warrant.  The  Lords  of  the  Treasury  might  do  so,  but  do 
not  in  practice. 

In  a  few  cases  an  Order  in  Council  is  required  to  precede  Order  in 
the  issue  of  the  sign  manual  warrant.     These  occur  in  the  alljnc 
grant  of  charters  to  towns  or  other  corporate  bodies,  and  warrant, 
also  in   certain   cases   when   the   warrant  proceeds   from 
the     Colonial     Office.     For    the    Privy    Council    advises 
the  Crown  before  a  corporation  is  created  and  invested 
with   privileges,   and  a  colony,  in   default  of  any  other 
provision  for  its  government,  is  governed  by  the  Crown 
in  Council. 

It  will  be  understood  that  although  an  Order  in  Council 
or  a  sign  manual  warrant,  or  both,  may  for  certain  purposes 
be  required  as  authority  for  affixing  the  Great  Seal,  yet 
that  all  three  are  separate  modes  of  signifying  the  royal 

1  Writ  of  dedimus  giving  power  to  administer  oaths — as  in  the  case  of 
persons  newly  placed  on  the  Commission  of  Peace. 
Of  supersedeas  to  stay  the  exercise  of  a  jurisdiction. 
Of  mittimus  to  authorize  the  removal  of  records  from  one  Court  to  another. 


58  THE  PREROGATIVE   OF  THE  CROWN        Chap.  I 

pleasure,  and  that  in  each  case  either  a  body  of  Privy 
Councillors  or  an  individual  Minister  is  rendered  responsible 
for  the  action  of  the  Crown. 

The  forms  above  stated  seem  to  comprise  all  the  modes  in 
which  the  royal  will  is  expressed  for  executive  purposes,  and 
they  show  how  many  restraints  are  imposed  on  its  ex- 
pression by  the  interposition  of  responsible  Ministers. 
Necessity       Nor  is  any  choice  allowed  to  the  Crown  as  to  the  necessity 
vance^f    ^or  an  individual  expression  of  consent,  or  as  to  the  form 
forms.       in  which  it  should  be  expressed  if  custom  or  rules  of  law 
require  that  the  assent  should  be  given  in  a  particular  form. 
Excep-  In  cases  of  illness  or  of  absence  from  the  kingdom,  the 

use  of  the  sign  manual  has  been  dispensed  with.     A  stamp 
(i)  Illness,  has  been  allowed  to  be  affixed  under  certain  conditions 
when  a  King  or  Queen  has,  from  weakness  or  pain,  been 
unable  to  sign  in  person  ;  and  a  Commission  has  from  time 
(a)  Ab-      to  time  been  issued  under  the  Great  Seal  to  enable  Lords 
sence  from  jus^jces  to  sjnm  on  behalf  of  the  King  when  he  has  been 

kingdom. 

absent  from  the  kingdom  l. 

Modern  facilities  of  communication  have  made  the  ap- 
pointment of  Lords  Justices  unnecessary.  The  last  four 
reigns  have  produced  but  one  such  Commission,  in  1821. 
And  the  number  of  cases  in  which  the  sign  manual  is  now 
required  by  Statute  seems  in  the  course  of  the  present 
century  to  have  made  Parliament  more  scrupulous  as  to 
the  delegation  of  this  royal  function. 

Henry  VIII,  Mary  Tudor,  and,  it  is  said,  William  III, 

1  The  following  is  the  form  in  which  that  part  of  the  Commission  runs 
which  gives  authority  to  sign  for  the  King.  It  is  taken  from  the  Com- 
mission of  1719. 

'  And  our  Will  and  Pleasure  is,  that  the  said  William  Archbishop  of 
Canterbury,  &c.,  by  virtue  of  the  authority  granted  by  these  presents,  be, 
and  shall  be  known,  named  and  called  by  the  name,  Title,  or  Stile  of 
Guardians  and  Justices  of  our  said  Kingdom,  or  our  Lieutenants  in  the 
same  ;  and  that  all  Writs,  Letters  Patent,  Commissions  and  other  instru- 
ments or  writings  whatsoever,  which  should  or  ought  to  have  or  bear 
Teste  by  or  under  ourselves,  shall  bear  Teste  in  and  under  the  name  of 
the  First  for  the  time  being  and  the  Stile  of  other  Guardians  and  Justices 
of  our  said  Kingdom,  and  of  our  Lieutenants  in  the  same,  in  the  form 
following,  viz.  :  Witnesses,  William  Archbishop  of  Canterbury  and  other 
Guardians  and  Justices  of  the  Kingdom.  44  Com.  Journals,  p.  40. 


Appendix        THE   CROWN   IN   ADMINISTRATION  59 

issued  Commissions  giving  power  to  certain  persons  to 
apply  a  stamp  of  a  certain  form  to  such  documents  as 
should  pass  the  sign  manual. 

In  the  last  weeks  of  the  life  of  George  IV  his  infirmities  statutory 
made  it  difficult  and  painful  for  him  to  affix  his  signature  lf*™p' 
to  documents  for  which  the  sign  manual  was  necessary.     It 
was  then  considered  that  neither  the  King  of  his  own 
authority,  nor  the  King  in  Council,  could  make  valid  the 
expression  of  the  royal  will  in  any  other  way  than  by  actual 
signature,  and  so  a  Statute l  had  to  be  passed  providing  In  illness 
that  a  stamp  might  be  affixed  in  lieu  of  the  sign  manual ;  °^Georse 
but  the  King  was  required  to  express  his  consent  to  each 
separate  use  of  the  stamp 2,  and  the  document  so  stamped 
was  attested  by  a  confidential  servant  and  a  number  of 
high  Officers  of  State. 

Again,  until  1 862,  it  was  the  practice  that  all  commissions  In  case  of 
in  the   army  should  pass  under  the  royal  sign  manual.  ™ommis- 
The  accumulation  of  commissions  awaiting  signature  had  sions. 
reached  15,000.     An  Act  was  passed  to  enable  the  Queen, 
by  Order  in  Council,  to  free  herself  from  the  duty  of  signing 
such  commissions.     It  was  argued  in  debate,  on  the  authority 
of  the  precedent  of  Mary's  reign,  and  of  the  commissions  to 
the  Lords  Justices  in  the  reigns  of  George  I  and  George  II, 
that  the  Queen  could  by  virtue  of  her  prerogative  depute 
others  to  sign  for  her ;  but  Sir  G.  C.  Lewis  pointed  out  that 
commissions  had  always  passed  the  sign  manual,  that  this 
practice  had  been  recognized  by  various  Statutes,  including 
that  of  George  IV  just  referred  to,  and  that  it  could  not 
safely  be  abandoned  except  on  statutory  authority  3. 

1  1 1  Geo.  IV,  c.  23. 

*  Stanhope,  Conversations  with  the  Duke  of  Wellington,  p.  257  : — 

'The  King  was  rather  irritable  from  the  effect  of  a  clause  which  Lord 
Grey  had  introduced  into  the  Bill  for  the  Stamp,  that  hia  assent  should 
be  spoken  separately  to  each  paper  requiring  signature.  Keppcl,  who  was 
always  about  him,  was  very  careful  as  to  the  due  observance  of  this  rule  ; 
once  or  twice,  when  the  King  had  only  nodded,  instead  of  repeating  the 
same  words,  Keppel  reminded  the  Duke,  and  the  Duke  then  reminded 
the  King.  His  Majesty  said,  with  some  impatience,  "  Damn  it !  what 
can  it  signify?"  But  the  Duke  answered,  "Only,  Sir,  that  the  law 
requires  it ; "  upon  which  he  complied.' 

3  Hansard,  clxv.  1483. 


CHAPTER    II 

THE    COUNCILS   OF   THE   CROWN 

SECTION  I 

THE  COUNCILS  BEFORE  1660 
§  1.  The  growth  of  ttie  Council. 

THE  King,  as  we  have  seen,  never  acts  alone.  That  which 
he  does  in  the  department  of  judicature  he  does  through 
his  representatives  in  the  Courts.  That  which  he  does  in 
administration  he  does  through  the  intervention  or  on  the 
responsibility  of  a  Minister  or  Ministers,  or  of  the  Privy 
Council.  The  general  policy  of  his  government  is  deter- 
mined by  the  advice  of  the  Cabinet. 

The  three  I  will  not  dwell  at  this  moment  upon  the  King  as  judge, 
or  upon  the  details  of  administration.  In  the  present 
chapter  I  would  ask  what  has  been  the  history  and  what 
are  the  present  circumstances  of  the  three  great  Councils  of 
the  Crown :  the  House  of  Lords,  with  the  judges  and  law 
officers  who  share  in  its  summons ;  the  Privy  Council, 
necessary,  as  has  been  shown,  for  the  transaction  of  certain 
formal  acts  of  State ;  the  Cabinet,  which  settles  questions  of 
general  policy  and  determines  the  action  which  shall  be 
taken  by  the  departments. 

The  materials  for  the  history  are  ample  enough,  but  this 
does  not  make  it  easier  to  form  conclusions  as  to  the 
character  of  the  King's  Councils  at  any  given  times,  in 
theory  and  in  fact,  or  to  mark  the  stages  of  transition  by 
which  we  have  reached  the  conditions  of  the  present  day. 
The  King  can  take  counsel  of  whom  he  will,  but  we  shall 
always  find  that  there  are  certain  persons  specially  entitled 
to  offer  advice,  and  certain  persons  under  a  special  liability 
to  give  advice.  To  these  we  may  add  a  group,  not  always 
so  distinct,  of  persons  whose  advice  is  habitually  expected, 
given,  and  acted  upon.  These  groups,  although  they  pre- 


Sect.i.  §1       THE   COUNCILS   OF   COKE   AND   HALE  61 

serve  a  perceptibly  separate  existence  throughout  our  his- 
tory, yet  appear  to  be  constantly  fading  into  one  another, 
and  when  they  are  classified  and  named  by  eminent  writers 
it  is  difficult  on  closer  inquiry  to  find  the  consultative 
bodies  which  correspond  to  the  names. 

Coke  tells  us  that  the  King  is  assisted  by  four  Councils :  The  four 
(i)  The  Commune  Concilium  or  Court  of  Parliament,  (2)  Of  cokV 
The  Magnum  Concilium,  or  House  of  Lords,  (3)  The  Privy  «n<l  Hale. 
Council  for  matters  of  State,  and  (4)  The  Council  of  the 
Law,  consisting  of  the  judges.1     Hale  also  describes  four 
Councils,  agreeing  with  Coke  as  to  the  first  two,  but  placing 
a  Concilium  Ordinarium  between  the  Magnum  Concilium 
and  the  Concilium  Privatum  and  omitting  the  Council  of 
the  Law.2 

The  last  two  Councils  of  Hale  might  be  thought  to 
correspond  with  the  Privy  Council  and  the  Cabinet,  but  we 
must  not  apply  modern  ideas  to  the  terminology  of  the 
seventeenth  century.  It  will  be  better  to  try  to  ascertain 
what  the  four  Councils  of  Hale  really  were. 

And  here  we  must  note  a  tendency  in  every  successive 
Council,  first  to  increase  in  size,  then  to  form  within  it 
a  nucleus  of  advisers  who  transact  the  more  important 
business,  then  to  become  two  bodies  in  all  but  name,  the 
real  and  the  titular  councillors,  lastly  to  part  in  name  as 
well  as  in  fact,  whereupon  the  smaller  Council  in  turn  runs 
the  same  course. 

We  can  trace  this  process  soon  after  the  transformation  of  The  Com- 
the  Witan  into  the  Commune  Concilium,  wherein  the  quali-  cniuin. 
fication  for  membership  rested  on  the  tenure  of  lands  from 
the  Crown.     Within  this  assembly  of  magnates  developed 
the  group  of  great  officers  of  the  household  and  of  State, 
who,  sitting  with  their  staff  of  subordinates  in  Curia  or  in 
Exchequer,  transacted  the  judicial  and  financial  business  of 
government.     It  would  perhaps  be  an  anticipation  of  modern 
ideas  to  say  that  the  Curia  was  the  executive,  the  Concilium 
the  legislative  and  deliberative  body 3,  but  this  distinction 

1   i.  Co.  Litt.  1 10  (a). 

3  Hale,  Jurisdiction  of  the  House  of  Lords,  ch.  ii. 

s  Stubbs,  Const.  Hist.  i.  387,  388. 


62  THE   COUNCILS   OF  THE   CROWN  Chap.  II 

between  the  two  bodies  tended  to  become  more  marked  as 
the  larger  body  expanded  from  an  assembly  of  magnates 
into  an  assembly  of  tenants-in-chief,  the  Commune  Con- 
cilium of  the  Charter. 

Gives  way      This  assembly  of  tenants-in-chief  in  its  turn  gave  way  to 

to  Parha-  fae  assembly  of  estates,  the  clergy,  baronage,  and  commons, 

summoned  in  person  or  by  their  representatives  to  advise 

and  assist  the  Crown  in  Parliament.     Here,  if  anywhere,  is 

the  Commune  Concilium  of  Hale  and  Coke. 

The  Of  these  estates  one,  the  baronage  or  magnates,  from  its 

Magnum    composition,  was  more  easily  brought  together  for  purposes 

cilium.      of  consultation,  and,  from  its  power,  was  more  necessary 

for  purposes  of  consent.     It  represented  the  Concilium  of 

the  Norman  kings  before  that  assembly  was  afforced  by 

the  summons  of  the  tenants-in-chief.     Hence  it  remained 

and  still  is  a  council  of  the  Crown,  the  Magnum  Concilium 

of  Coke  and  Hale,  the  House  of  Lords  of  to-day. 

The  Meanwhile  the  Curia,  if  we  may  assume  that  it  was 

Continual  a  separate  and  definite  body,  existing  for  the  combined 
Council.  if..  ,. 

purposes  of  council  and  administration,  gradually  dis- 
appeared as  the  executive  and  judicature  defined  themselves. 
The  Chancery  parted  from  the  Exchequer  in  the  end  of 
the  twelfth  century ;  the  Common  Law  Courts  with  their 
special  jurisdictions  became  distinct  in  the  course  of  the 
thirteenth  :  and  there  comes  into  existence  a  Council  which 
includes  the  great  officers  of  State.  The  members  of  this 
Council  have,  in  addition  to  such  departmental  duties  as 
any  of  them  might  discharge,  the  duty  and  responsibility 
of  advising  and  acting  with  the  King. 

This  body,  ill-defined  as  to  constitution  and  powers,  but 
always  in  immediate  attendance  upon  the  King,  appears 
first  during  the  minority  of  Henry  III.  It  is  distinct  from 
the  larger  deliberative  assembly,  the  Commune  Concilium, 
from  the  more  frequently  summoned  assembly  of  the  mag- 
nates, and  from  the  judicial  and  financial  staff  which 
transacted  the  business  of  the  Courts,  the  Chancery,  and 
the  Exchequer. 

In  the  middle  of  the  thirteenth  century  it  had  assumed 
so  definite  an  existence  that  the  mode  of  its  selection  forms 


Sect.  i.  §  1    THE  GREAT  AND  THE  CONTINUAL  COUNCIL  63 

an  important  feature  in  the  Provisions  of  Oxford l.  From 
the  reign  of  Henry  III  we  may  say  that,  as  an  assembly, 
it  had  acquired  a  corporate  character :  its  members  were 
sworn  as  councillors  of  the  Crown :  general  questions  of 
policy  were  here  discussed,  and  prepared,  if  necessary,  for 
the  consideration  of  the  estates  of  the  realm :  finally,  it  was 
the  medium  through  which  the  King,  himself  irresponsible, 
performed  acts  of  State  2.  It  is  the  Continual  Council. 

We  should  note  an  uncertainty  which  existed  for  some  Confusion 
time  after  Parliament  had  come  into  existence,  as  to  the 
legislative  powers  of  the  Crown  when  acting  with  a  body 
which  was  neither  the  Continual  or  King's  Council  nor 
the  National  Council,  but  the  King's  Council  plus  the  estate 
of  the  baronage.  Edward  I  used  such  an  assembly  for  pur- 
poses of  legislation  3.  Edward  III  tried  to  obtain  grants  of 
money  from  a  body  which  consisted  of  Council,  baronage, 
and  a  selected  representation  of  the  commons  4.  Yet  it  is 
possible  to  distinguish  these  Great  or  General  Councils  of  the 
magnates,  occasionally  summoned  to  advise  the  King,  from 
Parliament  on  the  one  hand  and  the  Continual  Council  on  gradually 
the  other.  The  confusion  clears  away  as  the  legislative 
rights  of  the  commons  are  recognized  and  insisted  upon. 
The  Great  Councils  were  summoned  from  time  to  time  on 
special  occasions  throughout  the  fourteenth  and  fifteenth 
centuries,  and  on  these  occasions  they  transacted  business, 
other  than  legislative,  such  as  might  have  been  dealt  with 
at  the  Continual  or  Privy  Council.  On  two  occasions  only 
was  a  Great  Council  summoned  in  the  seventeenth  century 5. 
The  baronage  assumes  its  position  as  an  estate  of  the  Post,  p. 
realm  and  a  House  of  Parliament.  The  Magnum Ia6' 
Concilium  survives  in  certain  privileges  of  the  House  of 

1  Provisions  of  Oxford.     Stubbs,  Documents,  396. 

8  The  order  for  expelling  the  Jews  (1290)  was  made  « per  regem  et 
secretum  concilium.'  Ibid.  435. 

3  As  in  the  passing  of  Quia  Emptores ;  and  see  Stubbs,  Const.  Hist.  ii.  26. 

1  Rot  Parl.  ii.  253,  257,  and  see  vol.  i,  Parliament,  228,  291.  Hale, 
Jurisdiction  of  Lords'  House,  p.  8,  says,  'The  form  of  these  great  Councils 
ever  varied.' 

6  Such  Councils  were  summoned  by  Charles  I  in  1640,  and  by  James  II 
in  1688.  Clarendon,  Rebellion,  ii.  s.  34;  Macaulay,  History  of  England, 
ch.  ix.  vol.  iii.  262 ;  Clarke,  Life  of  James  II,  vol.  ii.  p.  238. 


64  THE   COUNCILS   OF  THE   CROWN  Chap.  II 

Lords  and  in  certain  duties  of  the  judges  and  law  officers  of 
the  Crown. 

Powers  of  So  we  may  leave  the  first  two  of  Bale's  Councils,  and 
watcn  tne  developments  of  the  Continual  Council.  If  the 
minority  of  Henry  III  first  gave  a  definite  existence  to  this 
Council  as  a  group  of  responsible  advisers,  the  minority  of 
Richard  II  was  the  time  when  its  powers  were  defined  as 
practically  co-extensive  with  the  prerogative l. 

The  business  of  the  Council  covered  the  whole  field  of 
executive  action :  its  members  were  appointed  for  a  year, 
but  were  usually  re-chosen ;  they  were  bound  to  attend  its 
meetings,  and  were  paid  for  their  services  2. 

Its  rela-  I  have  already  spoken  of  the  attempts  by  the  Commons 
Commons!  ^°  control  the  appointment  of  the  Council,  of  their  moderate 
Ant*,  success  between  1377  and  1422,  of  their  cessation  after  the 
pp.  so,  33.  iaj;ter  fate  •  these  matters,  together  with  the  changes  in 
the  composition  of  the  Council  during  the  fifteenth  and 
sixteenth  centuries,  relate  to  the  limitations  on  the  power 
of  the  King  rather  than  to  the  constitutional  history  of  the 
Council.  Whether  the  Council  was  made  up  of  great  feudal 
lords,  as  in  the  later  period  of  the  Lancastrians,  or  of  men 
of  business  of  no  great  birth  or  estate,  as  under  the  first 
Tudors,  or  whether,  as  in  the  earlier  part  of  the  fifteenth 
century,  both  these  elements  were  present,  the  powers  of 
the  Council  were  much  the  same;  only  in  the  first  case 
they  might  be  used  as  a  check  upon  the  King ;  in  the 
second,  the  King,  himself  irresponsible,  might  use  the 
Council  and  its  powers  with  formidable  effect. 

But  assuming  that  from  the  end  of  the  fourteenth 
century  the  Council  was  admitted  to  be, — with  the  King, 
and  subject  to  his  initiative, — the  executive  of  the  country, 
there  are  three  points  to  be  noted  in  its  history  between 
this  date  and  the  Rebellion.  They  are  (i)  the  development 
of  an  outer  and  an  inner  Council ;  (2)  the  judicial  powers 
of  the  Council;  (3)  the  closer  relations  of  Council  and 
Parliament. 

1  Stnbbs,  Const.  Hist.  iiL 

*  KieoUa,  Proceedings  of  Priry  Council,  i.  p.  T  ;  and  we  lists  of  mem- 
bers of  the  Council,  ibid.  337,  395, 


Sect.  L  §2  THE  ORDDCABY  COUNCIL  65 

§  2.    He  Ordinary  amd  tie  Prtry  Council*. 

The  Councils  of  the  fourteenth  and  fifteenth  centuries 
were  the  Great  Council,  and  the  Continual  or  Privy 
Council1,  the  former  summoned  for  special  occasions,  the 
latter  in  constant  attendance  upon  the  King.  Between  the 
years  1460  and  1540  there  is  a  blank  in  the  records  of  the 
Council,  and  when  we  are  able  to  resume  the  narrative  of 
its  proceedings  we  find  that  the  Great  Council  has  fallen 
into  abeyance,  and  that  another  sort  of  Council,  the 
Concilium  Orxfr  HOT*  urn,  has  come  into  existence, 

An  obscurity  hangs  about  this  Council,  both  as  to  origin  iw 
and  composition.  It  is  not  the  same  body  as  the  Privy 
Council.  The  latter  varied  in  numbers  and  in  other  respects  Ion. 
during  the  Tudor  reigns;  it  was  sometimes  divided  into 
two  groups,  one  to  attend  the  King  when  he  moved  about 
the  country,  the  other  to  transact  business  in  London  *  ;  it 
was  sometimes  divided  into  Committees  *,  to  each  of  which 
some  department  of  executive  business  was  assigned.  But 
outside  the  body  of  Privy  Councillors  there  appear  to  be 
a  number  of  persons  sworn  of  the  Council  yet  not  habitually 
summoned  to  those  meetings  which  are  recorded  as  meetings 
of  the  Privy  Council 

The  accounts  which  we  have  of  this  Council,  whether  we 
turn  to  the  precise  description  of  the  Conftfixm  OrdinarivLm, 
by  Hale  4,  or  to  less  explicit  references  in  documents  of  the 
Tudor  period,  all  suggest  that  the  ordinary  counsellors 
were  chosen  mainly  for  legal  or  judicial  purposes. 

Hale  treats  of  the  Concilium.  Ordinari*m  chiefly  in  its 
relations  to  the  Courts  of  Law.  Henry  YIH.  in  November 
1541,  orders  his  Chancellor  to  summon  his  *  counsellors  qf 
all  torf*,  spiritual  and  temporal,  with  the  judges  and 
learned  men  of  his  Council  V  to  hear  of  the  misconduct  of 


Xkoiu, 

Pnpo**diog$  <rf  Prirr  Council.  L  p.  lirtii. 
»  Nk*l**.  rii.  pp.  XT,  xr. 

*  Bw*^Hu(L«fR*fe(mKt>ott,T.  119. 

*  H*K  JvuriaiktMn  «f  tb*  Lords'1  H«K*.  «.  ii. 

*  Xkoltts,  Ptamiiings  «f  Prir?  GNUK&U  riL  p.  six. 


66  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

'  Katherine  Howard.  The  ordinary  Council  does  not  cor- 
respond to  Coke's  '  Council  of  the  Law  V  which  was 
confined  to  the  judges,  whereas  there  seems  to  be  no  doubt 
that  among  the  ordinary  counsellors  were  persons  of  rank 
and  dignity  2,  and  learned  lawyers  who  had  not  attained  to 
the  Bench  3. 

It  is  very  likely  that  Hale,  writing  at  the  end  of  the 
seventeenth  century,  describes  this  Council  with  more  ex- 
actitude than  is  justified  by  the  facts  of  its  history ;  and 
indeed  one  must  admit  that  it  is  impossible  to  dogmatize 
about  the  constitution,  at  any  given  time,  of  Councils 
whose  existence  was  never  defined  by  rules  of  law  and 
whose  composition  was  mainly  determined  by  practical 
convenience.  The  judges  are  liable  to  be  called  upon  for 
advice,  the  Privy  Council  are  regularly  and  habitually  con- 
sulted and  have  become  the  recognized  channel  of  executive 
action.  It  was  convenient  during  the  Tudor  period  that 
the  legal  and  judicial  element  in  the  Council  should  be 
strengthened  by  the  addition  to  the  King's  Councils  of  men 
whose  advice  might  strengthen  the  judicial  work  of  the 
Council  though  not  needed  on  general  matters  of  State.  We 
may  be  further  justified  in  saying  that  occasional  counsellors 
for  non-legal  matters  were  sometimes  introduced.  Yet  these 
institutions  are  essentially  elastic,  they  are  different  at  one 
time  and  at  another,  but  the  process  of  change  is  impalpable. 
After  the  close  of  the  Tudor  period  we  hear  no  more  of 
Ordinary  Counsellors,  save  in  the  later  description  of  Hale. 
Changes  The  Privy  Council  itself  underwent  changes  in  the  six- 
Prfy16  teenth  century.  It  changed  in  number ;  there  were  eleven 
Council,  members  at  the  accession  of  Henry  VIII 4,  and  twenty-five 
at  the  time  that  Edward  VI  came  to  the  throne 5.  Mary's 

• 

1  Co.  Litt.  1 10  a. 

*  As,  for  instance,  the  Bishops  of  London  and  Rochester  and  Lords 
S^.  John  and  Windsor.    Nicolas,  Proceedings  of  Privy  Council,  vii.  p.  xxii. 

3  The  conciliar  functions  of  the  judges  survive  in  the  writ  of  attendance 
which  they  receive  at  the  commencement  of  each  Parliament.     (Part  I. 
p.  53. )     The  learned  men  of  the  Council  are  to  be  found  in  the  King's  or 
Queen's  Counsel  learned  in  the  law. 

4  Nicolas,  Proceedings  of  Privy  Council,  vii.  p.  4. 

*  Burnet,  Hist,  of  Reformation,  v.  117. 


Sect.  i.  §  2  COMMITTEES   OF   COUNCIL  67 

Council  was  much  larger,  rising  at  one  time  to  forty-six. 
During  the  reign  of  Elizabeth  the  number  dropped  from 
eighteen  to  thirteen.  We  find  too  a  change  in  the  composi- 
tion of  the  Council  as  compared  with  the  previous  century. 
New  men  devoted  to  the  business  of  official  life  and  of 
no  great  weight  in  the  country  had  been  introduced  by 
Edward  IV ;  and  officials  pervade  the  Tudor  Councils l.  This 
was  the  advice  of  Fortescue 2,  who  thought  that  the  King's 
business  suffered  from  the  inattention  of  great  lords,  en- 
grossed in  their  own  affairs  and  in  the  advancement  of  their 
families  and  dependants. 

The   formal   division   of  the   Council   into  Committees  Begin- 
under  Edward  VI  and  the  assignment  of  the  most  impor-  n*"^s 
tant  business  to  a  Committee  of  State 3  may  have  continued  Cabinet, 
under  Mary.     During  the  last  years  of  Elizabeth's  reign 
the  Council  was  greatly  reduced  in  number,  and  nearly  all 
its  members  held  high  offices.     It  was  in  effect  a  Cabinet 
Council.     Under  the  Stuarts  the  numbers  were  increased. 
The  Committee  of  State  of  1553  reappears  under  that  title 
in  1640,  when  it  is  also  described  as  a  'Cabinet  Council' 
by  way  of  reproach  4. 

It  seems  almost  inevitable  that  unless  the  entire  Privy 
Council  was  often  reconstituted  the  treatment  of  important 
matters  must  pass  into  the  hands  of  a  few.  The  Council 
would  always  contain  men  qualified  for  one  cause  or  another 
to  be  Councillors  of  the  Crown,  but  not  possessed  of  the 
practical  sagacity,  promptitude  of  judgment,  and  force  of 
character  which  come  into  play  when  some  crisis  calls  for 
immediate  action  and  nothing  that  can  be  done  is  free  from 
risk.  The  men  who  possess  these  qualities  would  be  the 

1  In  1536  the  Yorkshire  rebels  complained  that  there  were  too  many 
persons  of  humble  birth  in  the  Council  :  Henry  VIII  replied  that  it  con- 
tained more  of  the  nobility  than  when  he  came  to  the  throne,  but  added 
that '  it  appertaineth  nothing  to  any  of  our  subjects  to  choose  our  Council.' 
Nicolas,  Proceedings  of  Privy  Council,  vii.  p.  iv. 

3  Governance  of  England,  ch.  xv.  ed.  Plummer,  p.  145. 

s  Burnet,  Hist,  of  Reformation,  v.  119.  The  King  sat  with  thia  Com- 
mittee for  matters  of  most  importance. 

*  The  Hardwicko  Papers,  ii.  147,  contain  the  minutes  of  a  Cabinet 
Council  of  August  16,  1640.  See  too  Clarendon,  History  of  the  Rebellion, 
bk.  ii.  ss.  61,  99. 

r  2 


68  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

men  to  form  the  '  Committee  of  State/  the  'junto,'  the 
'  Cabinet.' 

§  3.     The  Judicial  Powers  of  the  Council. 

The  severance  of  the  Common  Law  Courts  from  the 
Curia  had  not  exhausted  the  judicial  powers  of  the  Crown. 
Those  who  wanted  remedies  which  the  Courts  of  Law  could 
not  supply,  and  those  who  wanted  redress  which  the  Courts 
of  Law  could  not  enforce,  came  to  the  Crown  as  to  the 
fountain  of  justice,  and  the  Crown  in  Council  did  for  the 
suitor  what  the  King's  grace  might  prompt.  The  Chancellor, 
who  was  usually  a  lawyer  as  well  as  an  administrator, 
carried  into  the  Chancery  a  good  deal  of  the  judicial  work 
of  the  Council ;  but  successive  Chancellors  gradually  con- 
fined their  jurisdiction  to  cases  in  which  they  supplemented 
the  Common  Law,  and  built  up  a  body  of  equitable  rules 
respecting  uses,  fraud,  and  the  enforcement  of  contracts. 

In  the  reign  of  Edward  III,  as  we  are  told  by  Coke 1  and 
Selden 2,  there  were  three  Courts  into  which  writs  coram 
rege  were  returnable :  they  were  so  returnable  in  Banco, 
in  Camera,  in  Cancellaria—in  the  King's  Bench,  the 
Council  Chamber,  or  the  Chancery — and  the  coercive  juris- 
diction of  the  Council,  though  a  subject  of  remonstrance  on 
the  part  of  the  Commons,  grew  more  necessary  as  the 
numerous  households  and  retainers  of  the  great  lords3 
spread  disorder  for  which  the  ordinary  litigant  had  no 
remedy. 

A  poor       This  jurisdiction  served  two  objects,  the  assistance  of  the 
court,     weak  or  the  poor,  and  the  maintenance  of  order. 

In  the  first  of  these  cases  the  Council  acted,  as  did  the 
Chancellor,  upon  the  receipt  of  a  bill  or  petition.  In  rules 
made  for  its  governance  in  1390  the  Lord  Privy  Seal  and 

1  Coke,  Institutes,  iv.  c.  5. 

1  Selden,  Discourse  on  Laws  and  Government  of  England,  ii.  c.  3. 

8  The  great  lords  had  councils  of  their  own.  See  Fortescue,  ed. 
Plummer,  pp.  308-10.  16  Ric.  II,  c.  a,  forbids  lords  or  ladies  to  compel 
appearance  before  their  councils  on  any  disputed  right  to  real  or  personal 
property  under  penalty  of  £ao.  The  Act,  31  Hen.  VI,  c.  a,  giving  power 
to  the  Council  to  deal  with  cases  of  riot  and  oppression,  has  already  been 
referred  to  ;  supra,  p.  ao. 


Sect.  i.  §3  THE   COURT   OF  REQUESTS  69 

others  were  to  deal  at  once  with  the  bills  of  persons  of 
small  importance ;  again  in  1424,  its  members  were  enjoined 
in  dealing  with  petitions  not  to  meddle  with  such  matters 
as  were  determinable  at  the  Common  Law,  unless  they 
should  '  feel  too  great  might  on  the  one  side,  and  unmight 
on  the  other,  or  else  other  reasonable  cause  that  should 
move  them  V  Similar  in  character  is  an  ordinance  of  1443. 
Wolsey,  when  Chancellor,  established  a  Committee  of  the 
Council  to  sit  '  in  the  Whitehalle '  '  for  the  expedition  of 
poore  mennys  causes  depending  in  the  sterred  chamber2.' 
And  to  the  same  purpose  it  is  provided  in  the  ordinance  of 
1526  for  the  household  of  Henry  VIII,  that  of  those 
members  of  the  Council  who  were  in  constant  attendance 
on  the  King,  two  should  sit  daily  in  the  Council  Chamber 
at  certain  hours  to  hear  '  poor  men's  complaints  V 

We  may  follow  this  jurisdiction  to  its  close.  It  became  The 
the  Court  of  Requests,  sitting  in  the  Whitehall,  consisting  ^J"*6 
of  certain  members  of  the  Council  and  some  lawyers,  and  the 
'  Masters  of  Requests,'  to  hear  matters  referred  to  it  by  the 
Council,  or  matters  which  came  directly  before  it.  The 
Masters  of  Requests  were  sworn  of  the  Privy  Council, 
though  as  time  went  on  they  ceased  to  be  reckoned  among 
the  Privy  Councillors,  and  though  sworn  as  counsellors  to 
the  King  had  no  precedence  among  members  of  the  Privy 
Council  *.  They  dealt  with  cases  resting  on  the  suggestion 
that  the  suitor  was  either  too  poor  to  proceed  at  Common 
Law,  or  that  he  was  a  member  of  the  King's  household 5. 
The  parties  came  directly  before  the  Court  or  were  referred 
to  the  Masters  of  Requests  after  petition  to  the  Council  °. 
Judgments  of  the  Court  were  enforced  by  writ  of  attach- 
ment under  the  Privy  Seal. 

1  Nicolas,  Proceedings  of  Privy  Council,  i.  18  :  iii.  149. 

*  S.  P.  Dom.  Hen.  VIII,  iii.  571  (MS.  Record  Office),  set  out  in  vol.  xii 
of  the  Publications  of  the  Selden  Society,  p.  Ixxxi. 

8  Ordinances  for  regulation  of  Royal  Household,  159,  160,  and  see 
Nicolas,  vii.  p.  viii. 

4  This  change  took  place  early  in  the  seventeenth  century.  Selden  Soc. 
Publications,  vol.  xii.  p.  xli. 

6  Lambarde,  Archeion,  229. 

•  Memorandum  by  Dr.  J.  Herbert,  Secretary  of  State.     Selden  Serie*, 
xii.  p.  xzv. 


70  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

But  in  the  later  years  of  the  sixteenth  century  the 
Common  Law  Courts  took  exception  to  a  jurisdiction  which 
deprived  them  of  litigants  and  of  fees.  The  judges,  in 
assailing  the  Court  of  Requests  with  writs  of  prohibition, 
treated  it  as  a  new  Court  created  under  the  early  Tudors, 
with  neither  statutory  authority  nor  immemorial  custom  to 
support  its  jurisdiction.  The  validity  of  the  writ  by  which 
obedience  to  the  orders  of  the  Court  was  enforced  was 
challenged  in  the  Common  Pleas  in  159^,  and  it  was  held 
that '  the  Court  of  Requests  or  the  Whitehall  was  no  Court 
that  hath  a  power  of  Judicature  V 

This,  in  the  view  of  Coke,  terminated  the  existence  of  the 
Court,  though  he  speaks  with  regret  of  its  discontinuance. 
But  he  was  premature :  the  need  of  cheap  and  speedy 
justice  prevailed  over  the  alleged  infirmity  of  jurisdiction ; 
and  the  Masters  of  Requests,  presided  over  by  the  Lord 
Privy  Seal,  did  a  large  judicial  business  throughout  the 
reigns  of  James  I  and  Charles  I.  Even  the  Act  for  the 
abolition  of  the  Court  of  Star  Chamber,  which  would  seem 
to  have  taken  away  from  the  Privy  Council  all  jurisdiction 
exercisable  by  the  ordinary  courts  of  justice,  did  not  inter- 
fere with  the  action  of  the  Court  of  Requests.  But  it 
ceased  to  sit  in  the  troubled  times  of  the  Civil  War,  and 
was  not  revived  by  Charles  II 2. 
A  court  to  In  the  Court  of  Requests  the  Council  exercised  a  civil 
jurisdiction  in  the  interests  of  those  who  wanted  to  get 
justice  cheaply.  But  there  was  another  class  of  cases  in 
which  the  strong  hand  of  the  executive  was  needed.  Here 
the  Council  dealt  with  offences  against  order,  disregard  of 
proclamations,  fraud,  forgery  and  the  mutilation  of  docu- 
ments, perjury,  conspiracy ;  these  were  punished  with  fine, 
imprisonment,  the  pillory,  loss  of  ears,  and  whipping  3. 

This  seems  to  have  been  an  original  jurisdiction  of  the 

1  Coke,  Inst.,  iv.  p.  97. 

2  The  Committee  of  Council,  appointed  Feb.  7,  1667  (when  there  was 
a  general  re-arrangement  of  the  Committees),  to  deal  with  petitions  and 
grievances,  was   forbidden  'to  meddle  with  questions  of  property,  or 
what  relates  to  meum  &  tuum.'     Register  of  Privy  Council,  Charles  II, 
vol.  vii.  p.  173.     See  also  Selden  Series,  xii.  p.  1,  li. 

3  Acts  of  the  Privy  Council,  ed.  Dasent,  i.  39,  105,  124,  209. 


Sect.  i.  §3      THE   COURT   OF  STAR   CHAMBER  71 

King's  Council,  sometimes,  but  not  necessarily,  exercised  in 
the  Star  Chamber.     The  often-cited  Act  3  Henry  VII,  c.  i 
constituted  a  committee  of  the  Council,  the  Chancellor, 
Treasurer,  Lord  Privy  Seal,  or  any  two  of  them,  with  a  The  Star 
spiritual  and  a  lay  member  of  the  Council,  and  with  the  c<hamber' 
addition  of  the  two  Chief  Justices,  or  other  two  judges, 
to  deal  with  cases  of  livery  and  maintenance,  misconduct 
of  sheriffs,   and   other    specified    offences    against    order. 
A  later  Act  added  the   President  of  the  Council  to  this 
Court1. 

The  object  and  effect  of  this  Act  has  been  much  discussed. 
Let  us  first  look  at  the  facts.  The  Council  did  not  cease  to 
exercise  some  criminal  jurisdiction  throughout  the  reign  of 
Henry  VIII,  and  in  1540  took  power  to  compel  those  whom 
it  summoned  to  enter  into  recognizances  to  attend  its  plea- 
sure until  they  were  dismissed,  a  power  constantly  exercised 
and,  one  must  suppose,  in  a  manner  very  irksome  to  the 
subject2.  Among  the  Committees  which  Edward  VI  ap- 
pointed, one  was  to  deal  with  offences  against  order,  the 
disregard  of  proclamations,  and  the  infliction  of  the  necessary 
punishments  3 ;  and  during  the  reigns  of  Mary  and  Elizabeth 
we  find  the  Council  dealing  with  offences,  mostly  in  the 
nature  of  seditious  language,  and  ordering  punishments. 

A  secretary  of  the  reign  of  Elizabeth  setting  out  his 
duties,  records  the  distinction  which  existed  between  two 
branches  of  the  work  of  the  Council — matters  of  public 
interest,  foreign  or  domestic,  and  matters  between  party 
and  party.  And  of  this  second  branch  little  is  dealt  with 
by  the  Lords  of  the  Council,  but  in  case  of  breaches  of  the 
peace  '  the  Lords  do  either  punish  the  offender  by  commit- 
ment, or  do  refer  the  matter  to  the  Star  Chamber,  where 
great  riots  and  contempts  are  punished  V 

1  21  Hen.  VIII,  c.  20.   This  jurisdiction  is  recognized  in  5  Eliz.  c.  9,  §  7. 

'  Nicolas,  vii.  27,  and  see  Acts  of  the  Council,  ed.  Dasent.  Between 
April  1542  and  the  end  of  December  1546  no  less  than  158  such  recogni- 
zances are  recorded. 

3  Burnet,  History  of  Reformation,  vol.  v.  p.  117.  There  were  six  Com- 
mittees :  one  to  deal  with  the  civil,  one  with  the  criminal  jurisdiction  of 
the  Council  :  others  for  the  State,  for  the  revenue,  for  the  collection  of 
debts  due  to  the  King,  and  for  the  bulwarks. 

*  Prothero,  Constitutional  Documents,  167. 


72  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

How  Thus  side  by  side  with  this  jurisdiction  of  the  Privy 

fromPrivy  Council  we  find  existing  another  jurisdiction,  that  of  the 
Council.  Lords  of  the  Council  sitting  in  the  Star  Chamber1.  To  this 
Court  matters  are  constantly  referred  by  the  Privy  Council 
in  the  reigns  of  Henry  VIII,  Edward  VI,Mary,and  Elizabeth ; 
and  when  the  Star  Chamber  is  mentioned  in  the  Acts  of  the 
Council,  it  is  as  the  Court  in  which  a  case  should  be  tried2, 
before  which  an  individual  should  appear3,  or  a  jury  be 
censured  *.  Once  there  is  a  suggestion  of  jealousy  on  the 
part  of  the  Council.  Sir  William  Paulet,  whose  case  had 
been  deferred  that  he  might  formulate  his  charge,  transferred 
it  to  the  Star  Chamber.  The  Council  ordered  that  a  matter 
brought  before  their  table  should  not  be  removed  to  another 
Court  without  their  authority,  and  required  Paulet  with  all 
speed  to  exhibit  his  bill  of  complaint  before  them  6.  Thus, 
while  we  have  two  Courts,  both  of  them  exercising  inquisi- 
torial and  judicial  powers,  we  find  that  one  makes  only  an 
occasional  use  of  these  powers,  and  is  engaged  mainly  in 
administrative  work.  It  remains  to  ask  what  distinction 
is  to  be  found  between  Council  and  Star  Chamber  as  regards 
jurisdiction,  composition,  or  procedure. 

Their  One  cannot  suppose  that  the  offences  designated  in  the 

Fdentical  ^^  °^  Henry  VII  might  not,  apart  from  Statute,  have  been 
dealt  with  by  the  Council  at  large,  or  that,  if  they  had 
been  assigned  to  a  Committee  of  the  Council,  the  King 
might  not  have  summoned  two  judges,  not  members  of  the 
Council,  to  assist  the  Committee.  The  Act  did  not  create 
new  offences,  or  a  new  jurisdiction,  but  it  specified  certain 

1  When  Cranmer,  on  his  first  appearance  before  the  Council,  was  ordered 
to  appear  before  them  on  the  following  day  at  the  Star  Chamber,  we  seem 
to  be  on  the  point  of  identifying  the  two  Courts.  But  the  body  which  was 
present  in  the  Star  Chamber  next  day  was  a  Committee  of  the  Council 
'  appointed  to  sit  upon  the  offenders.'  It  was  not  the  Court  of  Star 
Chamber,  for  it  transacted  some  administrative  business,  besides  sending 
Cranmer  to  the  Tower.  Acts  of  the  Privy  Council,  iv.  347. 

*  Acts  of  the  Privy  Council,  ed.  Dasent,  v.  p.  71. 

*  Ibid.  i.  p.  386  :  iii.  pp.  41,  176,  216,  388  :  v.  p.  193. 

4  Ibid.  vi.  pp.  382,  411  :  vii.  pp.  347,  207.  In  this  last  case  the  jury  was 
summoned  from  Cornwall  for  acquitting  a  man  charged  with  piracy,  in 
order  that  the  matter  might  be  heard  in  the  Star  Chamber  on  the  first  day 
of  Term. 

*  Acts  of  the  Privy  Council,  ed.  Dasent,  vii.  405. 


Sect.  i.  §3         THE   COURT   OF   STAR   CHAMBER  73 

offences  which  the  circumstances  of  the  time  had  brought 
into  prominence,  entrusted  certain  persons  with  the  exercise 
of  a  power  which  the  Council  had  always  possessed  *,  and 
legalized  procedure  by  writs  of  Subpoena  and  Privy 
Seal.  Thus  a  stimulus  and  a  definiteness  were  given  to  the 
exercise  by  the  Council  of  a  coercive  jurisdiction  which 
extended  beyond  the  express  provision  of  the  Act. 

And  though  the  jurisdiction  thus  exercised  would  seem  Their  pro- 
to  be  that  of  the  King's  Council,  there  were  differences  in  C€ 
procedure,  the  sittings  of  the  Star  Chamber  were  public, 
and  were  confined  to  the  term  time,  and  the  evidence  of 
those  who  came  before  the  Court  was  given  upon  oath. 
When  these  differences  arose  it  is  not  possible  to  say. 
Moreover,  the  persons  who  compose  the  Court  are  not 
the  same  as  those  who  habitually  sit  at  the  Council 
Board.  All  contemporary  authority  on  the  subject  of  the  and  corn- 
Star  Chamber  points  to  the  inclusion  of  men  whose 
dignity  or  learning  strengthens  the  Court,  but  who  are 
outside  the  circle  of  habitual  advisers  of  the  Crown.  It 
might  be  said  that  the  Concilium  Ordinarium  is  here  dis- 
cernible, but  I  will  not  strive  at  greater  precision  than  the 
evidence  permits,  and  will  say  that  the  Star  Chamber  was 
a  Council  of  the  Crown,  that  it  exercised  a  jurisdiction 
which  the  Privy  Council  might  have  exercised,  but  that 
it  included  persons  whom  the  Privy  Council  did  not 
include 2. 

1  Thus  Bacon  says  :  '  In  the  Star  Chamber  a  sentence  may  be  good 
grounded  in  part  upon  the  authority  given  the  Court  by  3  Hen.  VII,  and 
in  part  upon  that  ancient  authority  which  the  Court  hath  by  the  Common 
Law.'     Bacon's  Works,  ed.  Spedding,  vii.  379. 

2  Bacon  describes  the  Court  as  compounded  of  four  elements,  Councillors, 
Peers,  Prelates,  and  Chief  Judges.     Works,  ed.  Ellis  and  Spedding,  vi.  85. 
Camden  names  certain  great  officers,  as  composing  the  Court,  'et  omnes 
consiliarii  status  tarn  ecclesiastic!  quam  laici,  etex  baronibus  illi  quos  princeps 
advocabit.'    Britannia,  ed.   1594,  p.  na.    Sir  Thomas  Smith  includes,  in 
addition  to  '  the  Lords  and  others  of  the  Privy  Council,  as  many  as  will, 
other  Lords  and  Barons  which  be  not  of  the  Privy  Council  and  which  be  in  the  town.' 
Commonwealth  of  England,  bk.  iii.  ch.  4.     Crompton  says  :  '  Le  Court  de 
Star  Chamber  est  Hault  Court,  tenus  avant  le  Roy  et  son  Conseil  et  outers.1 
Courts  de  la  Royne,  pp.  29,  35.     Finally,  Hudson  tells  us  that  Lords  of 
Parliament  who  were  not  members  of  the  Privy  Council  claimed,  and,  in 
some  cases,  exercised,  the  right  to  sit  and  give  judgment.    Treatise  of  the 


74  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

Abolition  In  1640  the  Long  Parliament  passed  an  Act  called  'an 
cfimnber  ^c*  ^or  ^ne  regulating  the  Privy  Council  and  for  taking  away 
the  Court  commonly  called  the  Star  Chamber.'  In  the 
preamble  to  this  Act,  the  Star  Chamber  is  assumed  to  be  a 
Court  of  criminal  jurisdiction  created  by  the  Act  3  Hen.  VII, 
c.  i.  It  is  asserted  to  have  exceeded  the  powers  conferred 
by  that  Act,  and  it  is  abolished.  But  the  composition  of  the 
Court  is  suggested  in  the  words  which  forbid  '  any  bishop, 
temporal  lord,  privy  councillor,  judge  or  justice  whatsoever ' 
to  hear  and  determine  any  matter  in  the  Court  henceforth 
abolished.  The  Privy  Council,  or  Council  Board,  is  also 
forbidden  to  '  intermeddle  in  civil  causes  and  suits  of  private 
interest  between  party  and  party  ' ;  and  persons  committed 
by  the  King  in  person  or  by  order  of  the  Council  are  to  have 
a  writ  of  habeas  corpus. 

The  Long  Parliament  may  have  been  historically  wrong 
in  tracing  the  origin  of  the  Court  of  Star  Chamber  to  the 
Act  of  Henry  VII,  but  there  can  be  no  question  that  a 
distinction  was  drawn  between  the  Star  Chamber  and  the 
Privy  Council  as  to  their  composition  and  as  to  the  matters 
dealt  with  by  the  two  Courts.  With  this  enactment,  the 
judicial  powers  of  the  King's  Council  acting  as  a  Court  of 
first  instance  within  the  jurisdiction  of  the  Courts  of  law  is 
brought  to  a  close. 

§  4.     The  closer  Relations  of  Council  and  Parliament. 

Nomina-        The  Commons  had  ceased,  from  1422  onwards,  to  demand 

ParHa"     ^e  nomination  in  Parliament  of  the  King's  Council.     We 

ment        do  not  know  the  time  at  which  the  Council  ceased  to  be 

appointed  for  a  year,  and  began  to  hold  office  during  the 

King's  pleasure  ;  nor  when  they  ceased  to  be  paid  for  their 

services.     Probably  the  Council  of  Regency  which  managed 

affairs  in  the  minority  of  Henry  VI  set  the  example  of  an 

indefinite  tenure  of  office  ;  and  the  great  lords  who  composed 

the  later  Lancastrian  Councils  were  able  to  take  care  of 

themselves  without  payment. 

Court  of  Star  Chamber,  Collectanea  luridica,  i.  25,  and  see  Prothero, 
Constitutional  Documents,  1559-1625,  pp.  180-3. 


Sect.  i.  §  4  COUNCIL   AND   PARLIAMENT  75 


From  1459  to  I^31  there  is  no  instance  of  an  impeach- 
ment by  the  Commons.  It  would  seem  as  though  they  had 
altogether  relaxed  their  hold  on  the  Executive. 

And  yet  the  connexion  between  Council  and  Parliament  The 
grew  closer  under  the  Tudors.     In  the  House  of  Lords  the  PJaclng  ?f 

e  the  Lords. 

dignity  of  the  Council  was  enhanced  by  the  '  Act  for  placing 
of  the  Lords  V  The  Chancellor,  the  Treasurer,  the  President 
of  the  Council,  the  Lord  Privy  Seal,  if  peers,  take  place 
above  the  highest  members  of  the  peerage  ;  the  King's 
Secretary,  if  a  bishop  or  a  baron,  sits  above  all  other 
bishops  or  barons. 

In  the  lower  House  the  attempts  to  establish  communi- 
cations between  the  representatives  of  the  Commons  and 
the   representatives  of  the   Crown  take  different   forms. 
Henry  VIII  used  to  require  the  Speaker2  to  be  the  ex- 
ponent of  his  wishes,  and  on  a  few  occasions  Ministers  of  the 
Crown  who  were  not  members  of  the  Commons  made  un-  Communi- 
welcome  visits  to  the  Commons  House3.     But  from  1  560  ^t!^"  ne 
onwards  the  King's  Ministers,  the  Chancellor  of  the  Exche-  Commons. 
quer  and  the  Secretaries  are  active  in  debate,  and  the  Tudor 
practice  of  adding  to  the  constituencies  and  tampering  with 
the  electorate  was  designed  to  secure  seats  for  Court  officials 
and  nominees.     In  1614  the  presence  of  Privy  Councillors 
was  noticed  in  the  House  of  Commons,  but  though  their  Presence 
right  to  be  present  was  discussed,  it  was  not  contested  and  "ers  -m 
was  never  afterwards  disputed  4.     To  admit  members  of  Commons, 
the  Council  to  discuss  the  King's  business  in  the  midst  of 
them  gave  the  Commons  a  surer  mode  of  obtaining  the 
control  of  affairs  than  the  mere  nomination  of  Ministers 
in  Parliament.     We  approach   the  modern   connexion   of 
Executive    and    Legislature,  but  it   is  by   slow   degrees. 
When  the  authors  of  the  Grand  Remonstrance,  in   1641, 
asked  that  the  King  should  only  employ  such  Councillors 
and  Ministers  as  could  obtain  the  confidence  of  Parliament, 
they  probably  had  no  clear  idea  as  to  the  mode  in  which 
that  confidence  should  be  expressed. 

1  31  Hen.  VIII,  c.  10. 

*  Stubbs,  Lectures  on  Mediaeval  and  Modern  History,  272. 

3  In  1514  and  1523.     Parl.  Hist.  i.  482-5.  4  Pail.  Hist.  i.  1163. 


76  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

At  least,  the  presence  of  Ministers  n  the  House  of  Com- 
mons explaining  their  policy  and  the  King's  needs  was 
a  surer  and  more  practicable  mode  of  harmonizing  Legis- 
lature and  Executive  than  the  use,  however  frequent,  of 
the  remedy  by  impeachment. 

a  better  Impeachment  was  a  valuable  weapon  when  it  was  first 
than"*7  i11^^11^  in  the  fourteenth  century,  and  again  when  its 
impeach-  practice  was  revived  by  the  Commons  in  1621  under  kings 
who  were  ready  to  strain  the  Constitution  to  the  point  of 
rebellion.  It  was  then  important  to  be  able  to  strike 
a  heavy  blow  at  the  instruments  of  the  royal  will.  But 
for  the  ordinary  purposes  of  controlling  or  dismissing 
a  careless,  perverse,  or  incapable  Minister,  the  Commons, 
with  no  other  means  in  their  power  than  impeachment, 
were  much  in  the  position  of  an  employer,  who  could  not 
dismiss  a  useless  or  impertinent  servant,  but  must  wait  till 
he  was  able  to  proceed  by  indictment  for  larceny  or  assault. 
The  authors  of  the  Grand  Remonstrance  said  truly  '  that 
the  Commons  might  have  cause  often  justly  to  take  ex- 
ceptions at  some  men  for  being  counsellors  and  yet  not 
charge  those  men  with  crimes1.'  It  was  only  by  their 
presence  in  the  House  of  Commons  that  Ministers  could  be 
made  to  understand  that  they  were  indeed  the  servants 
of  the  King,  but  of  the  King  as  the  official  representative 
of  the  people. 

SECTION  II 
THE  SUPERSESSION  OP  THE  COUNCIL 

§  1.   Evolution  of  the  Cabinet. 

The  The  Restoration  did  not  give  back  to  the  Council  the 

after  the    judicial  powers  which  the  Long  Parliament  had  taken  away. 

Restora-     Duties,  consultative  and  executive,  still  remained,  and  we 

now  have  to  trace   the  supersession  of  the  Council,  as  a 

consultative  body,  in  favour  of  that  group  of  confidential 

servants  of  the  Crown  which  we  know  as  the  Cabinet. 

The  result  of  the  contest  between  Charles  I  and   his 
Parliament  showed  that  the  King  could  not  govern  except 
on  amicable  terms  with  Parliament,  and  as  he  must  govern 
1  Clarendon,  Rebellion,  bk.  iv.  a.  73. 


Sect.  ii.  §  1  MODERN   PRACTICE  77 

through  ministers  it  would  follow  that  these  ministers 
must  be  acceptable  to  Parliament.  This  truth  was  not 
realized  at  once :  and  the  process  by  which  a  correspondence 
of  political  opinion  between  ministers  and  the  House  of 
Commons  has  been  secured  was  a  slow  one.  But  it  began 
in  the  reign  of  Charles  II. 

We  are  used  to  see  a  group  of  ministers  acting  together  Contrast 
on  lines  of  policy  approved  by  the  majority  of  the  House  cfi^of  °~ 
of  Commons,  under  a  leader  whom  we  know  as  the  Prime  to-day 
Minister :  meeting  for  consultation  in  a  body  which  we  call 
the  Cabinet,  and  holding  office  so  long  as  their  policy 
commands  the  confidence  of  Parliament  and  of  the  country. 
Each  of  these  ministers  is  at  the  head  of  some  branch  of 
government — Foreign  Affairs,  the  Army,  Trade,  Education — 
which  he  administers  with  the  aid  of  a  large  staff  of 
permanent  officials,  and  he  represents  this  department,  for 
purposes  of  explanation  or  defence,  in  the  House  of  which 
he  is  a  member.  A  subordinate  minister  outside  the  circle 
of  the  Cabinet  represents  the  department  in  that  House  of 
which  his  chief  is  not  a  member.  Before  a  minister  adopts 
any  measure  of  novelty  or  importance  in  the  conduct  of  his 
department  he  would  be  bound  to  consult  his  colleagues  in 
the  Cabinet  and  abide  by  their  decision. 

Over  against  these  ministers  and  their  majority  are  the 
opposition  leaders  with  the  minority  behind  them,  watching 
and  waiting  till  the  turn  of  public  opinion  gives  them 
a  majority  and  transfers  to  them  the  government  of  the 
country. 

The  Privy  Council  is  therefore  at  the  present  time  re- 
duced, for  ordinary  purposes,  to  executive  business  which 
is  formal  and  not  discretionary,  while  its  consultative 
functions  have  disappeared. 

But  in  the  reign  of  Charles  II  and  for  some  time  after  and  those 
we  can  see  only  the  bare  rudiments  of  such  a  scheme  of  jL 
government. 

We  find  indeed  a  body  of  ministers,  holding  high  offices 
of  State,  though  not  necessarily  administrative  offices1, 

1  To  illustrate  my  meaning  I  would  point  out  that  the  President  of  the 
Council,  the  Lord  Privy  Seal,  and  the  Lord  Chamberlain  were  always  in 


78  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

meeting,  with  more  or  less  regularity,  for  purposes  of  con- 
sultation. But  though  one  of  these  may  enjoy  a  predomi- 
nant influence  with  the  sovereign,  there  is  no  recognized 
Prime  Minister,  first  in  the  royal  confidence  and  entrusted 
with  the  choice  of  his  colleagues  ;  nor  is  there  any  necessary 
coherence  of  political  opinion  nor  even  any  sense  of  personal 
loyalty  among  the  groups  of  men  who  meet  to  discuss  and 
settle  the  policy  of  the  country. 

Theab-          On  the  other  hand,  with  the  exception  of  the  Treasury 

sence  of     an(j  the  Admiralty,  the  departments  of  government  as  we 

ments :      understand  them  do  not  exist.     The  duties  of  the  Secretaries 

of  State  were  divided  in  a  manner  so  arbitrary l  as  to  show 

clearly  that  neither  was  expected  to  administer  any  branch 

of  our  affairs,  foreign  or  domestic.    The  Secretaries  were, 

in  those   days,  merely  the  channels   through   which   the 

decisions  of  the  King  in  Council  were  communicated  to 

those  concerned. 

Administrative  business,  not  always  excepting   that  of 
the  Treasury  and  Admiralty,  was  carried  on  by  Committees 
of  the  Council,  or,  if  important,  was  prepared  by  them  for 
submission  to  the  full  Council  before  action  was  taken, 
their  We  are  not  here  concerned  with  the  growth  and  structure 

growth.  Q£  £he  departments  of  government,  so  it  is  enough,  for 
present  purposes,  to  say  that  the  administrative  duties  of 
the  Council  have  gradually  been  transferred  to  Secretaries 
of  State  or  to  Boards,  nominally  consisting  of  a  President 
and  a  number  of  great  officers  of  State2.  In  fact  the 
Board  is  the  President,  who  is  assisted  by  a  Parliamentary 
Secretary,  usually  representing  the  Board  in  the  House  of 
which  the  President  is  not  a  member. 

Our  concern  here  is  with  the  Councils  of  the  Crown. 

the  inner  circle  of  advisers.  Their  offices  cannot  be  called  administra- 
tive. Nor  indeed,  in  those  days,  was  the  office  of  Secretary  of  State. 

1  One  Secretary  was  responsible  for  communication  with  the  Northern, 
the  other  with  the  Southern  powers  of  Europe. 

2  The  statutory  composition  of  those  Boards  is  at  once  a  reminder  that 
they  spring  from  Committees  of  Council  and  a  warning  against  a  too 
literal  acceptance  of  rules  of  constitutional  machinery  as  representing 
what   actually   happens.     If  a  Secretary  of  State  was  summoned  to  a 
meeting  of  the  Board  of  Trade,  or  the  Board  of  Education,  he  would 
probably  learn  for  the  first  time  that  he  was  a  member  of  the  Board. 


Sect.  ii.  §  1        THE   BEGINNINGS   OF   THE   CABINET  79 

The  Council  which  now  determines  the  policy  of  the  country  Council 

is  the  Cabinet,  all  of  whose  members  are  also  members  of  ^n?- 

(Jitbinet. 

the  much  larger  body  of  Privy  Councillors.  That  there 
was,  during  the  reign  of  Charles  II,  and  earlier,  such  an 
inner  circle  of  advisers  of  the  Crown  is  not  difficult  to 
show.  But  in  following  out  its  history  we  have  to  trace 
the  process  by  which  the  Cabinet  becomes  definite  in  com- 
position, uniform  in  political  opinion,  collectively  responsible 
for  every  act  of  Government.  The  task  is  somewhat 
difficult :  this  Cabinet,  powerful  and  important  as  it  is,  has 
never  been  recognized  by  law  ;  it  is  rare  that  we  obtain  any 
record  of  its  transactions ;  it  has  varied  in  composition  and 
numbers  from  time  to  time  under  the  political  conditions 
of  the  moment ;  and  its  relation  to  Parliament,  and  to  the 
country,  is  undergoing  constant,  if  imperceptible  change. 
The  history  of  the  Privy  Council  is  recorded  in  the  Registers 
of  the  Council :  that  of  the  Cabinet  must  be  made  out  from 
casual  notices  in  memoirs  and  correspondence. 

Neither  an  inner  council  nor  the  name  '  Cabinet '  were 
unknown  in  the  time  of  Charles  I.  Sometimes  the  name  in  the 
is  applied  to  a  definitely  constituted  committee  of  the  Privy 
Council,  sometimes  to  a  group  of  advisers  enjoying  the 
special  confidence  of  the  King.  Thus,  in  the  State  papers 
of  the  early  months  of  1640,  the  Committee  for  Foreign 
Affairs  is  referred  to  as  the  '  Lords  of  the  Junto  V  the  com-  com- 
mittee for  Scotch  Affairs  as  •  the  Cabinet  Council.'  But  in 
July  1640  we  find  the  Lords  of  the  Junto  dealing  with 
a  question  relating  to  the  coinage :  while  a  body  of  persons 
identical  in  composition  with  the  Committee  for  Scotch 
Affairs  is  described  by  Clarendon  as  '  the  Committee  of 
State  which  was  reproachfully  called  the  Juncto  and 
enviously  then  in  Court  the  Cabinet  Council  V 

It  is  extremely  probable  that  where  a  Committee,  set  up 
for  a  particular  purpose,  was  found  to  consist  of  persons 
who  in  a  special  manner  commanded  the  confidence  of  the 
King  he  used  it  for  general  consultation  and  advice.  But 

1  State  Papers  Domestic,  1639-40.  See  letters  of  Jan.  10,  Feb.  7, 
Feb.  20,  March  5,  July  14. 

a  Clarendon  History  of  the  Rebellion  (ed.  Macray),  ii  99. 


80  THE   COUNCILS   OF   THE   CEOWN  Chap.  II 

where  no  system  existed  we  may  exert  our  ingenuity  vainly 
in  the  endeavour  to  construct  one. 

The  Commons,  in  the  Grand  Remonstrance,  demanded 
that  the  King  should  employ  such  ministers '  as  Parliament 
may  have  cause  to  confide  in.'  A  method  by  which  the 
existence  or  withdrawal  of  their  confidence  might  be  shown 
was  suggested  in  the  words,  'without  which  we  cannot 
give  his  Majesty  such  supplies  for  the  support  of  his  own 
estate  nor  such  assistance  to  the  Protestant  party  beyond 
the  sea,  as  is  desired.' 

The  King  in  reply  asserted  his  right  to  choose  his 
ministers,  and  stated  that  he  proposed  always  to  employ 
persons  of  ability  and  integrity  l. 

Charles  II.  In  the  reign  of  Charles  II  a  change  in  the  direction  of 
modern  practice  begins.  On  the  one  hand  the  administrative 
and  departmental  duties  of  the  Privy  Council  become  more 
clearly  defined :  on  the  other  the  Cabinet,  under  that  name, 
becomes  a  permanent,  if  somewhat  indefinite  and  unacknow- 
ledged, feature  of  our  institutions. 

Com-  Throughout  this  reign  the  Committees  of  the  Council 

Council  were  undergoing  constant  reorganization  and  change.  At 
its  commencement  we  find  three  standing  Committees,  for 
the  Treasury,  for  Irish  Affairs  and  for  Foreign  Plantations  ; 
others  were  appointed  from  time  to  time  for  particular  pur- 
poses. In  1667  there  was  an  important  rearrangement2, 
and  the  Committees  for  Foreign  Affairs,  for  the  Admiralty, 
for  Trade  and  Plantations,  and  for  Petitions  of  complaint 
and  grievances  are  constituted  with  definite  rules  and 
duties.  The  Foreign  Committee  is  so  important  during 
the  next  three  reigns  that  it  has  been  thought  to  contain 
the  germ  of  the  Cabinet ;  but  though  there  may  have  been 
times  when  this  Committee  and  the  group  of  confidential 
advisers  consisted  of  the  same  persons,  the  work  of  the 
Committee  was  departmental,  while  that  of  the  Cabinet 
was  concerned  with  general  policy. 

and  inner      This  group  of  advisers  appears  at  the  beginning  of  the 

Cabinet. 

1  Gardiner,  Constitutional  Documents,  153,  158. 

a  Register  of  Privy  Council,  Charles  II,  vol.  vii.  p.  173. 


Sect.  ii.  §1  THE   FIRST   CABINETS  81 

reign,  but  on  a  small  scale.  It  was  necessary  that  some 
communication  should  be  maintained  between  the  House 
of  Commons  and  the  King's  ministers,  because  money  was 
wanted ;  the  sources  of  revenue  assigned  by  Parliament  to 
the  King  did  not  produce  the  sum  contemplated  1,  and  the 
funds  needed  would  not  be  forthcoming  unless  a  Parlia- 
mentary majority  could  be  secured  for  a  grant.  To  obtain 
this  majority  the  ministers  of  Charles  relied,  not  upon 
a  community  of  political  opinion  with  the  Commons,  but 
upon  appeals  to  the  loyalty,  the  good  nature,  or  the  self- 
interest  of  individual  members. 

How  these  appeals  were  to  be  made  was  settled  in  con-  The  inner 
ference  between  Clarendon  and  Southampton,  the  Chan-  n°"°ci1 
cellor  and  Treasurer,  and  leading  members  of  the  House  of  Cabinet. 
Commons ;  these  two  ministers  for  a  time  advised  Charles 
and  determined  the  policy  of  the  country.  Soon  however  the 
King  invited  others  to  the  conference,  and  appears  to  have 
himself   dabbled  in   Parliamentary  management,   making 
promises  without   much  regard  to  the  prospect  of  their 
fulfilment 2. 

But  though  one  of  the  objects  of  this  Committee  was  to 
obtain,  by  argument  or  inducement,  the  concurrence  of 
a  majority  of  the  Commons  with  the  wishes  of  the  King,  it 
does  not  satisfy  our  notion  of  a  Cabinet.  It  was  not 
a  body  of  men  who  agreed  on  political  questions,  for 
Clarendon  strongly  resented  the  introduction  of  Ashley, 
Coventry,  and  Arlington  to  its  consultations.  The  opinion 
of  the  majority  did  not  bind  the  action  of  its  members,  for 
Clarendon  and  Southampton  successfully  opposed  a  Bill  to 
enable  the  Crown  to  dispense  with  statutory  requirements 
as  to  religious  tests,  though  the  Bill  had  been  introduced 
into  the  House  of  Lords  by  Ashley  with  the  approval  of 
the  King 3. 

The  meetings  of  this  body  were,  in  Clarendon's  time, 
informal  in  character,  and  uncertain  in  place ;  and  although 
general  questions  of  policy  were  discussed,  yet  in  grave 
matters  of  public  interest,  as,  for  instance,  the  sale  of 

1  State  Papers,  Calendar  of  Treasury  Books,  pp.  xxviii,  xiix. 
1  Clarendon,  Autobiography,  ii.  205.  3  Ibid.  344-9. 

AHSON.    CROWN  Q 


82  THE    COUNCILS   OF   THE   CROWN  Chap.  II 

Dunkirk,  the  result  of  the  discussion  was  laid  before  the 
full  Council l  for  decision. 

Certainly  before  the  end  of  the  reign  the  term  '  Cabinet ' 
was  used  for  the  groups  of  confidential  servants  who  advised 
the  King,  and  their  meetings  also  attained  a  certain  regu- 
larity. Political  unanimity  does  not  appear  to  have  been 
necessary  or  expected.  The  Cabal  was  certainly  not  a 
harmonious  body,  yet  Burnet  speaks  of  a  subject  in  1673 
as  being  '  much  debated  in  the  Cabinet  V 

Temple's  The  representative  Privy  Council  of  Sir  William  Temple's 
design,  that  transient  and  embarrassed  phantom  in  our 
constitutional  history,  is  interesting  as  showing  how  the 
need  of  reconciling  the  executive  and  the  legislature  was 
'dimly  felt  in  the  seventeenth  century,  and  how  the  problem 
puzzled  the  statesmen  of  the  time. 

Its  origin :  The  government  of  Charles  II  had  undergone  a  series  of 
catastrophes;  Clarendon  had  been  impeached;  the  Cabal 
broke  up  in  a  storm  of  unpopularity ;  then  again  Danby 
was  impeached.  These  violent  ends  of  successive  ministries 
led  Charles  II  to  invite  Temple,  a  diplomatist  of  tried 
ability  and  integrity,  to  try  to  devise  a  ministry  which 
should  keep  in  touch  with  the  House  of  Commons. 

its  compo-  Temple  proposed  that  a  Council  should  be  formed  of 
thirty  persons,  chosen  from  the  various  political  parties, 
and  also  containing  representatives  of  the  church,  the  law, 
and  the  mercantile  and  landed  interests.  He  believed  that 
the  representative  character  of  this  Council  would  commend 
it  to  Parliament,  while  the  varied  knowledge  and  experience 
of  its  members  would  make  it  an  efficient  adviser  to  the 
Crown.  He  forgot  that  if  his  Council  was  thus  to  mirror 
the  conflicting  political  opinions  and  the  varied  interests  of 
the  country,  discussion  would  be  lengthy  and  controversial, 
and  that  the  obligation  of  secrecy  would  be  extremely 
difficult  to  maintain.  The  advice  tendered  by  such  a  Council 
was  not  likely  to  be  harmonious,  prompt,  or  confidential. 
On  April  ai,  1679,  Temple's  scheme  saw  light,  the  King 

1  Clarendon,  Autobiography,  ii.  248. 

*  Burnet,  '  History  of  My  Own  Time,'  ii.  8. 


Sect.  ii.  §  1        CABINET,    COMMITTEE,    AND   COUNCIL         83 

made  a  speech  to  the  existing  Council  in  which  he  thanked 
them  for  their  services  and  discharged  them  from  further 
attendance  on  the  ground  that  their  numbers  made  secrecy 
impossible,  that  he  had  been  obliged,  in  consequence,  to 
transact  business  with  a  smaller  body  of  advisers,  and  that 
he  wished  henceforth  '  to  lay  aside  the  use  of  any  single 
ministry,  or  private  advisers,  or  foreign  committees,  for  the 
general  direction  of  his  affairs  V 

But  this  Council  followed  the  course  of  its  pre-  its  failure, 
decessors.  Three  Committees  were  at  once  appointed, 
for  Foreign  Affairs,  for  Tangier,  and  for  Trade  and  Planta- 
tions ;  Temple  himself  joined  a  small  group  which  was 
formed  for  the  discussion  of  general  business,  outside  the 
Council,  and  was  presently  indignant  because  the  King 
consulted  another  group  in  which  he  was  not  included2. 
In  a  year's  time  things  went  on  as  before. 

Towards  the  close  of  the  reign  the  Cabinet  becomes  a 
more  definite  institution.  Lord  Guilford  had  been  given 
a  place  on  Temple's  Council  as  Lord  Chief  Justice  of 
the  Common  Pleas.  Not  long  afterwards  he  became  Lord 
Keeper,  and  was  summoned  to  meetings  of  the  Cabinet.  In 
Roger  North's  life  of  Guilford,  the  Council,  the  Committees 
of  Council,  and  the  Cabinet  assume  distinct  shape. 

The  Council  met   every  Thursday.     The  Lord  Keeper  The 
attended    these   meetings,  and   also   '  the   Committees  of     u 
Council,  as  for  Trade  and  Plantations,  &c.,  which  might  be 
called  English  business,  but  he  never  cared  to  attend  at 
the  Committee  for  Foreign  Affairs,  and  yet,  though  he  Com- 
always  declined  giving  any  opinion   in   that  branch   of 
royal  economy,  he  could  not  avoid   being  in  the  way  of 
the  ordinary  deliberations  of   that  kind  by  reason  of  his 
attendance  at  the  said  Councils.' 

We  see  here  the  Committees  preparing  business  for  final 
discussion  and  settlement  at  the  Council,  which  has  evidently 
not  yet  lost  its  voice  in  the  conduct  of  affairs. 

But  behind  these  is  a  body  which  is  neither  Committee 

1  Registers  of  the  Privy  Council,  Charles  II,  vol.  xv. 
8  Temple's  Works,  ii.  538,  541. 
Q   2 


84  THE   COUNCILS   OF   THE   CROWN  Chap.  IT 

The  nor  Council.     The  Cabinet,  we  learn,  met  every  Sunday. 

Cabinet,  -j^  consisted  of  '  those  few  great  officers  and  courtiers  whom 
the  King  relied  on  for  the  interior  despatch  of  his  affairs  ' : 
who  '  had  the  direction  of  most  transactions  of  government, 
foreign  and  domestic  V  This  was  the  body  which  settled 
questions  of  policy,  and  its  work  is  plainly  different  from 
that  of  the  Committees  of  Council. 

Cabinet  of  In  the  reign  of  William  III  the  Cabinet  becomes  a 
jj|  iam  recognized  institution,  though  its  importance  is  sometimes 
obscured  by  the  strong  will  and  political  capacity  of  the 
King.  An  illustration  of  the  complete  independence  of 
action,  which  William  assumed  in  some  departments  of 
public  affairs,  is  to  be  found  in  his  correspondence  with  Pen- 
sionary Heinsius  on  the  subject  of  the  First  Partition  Treaty. 
His  English  ministers  are  never  mentioned.  Parliament  is 
referred  to  from  time  to  time  as  likely  to  give  trouble 
about  money  and  troops.  The  nation  is  described  as 
inclined  to  peace,  but  '  if  war  is  to  be  the  upshot  of  this 
business  I  must  take  my  measures  to  bring  this  nation 
insensibly  into  it2.'  He  speaks  throughout  of  the  move- 
ments of  ships  and  troops,  and  the  terms  to  be  made  with 
foreign  powers,  as  matters  for  his  own  decision. 
The  Evidently  he  desired  to  act  for  himself,  or,  if  consultation 

vievf'ofa  was  necessary>  to  consult  with  few.  In  fact,  at  the  be- 
Cabinet.  ginning  of  the  reign,  there  are  signs  that  he  regarded  the 
Cabinet  as  a  formal  dignified  body,  whose  advice  would 
not  be  asked  in  matters  of  urgent  importance. 
Seymour's  This  is  suggested  by  the  case  of  Sir  Edward  Seymour, 
who  in  1692  accepted  office  as  a  junior  Lord  of  the 
Treasury,  and  was  sworn  of  the  Privy  Council.  He 
claimed  that  his  rank  entitled  him  to  sit  above  Hampden, 
the  Chancellor  of  the  Exchequer,  at  the  Treasury  Board. 
This  was  impossible,  but  his  susceptibilities  on  the  question 
of  precedence  were  met  by  his  admission  to  the  Cabinet 3. 

1  Life  of  Lord   Keeper  Guilford,  by  Roger   North,  pp.  aa^  sq.     The 
narrative  extends  into  the  reign  of  James  II ;  and  we  get  another  glimpse 
of  the  Cabinet  of  James.     The  East  India  Company's  charter  of  1687 
received  '  the  approbation  of  the  King  declared  in  His  Majesty's  Cabinet 
Council.'     Ilbert,  Government  of  India,  p.  22. 

2  Hardwicke  State  Papers,  vol.  ii.  pp.  340,  347,  358,  362. 

3  Luttrell's  Diary,  vol.  ii.  473,  485,  490. 


Sect.  ii.  §  1        THE   CABINET   OF   WILLIAM   III  85 

The  case  of  Lord  Normanby,  two  years  later,  is  inter-  Norman- 
esting  because  it  shows  us  William's  views  as  to  consultation  by's  case- 
with  his  ministers.  Normanby  was  made  a  member  of  the 
Cabinet  without  office.  He  complained  that,  when  the  King 
was  abroad,  the  Queen  had  held  a  meeting  of  ministers  to 
which  he  was  not  summoned.  The  ministers  summoned  were 
Portland,  the  Lord  President ',  the  Lord  Chancellor 2,  the 
Lord  Privy  Seal 3,  the  Master  of  the  Ordnance 4,  and  the 
two  Secretaries  of  State5.  The  business  concerned  the 
service  of  the  fleet  in  the  Mediterranean  and  off  the  coast 
of  France.  Normanby  was  not  satisfied  by  the  assurance 
that  this  was  not  a  Cabinet  Council.  Shrewsbury  wrote  to 
William  on  the  subject,  and  the  reply  is  instructive : — 

'It  is  true  that  I  did  promise  my  Lord  Normanby  that 
when  there  was  a  Cabinet  Council  he  should  assist  at  it :  but 
surely  this  does  not  engage  either  the  queen  or  myself  to 
summon  him  to  all  the  meetings  which  we  may  order,  on 
particular  occasions,  to  be  attended  solely  by  the  great  officers 
of  the  Crown,  namely,  the  lord  keeper,  the  lord  president,  the 
lord  privy  seal,  and  the  two  secretaries  of  State.  I  do  not 
know  why  Lord  Sydney  was  summoned  to  attend  unless  it  was 
on  account  of  some  business  relative  to  the  artillery,  which, 
however,  might  have  been  communicated  to  him.  I  do  not  see 
that  any  objection  can  be  made  to  this  arrangement,  whenever 
the  queen  summons  the  aforesaid  officers  of  the  Crown  to  con- 
sult on  some  secret  and  important  affair.  Assuredly  that 
number  is  fully  sufficient,  and  the  meeting  cannot  be  considered 
as  a  Cabinet  Council  since  they  are  distinguished  by  their 
offices  from  the  other  counsellors  of  State,  and  therefore  no  one 
can  find  fault  if  they  are  more  trusted  and  employed  than  the 
others  V 

William  appears  to  hold  that  a  place  in  the  Cabinet  might  be 
given  as  a  compliment  to  a  Privy  Councillor,  but  that '  secret 
and  important  affairs '  are  not  for  the  Cabinet  but  for  a  few 
great  officers  whom  the  Crown  may  please  to  consult. 
There  is  not  only  no  sense  of  the  collective  responsibility 

1  Carmarthen.  *  Somers.  *  Pembroke. 

4  Sidney.  s  Shrewsbury  and  Trenchard. 

8  Shrewsbury  Correspondence  (Coxe),  pp.  34,  38. 


86  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

of  the  Cabinet  or  of  this  inner  group  ;  there  is  hardly  any 
sense  of  the  individual  responsibility  of  those  who  may  be 
'  trusted  and  employed  above  others.' 
Cabinet  An  interesting  light  is  thrown  on  the  practice  of  the  time 
in  this  respect  by  the  minutes  which  Shrewsbury  kept  of 
Cabinet  meetings  held  in  the  years  1694, 1695, 1696.  About 
sixty  such  meetings  are  recorded  in  the  Montagu  House 
papers,  and  are  there  described  as  '  Privy  Council  Minutes.' 
They  are  clearly  Cabinet  minutes  kept  by  Shrewsbury  for 
his  own  information,  as  may  be  seen  if  they  are  compared 
one  by  one  with  the  official  records  of  meetings  of  the  Privy 
Council  during  that  period l. 

The  persons  present  at  the  Cabinet  vary  but  slightly 
from  one  meeting  to  another.  The  President  of  the  Council, 
the  Lord  Privy  Seal,  the  two  Secretaries  of  State,  Godolphin 
and  Russell  representing  the  Treasury  and  the  Admiralty, 
form  a  nucleus.  The  Archbishop  becomes  a  regular  at- 
tendant from  the  date  of  Tenison's  appointment.  The 
Master  of  the  Ordnance,  the  Lord  Steward,  the  Lord 
Chamberlain  appear  less  frequently.  It  is  possible  to 
identify  the  meeting  held  on  May  14,  i6942  as  the  meeting 
which  was  the  cause  of  offence  to  Normanby,  because  he 
was  not  summoned.  He  is  present  at  the  next  recorded 
meeting,  the  minutes  of  which  are  significantly  endorsed 
by  Shrewsbury  as  'Cabinet  Council.'  The  name  of 
Seymour  does  not  often  appear.  Evidently  there  was  an 
outer  and  an  inner  circle  of  the  Cabinet.  Normanby,  by 
his  importunity,  forced  his  way  into  this  inner  circle :  but 
others,  less  exacting,  were  less  frequently  summoned. 
Sunderland  had  more  definite  views  as  to  the  Cabinet, 

1  Hist.  MSS.  Commission.  Montagu  House  Papers,  vol.  ii.  parti.  Meetings 
are  recorded  on  fifty-nine  days.  On  one  of  these,  May  4,  1695,  the  Cabinet 
met  apparently  six  times.  A  comparison  of  these  minutes  with  the  Register 
of  the  Privy  Council  shows  that  on  forty-seven  of  these  days  no  Council 
was  held.  On  the  occasions  when  a  Council  was  held  on  the  same  day 
as  one  of  the  meetings  recorded  by  Shrewsbury,  the  persons,  the  business, 
and  sometimes  the  place  differ  ;  except  on  one  occasion,  Dec.  9,  1694,  when 
his  minute  is  clearly  a  note  of  special  business,  which,  as  we  can  learn 
from  the  Register,  was  assigned  to  Shrewsbury  at  a  meeting  of  the  Privy 
Council. 

1  Hist.  MSS.  Commission.     Montagu  House  Papers,  vol.  ii.  part  i.  p.  66. 


Sect.  ii.  §2       THE   CABINET   OF   WILLIAM   III  87 

and  these  were  shared,  as  we  shall  see  later,  by  Boling-  Clearer 
broke l  concep- 

tion of 
In  1 70 12  he  writes  to  Somers  as  to  the  conduct  of  affairs  Cabinet 

in   the   event  of   a  whig  majority  being  returned  at  the  duties, 
genera]  election  then  pending.     Among  other  things  he 
proposes : — 

'  None  to  be  of  the  Cabinet  but  those  who  have  in  some  sort 
a  right  to  be  there  by  their  employment. 

Archbishop,  Lord  Keeper,  Lord  President,  Lord  Privy  Seal, 
Lord  Chamberlain,  First  Lord  of  the  Treasury  and  two  Secre- 
taries of  State.  The  Lord  Lieutenant  of  Ireland  must  be  there 
when  in  England.  If  the  king  would  have  more  it  should  be 
the  First  Commissioner  of  the  Admiralty,  and  the  Master  General 
of  his  Ordnance. 

It  would  be  much  for  the  king's  service  if  he  brought  his  affairs 
to  be  debated  at  that  Council.' 

Three  things  are  noticeable  in  this  passage :  the  clear 
conception  of  a  Cabinet  Council  at  which  affairs  of  general 
policy  should  be  discussed ;  the  disinclination  of  the  King 
to  use  such  a  Council ;  and  the  small  regard  paid_^to  the 
representation  in  the  Cabinet  of  the  holders  of  great 
administrative  offices — William  had  thought  that  the  Master 
of  the  Ordnance  should  take  his  orders  without  being 
consulted.  Sunderland  thinks  that  he  might  possibly  be 
admitted  into  a  Cabinet  which  necessarily  should  contain 
the  Archbishop,  the  Lord  Chamberlain  and  the  Lord  Privy 
Seal. 

§  2.    The  Cabinet  and  the  Commons. 

At  this  point  it  is  necessary  to  turn  from  the  evolution  Responsi- 
of  the  Cabinet  and  its  relations  with  the  King  to  the  question  ptoHa- 
of  ministerial  responsibility  to  Parliament  as  affected  by  meat, 
the  existence  of  the  Cabinet.    Responsibility  to  Parliament 
was  imperfectly  understood,  although  from  the  reign  of 
Edward  III  onwards  attempts  had  been  made  to  secure  it. 
Legal  responsibility  only  exists  if  it  can  be  enforced  ;  it  can 
only  be  enforced  by  some  form  of  penalty  ;  and  a  convenient 
form  of  penalty  was  not  as  yet  discovered. 

1  Infra,  p.  95.  2  Hardwicke  State  Papers,  ii.  461. 


88 


THE   COUNCILS   OF   THE    CROWN 


Chap.  II 


The 

penalty  of 
an  erring 
minister. 


Difficul- 
ties astoits 
character, 


and  as  io 
its  inci- 
dence. 


Want  of 
depart- 
mental 
responsi- 
bility. 


For  the  King,  whether  he  loved  pleasure  like  Charles  II, 
or  religion  like  James  II,  or  power  like  William  III, 
wanted  to  direct  his  government  to  the  ends  he  desired, 
and  if  he  found  ministers  in  whom  he  had  confidence,  he 
was  not  disposed  to  change  them  because  his  confidence  was 
not  shared  by  the  House  of  Commons.  He  had  to  learn 
that,  inasmuch  as  the  needs  of  State  outran  the  resources 
placed  at  the  disposal  of  the  Crown,  he  could  only  govern 
through  men  able  and  willing  to  induce  the  Commons  to 
supplement  those  revenues  by  additional  supplies. 

The  Commons  were  prepared  to  assume  that  the  acts  of 
the  government  were  the  acts  of  the  King's  ministers,  not  of 
the  King  himself :  but  they  wanted  to  be  able  to  punish 
an  erring  minister  if  they  could  be  sure  of  punishing  the 
right  man. 

The  punishment  was  clumsy  enough — impeachment  or 
attainder  resulting  in  exile,  imprisonment,  fine,  or  death — 
until  it  came  to  be  understood  that  the  expression  of 
popular  disapproval,  shown  by  a  vote  of  the  House  of 
Commons  or  the  result  of  a  general  election,  was  a  sign 
that  the  entire  ministry  must  be  changed  or  that  a  minister 
who  had  acted  on  his  own  responsibility  must  leave  office. 

But  the  difficulty  of  the  time  was  not  merely  to  find  the 
right  punishment,  but  to  fix  responsibility  on  the  right 
persons. 

Some  part  of  this  difficulty,  as  in  the  case  of  William  III, 
might  arise  from  the  independent  action  of  the  King,  and 
some  from  the  absence  of  any  notion  of  a  ministry  acting 
as  a  whole ;  but  a  great  deal  was  due  to  a  state  of  things 
which  we  can  hardly  realize,  the  want  of  government 
departments  working  under  responsible  political  chiefs. 

If,  at  the  present  day,  the  public,  through  the  House  of 
Commons,  has  reason  to  complain  of  the  condition  of  the 
Navy,  the  conduct  of  Irish  affairs,  the  administration  of 
the  Post  Office,  there  is  a  minister  directly  responsible  for 
each  of  these  departments  who  can  be  called  to  account. 
If  his  action  has  been  approved  by  the  Cabinet  the  ministry 
must  stand  or  fall  by  the  decision  of  the  Commons.  If  he 
has  acted  on  his  own  responsibility,  his  colleagues  may,  or 


Sect.  ii.  §  2         MINISTERIAL   RESPONSIBILITY  89 

may  not,  defend  him,  and  he  may  be  compelled  to  resign. 
But  departmental  business,  at  the  date  of  the  Act  of  Settle- 
ment, was  largely  transacted  through  Committees  of  the 
Privy  Council.  Thus  individual  responsibility  was  lost 
while  the  Cabinet  recognised  no  collective  responsibility. 

The  difficulty  which  might  arise  from  the  independent  The  King 
action  of  the  King  is  illustrated  by  the  incidents  of  the 
First  Partition  Treaty :  William  conducted  the  negotiations 
in  Holland,  but  he  could  not  conclude  a  treaty  without 
formalities  which  needed  the  use  of  the  Great  Seal,  and 
this  again  needed  a  sign  manual  warrant  with  the  counter 
signature  of  a  Secretary  of  State. 

Portland,  therefore,  our  ambassador  at  Paris,  was  directed  Somers 
to  communicate  the  terms  of  the  Treaty  to  Vernon,  for  the  partition 
information  of  Somers :   and  the  King  himself  wrote  to  Treaty ; 
Somers  desiring  him  to  consult  such  of  his  colleagues  as  he 
thought  proper  to  be  admitted  to  the  secret,  and  asking 
that  the  necessary  forms  should  be  sent  to  him  without 
letting  their  purport  be  known  to  any  but  these  few  favoured 
Counsellors. 

Somers  had  interviews  with  Vernon  and  Montagu,  com- 
municated by  letter  with  Oxford  and  Shrewsbury,  and, 
with  Vernon,  sent  the  necessary  powers  to  the  King,  adding 
some  words  of  warning. 

In  1701  Somers  was  charged,  on  his  impeachment,  with  herepu- 
his  conduct  in  respect  of  the  Partition  Treaty.    He  answered 
that  he  had  affixed  the  Great  Seal  on  the  authority  of  Ht 
a  sign  manual  warrant,  countersigned  by  a  Secretary  of 
State,  that  he  had  offered  an  opinion  about  the  treaty,  but 
was  not  responsible  for  its  terms,  and  that  he  had  acted  as 
the  King  bade  him. 

To  us  it  would  seem  that  Somers  should  either  have 
refused  to  affix  the  seal  to  the  powers  needed  for  making 
the  treaty,  or  else  that  he  should  have  accepted  responsibility 
for  its  terms.  To  us  it  seems  surprising  that  the  King 
should  not  have  submitted  the  result  of  these  important 
negotiations  to  his  entire  Cabinet,  and  that  Somers  after 
a  perfunctory  consultation  with  four  of  his  colleagues  should 
have  supplied  the  King  with  powers  in  blank  and  pleaded 


90  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

the  King's  commands  as  relieving  him  from  all  respon- 
sibility. 

Irrespon-  But  this  only  illustrates  one  side  of  the  difficulties  of  the 
r  b^ifcy. of  time—  Somers  was  at  any  rate  an  ascertainable  person,  in 
charge  of  the  Great  Seal,  for  the  use  of  which  he  might  be 
called  to  account.  The  Cabinet  was  a  more  elusive  body. 
At  the  close  of  1692  there  was  an  interesting  debate  in  the 
House  of  Commons  on  the  cost  and  ill  success  of  the  war, 
on  our  losses  at  sea,  and  on  the  advice  to  be  given  to  the 
King.  The  House  resolved  that  '  the  great  affairs  of 
Government  had  been  for  some  time  past  unsuccessfully 
managed  under  those  that  had  the  direction  thereof,'  and 
asked  their  majesties  to  prevent  this  by  employing  'men  of 
known  integrity  and  ability.'  But  in  the  course  of  debate 
it  was  asked  how  the  House  could  ascertain  who  were  in 
fault.  One  speaker  says, '  I  know  not  where  we  are  wounded. 
I  would  not  have  the  management  in  such  hands  in  the 
future  ;  but  this  cannot  be  wrhile  we  have  a  Cabinet  Council.' 
Another  says, '  The  method  is  this  ;  things  are  concerted  in 
the  Cabinet  and  then  brought  to  the  Council :  such  a  thing 
being  resolved  in  the  Cabinet  and  put  upon  them,  for  their 
assent,  without  showing  any  of  the  reasons.'  He  goes  on 
to  say  that  this  practice  has  given  dissatisfaction  at  the 
Council,  and  adds,  '  If  this  method  be,  you  will  never  know 
ivho  gives  advice  V 

A  third,  almost  in  the  language  of  the  Act  of  Settlement, 
says,  '  I  would  have  every  Counsellor  set  his  hand  to  his 
assent,  or  dissent,  to  be  distinguished.' 

The  debate  ended  with  a  resolution  which  would  now  be 
regarded  as  a  vote  of  censure  on  a  ministry  ;  it  had  no  such 
effect  as  would  now  follow  from  such  a  vote. 

and  of  A  recognition  of  the  need  of  varying  the  composition  of  a 

individual  minjstry  as  the  balance  of  parties  shifted,  would  not  of  itself 

minister. 

meet  the  complaint  of  the  speakers  quoted  above.  Nor 
would  the  substitution  of  the  Privy  Council  for  the  Cabinet 
have  given  the  House  of  Commons  the  opportunity  which 
it  desired  for  attacking  incompetent  management  in  the 
various  departments  of  Government. 

1  Parl.  Hist.  vol.  v.  p.  731. 


Sect.  ii.§2  THE   ACT   OF   SETTLEMENT  91 

The  framers  of  the  Act  of  Settlement  did  not  see  the  The  real 
whole  difficulty,  and  failed  to  find  a  remedy  for  what  they  remedy» 
did  see. 

What  was  needed  was  the  responsibility  of  individuals 
for  specific  branches  of  State  affairs,  and  of  these  individuals 
as  a  body  for  the  action  of  one  another  and  the  policy  of 
the  whole :  so  that  when  a  department  was  ill  conducted 
or  general  policy  disapproved  the  minister  who  was  to 
blame  or  the  entire  ministry  should  lose  place  and  power. 
It  was  not  necessary  in  the  public  interest  that  they  should  not  under- 
be  banished  or  sent  to  prison  or  lose  their  heads.  But  the  stood* 
Commons  of  that  day  could  not  forecast  the  mode  in  which 
the  constitution  would  work  out,  nor  conjecture  the  ultimate 
practical  solution  of  their  difficulties.  They  feared  lest  bad 
or  incompetent  servants  of  the  Crown  might  escape  punish- 
ment or  be  retained  in  favour  because  their  evil  counsels 
could  not  be  brought  home  to  them,  or  because  they  could 
set  up  a  royal  pardon  or  command  for  the  malpractices  to 
which  they  had  been  parties. 

In  the  first  instance  the  treatment  of  this  question  was  Proposed 
embarrassed  by  the  fear  lest  the  representatives  of  the  ®£  jjinis" 
people  themselves,  who  should  stand  forth  as  the  accusers  ters  from 
of  those  who  did  wrong  or  gave  evil  advice  in  high  places, 
might  themselves  be  infected  by  the  presence  of  persons 
holding  office  under  the  Crown,  and  thereby  incapacitated 
from  judging  fairly  when  the  interests  of  King  and  people 
seemed  to  conflict. 

This  fear  so  far  prevailed  that  a  provision  was  introduced 
into  the  Act  of  Settlement  excluding  persons  holding  office 
under  the  Crown  from  sitting  in  the  House  of  Commons. 
Had  not  this  provision  been  repealed  in  1705  before  the 
Act  came  into  operation  ministers  would  have  lived  secluded 
administrative  lives,  free  indeed  from  the  liability  to  daily 
question  and  criticism,  but  deprived  of  the  opportunity  of 
defence  and  explanation  which  keeps  the  ministers  of  to- 
day in  fairly  close  correspondence  with  the  wishes  of  the 
people  as  represented  in  Parliament. 

The  endeavour  to  ensure  that  ministers  should   be  ac- 


92  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

The  Act  of  countable  for  the  advice  which  they  gave  was  embodied  in 
ment'and  another  provision. 

Council^  '  From  and  after  the  time  that  the  further  limitations  by  this 
Act  shall  take  effect,  all  matters  and  things  relating  to  the  well 
governing  of  this  kingdom  which  are  properly  cognizable  in 
the  Privy  Council  by  the  laws  and  customs  of  this  realm  shall 
be  transacted  there,  and  all  resolutions  taken  thereupon  shall 
be  signed  by  such  of  the  Privy  Council  as  shall  advise  and 
consent  to  the  same.' 

The  House  of  Commons  may  have  thought  that  the 
responsibility  of  ministers  was  now  secured,  but  there  must 
have  been  some  misgivings  in  the  minds  of  such  of  them  as 
knew  how  the  business  of  State  was  done. 

The  Privy  Council,  unless  reduced  in  number,  and  re- 
constituted from  time  to  time,  so  as  to  secure  some  com- 
munity of  political  opinion  among  its  members,  would  have 
proved  an  unworkable  machine  for  the  purposes  of  govern- 
ment. It  had,  in  fact,  been  proved  to  be  so  by  Sir  William 
Temple's  experiment. 

The  requirement  of  a  signature  was  a  clumsy  way  of 
securing  responsibility  for  advice  given  in  Council ;  more- 
over it  would  often  have  failed  to  identify  the  real  culprit, 
because  the  policy  recommended  may  have  been  sound,  but 
marred  by  departmental  inefficiency. 

Burnet 1  says  that '  it  was  visible  that  no  man  would  be 
a  Privy  Councillor  on  those  terms.'  It  must  have  been 
equally  visible  that  no  Privy  Council  could  conduct  the 
business  of  State  under  the  proposed  conditions. 

The  Act  of  One  more  precaution  taken  in  the  Act  of  Settlement  is 
to  be  found  in  the  provision  that:  — 

' No  Pardon  under  the  Great  Seal  of  England  be  pleadable  to 
mercy.       an  impeachment  by  the  Commons  in  Parliament.' 

The  case  of  Danby  was  in  the  minds  of  those  who 
framed  this  provision.  Such  a  case  would  arise  if  the 
various  officers  of  State  responsible  for  the  formalities 
necessary  to  the  use  of  the  Great  Seal  were  ready  to  assist 

1  '  History  of  My  Own  Time,'  v.  34. 


Sect.  ii.  §2  THE    ACT   OF   SETTLEMENT  93 

the  King  to  exercise  the  prerogative  of  mercy,  not  to  pardon 
a  criminal  tried  and  sentenced,  but  to  prevent  the  question 
of  criminality  from  being  tried. 

It  might  also  arise  in  the  case  of  so  scandalous  a  breach  Danby'« 
of  duty  as  was  committed  by  Lord  Chancellor  Nottingham  case' 
in  the  case  of  Danby.  Charles  II  sent  for  Nottingham 
desiring  him  to  bring  the  Great  Seal.  The  Chancellor  came, 
with  the  Great  Seal  in  charge  of  an  attendant.  Danby 
produced  a  pardon,  which  the  King  signed,  and  then  took 
the  Seal  from  Nottingham  and  ordered  the  attendant  to 
affix  it  to  the  pardon l.  The  act  was  a  direct  breach  of 
Statute  law  governing  the  use  of  the  Seal,  and  Nottingham, 
by  taking  the  Seal  back  from  the  King's  hands,  made  him- 
self a  party  to  this  illegality.  No  doubt  he  deserved 
impeachment  as  much  as  Danby.  But  the  provision  of  the 
Act  of  Settlement  was  in  fact  out  of  date.  No  King 
since  the  Revolution  has  made,  or  would  be  likely  to  make, 
himself  responsible  for  an  act  which  the  Commons 
considered  deserving  of  impeachment,  by  thus  using  his 
prerogative  of  pardon. 

The  framers  of  the  Act  of  Settlement,  with  the  best 
intentions,  did  nothing  to  bring  about  that  responsi- 
bility of  ministers  to  Parliament  with  which  they  were 
so  much  concerned.  Their  work  is  interesting  only 
as  showing  that  they  realized  a  difficulty  which  custom 
and  the  instincts  of  practical  convenience  have  gradually 
brought  to  a  solution.  How  those  great  solvents  of  con- 
stitutional legislation  would  have  modified  in  their  working 
the  two  provisions  of  the  Act  of  Settlement  repealed  in 
1 705  must  remain  a  matter  for  speculation. 

In  the  reign  of  Anne,  Cabinet  and  Council  are  more  The 
distinct  than  in  the  days  of  William  III,  but  we  still  find 
three  consultative  bodies  under  various  titles,  the  Cabinet, 
or  Lords  of  the  Cabinet  Council,  the  Lords  of  the  Com- 
mittee or  the  Committee  of  Council,  and  the  Privy  Council 
or  Great  Council;  the  three  bodies  which  had  demanded, 
in  different  degrees,  the  attention  of  Lord  Keeper  Guilford. 
1  Journals  of  the  House  of  Commons,  ix.  575. 


94  THE   COUNCILS   OF   THE   CROWN  Chap.  IT 

The  The  Cabinet  determines  policy :  the  Committee  of  Council 

Commit-    does  the  work  which  to-day  is  done  by  the  departments  of 
tee>  Government,  the  Council  gives  formal  expression  to  the 

royal  will.  In  the  reign  of  Anne  the  Foreign  Committee 
assumes  an  importance  disproportionate  to  that  of  others, 
but  this  may  be  because  we  learn  the  workings  of  the 
machine  chiefly  from  the  letters  of  Bolingbroke  who  was 
largely  concerned  with  the  business  of  that  Committee l. 
In  his  correspondence  we  see  the  Cabinet  which  settled 
questions  of  general  policy  sitting  in  the  presence  of  the 
Queen :  the  Lords  of  the  Committee  or  Lords  of  the  Council, 
who  worked  through  the  details  of  the  Treaty  of  Utrecht : 
the  Privy  Council,  who  gave  their  formal  assent  to  the  treaty 
and  authority  to  affix  the  Great  Seal  to  its  ratification. 

Thus  in  the  framing  of  the  Treaty  of  Peace  and  Commerce 
with  Spain,  Bolingbroke  informs  the  Queen  that  'the  draft 
will  be  ready  for  the  Lords  of  the  Council  to-morrow,  and 
for  the  Cabinet  on  Sunday,  when  I  presume  you  would  have 
the  Cabinet  sit  as  usual  V  Again,  five  days  later  he  an- 
nounces that  the  Lords  of  the  Council  have  gone  through 
half  the  treaty  and  expect  to  finish  it  the  next  day  :  '  my 
Lord  President  will  take  care  to  summon  the  Great  Council, 
pursuant  to  your  Majesty's  commands,  for  Thursday  morn- 
ing3.' 

Three  points  come  out  in  the  history  of  the  Cabinet 
during  this  reign. 

The  The  first  of  these  is  the  closer  connexion  of  the  Cabinet 

andThe     w^h  the  departments  of  Government.     Sunderland  in  the 

depart-      previous  reign  regarded  the  First  Lord  of  the  Admiralty 

and  Master  of  the  Ordnance  as  persons  who  might  or  might 

not  be  in  the  Cabinet.     But  nine  years  later  Bolingbroke 

speaks  of  the  first  office  as  necessarily  bringing  the  holder 

into  the  Cabinet,  but  not  the  second :  '  The  employment  of 

1  Bolingbroke,  Letters,  i.  167 :  '  I  have  not  been,  to  own  the  truth  to  your 
Grace,  this  month,  at  the  Committee  of  Lords  which  sits  at  the  War  Office.' 
There  appears  to  have  been  a  Committee  to  examine  Quiscard  in  Newgate, 
Letters,  i.  102.  The  assembly  before  whom  he  appeared  when  he  stabbed 
Harley  would  seem  to  be  the  Cabinet ;  see  Swift,  Narrative  of  Guiscard's 
Examination. 

8  Sept.  24, 1713.  s  Sept.  29,  1713. 


Sect.  ii.  §  2  THE   CABINET   OF   ANNE  95 

First  Commissioner  of  the  Admiralty  brings  your  Lordship 
(Strafford)  into  the  Cabinet,  which  would  not  have  been  if 
the  other  employment  (Master  of  the  Ordnance)  had  fallen 
to  your  share,  without  making  a  precedent  for  enlarging 
the  Cabinet,  which  Her  Majesty  had  much  rather  confine 
than  extend  V 

Shrewsbury,  writing  to  Harley,  speaks  in  the  same  way 
of  the  Treasury  Commission.  '  In  my  mind  you  should  be 
at  the  head,  because  you  then  come  naturally  into  the 
Cabinet  Council  where  you  are  much  wanted  V 

The  second  point  is  that,  although  we  may  note  a  tendency 
to  connect  the  Cabinet  more  closely  with  actual  administra- 
tion, the  want  of  political  chiefs  responsible  for  particular 
departments  is  obviously  felt  by  Parliament. 

In  January,  1711,  a  debate  arose  in  the  Lords  on  the  The  need 
conduct  of  the  war  in  Spain,  and  a  resolution  amounting  ^en^ 
to  censure  of  '  the  Cabinet  Council '  was  moved,  together  responsi- 
with  an  address  to  the  Queen  that  she  would  '  be  pleased  to 
give  leave  to  any  Lord,  or  other,  of  her  Cabinet  Council, 
to  communicate  to  the  House  any  paper  or  letter  relating  to 
the  affairs  of  Spain.'  The  Queen  gave  the  permission  asked 
for,  and  came  down  '  incognito  to  hear  the  debate  V  The 
resolution  was  then  moved,  with  the  substitution  of  '  minis- 
ters '  for  '  Cabinet  Council.'  Upon  this  there  ensued  a  long 
wrangle  as  to  the  greater  or  less  precision  of  the  substituted 
words.  Lord  Rochester  stated  emphatically  that  the  Queen 
was  not  responsible,  '  that  according  to  the  fundamental 
constitution  of  this  kingdom  Ministers  are  responsible  for 
all.'  But  this  did  not  help  the  object  of  the  debate,  which 
really  was  to  pass  a  censure  on  some  definite  person  or 
group  of  persons.  It  was  urged  with  truth  that  '  ministers ' 
was  a  word  of  uncertain  signification,  and  might  include 
persons  who  had  no  part  in  the  policy  which  misdirected 
the  war  in  Spain :  while  '  Cabinet  Council '  was  a  '  word 
unknown  in  our  law,'  and  if  a  censure  was  passed  the 
House  ought  to  know  whom  they  were  censuring.  The 

1  Bolingbroke,  Letters,  iii.  27. 

3  Hist.  Manuscripts  Committee,  MSS.  of  Marquis  of  Bath,  i.  198. 

s  Parl.  Hist.  vol.  vi.  p.  971. 


96  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

truth  was  that  there  was  neither  collective  responsibility  for 
policy,  nor  individual  responsibility  for  departmental  ineffi- 
ciency. A  vote  of  censure  had  no  terrors  for  a  Cabinet  which 
had  no  sense  of  corporate  existence,  and  when  either  House 
tried  to  ascertain  more  precisely  the  cause  of  a  trouble,  respon- 
sibility disappeared  in  a  Committee  of  the  Privy  Council. 
Privy  Thirdly,  the  Great  Council,  that  is,  the  Privy  Council,  has 

forxnai'1  &  now  ^>een  reduced  to  formal  executive  action.  In  this 
executive ;  respect  its  position  had  manifestly  changed  in  thirty  years, 
as  may  be  seen  by  comparing  the  meeting  to  approve  the 
sale  of  Dunkirk  with  the  meeting  to  sanction  the  peace 
of  Utrecht.  The  sale  of  Dunkirk  was  debated  at  length 
at  the  Council  Board,  though  it  had  already  been  fully 
discussed  at  the  Cabinet  or  Committee,  and  Clarendon 
mentions  with  satisfaction  that  there  was  but  one  dis- 
sentient voice l.  When  the  Treaties  of  Peace  and  Commerce 
were  laid  before  the  Privy  Council  in  1713,  and  the  Queen 
proposed  their  ratification,  Lord  Cholmondeley  suggested 
a  postponement  for  further  consideration,  but  he  was  told 
that  the  time  for  exchanging  ratifications  was  settled,  and 
was  so  near  at  hand  that  no  postponement  was  possible. 
The  treaties  thereupon  passed  the  Council,  and  next  day 
Lord  Cholmondeley  was  deprived  of  his  place  in  the 
Queen's  Household 2. 

except  on  On  one  celebrated  occasion  the  Privy  Council  resumed 
of  Amfe*1  ^e  functi°ns  of  a  Cabinet.  The  meeting  at  Kensington, 
when  Anne  lay  dying,  was  a  meeting  of  the  Council,  and  is 
so  recorded  in  the  Register;  and  their  Lordships,  'con- 
sidering the  present  exigency  of  affairs,  were  unanimously 
of  opinion  to  move  the  Queen  that  she  would  constitute  the 
Duke  of  Shrewsbury  Lord  Treasurer  3.' 

Having  ascertained  that  the  Queen  was  in  a  condition  to 
be  spoken  to,  the  wish  of  the  Council  was  communicated 
to  her  by  certain  members  of  the  Board.  Shrewsbury 
was  summoned  to  receive  the  staff  of  office,  and  on  his 
return  measures  were  taken  for  the  security  of  the 

1  Clarendon,  Autobiography,  ii.  248. 

1  Parl.  Hist.  vi.  1170.     Swift's  Journal,  April  7  and  8,  1713. 

8  Register  of  the  Council,  July  30,  1714. 


Sect.  iii.  §  1          THE   CABINET  OF  GEORGE   1  9? 

kingdom  against  a  possible  surprise  by  the  adherents  of  the 
Stuarts. 

This  is,  if  not  the  last,  at  any  rate  a  very  exceptional 
exercise  by  the  Privy  Council  of  deliberative  as  well  as 
executive  powers.  From  the  date  of  the  Revolution  we 
may  say  that  the  Cabinet  became  the  motive  power  in  the 
Executive  of  the  country. 

SECTION  III 

THE  CABINET 

§  1.  The  Council  and  the  Cabinet. 

The  accession  of  George  I  marks  the  beginning  of  Cabinet  The  de- 
Government  as  we  understand  the  term.  The  King  had  P® jV^° c®j 
hitherto  recognised  the  predominance  of  a  party,  as  affecting  on  a  party, 
his  choice  of  ministers,  only  when  circumstances  put  con- 
straint upon  him.  The  natural  inclination  of  a  Sovereign 
would  be  to  choose  ministers  on  grounds  of  individual 
merit  rather  than  of  party  politics ;  but  we  have  seen  how 
William  III  and  Anne  gradually,  sometimes  reluctantly, 
shaped  their  ministries  to  correspond  with  the  balance  of 
parties  in  Parliament.  George  I,  however,  from  the  outset, 
and  of  necessity,  placed  his  confidence  in  the  leaders  of  the 
party  which  secured  his  accession ;  the  party  which  by 
reason  of  the  quicker  intelligence  and  better  organization  of 
its  members,  rather  than  by  its  numerical  superiority  in  the 
country,  was  able  to  keep  him  on  the  throne.  There  was 
no  question  of  playing  off  one  party  against  another,  or 
selecting  the  best  men  from  both  sides.  The  ministry  of 
George  I  was  necessarily  Whig. 

And  George  I  did  not  preside  at  Cabinet  meetings.  The  His  ab- 
effect  of  this  was  twofold  ;  the  King  lost  initiative  and  con- 
trol  in  discussing  and  settling  the  policy  of  the  country ;  and, 
as  some  one  must  preside  at  these  meetings,  the  place  hitherto 
occupied  by  the  King  was  taken  by  a  minister  :  the  Prime 
Minister  becomes  a  more  definite  person  than  heretofore. 

Thus,  in  the  words  of  Lord  Acton, '  Government  by  party 
was  established  in  1714,  by  party  acting  by  Cabinet,'  and 
'the  power  of  governing  the  country  was  practically  trans- 
ferred. It  was  shared,  not  between  the  minister  and  the 

ANSON.     CKOWN  JJ 


98  THE   COUNCILS  OF  THE  CROWN  Chap.  II 

King,  but  between  the  head  of  the  ministry  and  the  head  of 
the  opposition  V  The  latter  statement  is  perhaps  an  anti- 
cipation, for  organized  opposition  hardly  existed  before 
the  time  of  Burke,  but  this  great  change  of  1714  is  clearly 
marked  ;  and  here  we  may  finally  distinguish  the  functions 
of  Cabinet  and  Council. 
Difference  The  Cabinet  are  'His  Majesty's  servants.'  The  Privy 
Council  are  'the  Lords  and  others  of  His  Majesty's  most 


Cabinet  Honourable  Privy  Council.'  To  describe  the  Cabinet  as 
Council.  a  Committee  of  the  Privy  Council  is  misleading.  Every 
meeting  of  the  Privy  Council  from  which  the  King  is 
absent  is  a  Committee,  even  if  every  member  should  be 
summoned  and  present.  But  the  Cabinet  does  not  meet  as 
a  Committee  of  the  Privy  Council,  for  it  is  not  so  con- 
stituted. The  Cabinet  meets  for  the  purpose  of  advising 
the  Crown,  and  as  its  members  are  not  otherwise  bound  by 
any  obligation  of  secrecy,  it  would  seem  that  to  be  sworn 
of  the  Privy  Council  is  a  necessary  prelude  to  admission 
Difference  to  the  Cabinet2.  The  Cabinet  considers  and  determines 
on'  how  the  King's  Government  may  best  be  carried  on  in  all 
its  important  departments;  the  Privy  Council  meets  to 
carry  into  effect  advice  given  to  the  King  by  the  Cabinet 
or  by  a  Minister,  or  to  discharge  duties  cast  upon  it  by 
custom  or  statute.  Committees  of  the  Council  meet  to  act 
or  advise  on  specified  matters.  It  is  necessary  that  a 
member  of  the  Cabinet  should  be  under  the  obligations  of 
a  Privy  Councillor,  because  the  oath  of  the  Privy  Councillor 
assumes  that  he  is  a  confidential  adviser  of  the  Crown. 

But  the  Privy  Council  is  essentially  an  executive,  the 
Cabinet  a  deliberative  body.  The  policy  settled  in  the 
Cabinet  is  earned  out  by  Orders  in  Council,  or  by  action  taken 
in  the  various  departments  of  Government.  Committees  of 

1  Acton,  Lectures  on  Modern  History  :  '  The  Hanoverian  Settlement.' 

2  Mr.  Hearne  (Government  of  England,  p.  192)  says  that  Lord  Bute  was 
made  a  member  of  the  Cabinet  by  George  III  before  he  was  Privy  Coun- 
cillor, but  this  seems  to  be  a  misunderstanding  of  a  note  to  Walpole's 
Memoirs,  i.  p.  8.     George  II  died  on  the  morning  of  Saturday,  Oct.  25. 
Lord  Bute  was  sworn  of  the  Privy  Council  on  Monday  the  27th  (Haydn's 
Book  of  Dignities,  ed.  s,  p.  200).     Horace  Walpole,  writing  to  Mann  on 
the  28th,  says,  '  the  Duke  of  York  and  Lord  Bute  are  named  of  the  Cabinet 
Council  '  (Letters,  iii.  354).     But  see  post,  p.  112. 


Sect.  iii.  §  1  CABINET  AND  COUNCIL  99 

the  Council  may  be  appointed  to  collect  evidence,  to  report 
and  advise  on  certain  matters,  but  the  Cabinet  meets  to 
advise  and  initiate  action  in  all  matters ;  its  members  are 
the  heads  of  executive  departments,  and  leaders  of  the 
party  whose  policy  is  approved  by  the  electorate,  and  so  the 
advice  of  the  Cabinet  is  acted  upon. 

The  two  bodies  are  differently  summoned.  Difference 

A  summons  to  the  Cabinet  runs  thus : — 

'A  meeting  of  His  Majesty's  servants  will  be  held  at  the 
Foreign  Office1  at  —  o'clock  on  Saturday,  the  —  of  May,  at 
which  —  is  desired  to  attend.' 

A  summons  to  a  Council  at  which  the  King  will  be 
present  is  in  the  following  form : — 

'Let  the  messenger  acquaint  the  Lords  and  others  of  His 
Majesty's  most  Honourable  Privy  Council,  that  a  Council  is 
appointed  to  meet  at  the  Court  at  —  on  —  the  —  day  of  this 
instant,  at  —  of  the  clock.' 

When  the  King  will  not  be  present  the  form  is  as  follows : — 

'  Let  the  messenger  acquaint  the  Lords  of  His  Majesty's  most 
Honourable  Privy  Council,  that  a  Commit  tee  of  their  Lordships 
is  appointed  to  meet  in  the  Council  Chamber,  Whitehall,  on  — 
the  —  of  —  at  —  of  the  clock.' 

Nor  is  it  only  in  the  form  of  the  summons  that  the  differ- 
ence lies.  The  Cabinet  is  summoned  by  the  Prime  Minister, 
through  his  private  secretary,  two  personages  who  have  no 
place  in  the  legal  theory  of  the  Constitution.  The  Privy 
Council  is  summoned  by  the  Clerk  of  the  Council,  an  officer 
whose  history  dates  back  to  1540,  when  Sir  William  Paget, 
himself  afterwards  a  Privy  Councillor  and  Secretary  of 
State,  was  appointed  Clerk  2. 

The  Cabinet  of  the  present  day  is  then  a  body  distinct 
from  the  Privy  Council  in  title,  in  function,  and  in  mode  of 
summons.  Every  member  of  the  Cabinet  is  a  Privy  Coun- 
cillor, and  the  connecting  link  between  the  two  bodies  may 
be  found  in  the  Privy  Councillor's  oath  and  the  obligations 
which  it  involves. 

1  The  place  of  meeting  varies  with  circumstances ;  it  might  be  at  the 
Prime  Minister's  official  residence,  in  Downing  Street,  or  in  his  private 
room  at  Westminster. 

1  Nicolas,  Proceedings  of  the  Privy  Council,  vii.  pp.  ii,  4. 

H  3 


100 


THE   COUNCILS   OF   THE   CROWN 


Chap.  II 


§  2.  Collective  ResfxmsibUity  of  the  Cabinet. 

irrespon-       The  Cabinet,  as  a  whole,  is  responsible  for  the  acts  of  its 

1 8th1  con-   members :  but  if  this  responsibility  is  to  be  real  the  Cabinet 

nets  °abl  mus^  k®  a  definite  body  of  persons,  every  one  of  whom  is 

informed,  or  can  obtain  information,  as  to  any  measure  of 

importance  contemplated  or  taken  by  the  entire  Cabinet,  or 

by  any  individual  member. 

Throughout  the  greater  part  of  the  eighteenth  century 
this  collective  responsibility  did  not  exist.  The  Cabinet 
was  a  large  body  meeting  occasionally  for  the  formal  settle- 
ment of  business  which  had  been  practically  settled  by  a 
small  inner  group, '  the  confidential  Cabinet.' 

The  first  Cabinet  of  George  I  contained  the  Duke  of 
Marlborough,  who  was  scarcely  ever  invited  to  Cabinets  of 
which  he  was  a  nominal  member  ;  and  Lord  Somers,  whose 
infirmities  prevented  him  from  taking  any  part  in  public 
business  '. 

In  the  reign  of  George  II  we  have  two  complete  lists 2  of 


1  Stanhope,  Hist,  of  England,  i.  104. 
1      List  of  Cabinet,  9  Sept.,  1737. 

i.  Archbishop  of  Canterbury. 

a.  Lord  Chancellor. 

3.  Lord   Godolphin   (Lord    Privy 

Seal). 

4.  Duke  of  Grafton  (Lord  Chamber- 

lain). 

5.  Duke  of  Richmond  (Master  of 

the  Horse). 

6.  Duke  of  Newcastle. 

7.  Earl  of  Pembroke  (Groom  of  the 

Stole). 

8.  Earl  of  Islay. 

9.  Lord  Harrington. 

10.  Sir  R.  Walpole. 

11.  Sir  C.  Wager. 

i  a.  Duke  of  Devon. 

13.  Duke  of  Dorset. 

14.  Duke  of  Argyle. 

15.  Lord  President. 

16.  Earl  of  Scarborough. 

Life  of  Lord  Hardwicke,  i.  383. 


List  of  Cabinet,  1740. 

i.  Dr.  Potter  (Archbishop  of  Can- 
terbury). 

a.  Lord  Hardwicke  (Lord  Chan- 
cellor). 

3.  Earl  of  Wilmington  (Lord  Pre- 

sident). 

4.  Lord  Hervey  (Lord  Privy  Seal). 

5.  Duke  of  Dorset  (Lord  Steward). 

6.  Duke  of  Grafton  (Lord  Cham- 

berlain). 

7.  Duke  of  Richmond  (Master  of 

the  Horse). 

8.  Duke  of  Devonshire  (Lord  Lieu- 

tenant of  Ireland). 

9.  Duke  of  Newcastle  (Secretary  of 

State). 

10.  Earl  of  Pembroke  (Groom  of  the 

Stole). 

11.  Earl  of  Isla  (First  Minister  for 

Scotland). 

la.  Lord  Harrington  (Secretary  of 
State). 

13.  Sir  Robert  Walpole  (Chancellor 

of  Exchequer). 

14.  Sir  C.  Wager   (First   Commis- 

sioner of  the  Admiralty). 


Sect.  Hi.  §2  THE   EFFICIENT   CABINET  101 

the  Cabinet  for  the  years  1737  and  *74°  I  the  one  contains  The  formal 
sixteen,  the  other  fourteen  names,  and  to  this  last  three  a°d.the 
were  subsequently  added.     The  Archbishop  of  Canterbury,  Cabinet, 
the  Lord  Chamberlain,  the  Groom  of  the  Stole,  and  the 
Master  of  the  Horse  appear  in  each.    Both  Lord  Hardwicke 
and  Lord  Hervey,  who  furnish  these  accounts,  describe  a 
smaller  group — Walpole,  the  two  Secretaries  of  State,  and  Walpole'a 
the   Chancellor — meeting  for   the  discussion   and   virtual  Cabmets> 
settlement  of  policy.    The  formality,  amounting  to  futility, 
of  the  meetings  of  the  whole  Cabinet  Council  is  apparent 
in  these  memoirs.     The  business  generally  consisted  in  the 
verbal  revision  of  some  document,  important  no  doubt,  the 
purport  of  which   had   been   settled   by  the  confidential 
servants  of  the  King1. 

In  1 754,  when  Henry  Pelham  died,  the  King  was  anxious 
to  get  the  advice  of  the  entire  Cabinet  as  to  the  future 
conduct  of  public  business,  but  the  matter  was  practically 
settled  by  Hardwicke  and  Newcastle.  The  former  wrote 
to  the  Archbishop  to  obtain  his  opinion,  or  rather  to  tell 
him  what  his  opinion  was  desired  to  be ;  he  informed  the 
Archbishop  that  he  need  not  attend  personally,  but  must 
answer  at  once.  A  draft  of  the  answer  required  was  sent 
with  the  letter 2. 

The  Archbishop  replied  as  he  was  instructed.  The 
Cabinet  met,  and  the  King  was  advised  to  make  the  Duke 
of  Newcastle  First  Lord  of  the  Treasury,  and  virtually 
Prime  Minister. 

When  George  III  came  to  the  throne  the  number  of  titular  The 
Cabinet  Councillors  excited  the  mirth  of  Horace  Walpole.  cabinet 
The  Duke  of  Leeds  was  removed  from  the  Cofferer's  place 
and  made  Justice  in  Eyre,  '  but  to  break  the  fall,  the  Duke 

There  were  subsequently  added  to  these,  Sir  John  Norris,  the  Duke  of 
Montagu  (Master  of  the  Ordnance),  and  the  Duke  of  Bolton.  '  The  Duke 
of  Bolton,  without  a  right  to  it  from  his  office  of  Captain  of  the  Band  of 
Pensioners,  in  which  employment  he  succeeded  the  Duke  of  Montagu  on 
his  removal  to  the  Ordnance,  was  likewise  admitted  to  the  Cabinet 
Council,  because  he  had  been  of  it  seven  years  ago,  at  the  time  he  was 
turned  out  of  all  his  employments.'  Hervey  Memoirs,  ii.  551. 

1  Hervey  Memoirs,  ii.  556-71. 

8  Life  of  Lord  Hardwicke,  ii.  512,  515,  516. 


102 


THE   COUNCILS   OF   THE   CROWN 


Chap.  II 


Illustra- 
tions of 
the  dis- 
tinction. 


The  circu- 
lation of 
papers. 


New- 
castle. 


is  made  Cabinet  Councillor,  a  rank  that  will  soon  become 
indistinct  from  Privy  Councillor  by  growing  as  numerous  V 

But  these  men  took  no  part  in  the  decision  of  policy. 
In  the  Grenville  Ministry,  which  lasted  from  the  spring  of 
1763  to  the  summer  of  1765,  the  business  of  government 
was  settled  at  weekly  dinners  at  which  only  five  or  six 
Ministers  were  present.  The  Cabinet  minutes  record 
'  meetings  of  his  Majesty's  servants '  attended  only  by 
Grenville,  the  First  Lord  of  the  Treasury,  the  two  Secre- 
taries of  State,  the  President  of  the  Council,  and  the 
Chancellor :  sometimes  this  body  is  reinforced  by  Lord 
Mansfield,  the  Chief  Justice 2.  It  is  not  easy  to  suppose 
that  the  number  of  honorary  members  of  the  Cabinet  had 
diminished  between  1760  and  1763,  and  there  is  other 
evidence  to  show  that  the  Cabinet  Ministers  were  of  two 
sorts,  efficient  and  honorary  3. 

The  distinction  between  the  two  groups  was  marked 
by  the  communication  of  important  State  papers  to  the 
'  efficient '  Ministers. 

When  Lord  Bute  in  1762  was  trying  to  drive  the  Duke 
of  Newcastle  from  the  Ministry  by  repeated  slights,  that 
which  the  Duke  felt  most  keenly  was  a  summons  to  a 
Cabinet  Council  to  consider  a  declaration  of  war  with 
Spain  when  no  papers  had  been  supplied  to  him  by  the 
Secretary  of  State,  nor  information  as  to  the  course  which 
negotiations  were  taking.  '  Even  Mr..  Pitt,'  said  the  Duke, 
'  had  that  attention  to  me  as  constantly  to  send  me  his 
draughts  with  copies  for  my  use,  desiring  me  to  make  such 

1  Walpole  Letters,  iii.  384  or  v.  36  (ed.  Toynbee).  A  few  days  later  he 
writes,  '  Lord  Hardwicke  is  to  be  Poet  Laureate,  and  according  to  usage 
I  suppose  it  will  be  made  a  Cabinet  Counsellor's  place '  (ib.  386  or  v.  40). 

8  Grenville  Papers,  ii.  256,  iii.  15,  41. 

3  Lord  Lyttelton  in  April,  1767,  sent  a  list  of  a  proposed  Cabinet  to 
G.  Grenville.  It  consists  of  fourteen  names.  He  says  that  he  has 
mentioned  '  only  the  principal  Cabinet  officers,'  but  the  list  includes  the 
Lord  Chamberlain  and  the  Master  of  the  Horse  (Grenville  Papers,  iv.  8). 
The  Chancellor  of  the  Exchequer  was  not  usually  a  member  of  the  Cabinet 
unless  that  office  was  held  together  with  the  First  Commissionership  of 
the  Treasury,  but  Charles  Townshend  teased  Chatham  into  allowing  him 
a  place  in  the  inner  Cabinet,  and  when  North  succeeded  him  as  Chan- 
cellor of  the  Exchequer  the  dearth  of  business  capacity  in  the  Ministry 
brought  him  at  once  into  the  Cabinet.  Grafton  Memoirs,  pp.  92,  183. 


Sect.  Hi.  §2  THE   EFFICIENT   CABINET  103 

alterations  as  I  should  think  proper,  before  he  produced 
them  at  the  meeting  of  the  King's  servants1.' 

The  same  distinction  is  noticeable   a  few  years  later.. 
The    second   Lord   Hardwicke,   when   invited  to   become  Hard- 
Secretary  of  State  in  Lord  Rockingham's  Ministry  in  1766,  wicke* 
declined  to  do  so  on  the  ground  of  health,  but  expressed  his 
willingness  to  join  the  '  Cabinet  Council  with  the  communi- 
cation of  papers  V     Shelbume   described  the  Cabinet  to  Shel- 
Bentham  as  consisting  of  an  outer  circle  and  of  the  Cabinet   l 
with  the  circulation,  that  is,  with  access  to  important  State 
papers  sent  round  in  Cabinet  boxes  to  the  inner  circle  of 
Ministers  3. 

Again,  in  a  debate  of  the  year  1775  in  the  House  of 
Lords,  the  former  members  of  the  Duke  of  Grafton's 
Ministry  tried  to  free  themselves  from  blame  for  the 
measures  which  had  troubled  our  relations  with  the 
colonies.  Lord  Mansfield  denied  all  responsibility,  though  Mansfield, 
he  admitted  that  he  had  been  a  member  of  the  Cabinet 
during  the  latter  part  of  the  reign  of  George  II  and  the 
whole  of  the  current  reign.  But  he  said  that  there  was 
a  '  nominal  and  efficient  Cabinet,'  and  that  he  had  ceased 
to  be  an  efficient  member  from  the  close  of  the  Grenville 
Ministry.  In  the  same  debate  the  Duke  of  Richmond 
told  the  House  that  '  the  correspondence  with  our  Foreign 
Ministers  is  sent  round  at  a  convenient  time  in  little  blue 
boxes  to  the  efficient  Cabinet  Ministers,  and  that  each  of 
them  gives  his  opinion  on  them  in  writing  V 

The  confidential  Cabinet  was  another  term  applied  to  the  The  con- 
inner  circle  of  Ministers  who  determined  the  policy  of  the  cabinet, 
country.     When  the  Duke  of  Grafton  was  out  of  office  in 
1771  the  King  gave  orders  that  he  should  be  kept  informed 
'  of  all  business  of  any  importance  that  was  in  agitation  V 
When  he  accepted  the  Privy  Seal  later  in  the  same  year, 
he  did  so  on  condition  that  he  should  not  be  summoned  to 
meetings  of  the  confidential  Cabinet.     George  III  agreed 

1  Rockingham  Memoirs,  i.  103.  2  Ibid.  i.  330. 

s  Bentham,  ix.  ai8.  4  Parl.  Hist,  xviii.  278. 

*  Grafton  Memoirs,  pp.  263-4. 


104  THE   COUNCILS  OF   THE   CROWN  Chap.  II 

to  this,  remarking  that  Grafton  'had  ever  thought  the 
confidential  Cabinet  too  numerous  V  and  had,  when  Prime 
Minister  himself,  desired  that  Lord  Bristol,  who  succeeded 
Chatham  as  Privy  Seal  in  1768,  should  not  be  summoned 
to  the  meetings  of  that  body.  But  it  seems  clear  that  the 
King  and  Lord  North  expected  to  have  Grafton's  advice 
whenever  they  wanted  it,  and  the  Duke,  whether  in  or  out 
of  office,  appears  to  have  occupied  the  position  of  a  '  non- 
efficient  '  Cabinet  Minister. 
Opposi-  One  result  of  this  distinction  between  efficient  and  non- 

*lo.n.1"       efficient  members  of  the  Cabinet  was  that  statesmen  who 
Cabinet. 

had  once  been  Cabinet  Councillors  considered  themselves  to 
remain  within  the  outer  circle  of  the  Cabinet,  even  though 
their  political  opponents  held  the  great  offices  of  State. 

Bath.  Thus  the  Pelhams  in  1 745,  finding  themselves  in  a  position 

to  make  terms  with  George  II,  insist  that  Lord  Bath,  who 
had  always  been  their  most  active  political  opponent,  'should 
be  out  of  the  Cabinet  Council  V 

Mansfield.  Still  more  noticeable  is  the  position  of  Lord  Mansfield  as 
described  by  himself  in  1 7  75.  He  had  been  a  member  of 
the  '  efficient  Cabinet '  down  to  the  close  of  the  Grenville 
Ministry.  When  Rockingham  succeeded  Grenville  '  he  had 
prayed  his  Majesty  to  excuse  him :  and  from  that  day  to 
the  present  day  had  declined  to  act  as  an  efficient  Cabinet 
Minister  V  His  reason  for  refusing  to  act  with  the  Cabinet 
when  Rockingham  came  in  was,  as  appears  from  his  speech, 
that  he  was  opposed  to  its  policy,  but  he  considered  that 
he  had  never  ceased  to  be  a  Cabinet  Minister,  and  was  ready 
to  give  advice  when  asked. 

Insecurity      This  retention  of  Cabinet  rank  and  position  by  men  who 

tries!"1  nad  ceased  to  be  in  accord  with  those  who  were  actually 
administering  the  affairs  of  the  country  must  have  been 
a  constant  source  of  insecurity  to  Ministries.  There  can  be 
no  doubt  that  it  offered  opening  for  intrigue  to  George  III, 
who  never  trusted  the  Ministers  whom  he  disliked,  and 
who  held  himself  entitled  to  consult  these  titular  Cabinet 

1  Correspondence  of  George  III  and  Lord  North,  i.  p.  76. 
a  Coxe,  Memoir  of  H.  Pelham,  i.  295. 
8  Parl.  Hist,  xviii.  274,  275,  279. 


Sect.  iii.§2  THE   EFFICIENT   CABINET  105 

Ministers  to  the  disadvantage  of  those  who  were,  at  the 
moment,  in  his  service. 

The  disappearance  of  this  titular  external  Cabinet  must 
have  been  gradual.  The  Rockingham  Cabinet  of  1782  was  of  titular 
a  definite  group  of  eleven  persons,  each  of  whom  held  high  Cabinet, 
office.  Fox  complained  that  the  number  was  too  large,  but 
at  the  same  time  maintained  'that  those  who  had  great 
responsible  situations  should  have  more  interest  in  the 
Cabinet  than  those  who  merely  attended  to  give  counsel, 
without  holding  responsible  situations1.'  This  contem- 
plates an  outer  and  an  inner  circle  within  the  Cabinet : 
but  Fox  was  probably  thinking  of  the  opposition  which  he 
had  experienced  from  Camden  and  Grafton,  the  President 
of  the  Council  and  the  Lord  Privy  Seal 2. 

The  last  assertion  of  the  right  to  attend  a  Cabinet 
meeting  by  a  Minister  who  had  ceased  to  hold  Cabinet 
office  was  made  by  Lord  Loughborough.  When  Addington 
succeeded  Pitt  in  1801  Eldon  displaced  Loughborough  as 
Lord  Chancellor,  but  Loughborough  nevertheless  continued 
to  attend  Cabinet  meetings  and  retained  his  key  of  the 
Cabinet  boxes.  Addington  was  compelled  to  write  and 
inform  him  that  '  His  Majesty  considered  your  Lordship's 
attendance  at  the  Cabinet  as  having  naturally  ceased  upon 
the  resignation  of  the  Seals/  and  added  that  his  opinion, 
expressed  and  acted  upon,  was  that '  the  number  of  Cabinet 
Ministers  should  not  exceed  that  of  the  persons  whose 
responsible  situations  in  office  require  their  being  members 
of  it3.' 

Perhaps  the  last  appearance  of  the  non-efficient,  titular  TheGrand 
Cabinet  is  to  be  found  five  years  later,  when  Lord  Col- 
chester, then  Speaker  of  the  House  of  Commons,  records 
that  before  the  opening  of  Parliament  the  King  'held 
(what  is  called)  a  Grand  Cabinet  or  Honorary  Cabinet, 
consisting  of  his  Ministers,  and  also  the  Archbishop  of 

1  Parliamentary  Register,  vii.  304. 

8  Memorials  of  Charles  James  Fox,  i.  454.  '  It  was  very  provoking  for 
you,  I  must  own,'  said  Shelburne  to  Fox,  'to  see  Lord  Camden  and  the 
Duke  of  Grafton  come  down,  with  their  lounging  opinions  to  outvote  you 
in  the  Cabinet.' 

8  Campbell,  Lives  of  the  Chancellors,  vi.  326-7. 


106 


THE    COUNCILS   OF   THE    CROWN 


Chap  II 


Definition 
necessary 
to  collec- 
tive re- 
sponsibi- 
lity. 


Repudia- 
tions of 
responsi- 
bility. 


Camden. 


Grafton. 


Canterbury,  and  the  great  officers  of  the  Household,  viz., 
the  Lord  Chamberlain  and  the  Master  of  the  Horse,  the 
Speaker,  &c.,  at  which  the  draft  of  his  speech  was  read  V 
With  the  exception  of  the  Speaker  this  recalls  the  Cabinet 
described  by  Lord  Hardwicke. 

The  definition  and  limitation  of  the  Cabinet  by  Addington, 
though  it  probably  did  no  more  than  express  the  usage  of 
the  previous  twenty  years,  marks  a  stage  in  the  history  of 
the  Cabinet.  The  existence  of  a  circle  of  non-efficient 
Cabinet  Ministers  who  might  occasionally  be  called  upon 
to  advise,  made  collective  responsibility  impossible,  because 
the  persons  composing  this  outer  circle  were  often  actually 
hostile  to  those  who  held  '  responsible  situations.' 

In  fact,  responsibility  was  sometimes  repudiated  in  a 
manner  which  we  should  now  regard  as  inconsistent,  not 
merely  with  party  loyalty,  but  with  self-respect. 

When  the  Duke  of  Grafton's  Ministry  was  falling  into 
discredit,  Lord  Camden,  who  had  been  Chancellor  through- 
out the  administration,  and  was  holding  office  at  the  time, 
spoke  strongly  in  opposition  to  his  colleagues,  and  stated 
that  he  had  been  an  unwilling  party  to  their  actions  in  the 
matters  concerning  Wilkes  and  the  Middlesex  election  2. 

A  few  years  later  he  repudiated  all  liability  for  the  action 
of  the  Cabinet,  of  which  he  was  a  member,  in  the  imposi- 
tion of  the  tea  duties  on  the  American  Colonies.  In  the 
same  debate,  Grafton,  while  complaining  of  the  manner  in 
which  Camden  disavowed  his  colleagues  in  a  matter  to 
which  the  whole  Cabinet  consented,  went  on  to  say  that 
this  tax  '  was  no  measure  of  his,'  though  he  was  Prime 
Minister  at  the  time. 

Party  loyalty,  as  we  understand  the  term,  was  prac- 
tically unknown  in  the  middle  of  the  eighteenth  century. 
The  lack  of  definite  political  issues,  and  the  state  of  our 
Parliamentary  representation,  resulted  in  a  stagnation  of 
political  interest  and  the  formation  of  parliamentary  groups, 
whose  action  was  determined  almost  entirely  by  personal 
ambition  or  the  desire  for  lucrative  office.  George  II 

1  Diary  of  Lord  Colchester,  ii.  26. 

2  Grafton  Memoirs,  i.  246 


Seot.iii.  §2         COLLECTIVE   RESPONSIBILITY  107 

resented  the  domination  of  such  groups,  though  he  had  to  Political 
endure  it.    George  III  formed  a  group  of  his  own.     Both  of"^1011 
Kings  desired  to  break  up  parties,  and  to  find  Ministers  eighteenth 
who  would  attend  to  the  business  of  their  departments,  ce 
leaving  general  policy  to  the  Crown.     Hence  the  constantly 
expressed  desire  for  a  Ministry  '  on  a  broad  bottom/  that 
is,  a  Ministry  representative  of  the  various  groups.     Such 
a  Ministry  could  only  exist  where  political  opinions  were 
indeterminate  rather  than   various.     The   Grenville  con- 
nexion represented  the  ambitions  of  the  Grenville  family ; 
the  Bedford  group,  a  desire  for  the  emoluments  of  office  ; 
the  followers  of  the  elder  Pitt  were  the  admirers  of  a  great 
but  somewhat  wayward  personage;  the  Rockingham  Whigs 
desired  to  make  the  King  subservient  to  a  party  which 
should  consist  of  the  great  Whig  families ;  George  III  and 
his    friends    represented    antagonism    to   this   policy.     A 
Cabinet  formed  out  of  any  combination  of  these  groups 
was  not  likely  to  possess  any  strong  sense  of  mutual  loyalty 
or  collective  responsibility. 

The  recognition  of  such  responsibility  begins  in  the  last  Collective 
twenty  years  of  the  century.  Fox  in  1782  held  himself  JJfJJ™1^" 
responsible  to  Parliament  for  advice  as  to  conferring  a  i?8^. 
pension  on  Colonel  Barre7,  although  '  he  was  not  the  person 
in  whose  department  it  lay  to  advise  the  King  on  that  sub- 
ject V  Yet  his  views  on  this  subject,  as  we  shall  shortly  see, 
were  not  consistent.  Ministerial  responsibility  meant  to 
the  statesmen  of  the  eighteenth  century  something  different 
from  what  it  means  to  us.  To  them  it  meant  legal  respon- 
sibility, liability  to  impeachment ;  to  us  it  means  responsi- 
bility to  public  opinion,  liability  to  loss  of  office.  Legal 
responsibility  could  not  fairly  be  fixed  upon  an  entire 
Cabinet  for  the  action  of  one  of  its  members,  and  this 
comes  out  clearly  in  a  debate  which  took  place  in  1806,  on 
the  acceptance  by  Lord  Ellenborough,  the  Chief  Justice  of 
the  King's  Bench,  of  a  seat  in  the  Cabinet.  Exception 
was  taken  to  the  appointment  on  the  ground  that  the 
Chief  Justice  might,  as  a  member  of  the  Cabinet,  be  re- 
sponsible for  the  institution  of  legal  proceedings  over 
1  Parliamentary  Register,  vol.  vii.  382. 


108  THE   COUNCILS   OF  THE   CROWN  Chap.  II 

Collective  which  he  would  have  to  preside  as  a  judge.  The  supporters 
bUttyYn"  °^  ^ne  Government  disputed  the  theory  that  each  member 
1806.  of  the  Cabinet  was  responsible  for  the  acts  of  the  whole 
body;  they  maintained  that  each  was  responsible  for  his 
own  department.  '  The  Cabinet  was  not  responsible  as 
a  Cabinet,'  said  Lord  Temple,  '  but  the  Ministers  were 
responsible  as  the  officers  of  the  Crown.'  Fox  maintained 
that  there  was  a  practical  advantage  in  relieving  the 
Cabinet  of  responsibility  and  fixing  it  upon  the  individual 
Minister.  '  The  immediate  actor  can  always  be  got  at  in 
a  way  that  is  very  plain,  easy,  and  direct,  compared  to  that 
by  which  you  may  be  able  to  reach  his  advisers  V 

It  is  noticeable  that  Mr.  Hallam,  writing  in  1827,  takes 
the  same  view  of  Cabinet  responsibility 2.  At  the  present 
time  we  are  more  ready  to  fear  that  Ministers  will  mis- 
manage our  affairs  than  that  they  will  break  the  law  ; 
they  act  under  close  and  constant  criticism,  and  since 
loss  of  office  and  of  public  esteem  are  the  only  penalties 
which  Ministers  pay  for  political  failure,  we  can  insist  that 
the  action  of  the  Cabinet  is  the  action  of  each  member, 
and  that  for  the  action  of  each  member  the  Cabinet  is 
responsible  as  a  whole. 

It  is  needless  to  cite  modern  illustrations  of  the  complete 
acceptance  of  the  theory.  A  recent  writer  has  given 
one  which  well  serves  the  purpose a.  An  amendment 
In  1902.  to  the  Address  was  moved  early  in  the  Session  of  1902, 
censuring  the  conduct  of  the  Post  Office  in  respect  of 
the  terms  of  an  agreement  with  the  National  Telephone 
Company.  Supporters  of  the  Government  moved  the 
amendment  and  pressed  it  in  debate  :  but  they  were  told  that 
if  they  carried  the  amendment,  which  censured  the  action 
of  a  single  department,  they  would  pass  a  vote  of  censure 

1  Cobbett,  Parl.  Debates  (1806),  vi.  308,  311. 

2  Hallam,  Hist.  iii.  187,  note  :  '  I  cannot  possibly  comprehend  how  an 
article  of  impeachment  for  sitting  as  a  Cabinet  Minister  could  be  drawn, 
nor  do  I  conceive  that  a  privy  councillor  has  a  right  to  resign  his  place  at 
the  board,  or  even  to  absent  himself  when  summoned  :  so  that  it  would 
be   highly   unjust   and  illegal   to  presume  a  participation  in  culpable 
measures  from  the  mere  circumstance  of  belonging  to  it.' 

8  Low,  Governance  of  England,  p.  146. 


Sect.iii.  §2  UNANIMITY  109 

on  the  Government,  which  would  thereupon  resign l.  The 
amendment  was  consequently  lost,  by  the  failure  of  those 
who  moved  it,  and  spoke  in  its  favour,  to  support  it  on  a  divi- 
sion. The  collective  responsibility  of  the  Government  for  the 
action  of  one  of  its  members  could  not  be  better  illustrated. 

Joint  responsibility  must  produce  unanimity,  or  at  any  Unani- 
rate  is  incompatible  with  such  differences  as  make  the  dis-  ™^*j^0 
sentient  unwilling  to  incur  risk  for  the  sake  of  opinions  King, 
which  he  does  not  share.     The  efficient  Cabinet  was  bound 
to  keep  up  a  semblance  of  agreement  in  the  advice  tendered 
to  the  King,  but  until  collective  responsibility  was  recog- 
nised, a  Minister  might  be  content  to  be  outvoted,  retain 
office,  and  carry  out  a  policy  with  which  he  did  not  agree. 

Whether  the  King  should  or  should  not  be  informed  that 
there  had  been  hesitation  or  difference  of  opinion  among 
his  Ministers,  and  the  nature  of  the  difference,  must  rest 
with  the  discretion  of  the  Prime  Minister,  who  reports  to 
the  King  the  substance  of  what  has  passed  at  every  Cabinet 
meeting.  The  advice  ultimately  given  must  be  unanimous. 

When  Lord  Grey's  Government  resigned  in  1832  on  a  should 
difference  with  the  King  as  to  the  creation  of  peers,  a  Cabinet  j*lfferences 
minute  which  recorded  the  dissent  of  the  Duke  of  Richmond  vealed  ? 
from  the  opinion  of  his  colleagues  was  shown  to  the  Duke 
of  Wellington,  who  was  invited  to  form  a  Ministry.     After 
the  failure  of  the  Duke  and  the  return  of  Lord  Grey  to 
office,  this  difference  of  opinion  among  Lord  Grey's  colleagues 
was  turned  to  their  disadvantage  in  debate.  But  the  trouble 
was  occasioned,  not  so  much  by  the  disclosure  of  differences 
in  the  minute,  as  by  the  communication  of  a  Cabinet  minute 
to  the  opponents  of  the  Minister  who  framed  it2.     This 
appears  to  be  contrary  to  custom. 

Although  the  Premier  may  determine  whether  he  will  dis- 
close to  the  King  such  differences  as  have  existed  among 
his  colleagues,  it  does  not  appear  to  be  equally  open  to  the 
King  to  probe  these  divisions  of  opinion  among  his  confi- 
dential servants.  '  They  are  a  unity  before  the  sovereign  V 

1  Hansard,  N.  Series,  vol.  ci.  p.  1027. 
*  Corresp.  of  William  IV  and  Earl  Grey,  ii.  395,  434*  431- 
8  Gladstone,  Gleanings  of  Past  Years,  i.  74.    But  see  Fitzmaurice,  Life 
of  Lord  Granville,  i.  pp.  355,  459. 


110 


THE   COUNCILS   OF   THE   CROWN 


Chap.  II 


Should 
King  in- 
quire as  to 
unani- 
mity ? 


Secrecy. 


Informa- 
tion sup- 
plied to 
King  : 


is  confi- 
dential. 


George  IV  was  not  pleased  with  the  recognition  by 
Canning  of  the  independence  of  the  Spanish  American 
Republics,  and  he  addressed  a  memorandum  to  Lord  Liver- 
pool, at  the  close  of  which  he  desired  '  distinctly  to  know 
from  his  Cabinet,  individually  (seriatim),  whether  certain 
principles  of  policy  are  or  are  not  to  be  abandoned.'  The 
Cabinet  returned  an  answer  'generally  and  collectively,' 
admitting  that  there  had  been  differences,  but  assuring  the 
King  of  their  'unanimous  opinion'  that  their  policy  in 
no  way  conflicted  with  the  principles  to  which  the  King 
referred  l. 

Closely  connected  with  what  has  gone  before  is  the 
secrecy  which  is  imposed  on  Ministers  as  to  what  passes 
in  the  Cabinet.  Formally  this  depends  on  the  oath  of 
the  Privy  Councillor,  but  the  obligation  to  secrecy  has  been 
strengthened  since  the  time  when  the  members  of  the 
Grafton  Cabinet,  1767-70,  were  quite  ready  to  announce 
the  part  which  they  had  taken  in  Cabinet  discussions  on 
the  expulsion  of  Wilkes  and  the  taxation  of  the  American 
Colonies. 

No  record  is  kept  of  transactions  or  discussions  in  the 
Cabinet.  The  Prime  Minister  sends  to  the  King  an  account 
of  what  has  passed,  which  may  be  more  or  less  formal, 
according  to  circumstances  or  the  discretion  of  the  Prime 
Minister  for  the  time.  These  memoranda  are  not  available 
to  succeeding  Ministers,  and  in  modern  times  we  do  not 
come  across  their  contents.  But  Shrewsbury  kept  minutes, 
as  we  have  seen,  of  what  passed  at  the  Cabinets  of 
William  III ;  and  a  hundred  years  ago,  when  George  III 
dismissed  the  Grenville  Ministry,  Lord  Grenville  sent  to 
the  Speaker  copies  of  a  Cabinet  minute,  of  the  King's 
answer,  and  of  the  Cabinet's  reply2. 

William  IV  had  no  strong  sense  of  the  confidential 
character  of  his  communications  with  his  Ministers.  He 
communicated  to  the  Duke  of  Wellington  an  account  sent 
to  him  of  what  had  passed  at  a  Cabinet  meeting  by  Lord 
Grey :  and  he  addressed  to  Sir  Robert  Peel,  on  his  taking 

1  Stapylton,  George  Canning  and  his  Times,  418-20. 

'  See  Lord  Colchester's  Diary,  ii.  108.     Melbourne  Papers,  947. 


Sect.  iii.  §  2  SECRECY  1 1 1 

office  in  1834,  a  lengthy  document  setting  out  among  other 
things  the  conversations  which  had  passed  between  himself 
and  Lord  Melbourne,  leading  up  to  the  retirement  of  the 
latter.  It  does  not  appear  that  Melbourne  was  invited 
either  to  assent  to  this  communication  or  to  test  its 
accuracy l. 

Disclosures  of  Cabinet  discussions  are  now  made  only  Condi- 
with  permission  of  the  Sovereign ;  and  it  is  the  practice 
that  this  permission  should  be  obtained  through  the  inter- 
vention of  the  Prime  Minister,  and  that  the  disclosure 
should  be  strictly  limited  by  the  terms  of  the  permission 
granted  -.  Lord  Melbourne  remonstrated  strongly  with 
William  IV  on  learning  that  Lord  J.  Russell  had,  without 
reference  to  the  Prime  Minister,  received  the  King's  per- 
mission to  disclose  in  Parliament  a  correspondence  between 
himself  and  Lord  Durham,  and  the  discussions  in  the 
Cabinet  on  which  this  correspondence  was  based :  '  If  the 
arguments  in  the  Cabinet  are  not  to  be  protected  by  an 
impenetrable  veil  of  secrecy,  there  will  be  no  place  left  in 
the  public  counsels  for  the  free  investigation  of  truth  and 
the  unshackled  exercise  of  the  understanding 3.'  The  lack 
of  any  record  of  Cabinet  discussions  may,  at  times  when  No  record 
disclosures  are  permitted  to  be  made,  cause  questions  to  be 
raised  as  to  their  accuracy 4.  ings. 

At  times  the  veil  is  lifted.  Sir  William  Molesworth,  in 
the  Ministry  of  Lord  Aberdeen,  took  notes  of  what  passed  in 
the  Cabinet  of  which  he  was  a  member,  not  without  some 
remonstrance  on  the  part  of  a  colleague,  nor  without  some 
ill  consequences  as  to  the  maintenance  of  secrecy 5.  Lord 
Granville  obtained  permission  from  Queen  Victoria  and 
Lord  Palmerston  to  send  to  Lord  Canning,  then  Viceroy  of 
India,  a  chronicle  of  Cabinet  proceedings  from  day  to  day 6. 
The  Greville  Memoirs  for  the  last  years  of  the  Melbourne 
Ministry  indicate  pretty  plainly  that  some  member  of  the 

1  Melbourne  Papers,  248.     Stockmar  Memoirs,  ch.  xiv. 

2  Hansard,  ccciv,  p.  1186.  3  Melbourne  Papers,  216. 
*  Hansard,  srd  Series,  341,  pp.  1809,  1810,  July  18,  1878. 

5  Autobiography  of  the  Duke  of  Argyll,  i.  461. 

6  Fitzmaurice,  Life  of  Lord  Granville,  i.  126.     See  also  a  very  interest- 
ing  description  of  a  Cabinet  meeting  at  p.  356. 


112  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

Cabinet  confided  to  the  Clerk  of  the  Council  very  full 
accounts  of  what  passed  at  Cabinet  meetings. 

Only  It  happens  occasionally  that  a  Minister  who  is  not  a  Privy 

Council-  Councillor  or  a  naval  or  military  officer,  attends  a  meeting 
lors  may  of  the  Cabinet  in  order  to  give  information  or  to  receive  in- 
structions. It  might  be  questioned  whether  a  meeting  can 
be  regarded  as  a  meeting  of  the  Cabinet  while  a  person  is 
present  who  is  under  no  obligation  to  secrecy.  Attention 
was  called,  in  1905,  to  the  fact  that  Lord  Cawdor,  after 
accepting  the  office  of  First  Lord  of  the  Admiralty,  but 
before  his  appointment  was  complete,  and  before  he  had 
been  sworn  of  the  Privy  Council,  attended  meetings  of  the 
Cabinet.  His  presence  was  placed,  by  Lord  Lansdowne,  on 
the  footing  of  that  of  the  Law  Officers  who  are  sometimes 
called  in  to  advise  the  Cabinet ;  but  it  would  seem  that  he 
was  regularly  summoned  and  sat  as  a  Cabinet  Minister  *. 

§  3.  The  Relations  of  the  Cabinet  to  the  Prime  Minister, 
the  Crown,  and  the  Commons. 

The  Development  of  the  Premiership. 

Prime  The  existence  of  a  Prime  Minister  may  be  said  to  date 

Xmodem   ^rom  ^e  disappearance  of  the   King   from   the   Cabinet 

institu-        Council. 

We  are  accustomed  to  regard  a  Prime  Minister  as 
a  necessity  of  our  constitution,  and  we  understand  the 
term  to  mean  the  party  leader  who  has  been  invited  by 
the  King  to  form  a  Ministry,  in  the  assurance  that  his 
followers  are  sufficiently  numerous,  and  sufficiently  loyal, 
to  secure  support  for  the  measures  which  he  may  recom- 
mend to  the  Crown  and  to  Parliament. 

But  the  statesmen  whom  we  are  wont  to  call  Prime 
Ministers,  between  1660  and  1714,  had  no  such  power  in 

1  Hansard,  4th  Series,  vol.  cxlii.  p.  863.  This  must  have  been  au  irregu- 
larity. In  1907,  during  the  interval  which  elapsed  between  the  acceptance 
by  Mr.  McKenna  of  the  office  of  President  of  the  Board  of  Education  and 
his  admission  to  the  Privy  Council,  more  than  one  meeting  of  the 
Cabinet  was  held.  Mr.  McKenna  received  no  summons  to  these  meetings, 
though  he  was  informally  requested  to  attend  one  of  them  for  a  short 
time,  merely  to  discuss  a  matter  connected  with  the  business  of  the 
Education  Office. 


Sect.  iii.  §3  THE  PRIME  MINISTER  113 

the  choice  of  their  colleagues  or  security  for  the  support  of 
their  measures. 

The  title  itself  was  unknown  till  the  commencement  of  Unknown 
the  eighteenth  century.     Ormond  suggested  to  Clarendon,  J^JS611" 
in  1 66 1,  that  he  should  give  up  office  and  confine  himself  century, 
to    advising   the    King   on   questions   of   general    policy. 
Clarendon    declined    to    enjoy    a    pension    out     of     the 
Exchequer  '  under  no  other  title  or  pretence  but  of  being 
first  Minister,  a  title  so  newly  translated  out  of  French 
into  English,  that  it  was  not  enough  understood  to  be  liked, 
and  every  man  would  detest  it   for   the   burden   it    was 
attended  with  V 

The   suggestion   shows   the   position    which    Clarendon  Clarendon 
occupied  in  the  eyes  of  his  contemporaries,  and  that  he  was,  carles 
in  point  of  power  and  influence,  what  passed  for  a  Prime  II. 
Minister    in    those   times.     But  Clarendon  had   not    the 
choice  of  his  colleagues;   the  inner  Council   of  Advisers 
was  increased  by  the  introduction  of  Ashley,  and  later  of 
Coventry,  without  his  concurrence2,  and  without  consulting 
him  Charles  made  Bennet  a  Secretary  of  State  3.     Nor  had 
Clarendon  a  decisive  voice  in  measures  which  should  be 
submitted  by  members  of  this  inner  Council  to  Parliament 4. 

No  one  corresponding  to  a  Prime  Minister  could  be  said  William 
to  have  existed  throughout  the  reign  of  William  III.     The  his    ' 
celebrated  Whig  Ministry  of  William  III  had  no  recognised  ters. 
leader.    Judging  from  the  extant  correspondence  one  would 
say  that  Shrewsbury  first,  and  Somers  later,  enjoyed  the 
largest  measure  of  William's  confidence.     Burnet  speaks 
of   the    management   of    the    King's    affairs,   for    Parlia- 
mentary purposes,  as  being  in  the  hands  of  Sunderland 
from  1693  to  i6985;  but  Sunderland  was  too  unpopular 
in   the   country  to   take    any   prominent   part  in  public 
affairs,    in    fact    he    only    accepted    the    office    of    Lord 

1  Clarendon.  Autobiography,  i.  420.     In  Sir  John  Reresby's  Memoirs 
(ed.  Cartwright)  Clarendon  is  spoken  of  as  '  the  Great  Minister  of  State,' 
p.  53.     Buckingham  as  'the   Principal   Minister  of  State,'  pp.  76,  8r. 
Danby  as  'the  Chief  Minister,'  p.  168. 

2  Clarendon,  Autobiography,  ii.  344,  460. 

s  Ibid.  ii.  226.  *  Ibid.  ii.  344-9- 

8  Burnet,  '  History  of  My  Own  Time,'  iv.  207,  208,  and  notes. 

AHSON.     CROWN  I 


114  THE   COUNCILS   OF   THE   CROWN          Chap.  II 

Chamberlain  in  1697,  and  held  it  for  a  year.  It  is  signifi- 
cant that  he  was  frightened  into  retirement  by  the  wrath 
of  the  Whig  junto  at  the  appointment  of  Vernon  as 
Secretary  of  State  by  the  King,  on  his  advice  l,  and  without 
consulting  any  other  Ministers. 

Godol-  Nor  can  it  be  said  that  throughout  the  reign  of  Anne  any 

11      Minister  had  the  commanding  position  which  we  associate 


with  the  Premier.  Godolphin,  by  slow  degrees,  ousted  his 
rivals,  Harley  and  St.  John,  from  the  Cabinet,  and  when 
Anne  determined  once  more  to  employ  the  Tory  advisers 
who  really  possessed  her  confidence,  Godolphin  bore  the 
dismissal  of  his  friends  and  the  appointment  of  his  foes 
without  seeming  to  consider  that  his  own  retirement  was 
thereby  rendered  imperative. 

Harley  Harley  is  repeatedly  described  by  Swift  as  first  Minister  2, 
nne*  or  chief  Minister,  and  it  is  in  the  writings  of  Swift  that  we 
first  find  the  term  Prime  Minister  3.  But  Harley  did  not 
choose  his  own  colleagues,  nor  could  he  exclude  from  the 
Cabinet  persons  opposed  to  his  policy  *.  His  reluctance  to 
push  measures  to  an  extremity  with  his  opponents,  by  in- 
sisting on  their  removal  from  all  political  office,  caused 
something  like  a  rebellion  in  his  own  camp.  The  October 
Club  wanted  a  Prime  Minister  of  their  own  choosing,  and 
a  full  share  of  the  spoils  of  victory;  the  Queen  was  not 
prepared  to  admit  that  any  one  ruled  but  herself.  Harley 
stood  between  a  party  who  wanted  much,  and  a  mistress 
who  would  concede  little  ;  he  had  not  at  his  command  the 
party-discipline,  now  at  the  command  of  a  party-leader, 
which  would  have  enabled  him  to  put  constraint  on  the 
Queen,  nor  the  full  confidence,  now  accorded  to  a  Prime 
Minister  by  the  Sovereign,  which  would  have  enabled  him 
to  satisfy  the  demands  of  his  party. 

Walpole.        Walpole  was  the  first  Prime  Minister  in  the  modern  sense 

1  Macaulay,  viii.  20. 

*  Memoirs  relating  to  change  in  the  Queen's  Ministry,  Swift,  xv.  34. 

*  Inquiry  into  the  behaviour  of  the  Queen's  last  Ministry,  Swift,  xvi. 
19,  and  again  in  the  preface  to  the  History  of  the  last  four  years  of  Queen 
Anne,  p.  38,  we  find  the  term  used  with  a  recognition  of  its  novelty, 
'those  who  are  now  called  prime  ministers.' 

*  Ibid.  xv.  61. 


Sect.  iii.  §3  THE   PRIME   MINISTER  115 

of  the  word.    It  is  true  that  he  differed  in  many  respects  as  Walpole 
to  the  extent  and  the  sources  of  his  power  from  the  Prime  Mfn/™°r 
Ministers  of  the  present  day.     Within  the  Cabinet  there  in  fact : 
was  often  a  fierce  struggle  for  predominance.     Carteret  sat 
there  for  nine  years.     For  the  first  three  he  was  a  formid- 
able rival  as  Secretary  of  State ;  for  the  last  six  he  was  a 
malcontent  colleague,  prepared  to  take  every  opportunity 
of  weakening  the  power  of  the  First  Lord  of  the  Treasury. 
Townshend,  during  the  last  months  of  his  tenure  of  office 
as  Secretary  of  State,  struggled  hard  to  displace  Walpole.  his  strug- 
Nor  was  Walpole  ever  invited  by  the  King,  as  a  modern 
Prime  Minister  is  invited,  to  form  a  Ministry  of  persons 
who  will  act  harmoniously   with   him.     He   entered   the 
Cabinet  as    a  man  of  acknowledged   political  eminence, 
joining  a  body  of  men  with  whom  he  was  in  agreement  on 
the  chief  questions  of  the  time,  and  he  established  himself 
as  Prime  Minister  by  the  gradual  expulsion  of  those  who 
were  inclined  to  dispute  his  pre-eminence. 

He  owed  his  power  to  two  causes,  the  favour  of  the  sources  of 
King,  and  his  skill  in  forming  and  keeping  a  compact 
working  majority  in  the  House  of  Commons.  He  enjoyed 
the  favour  of  the  King  largely  because  he  had  impressed 
the  vigorous  understanding  of  Queen  Caroline  with  a  sense 
of  his  value  to  the  Hanoverian  dynasty.  The  bellicose 
temper  of  George  II  would  have  inclined  him  to  prefer 
Carteret,  who  was  for  a  spirited  foreign  policy.  Caroline 
saw  that  peace  and  low  taxes  were  the  best  security  for 
her  husband's  throne,  and  in  these  matters  she  governed 
her  husband. 

And  the  favour  of  the  King  reacted  on  his  power  of 
keeping  a  majority  together.  A  Minister  had  money  and 
places  to  bestow ;  Walpole  used  these  advantages  with 
skill,  and  without  scruple l.  His  followers  knew  that  they 

1  Mr.  Morley  (English  Statesmen,  Walpole,  121-9)  has  tried  hard  to  ex- 
onerate Walpole  from  charges  which  have  remained  practically  unanswered 
for  more  than  a  century :  but  the  circumstantial  evidence  is  almost  irre- 
sistible. Mr.  Edgecumbe  and  Lord  Isla  had  managed  respectively  the 
Cornish  and  Scotch  constituencies  ;  the  former  was  opportunely  raised  to 
the  Peerage,  and  both  pleaded  privilege  and  refused  to  answer  before  the 
Committee  of  Inquiry.  So  did  Paxton  the  Solicitor  to  the  Treasury, 

I  2 


116 


THE   COUNCILS   OF   THE   CROWN  Chap.  II 


his  defe- 
rence to 
public 
opinion. 


Develop- 
ment of 
party 
manage- 
ment. 


might  not  fare  so  well  under  a  successor,  but  he  never  put 
their  fidelity  to  the  test  by  a  resignation  which  would 
have  shown  whether  they  were  prepared  to  stand  by  him 
in  opposition  and  force  him  upon  the  King. 

He  was  Prime  Minister  in  fact  because  his  will  controlled 
the  action  of  the  Government,  and  because  he  had  con- 
trived to  drive  from  the  Ministry  every  one  whose  opposi- 
tion was  in  any  respect  formidable.  He  watched  public 
opinion,  and  deferred  to  it  sooner  than  risk  his  continuance 
in  office,  and  regardless  of  his  own  views  of  right  or 
wrong.  But  he  was  most  unwilling  to  be  called  a  '  Prime 
Minister,'  because  to  the  popular  mind  that  term  did  not 
signify  a  leader  chosen  by  the  people,  but  a  favourite  of 
the  Court.  Thus,  when  charged  with  being  '  sole  Minister ' 
or  '  prime  vizier,'  he  replied  that  he  was  only  one  of  the 
King's  Council,  and  had  no  more  voice  in  affairs  than  any 
other  member  of  the  Cabinet :. 

I  have  dwelt  thus  on  the  position  of  Walpole  because, 
widely  though  his  position  differs  from  that  of  a  Prime 
Minister  of  modern  times,  it  rested  largely  on  the  support  of 
a  Parliamentary  majority  which  he  knew  better  than  any 
one  else  how  to  obtain.  Not  many  years  after  his  death 
the  arts  of  Parliamentary  management  had  so  far  pro- 
gressed that  the  Pelhams  were  able  to  put  pressure  on  the 
King  to  admit  William  Pitt  to  office.  They  and  their  friends 
resigned  in  a  body,  and  left  no  possible  Minister  at  once 
acceptable  to  the  King  and  the  majority  of  the  Commons  2. 

The  efforts  of  George  III  to  control  the  composition  of 
Cabinets  and  the  direction  of  policy  produced  confusion 
for  the  first  ten  years  of  his  reign,  and  national  misfortune 
during  the  next  twelve.  But  there  grew  out  of  this  a  party, 

though  he  was  sent  to  Newgate  for  his  refusal.  And  what  are  we  to 
make  of  Walpole's  advice,  when  out  of  office,  to  Henry  Pelham :  '  You 
must  be  understood  by  those  that  you  are  to  depend  upon  ;  and  if  it  be 
possible  they  mud  be  persuaded  to  keep  their  own  secret.'  Coxe's  Felham,  i.  93. 

1  Parl.  Hist.  xi.  1380  :  and  see  the  protest  of  the  dissentient  Lords  on 
a  motion  to  remove  Walpole,  '  Because  we  are  convinced  that  a  sole,  or 
even  a  first  Minister  is  an  officer  unknown  to  the  law  of  Britain,  incon- 
sistent with  the  constitution  of  this  country,  and  destructive  of  liberty  in 
any  Government. 

8  Coxe,  Memoirs  of  H.  Pelham,  i.  289. 


Sect.  iii.  §3  THE   PRIME    MINISTER  117 

not  strong  in  numbers  or  Parliamentary  influence,  but 
connected  together  by  a  determination  to  resist  Royal 
influence,  and  claiming  that  if  they  were  to  serve  the  King 
at  all  they  must  come  into  office  as  a  party  with  a  leader 
of  their  own  nomination.  Cabinet  and  party  Government 
appear  with  some  distinctness  of  outline  in  the  theory, 
though  not  fully  in  the  practice,  of  the  Rockingham 
Whigs.  The  King  resented  and  disputed  the  insistence 
by  a  party  on  its  right  to  nominate  its  leader  as  Prime 
Minister1,  and  politicians  were  not  yet  prepared  to  admit 
that  such  a  personage  was  necessary  for  the  working  of 
Government. 

In  1783  the  Duke  of  Grafton,  when  asked  to  join  Lord  A  Prime 
Shelburne's  Ministry,  told  Shelburne  that  he  would  not  notnJ^L. 
consider  him  as  Prime  Minister  2,  but  only  as  holding  the  nised  ** 
principal  office  in  the  Cabinet.     In  the  Coalition  Ministry 
which   succeeded   Shelburne,  the   Duke  of  Portland   was 
placed  at  the  Treasury,  while  Fox  and  Xorth  shared  the 
practical  control  of  affairs.     A  similar  arrangement  was 
proposed  in  1  803  by  Addington  to  Pitt,  the  proposal  being 
conveyed  by  Dundas.    Addington  thought  it  possible  that 
he  and  Pitt  might  be  Secretaries  of  State,  with  a  First  Lord 
of  the  Treasury  of  no  political  importance,  and  that  there 
should  be  no  Prime  Minister.     But  Pitt  had  been  for  seven-  till  Pitt's 
teen  years  a  Prime  Minister  in  the  modern  sense  of  the  ' 
word,   possessing   the   full    confidence   of   the   King,   and 
working  with  a  Cabinet  in  which  his  supremacy  was  un- 
doubted.   He  told  Dundas  that  it  was  '  an  absolute  necessity 
in  the  conduct  of  the  affairs  of  this  country  that  there 
should  be  an  avowed  and  real  Minister  possessing  the  chief 
weight  in  the  Council  and  the  principal  place  in  the  confi- 
dence of  the  King.     That  power  must  rest  in  the  person 
generally  called  First  Minister  V 

It  may  be  said  then  that  before  1832  it  was  essential  to  Conditions 
the  position  of  a  Prime  Minister,  firstly,  that  he  should  hold 


the  '  principal  place  in  the  confidence  of  the  King,'  and  next,  before 

1832. 

1  Stapylton,  Canning  and  his  Times,  203,  208.   Grafton  Memoirs,  355. 
*  Fitzmaurice,  Life  of  Shelburne.  iii.  343.     Grafton  Memoirs,  361. 
5  Stanhope,  Life  of  Pitt,  iv.  24. 


118  THE   COUNCILS   OF   THE   CROWN          Chap.  II 

and  following  from  it,  that  he  should  possess  'the  chief 
weight  in  the  Council.'  The  second  of  these  requirements 
followed  upon  the  first,  because  unless  the  Prime  Minister 
possessed  the  King's  full  confidence  he  might  be  fettered  in 
the  choice  of  his  colleagues,  or  they  might  embarrass  his 
action  by  dissent  or  intrigue.  A  King  such  as  George  III 
might  even  use  his  Parliamentary  influence  to  overthrow 
a  Minister  and  a  Cabinet  loyal  to  one  another  but  unaccept- 
able to  himself. 

Smaller  Two  changes  had  come  over  the  working  of  Cabinet 
Cabmets  Government,  in  the  latter  part  of  the  eighteenth  century, 
both  tending  to  define  and  strengthen  the  position  of  the 
First  Minister  of  the  Crown.  Cabinets  had  become  smaller 
and  limited  to  their  efficient  members.  The  confidential 
Cabinet  as  distinct  from  the  outer  circle  disappears.  Cabinet 
and  responsible  office  go  together.  Loughborough's  claim  to 
sit  at  Cabinet  meetings  when  he  had  ceased  to  be  Chancellor 
was  twenty  years  out  of  date,  though  it  is  a  useful  event  to 
the  historian  for  the  purposes  of  definition.  The  Rocking- 
ham  Cabinet  of  1782  consisted  of  eleven  persons,  and  Fox 
thought  it  was  too  large.  Pitt's  Cabinet  in  1784  consisted 
of  seven  persons  only.  Responsibility  was  thus  concen- 
trated, and  was  concentrated  in  the  immediate  and 
confidential  friends  of  the  Prime  Minister. 

consisting      At  the  same  time  the  Cabinet  had  become  more  closely 
of  depart-  connected  with  the  administration  of  the  departments  of 
ments,       Government,  not  merely  by  the  disappearance  of  the  Arch- 
bishop, the  Lord  Chamberlain,  and  the  Master  of  the  Horse 
from  among  its  number,  but  from  the  altered  position  of 
the  Secretaries  of  State.     They  were  no  longer  the  mere 
channels  of  communication  between  the  King  in  Council 
and  the  outside  world.    After  1782  they  become  responsible, 
respectively,  for  Home  and  Foreign  Affairs. 

We  may  note  the  closer  connexion  of  the  Cabinet  with 
administrative  duties  if  we  follow  the  composition  of 
Cabinets  from  Pitt's  first  ministry  to  his  last. 

In  1784  the  Cabinet  consisted  of  seven  persons,  the 
Chancellor,  Lord  President,  and  Lord  Privy  Seal,  the  First 
Lords  of  the  Treasury  and  Admiralty,  and  the  two  Secre- 


Sect.  iii.  §3  THE  PRIME  MINISTER  119 

taries  of  State.  In  the  Cabinet  of  1805  we  find  in  addition 
to  these  a  third  Secretary  of  State  for  War  and  the 
Colonies,  the  Master  of  the  Ordnance,  the  President  of  the 
Board  of  Control,  Trade  and  the  Post  Office  were  repre- 
sented by  a  single  Minister,  and  the  Chancellor  of  the 
Duchy  of  Lancaster  concludes  the  list. 

The  size  of  Cabinets  has  grown  with  the  requirements  of  strength- 
Scotland,  Ireland,  Local  Government,  Education,  Agricul-  JUJJiJJjJi  of 
ture  to  be  represented  therein.     But  this  does  not  weaken  Premier, 
the  position  of  the  Prime  Minister.     His  colleagues  are  for 
the  most  part  engrossed  in  the  work  of  laborious  offices ; 
they  have  neither  the  leisure  nor  the  inclination  for  the 
sort   of  political   intrigue   which   was  often  fatal  to   the 
Ministries  of  George  II  and  George  III.    Nor  do  they  any 
longer  claim,  as  Shelburne's  colleagues  claimed  in  17  83,  that 
the  Prime  Minister  should  make  no  addition  to  their  number 
without  the  consent  of  the  entire  Cabinet l. 

But  the  extension  of  the  franchise  has  done  more  than  So  does 
anything  else  to  enhance  the  position  of  the  Prime  Minister,  gj^^f^ho 
He  becomes  more  and  more  the  direct  choice  of  the  franchise, 
people,  as  the  House  of  Commons  has  become  more 
and  more  the  reflection  or  the  mouthpiece  of  popular 
opinion.  It  is  obvious  that  when  the  result  of 
a  general  election  sends  to  the  House  of  Commons 
a  large  majority  of  members  bound  by  promises  to 
their  constituents  to  support  the  policy  of  some  one 
individual  statesman,  the  relations  of  such  a  man  with 
the  Crown,  with  his  colleagues,  with  the  majority  which 
supports  him  in  the  House  of  Commons,  are  very  different 
to  those  of  a  Minister  of  the  last  century,  who  in  the  last 
resort  could  only  appeal  to  nomination  boroughs  or  close 
corporations,  or  at  the  best  to  county  constituencies  seldom 
stirred  to  a  vivid  interest  in  political  affairs. 

But  enough  has  been  said  to  indicate  the  growth  of  the 
idea  that  a  Prime  Minister,  though  unknown  to  our  consti- 
tutional law,  is  a  necessary  part  of  our  constitutional 
conventions.  We  should  now  regard  the  actual  relations 
of  the  Prime  Minister  to  the  Crown  and  to  his  colleagues. 

1  Grafton  Memoirs,  359. 


120 


THE   COUNCILS   OF   THE   CEOWN 


Chap.  II 


Mode  of 
appoint- 
ment : 


depart- 
mental 
duties ; 


super- 
vision of 
depart- 
ments. 


The  Prime  Minider  and  his  Colleagues. 

A  man  becomes  Prime  Minister  by  kissing  the  King's 
hands  and  accepting  the  commission  to  form  a  Ministry. 
If  one  Prime  Minister  succeeds  another  without  a  change 
of  Government,  as  in  1894  and  1902,  he  is  spared  a  process 
which  is  not  unattended  with  labour  and  disappointment1. 
In  such  a  case  Ministers  do  not  vacate  their  offices,  for 
these  are  not  held  of  the  Prime  Minister,  but  they  are 
presumed  to  be  at  his  disposal,  and  he  can  ask  his  colleagues 
to  retain  them  or  not  as  he  pleases. 

The  Prime  Minister  is  usually  First  Lord  of  the  Treasury, 
with  departmental  duties  which  are  merely  nominal.  If 
he  is  a  Peer  it  may  be  possible,  though  it  can  hardly 
be  regarded  as  desirable,  that  he  should  undertake  the 
duties  of  a  department.  Lord  Salisbury's  tenure  of  the 
Foreign  Office  illustrates  this  possibility.  But  the  leader- 
ship of  the  House  of  Commons  and  the  conduct  of  its 
business  are  so  important  a  factor  in  the  well-being  of 
a  Government,  that  no  Peer  can  be  Prime  Minister  with 
satisfaction  to  himself  or  advantage  to  the  country  unless 
he  can  find  a  man  who  is  at  once  qualified  to  lead  the 
House  of  Commons  and  able  to  work  in  perfect  accord  with 
him  and  under  him.  This  is  no  easy  matter.  The  power 
of  the  man  who  can  say  '  I  will  not  be  responsible  for  this 
or  that  to  the  House  of  Commons '  is  tremendous  in  the 
counsels  of  a  Government,  and  almost  incompatible  with 
.  subordination  to  a  Premier  in  the  other  House. 

To  spend  eight  hours  of  every  day  in  the  House  of 
Commons  or  its  immediate  neighbourhood ;  to  take  an 
active  and  leading  part  in  debate ;  to  be  present  and  to 
speak  on  many  public  occasions,  political  or  non-political ; 
to  keep  always  in  mind  the  general  policy  of  the  country, 
its  relations  with  foreign  powers,  and  the  trend  of  colonial 
and  domestic  affairs ;  to  recommend  the  right  men  to  the 
king  for  the  service  of  Church  and  State,  is  enough  work 
for  one  man.  The  general  supervision  of  the  departments 
of  Government  which  was  possible  to  Peel  is  not  possible 

1  Morley,  Life  of  Gladstone,  ii.  629. 


Sect.  ui.  §3  THE   PRIME   MINISTER  121 

to  the  Prime  Minister  of  to-day.  He  can  do  no  more 
than  keep  a  watchful  eye  on  those  departments  which 
are  concerned  with  matters  of  current  importance,  and 
trust  to  the  discretion  and  loyalty  of  his  colleagues  in 
other  departments  to  take  no  important  step  without 
consulting  him. 

The  Prime  Minister  communicates  the  result  of  every  Rights  of 
Cabinet  meeting  to   the  King,  and   is  the  intermediary  ^j^-Y11" 
between  the  Cabinet  and  the  Crown ;  but  every  minister  Minister 
who  is  head  of  a  department  is  entitled  to  state  his  business 
directly  to  the  King.     The  Prime  Minister  would  not  allow 
business  peculiar  to  the  department  of  one  of  his  colleagues 
to  be  first  submitted  to  himself,  nor  would  he  allow  one 
Minister  to  interfere  in  the  department  of  another.     No 
loyal  colleague   would,  in   his  communications  with   the 
Sovereign,  discuss  matters  of  novelty  or  importance  which 
had  not  been  previously  discussed  with  the  Prime  Minister, 
or,  if  necessary,  with  the  Cabinet  as  a  whole l. 

Mr.  Gladstone  criticized  severely  the  arrangement  by  as  regards 
which  Lord  Palmerston's  dispatches  were  for  a  time  sub-  o 
mitted    to   Queen  Victoria  by   the   Premier,   Lord    John  office. 
Russell  -.      Lord    Melbourne    returned    to    the    Austrian 
Ambassador  dispatches  addressed  to  him  as  Prime  Minister 
which  should  have  been  sent  to  Lord  Palmerston  as  Foreign 
Secretary  3,  and  alleged  as  one  reason  for  refusing  office  to 
Lord  Brougham  that  when  Chancellor  he  had  interfered  in 
the  business  of  the  Irish  Office   without   communication 
either  with  the  Prime  Minister,  or  the  Home  Secretary 
in  whose  province  the  matter  lay4. 

1  This  sentence  may  seem  to  need  qualification  in  view  of  the  corre- 
spondence which  passed  between  Qaeen  Victoria  and  Lord  Granville  in 
1859  and  in  1864.  Palmerston  and  Russell  were  thought  by  the  Queen 
to  be  acting  contrary  to  her  wishes  and  to  the  opinions  of  their  colleagues, 
and  she  communicated  her  anxieties  to  Granville,  who  was  a  member  of 
the  Cabinet.  His  efforts  to  reassure  her  may  be  regarded  by  some  as 
a  departure  from  the  loyalty  due  to  his  venerable  leaders ;  but  the  situation 
was  a  very  difficult  one.  Fitzmaurice.  Life  of  Lord  Granville,  vol.  i.  350, 459. 

*  Gleanings  of  Past  Years,  i.  86,  87.  He  says  that  the  Premier's 
criticisms  should  have  been  addressed  to  his  colleague,  'and  the  draft 
as  it  goes  to  the  Sovereign  should  express  their  united  view.* 

1  Melbourne  Papers,  340.  '  Ibid.  261,  362. 


122 


THE   COUNCILS   OF   THE   CROWN  Chap.  II 


Cabinet 
Commit- 
tees. 


Their 
working. 


The  assist- 
ance they 
give  to 
Prime 
Minister. 


An  inner 
circle ; 


It  may  be  asked  how  the  Prime  Minister  and  the  Cabinet 
are  now  enabled  to  keep  in  touch  with  the  departments  of 
Government  when  these  desire  to  make  administrative 
changes,  or  require  legislation  for  the  development  of  their 
work.  We  have  seen  how  engrossing  are  the  labours  of 
the  Prime  Minister.  The  Cabinet  is  made  up  of  the  chiefs 
of  responsible  offices  the  administration  of  which  occupies 
most  of  their  time  and  thoughts.  The  difficulty  is  partly 
met  by  the  use  of  Committees  of  the  Cabinet.  If  a  depart- 
ment wants  to  take  such  action  as  is  described — action 
needing  the  consideration  of  the  Cabinet  as  a  whole — the 
representative  of  the  department  in  the  Cabinet  can  intro- 
duce the  business  and  obtain  the  appointment  of  a  Cabinet 
Committee  to  consider  the  question  and  report,  or  decide 
upon  it.  The  practical  convenience  of  such  a  Committee  is 
that  persons  who  are  not  members  of  the  Cabinet  may  be 
called  .to  act  upon  it.  If  the  department  is  represented  in 
the  Commons  by  a  Minister  who  is  not  a  member  of  the 
Cabinet,  or  if  legal  questions  are  involved  needing  the 
advice  of  the  law  officers,  these  men  are  available  to  serve 
on  the  Committee.  By  this  means  the  Minister  who  is  in 
charge  of  the  business  of  the  department  in  the  House  of 
Commons,  if  not  a  member  of  the  Cabinet,  has  a  full 
opportunity  of  expressing  his  views  and  of  learning  the 
mind  of  the  Cabinet  on  the  subject.  The  Prime  Minister 
and  the  Cabinet  obtain  in  a  compendious  form  an  account 
of  the  action  contemplated,  the  reasons  for  and  against 
it,  and  the  materials  for  a  decision. 

This  process  to  some  extent  supplies  the  lack  of  that 
constant  supervision  of  the  departments  which  a  Prime 
Minister  of  to-day  can  no  longer  exercise. 

It  remains  to  be  said  that  if  a  Minister  were  to  take  any 
important  step  without  reference  to  his  colleagues  they 
might  find  it  necessary  to  disavow  his  action,  and  under 
such  circumstances  he  must  resign. 

The  Committees  appointed  as  I  have  described  are  very 
different  from  the  inner  conclave  which  sometimes  grows 
up  within  a  Cabinet.  It  is  quite  plain  that  among  a  group 
of  nineteen  or  twenty  persons  there  must  be  some  who 


Sect.  iii.  §3  THE   PRIME   MINISTER  123 

enjoy  the  special  confidence  of  the  Prime  Minister,  some  not  easily 
whom  he  would  be  disposed  to  consult  in  respect  of  special  definable- 
lines  of  administration,  others  in  general  questions  of 
policy,  party  or  imperial.  But  this  must  depend  greatly 
on  the  quality  of  a  Cabinet  and  on  the  idiosyncracy  of 
the  Prime  Minister.  Every  Cabinet  must  contain  men 
of  very  unequal  merit  who  are  placed  in  the  Cabinet  for 
very  various  reasons.  There  is  a  good  deal  of  specialism 
in  politics :  one  man  may  be  exceptionally  useful  for  party 
purposes  in  platform  speaking  throughout  the  country, 
another  a  powerful  debater  in  the  Commons,  a  third  a  skilled 
administrator,  a  fourth  an  expert  in  the  details  of  party 
management ;  and  there  is  usually  a  heritage  of  previous 
Cabinets,  men  who  are  there  because  it  is  difficult  to  leave 
them  out.  It  must  rest  with  the  Prime  Minister  whether 
he  will  present  his  policy  to  the  Cabinet  as  the  outcome 
of  his  single  brain,  or  whether  he  will  take  previous 
counsel  with  such  of  his  colleagues  as  he  considers  capable 
of  dealing  with  general  questions  of  public  interest. 

We  may  compare  three  Ministries  of  modern  times,  niustra- 
exceptionally  strong  in  the  experience  and  ability  oftlons' 
their  members.  Lord  Aberdeen's  Coalition  Ministry  of  1859, 
Mr.  Gladstone's  Ministry  of  1868,  and  the  Ministry  formed 
by  Lord  Salisbury  in  1895.  There  is  little  sign  of  an 
inner  circle  in  the  history  of  the  first  two,  though  Lord 
Aberdeen  did  not  possess  the  commanding  qualities  or 
strong  will  of  Mr.  Gladstone.  But  in  the  Ministry  of  1895 
the  increased  size  of  the  Cabinet,  the  growth  and  pressure 
of  departmental  work,  and  perhaps  the  fact  that  the  Prime 
Minister  undertook  the  duties  of  a  most  exacting  depart- 
ment, seem  to  have  created  a  tendency  to  allow  serious 
business  to  be  transacted  by  the  Ministers  specially  con- 
cerned, and  to  settle  matters  of  general  importance  without 
a  summons  of  the  Cabinet  for  purposes  of  consultation l. 

It  is   evident   that   in   these   respects  the  relations  of  Appoint- 
a  Prime  Minister  to  his  colleagues  must  vary  with  indi-  "ffice.S 
vidual    character  and  temperament,  and  to  some  extent 
with  circumstances.     More  especially  must  this  be  the  case 
1  Low,  Governance  of  England,  p.  169. 


124  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

with  appointments  to  office.  Here  the  Prime  Minister 
must  obtain  the  formal  approval  of  the  King,  but  need 
consult  no  one l.  Of  such  consultations  as  may  take  place 
we  obtain  rare  glimpses.  That  they  take  place  sometimes 
we  may  fairly  assume  :  that  they  should  take  place  on 
a  large  scale  or  in  a  formal  manner  is  most  unusual.  The 
Duke  of  Argyll  describes  a  curious  departure  from  consti- 
tutional usage  in  this  respect. 

Consulta-  When  the  Palmerston  Ministry  of  1855  was  weakened, 
ceptional  almost  immediately  after  its  formation,  by  the  retirement 
of  Gladstone,  Herbert,  and  Graham,  the  Prime  Minister 
summoned  his  Cabinet  and  consulted  them  as  to  the  mode 
of  filling  the  vacant  places.  As  a  result  of  this  discussion 
Lord  John  Russell  was  offered  the  Colonial  Office,  and 
other  steps  were  taken :  a  little  later  Palmerston  proposed 
to  his  Cabinet  to  add  Lord  Shaftesbury  to  their  number,  but 
the  proposal  was  not  well  received  and  was  abandoned  2. 
His  duties  His  colleagues  look  to  the  Prime  Minister  not  merely  for 
colleagues,  direction  and  guidance,  but  for  help  in  any  Parliamentary 
difficulty  in  which  they  may  find  themselves.  Formerly 
these  difficulties  arose  chiefly  from  some  misunderstanding 
between  a  Minister  and  the  King.  The  correspondence  of 
Lord  Grey  and  Lord  Melbourne  affords  illustrations  of  the 
efforts  which  these  Premiers  were  compelled  to  make  in 
order  to  avert  causes  of  offence  between  William  IV  and 
Lord  Durham,  Lord  John  Russell  and  Lord  Palmerston, 
each  in  his  way  a  somewhat  difficult  colleague  3.  At  the 
present  time,  and  when  the  Prime  Minister  is  usually  a 
member  of  the  House  of  Commons,  such  help  is  usually 
afforded  by  intervention  in  debate. 

His  power      The  Prime  Minister  is  not  only  supreme,  among  his  col- 
missal       leagues,  in  the  matter  of  appointment  to  offices,  he  is  also 
entitled  to  demand  of  the  King  the  dismissal  from  office 
of  persons  with  whom  he  cannot  work  in  the  business  of 

1  This  was  not  the  view  of  the  Rockingham  Whigs.     Graf  ton  Memoirs, 

359- 

-  Duke  of  Argyll,  Autobiography,     i.  541,  543. 

3  Correspondence  of  William  IV  and  Lord  Grey,  ii.  201.     Melbourne 
Papers,  201,  261,  262. 


Sect.  iii.  §  3  THE   PRIME   MINISTER  1 25 

government.     We  are  here  met  by  the  distinction  between 
political  and  non-political  offices. 

Commissions  in  the  army  and  navy  have  been  held 
without  reference  to  political  opinion  ever  since  the  dis- 
missal of  General  Con  way  in  1764.  Members  of  the 
permanent  Civil  Service  are  by  law  incapacitated  from 
sitting  in  Parliament,  and  by  custom  exempt  from  political 
changes.  The  appointments  to  offices  of  the  Household, 
especially  those  held  by  ladies,  were  formerly  regarded  as 
open  to  question  as  regards  their  tenure.  In  the  days  of 
the  first  Rockingham  Ministry  frequent  complaint  was 
made  by  the  Prime  Minister  of  the  hostility  or  lukewarm 
support  shown  to  the  King's  Ministers  by  members  of  the 
King's  Household  sitting  in  Parliament  *.  But  for  some  Political 
time  past  it  has  been  settled  that  '  great  offices  of  the  ^litica" 
Court  and  situations  in  the  Household  held  by  Members  offices, 
of  Parliament  should  be  included  in  the  political  arrange- 
ments made  on  a  change  of  administration  V  As  regards 
the  Ladies  of  the  Household,  whose  position  gave  rise 
to  the  well-known  '  Bed-Chamber  Question '  in  1 839,  the 
arrangement  seems  to  be  that  '  the  Mistress  of  the  Robes,' 
who  is  only  an  attendant  on  great  occasions,  changes  with 
the  Ministry.  '  The  Ladies  in  Waiting  who,  by  virtue  of 
their  office,  enjoy  much  more  of  personal  contact  with  the 
Sovereign,  are  appointed  and  continue  in  their  appoint- 
ments without  regard  to  the  political  connexions  of  their 
husbands  V 

The  holders  of  important  political  offices  who  oppose,  or  Grounds 
do  not  support,  the  Ministry  in  matters  which  are  not 
treated  as  open  questions  are  liable  to  dismissal,  not,  as 
formerly,  in  proof  of  royal  confidence,  but  as  a  matter  of 
necessity  in  transacting  the  business  of  government. 

At  the  present  day  such  questions  could  only  arise  where 
administrative  policy  or  practice  is  concerned.  A  Minister 
who  voted  against  his  party  in  a  division  for  which  the 
Government  Tellers  were  employed  would,  by  convention, 

1  Rockingham  Memoirs,  i.  294,  299.     Minutes  of  Melbourne  Cabinet. 

8  Hansard,  3rd  Series,  xlvii.  1001. 

*  Gladstone,  Gleanings  of  Past  Years,  i.  40. 


126  THE   COUNCILS   OF   THE   CKOWN  Chap.  II 

place  his  resignation  in  the  hands  of  the  Prime  Minister  as 
soon  as  he  had  determined  on  his  course  of  action. 

Condi-  Moreover,  when  it  is  said  that  the  Prime  Minister  has  the 

dismissal,  power  of  dismissing  his  colleagues,  no  more  is  meant  than 
this,  that  he  can  say  to  the  King,  '  He  or  I  must  go/  We 
get  a  good  illustration  of  this  in  the  dismissal  of  Lord 

Thurlow.  Chancellor  Thurlow,  in  May,  1792.  Thurlow  had  long  been 
a  false  and  froward  colleague  :  at  last  he  raised  a  sudden 
opposition  to  a  Government  measure  in  the  House  of  Lords 
and  nearly  brought  about  its  rejection.  Pitt  wrote  to  tell 
him  that  it  was  impossible  for  the  King's  service  to  be  '  any 
longer  carried  on  to  advantage  while  your  Lordship  and 
myself  both  remain  in  our  present  situations,'  and  wrote  in 
the  same  sense  to  the  King.  The  King  at  once  desired 
Dundas,  the  Home  Secretary,  to  wait  on  the  Lord  Chan- 
cellor, and  inform  him  of  Pitt's  determination,  and  further, 
that  having  to  decide  'which  of  the  two  shall  retire 
from  my  service,'  and  feeling  the  removal  of  Pitt  to  be 
impossible,  he  must  call  upon  Thurlow  to  give  up  the  Great 
Seal1. 

Palmer-  In  the  case  of  Lord  Palmerston  in  1851,  the  Prime 
Minister  was  well  aware  that  Queen  Victoria  disapproved, 
as  he  did,  of  the  communications  made  by  Lord  Palmerston 
to  M.  Walewski  in  London  and  to  Lord  Normanby  in  Paris 
expressing  approval  of  the  coup  d'6tat  of  December,  1851. 
Lord  Palmerston  had  made  these  important  declarations  of 
policy  without  consulting  his  colleagues  in  the  Cabinet. 
Lord  John  was  therefore  '  most  reluctantly  compelled  to 
come  to  the  conclusion  that  the  conduct  of  Foreign  Affairs 
can  no  longer  be  left  in  your  hands  to  the  advantage  of  the 
country  2 '. 

It  may  be  said  that  the  strength  of  a  Prime  Minister's 
position  may  be  tested  not  only  by  his  power  of  dismissing 
a  colleague,  but  by  his  ability  to  withstand  the  weakening 
of  his  Government  by  the  retirement  of  important  members 
of  the  Cabinet. 

The  strength  of  Pitt's  Ministry  was  unaffected  by  the 

1  Stanhope,  Life  of  Pitt,  ii.  148-50. 

9  Walpole,  Life  of  Lord  J.  Russell,  ii.  173. 


Sect.  iii.  §3  THE   PRIME   MINISTER  127 

dismissal  of  Thurlow,  but  that  of  Lord  John  Russell  did  not  Effect  of 
long  survive  the  dismissal  of  Palmerston. 

The  resignation  by  Lord  Althorp  of  the  office  of  Chancel- 
lor of  the  Exchequer  and  of  the  leadership  of  the  House  of 
Commons  in  1834  brought  about  the  retirement  of  Lord 
Grey,  and  though  Lord  Althorp  resumed  these  duties  under 
Lord  Melbourne,  yet  when,  within  a  few  months,  he  suc- 
ceeded to  a  peerage  the  Ministry  was  so  weakened  that 
Lord  Melbourne  could  suggest  no  course  satisfactory  to  the 
King,  and  Sir  Robert  Peel  was  sent  for. 

Mr.  Balfour's  Cabinet  survived,  for  more  than  two  years, 
the  retirement  of  five  important  members,  but  it  was  so  far 
weakened  that,  except  in  the  direction  of  Foreign  Affairs, 
little  serious  work,  legislative  or  administrative,  could  be 
entered  upon. 

On  the  other  hand,  Mr.  Gladstone's  Government  of  1880 
was  little  affected  by  the  resignation  in  1881  of  Mr.  Forster, 
who,  as  Irish  Secretary,  was  responsible  for  the  department 
the  affairs  of  which  excited  most  attention  at  the  moment  ; 
nor  was  Lord  Salisbury's  Government  of  1886  shaken  by 
the  retirement  of  Lord  Randolph  Churchill,  at  that  time 
the  most  prominent  figure  in  the  Conservative  party. 
There  seems  to  be  no  doubt,  for  reasons  which  I  will 
mention  later,  that  the  vitality  of  Governments  is  stronger 
now  than  heretofore,  and  that  a  Prime  Minister  is  more 
absolute,  and  more  capable  of  dispensing  with  the  service 
of  distinguished  colleagues,  than  was  the  case  before  the 
latest  Acts  for  the  extension  of  the  franchise  and  redistribu- 
tion of  seats. 

It  is  said,  and  truly,  that  the  Prime  Minister  is  unknown  Prece- 
to  the  law  ;   no  salary  is  attached  to  the  office,  if  office 


it  can  be  called  ;  the  term  does  not  occur  in  any  Act  Minister. 
of  Parliament,  nor  in  the  records  of  either  House.  In  two 
formal  documents  only  does  he  find  place.  Lord  Beacons- 
field  described  himself  in  the  Treaty  of  Berlin  as  Prime 
Minister  of  England;  and  on  December  2,  1905,  the  King 
by  sign-manual  warrant  gave  to  the  Prime  Minister  place 
and  precedence  next  after  the  Archbishop  of  York. 


128 


THE   COUNCILS   OF   THE   CROWN 


Chap.  II 


Cabinet 
entitled  to 
king'scon- 
fidence  : 


(a)  he 
should  not 
consult 
others ; 


(6)  nor 
act  with- 
out their 
advice ; 


(c)  nor  re- 
fuse his 
support. 


The  Relations  of  the  Cabinet  to  the  Crown. 

The  King's  servants  are  entitled  to  his  full  confidence, 
and  this  means  first,  that  he  should  not  take  advice  from 
others,  in  matters  of  State,  unknown  to  them ;  next,  that  he 
should  not  give  public  expression  to  opinions  on  matters  of 
State  without  consulting  them ;  and  lastly,  that  he  should 
accept  their  advice  when  offered  by  them  as  a  Cabinet,  and 
support  them  while  they  remain  his  servants. 

The  correspondence  between  William  IV  and  Lord  Grey 
affords  some  useful  illustrations  of  these  propositions, 
for  William  IV,  with  excellent  intentions,  was  impulsive 
and  unversed  in  the  rules  and  practice  of  constitutional 
Government. 

The  Duke  of  Wellington  addressed  the  King  directly  on 
the  subject  of  the  arming  of  political  societies  at  a  time 
when  the  excitement  occasioned  by  the  Reform  Bill  caused 
some  anxiety  as  to  the  maintenance  of  order.  The  King 
replied,  and  the  Cabinet,  though  assured  that  his  corre- 
spondence with  the  Duke  did  not  indicate  any  want 
of  confidence  in  them,  remonstrated  through  the  Prime 
Minister.  Lord  Grey  writes  that  '  it  might  produce  incon- 
venience if  His  Majesty  were  to  express  opinions  to  any 
but  his  confidential  servants  in  matters  which  may  come 
under  their  consideration1.'  The  King  promised  that  in 
future  he  would  merely  acknowledge  such  communications. 

Again,  on  the  occasion  of  Sir  C.  Grey  being  sworn  of  the 
Privy  Council  as  a  member  of  the  Canadian  Commission, 
William  IV  made  a  short  speech  in  which  he  referred,  un- 
mistakably and  in  terms  of  severity,  to  advice  received 
from  the  Colonial  Secretary.  The  Cabinet  remonstrated 
with  the  King  for  having  done  that  which  might  '  have 
the  effect  of  hereafter  restraining  the  freedom  of  that 
advice  which  it  is  the  duty  of  every  one  of  your  Majesty's 
confidential  servants  to  offer  to  your  Majesty  without 
reserve.' 

The  third  proposition  is  not  so  easy  to  illustrate.  A 
Sovereign  of  this  country  either  accepts  the  advice  of  his 

1  Corresp.  of  Will.  IV  and  Lord  Grey,  i.  413-24. 


SecUii.  §3     THE  CABINET  AND   THE   CROWN  129 

Ministers  in  any  matter  to  which  they  attach  importance,  or 
must  dismiss  them.  But  there  are  many  ways  in  which  the 
influence  of  the  Crown  may  be  used  to  assist  the  Ministry 
of  the  day.  In  domestic  affairs  we  know  how  important 
was  the  effect  on  the  passing  of  the  first  Reform  Bill  of  the 
communications  addressed  by  William  IV  to  the  opponents 
of  the  Bill  in  the  House  of  Lords  ;  and  the  efforts  of 
Queen  Victoria  largely  contributed  to  bring  about  a  settle- 
ment of  the  threatened  dispute  between  the  two  Houses 
in  the  case  of  the  Disestablishment  of  the  Irish  Church  1. 
In  Foreign  Affairs  the  international  courtesies  of  King 
Edward  VII  lend  valuable  aid  to  the  pacific  policy  of  the 
Foreign  Office. 

The  Cabinet,  on  the  other  hand,  are  bound,  as  is  each  Duties  of 
individual  member,  to  inform  the  King  on  all  important  £J^ 
measures  of  the  Executive.     William  IV  expressed  surprise 
and  displeasure  when  he  supposed  that  his  Ministers  had 
introduced,  without  his  knowledge,  a  Bill  for  abolishing 
capital  punishment  in  certain  cases.     He  was  assured  that 
the  measure  in  question  was  a  private  member's  Bill,  and 
that  certain  members  of  the  Government  had  supported  it, 
as  they  were  entitled  to  do  in  the  legitimate  exercise  of 
their  private  judgment. 

The  necessity  for  giving  this  information  to  the  Sovereign  Full  infor- 
is  well  illustrated  by  the  circumstances  which  brought  about 


Lord  Palmerston's  retirement  in  1851,  and  the  memorandum  govem- 
communicated  to  him  by  Queen  Victoria  through  the  Prime 
Minister  as  to  the  duty  of  the  Secretary  of  State  for  Foreign 
Affairs  2.     It  was  in  these  words  :  — 

'  The  Queen  requires,  first,  that  Lord  Palmerston  will  distinctly 
state  what  he  proposes  in  a  given  case,  in  order  that  the  Queen 
may  know  as  distinctly  to  what  she  is  giving  her  royal  sanction. 
Secondly,  having  once  given  her  sanction  to  a  measure,  that  it 
be  not  arbitrarily  altered  or  modified  by  the  Minister.  Such  an 
act  she  must  consider  as  failing  in  sincerity  towards  the  Crown, 
and  justly  to  be  visited  by  the  exercise  of  her  constitutional 
right  of  dismissing  that  Minister.  She  expects  to  be  kept 

1  Life  of  Archbishop  Tait,  ii.  24,  and  see  supra,  pp.  43,  44. 

2  Hansard,  3rd  Series,  cxix.  90. 


AN  SON.   CROWN 


130  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

informed  of  what  passes  between  him  and  the  foreign  ministers, 
before  important  decisions  are  taken,  based  upon  that  inter- 
course ;  to  receive  the  foreign  dispatches  in  good  time,  and  to 
have  the  drafts  for  her  approval  sent  to  her  in  sufficient  time  to 
make  herself  acquainted  with  their  contents  before  they  must 
be  sent  off.' 

Briefly,  one  may  say  that  the  King  is  entitled  to  be 
informed  of  all  important  executive  or  legislative  measures 
which  have  so  far  ripened  towards  action  as  to  have  come 
before  the  Cabinet  for  discussion. 

and  Suggested  changes  in  administration  may  begin  in  so 

changes     vague  and  tentative  a  manner  that  it  is  hard  to  say  at  what 

ofadmim-  .... 

stration.  point  communication  with  the  King  becomes  imperative.  It 
is  clear  that  the  negotiations  which  Addington  conducted 
with  Pitt  in  1804  went  further  than  George  III  considered 
.  to  be  justifiable,  and  it  would  certainly  seem  right  that 
when  the  confidential  servants  of  the  Crown  contemplate 
a  change  in  the  character  of  the  administration,  the 
Sovereign  should  have  early  knowledge  of  the  matter. 
Queen  Victoria  was  offended,  not  without  reason,  when,  in 
1 886,  Lord  Randolph  Churchill  communicated  his  resigna- 
tion to  the  Times  before  it  was  made  known  to  her l. 

§  4.  The  Relations  of  the  Cabinet  and  the  House  of  Commons. 

Changes  It  remains  to  consider  the  relations  of  the  Cabinet  with 
^e  House  of  Commons.  Here  we  must  be  careful  lest  we 
apply  a  theory  of  the  constitution  which  really  corresponded 
with  practice  for  about  fifty  years  of  the  middle  nineteenth 
century  to  periods  before  the  first  Reform  Bill,  and  since 
the  last  extension  of  the  franchise,  when,  although  the 
theory  is  true,  it  is  true  in  a  very  different  sense. 

Without  a  majority  in  the  House  of  Commons  it  is  plain 
that  the  Cabinet  cannot  carry  the  legislation  or  obtain  the 
supplies  which  it  requires.  But  in  order  to  determine  the 
relations  of  the  Cabinet  to  the  Commons  it  is  necessary  to 
consider  how  that  majority  comes  into  existence  and  is 
kept  together. 

1  Life  of  Lord  Randolph  Churchill,  vol.  ii.  p.  253. 


Sect.  Hi.  §4      THE   CABINET   AND   THE   COMMONS  131 

In  applying  our  theory  to  the  practice  of  the  eighteenth  How 
and  early  nineteenth  centuries,  we  must  not  allow  ourselves 
to  suppose   that  constituencies  were  always  eager,  well-  in  eigh- 
informed,  and  uncorrupt,  that  the  House  of  Commons  was 
always   really  representative  of  such  constituencies,  that 
parties  were  always  well  defined,  and  that  the  Crown  always 
loyally  accepted  the  decision  of  the  people  and  of  Parliament 
as  to  the  party  which  should  govern  and  the  men  who  should 
guide.     Throughout  the  greater  part  of  the  eighteenth  cen- 
tury these  conditions  were  inadequately  fulfilled.  The  public  Apathy  of 
was  often  apathetic  on  political  questions :  the  House  of  country- 
Commons  was  not  representative  of  public  opinion :  nomina- 
tion  boroughs  and   constituencies  subject  to  influence  of 
one  sort  or  another  gave  a  large  control  over  the  representa- 
tion of  the  House  to  great  landowners,  to  the  Crown,  or  the 
Government  of  the  day.     Thus  it  was  that,  in  the  absence  Corrup- 
of  political  interests  and  of  party  divisions  based  on  such  tlon  °*c 
interests,  an  adroit  Parliamentary  manager  might  keep  a 
majority  together,  although,  like  Walpole,  he  had  fallen 
under  the  cordial  dislike  of  the  people,  or,  like  Newcastle, 
had  never  attracted  their  attention.     For  the  same  reasons 
it  was  possible  for  George  III,  who  busied  himself  in  matters 
of  patronage   and   corruption,  to  make,  keep,  or  destroy 
a  majority  for  any  Ministry. 

To  enforce  joint  responsibility  upon  a  body  of  Ministers 
it  is  necessary  either  that  the  Ministers  themselves  should  be 
effectively  agreed  on  certain  lines  of  policy,  and  loyal  to 
one  another,  or  that  they  should  represent  a  party  strong 
enough  in  the  country  to  enforce  its  policy  upon  its 
nominees.  No  King  who  aimed  at  personal  influence  Influence 
would  desire  that  his  Ministers  should  represent  a  compact 
body  of  opinion,  adverse  perhaps  to  his  own.  George  III, 
who  not  only  desired  to  rule,  but  saw  how  the  apathy  of 
the  country  and  the  self-interest  of  public  men  made  it 
possible  for  him  to  enjoy  the  reality  of  power,  used  every 
opportunity  to  break  up  parties  and  prevent  the  formation 
of  strong  Ministries.  His  successors  wero  not  so  per- 
tinacious or  so  astute,  but  the  fact  remained  that,  as  the 
electorate  was  constituted  before  1832  almost  any  Ministry 

K  2 


132  THE  COUNCILS   OF  THE  CROWN  Chap.  II 

which  enjoyed  the  support  of  the  Crown  could  command 
such  a  majority  as  would  enable  it  to  hold  office.  The  great 
displays  of  public  opinion  at  general  elections,  in  1784,  in 
1807,  and  in  1831,  all  served  to  confirm  in  office  an  existing 
Ministry.  The  ultimate  legal  sanction  which  the  House  of 
Commons  can  bring  to  bear  on  a  Ministry  of  which  it 
disapproves,  the  refusal  to  pass  the  Mutiny  Act  or  grant 
supplies,  has  never  in  fact  been  applied.  The  only  Ministers 
before  the  Reform  Act  of  1832  who  resigned  in  consequence 
of  defeats  in  the  House  of  Commons  were  Sir  Robert 
Walpole  in  1741,  Lord  Shelburne  in  1783,  and  the  Duke  of 
Wellington  in  1830. 

We  may  look  at  this  relation  of  Cabinet  to  Commons  as 
it  existed  before  1832,  and  again  before  and  since  1885.  It 
should  be  borne  in  mind  that  during  the  first  of  these  three 
periods,  and  indeed  for  rather  longer,  it  was  not  expected  of 
Causes  of  a  Ministry  that  they  should  do  more  than  administer.  The 
cf biifels  c^e^ea^  which  drove  Walpole  from  power  took  place  in  a 
before  committee  of  the  House  sitting  to  hear  an  election  petition. 
Shelburne  was  beaten  on  a  vote  of  approval  of  the  Peace 
of  Versailles.  There  is  no  instance  before  1830  of  a  Ministry 
retiring  because  it  was  beaten  on  a  question  of  legislation  *, 
or  even  of  taxation.  So  late  as  1841  Macaulay  maintained 
in  the  House  of  Commons,  speaking  as  a  Cabinet  Minister, 
that  a  Government  was  not  bound  to  resign  because  it  'could 
not  carry  legislative  changes,  except  in  particular  cases, 
where  they  were  convinced  that  without  such  and  such 
a  law,  they  could  not  carry  on  the  public  service.'  Legis- 
lation which  Ministers  might  need  for  administrative  pur- 
poses was  the  only  sort  of  legislation  about  which,  in  the 
opinion  of  the  Melbourne  Cabinet,  a  Government  need  feel 
sensitive. 

But,  generally  speaking,  one  may  say  that  from  1832  to 
1867  a  defeat  in  the  House  of  Commons  on  what  the 

1  Chatham  was  defeated  on  the  Ways  and  Means  of  the  year  and  on 
the  proposed  land  tax,  and  Pitt  on  commercial  policy  with  Ireland, 
Parliamentary  reform,  and  national  defence ;  these  defeats  were  not 
treated  as  grounds  for  resignation.  Massey,  i.  307.  Stanhope,  Life  of 
Pitt,  i.  254,  273,  275,  288.  Todd  (Parl.  Government  in  England,  i.  253  et 
aeq.)  tabulates  the  causes  of  the  fall  of  ministries  since  1782. 


Sect.  iii.  §4     THE  CABINET  AND  THE  COMMONS  133 

Cabinet  may  Have  chosen  to  consider  a  vital  issue  was  the 
ordinary  mode  of  terminating  the  existence  of  a  Ministry. 
Since  1 867  there  have  been  nine  changes  of  Ministry :  on  Since 
four  of  these  occasions  Ministers  have  resigned  because  l  7* 
they  were  defeated  in  the  House  of  Commons,  on  four 
because  the  verdict  of  the  constituencies  at  a  general 
election  had  been  given  decidedly  against  them.  It  was 
made  a  matter  of  reproach  to  Lord  Salisbury's  Ministry 
in  1892  that,  being  in  an  apparent  minority  of  forty  on 
the  result  of  a  general  election,  they  did  not  resign  at  once, 
but  awaited  an  adverse  vote  in  the  House  of  Commons. 
The  circumstances  under  which  Mr.  Balfour's  Ministry  The 
retired  in  1905  are  too  peculiar  to  be  likely  to  form  a  1^*6  °f 
precedent.  A  Cabinet  weakened  by  the  retirement  of  five 
important  members,  warned  by  the  result  of  frequent  by- 
elections  that  it  had  lost  the  confidence  of  the  country, 
conscious  of  divisions  of  opinion  among  its  supporters  on 
a  serious  question  of  economical  policy,  retained  a  majority 
of  seventy  to  eighty,  which  enabled  it  to  live  through  the 
Sessions  of  1904  and  1905.  During  the  recess  Mr.  Balfour 
resigned,  mainly  on  the  ground  that  he  had  no  legislative 
programme  to  lay  before  Parliament  in  the  ensuing  Session. 
His  opponents  accepted  office  without  hesitation,  formed 
a  Ministry,  and  dissolved  Parliament.  The  results  of  the 
general  election  which  ensued  indicate  that  a  Government 
which  is  conscious  of  failing  popularity  does  better  to 
accept  defeat  in  the  House  of  Commons,  or  to  appeal  to 
the  country  on  its  own  account,  than  to  follow  the  course 
adopted  in  1905. 

The  conditions  under  which  Mr.  Balfour's  Government  Changed 
retained  office  during  the  years  1903,  1904,  1905  raise  an  cabinet  ° 
interesting  question  as  to   the  present  relations  of   the and 
Cabinet  to  the  Commons.     It  is  true,  I  think,  to  say  that 
in  the  last  100  years  the  power  which  determines   the 
existence  and  extinction  of  Cabinets  has  shifted,  first  from 
the  Crown  to  the  Commons,  and  then  from  the  Commons 
to  the  electorate.     But  it  is  no  longer  true  that  the  House 
of  Commons  is  always  a  close  reflection  of  the  opinion 
of  the  country,  or  that  it  responds  to  changes  of  public 


134  THE   COUNCILS    OF   THE   CROWN          Chap.  II 

opinion   as  they  may  occur   during  the  existence  of  a 

Parliament. 

Power  of       The  causes  of  these  changes  are  various.    Before  1832 
Commons  £ne   Crown   and  its   servants  could  exercise  considerable 

between 

1832-67.  influence  on  the  composition  and  conduct  of  the  House  of 
Commons.  The  Reform  Act  of  1832  was  an  attempt  to 
make  the  House  at  once  independent  and  representative, 
to  distribute  political  power  in  correspondence  with  the 
conditions  of  the  time,  and  to  give  representation  to  the 
great  centres  of  industry  as  well  as  to  the  smaller  boroughs 
and  rural  counties.  Holding  to  the  principle  that  repre- 
sentation should  be  local,  and  the  voter  a  person  of  sub- 
stance, the  franiers  of  the  Bill  made  the  House  a  fair 
representation  of  the  middle  classes.  The  result  as  it 
worked  out  between  1832  and  1886  was  to  give  to  the 
House  a  greater  share  of  political  power  than  it  possessed 
before  that  date,  or  possesses  now. 

Effects  of  The  present  conditions  are  attributable  not  so  much  to 
0^1884-5"  the  extension  of  the  franchise  as  to  the  distribution  of 
political  power  by  the  creation  of  single-member  con- 
stituencies, and  to  the  development  of  party  organization. 
Before  the  legislation  of  1885  the  constituencies  for  the 
most  part  returned  two  members,  political  organization 
was  not  fully  developed,  and  there  was  greater  opportunity 
for  the  representation  of  variety  of  opinion.  The  creation 
of  the  single-member  constituency  under  existing  political 
conditions  has  gone  far  to  destroy  the  local  character  of 
our  representative  system,  and  the  independence  of  the 
individual  member. 

of  the  When  a  constituency  returned  two  members  the  elector 

member     ^a(^  ^ne  cn°ice  °^  varieties  of  opinion  even  among  mem- 

consti-       bers  of  the  same  party:   under  the  present  system,  and 

ncy'     with   the   increased  strength   of  political  organization,  a 

candidate  offers  himself,  not  so  much  on  his  own  merits, 

as  because  he  is  the  nominee  of  the  political  association  or 

caucus  which  professes  to  represent  his  party,  and  because 

he  undertakes  to  support    a   given    programme  and  the 

leaders  of  the  party. 

The  result  is  that  an  important  division  in  the  House 


Sect.iii.  §4      THE   CABINET   AND   THE   COMMONS  135 

of  Commons,  before    1832,    represented   very   often    the  of  party 
personal  views  of  those  who  owned  or  controlled  constitu- 1^?17* 
encies,  since  1886  it  represents  the  directions  of  external 
party  organization.   Between  those  dates  a  member  enjoyed 
a  greater  freedom  of  judgment  in  the  exercise  of  his  vote, 
and  hoped  to  justify  his  action  to  his  constituency. 

Modern  rules  of  procedure  give  to  the  Government  of  of  pro- 
the  day  a  large  control  over  the  time  of  the  House  for  the  °*f  "sr? 
purposes  of  its  own  business,  while  the  introduction  of  the 
closure  leaves  the  time  for   discussion  of  a  Government 
measure  very  largely  in  the  hands  of  the  Government.    Yet 
another  element  in  the  situation  is  that  a  slight  but  widely 
diffused  change  of  political  sentiment  may,  acting  on  the 
numerous  constituencies  of  the  present  day,  change  the  cha- 
racter of  the  House  of  Commons,  and  give  to  one  of  two  parties  in  in- 
a  majority  large  beyond  all  proportion  to  the  numerical  p^we^o 
majority  of  votes  cast  for  them  throughout  the  country.       Cabinet. 

The  consequence  of  these  various  features  of  our  political 
life  at  the  present  time  is  to  make  the  House  of  Commons 
dependent  on  the  Cabinet  rather  than  the  Cabinet  on  the 
Commons.  The  threat  of  a  dissolution  suggests  to  the 
supporters  of  a  Ministry  the  certainty  of  expense  and  the 
possibility  of  defeat,  and  this  possibility  may  assume  a  more 
formidable  aspect  if  by-elections  have  resulted  unfavour- 
ably to  the  Government.  Such  a  threat,  issuing  from  the 
Prime  Minister  as  representing  the  collective  wisdom  of  the 
Cabinet,  may  secure  the  continued  loyalty  of  a  majority  in 
the  House  of  Commons  long  after  the  composition  of  the 
House  has  ceased  to  correspond  with  the  political  opinion 
of  the  country.  A  member  may  have  ceased  to  be  in 
sympathy  with  the  leaders  of  his  party,  but  he  may  also 
feel  that  small  as  will  be  his  chances  of  re-election  in  any 
event,  they  would  disappear  altogether  if  he  broke  the 
bonds  of  party  allegiance.  In  truth  the  Redistribution  of 
1885  has  done  much  to  destroy  the  independence  of  the 
members  of  the  House  of  Commons.  The  power  and  in- 
fluence which  it  has  lost  has  gone  partly  to  the  Cabinet, 
partly  to  the  constituencies,  or  rather  in  many  cases,  to  the 
organizations  by  which  the  constituencies  are  worked. 


136  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

§  5.  The  Imperial  Defence  Committee. 
The  Imperial  Defence  Committee  will  be  dealt  with 
under  the  head  of  the  Armed  Forces  of  the  Crown,  but  it 
should  be  mentioned  here.  It  is  not  a  Council  of  the 
Crown ;  it  is  not  a  Committee  of  the  Cabinet ;  it  has  no 
executive  power.  The  Prime  Minister  is  always  a  member, 
and  'it  practically  never  meets  without  having  the 
assistance  of  the  Secretary  of  State  for  War,  the  First 
Lord  of  the  Admiralty,  the  head  of  the  Army  General 
Staff,  the  head  of  the  Army  Intelligence  Department,  the 
First  Sea  Lord,  and  the  head  of  the  Naval  Intelligence 
Department1.'  Other  persons  may  be  summoned  if  the 
business  under  discussion  needs  their  advice,  as,  for  instance, 
the  Foreign,  Colonial  or  Indian  Secretaries,  the  Chancellor 
of  the  Exchequer,  or  representatives  of  the  self-governing 
Colonies2.  Records  are  kept  of  the  proceedings  of  this 
Committee,  and  for  this  purpose  it  possesses  a  permanent 
Secretary;  these  features  at  once  distinguish  it  from  the 
Cabinet.  It  exists  for  the  purpose  of  framing  and  record- 
ing the  best  advice  obtainable  on  questions  of  Imperial 
Defence  for  the  benefit  of  the  Departments  concerned. 
The  relations  of  this  Committee  to  the  Cabinet  have  some- 
times been  misunderstood,  as  also  its  powers  and  duties, 
and  for  this  reason  I  mention  it  here.  Incidentally  its 
existence  adds  to  the  many  labours  of  the  Prime  Minister, 
who  habitually  takes  the  chair  at  its  meetings. 

SECTION  IV 

THE  HOUSE  OF  LORDS  AND  THE  PRIVY  COUNCIL  AS 
COUNCILLORS  OF  THE  CROWN 

§  1.     The  House  of  Lords. 

The  House      The  House  of  Lords  is  still,  in  theory,  a  Council  of  the 
£g  a  Crown.     The   peers   have   never  been  summoned  in  this 

Council,     capacity   since    1688,  but  their  historical  rights  are  pre- 
served in  two  ways. 
Form  of        The   writ  of  summons  addressed  to  the  temporal   and 

writ. 

1  Hansard,  4th  Series,  vol.  cxxxix.  p.  619. 

2  Speeches  of  Mr.  Balfour  on  August  2,  1904  and  May  n,  1905.      Parl. 
Debates,  4th  Series,  vol.  cxxxix.  p.  68,  vol.  cxlvi.  p.  62. 


Sect.  iv.  §2  THE  PRIVY  COUNCIL  137 

spiritual  peers  is  a  call  'to  treat  and  give  council';  the 
judges  and  law  officers  are  summoned  to  attend  them; 
whereas  the  Commons,  before  the  Ballot  Act  reduced  the 
writ  to  a  form,  were  summoned  to  '  do  and  consent  to  such 
things,  as  by  the  said  Common  Council  .  .  .  shall  happen 
to  be  ordained  V 

It   is  the   privilege   of    each   individual   peer  to   have  Privilege 
audience  of  the  Sovereign.     Such  a  right  was  freely  exer-  °{&ccesat° 

0  *  Sovereign. 

cised  in  the  eighteenth  century,  when  parties  were  less 
coherent,  members  of  Cabinets  less  loyal  to  one  another, 
and  the  King  more  ready  to  listen  to  advice  given  to  him 
by  others  than  his  responsible  Ministers.  At  the  present 
day  a  peer  would  hesitate  to  offer  counsel  to  the  Crown 
on  any  matter  which  fell  within  the  province  of  the 
Ministry  of  the  day.  Nevertheless,  the  King  has  a  right 
to  demand,  and  any  peer,  whether  of  the  United  Kingdom, 
of  Scotland  or  of  Ireland,  has  a  right  to  offer  counsel  on 
matters  which  are  of  importance  to  the  public  welfare 2. 

§  2.     The  Privy  Council. 

The  Privy  Council,  as  such,  has  ceased  to  be  a  Council  of 
the  Crown.  It  meets  for  the  purpose  of  making  Orders, 
issuing  Proclamations,  or  attending  at  formal  acts  of  State, 
such  as  the  admission  of  a  Minister  to  his  office  or  the  ren- 
dering of  homage  by  a  Bishop  for  the  temporalities  of  his 
see.  The  Cabinet  has  acquired  the  place  which  the  Council 
once  held  as  the  adviser  of  the  Crown. 

Some  part  of  its  earlier  duties  in  this  respect  survive  in  The  Privy 
the  Committees  of  the  Privy  Council.  At  present  there 
are,  besides  the  Judicial  Committee,  three  Standing  Com- 
mittees of  the  Council,  but  only  one  of  these,  the  Committee 
for  business  relating  to  the  Channel  Islands,  represents  the 
old  Standing  Committees  appointed  by  the  King  in  Council 
at  the  commencement  or  in  the  course  of  his  reign  3.  The 
1  Vol.  i.  pp.  55,  58. 

a  The  right  is  to  go  singly,  and  the  application  for  such  an  audience 
is  made  through  an  officer  of  the  household,  not  through  the  Secretary  of 
State.  Diary  of  Lord  Colchester,  iii.  604. 

8  The  Committee  for  Trade  and  Plantations  rests  on  an  Order  in  Coun- 
cil of  August  23,  1786.  See  port,  p.  198. 


138  THE   COUNCILS   OF   THE   CROWN  Chap.  II 

Judicial  Committee  is  a  statutory  Court  of  Final  Appeal 

from  all  parts  of  the  King's  Dominions  outside  the  United 

Commit-    Kingdom1.     The  two  Committees  which  are  constituted 

Council,     respectively  for  the  Universities  of  Oxford  and  Cambridge 2 

and  for  the  Scotch  Universities 3  are  also  the  creations  of 

Statute. 

But  the  form  of  advice  and  counsel  is  maintained.  The 
judicial  Committee  of  the  Privy  Council  when  it  gives 
judgment  '  humbly  advises  His  Majesty '  that  an  appeal 
should  be  allowed  or  dismissed,  or  a  judgment  varied. 

A  Committee  for  Trade  and  Plantations  used  till  recent 
times  to  advise  other  departments  of  Government  on  matters 
affecting  commerce  or  colonial  relations:  and  Committees 
of  the  Privy  Council  are  appointed  from  time  to  time  for 
various  purposes  of  inquiry. 

The  main  business  of  the  Privy  Council  must  therefore 
be  dealt  with  in  the  next  chapter,  for  it  is  important  to 
distinguish  the  duty  of  settling  policy  and  advising  action 
accordingly,  from  the  duty  of  actual  administration  in 
the  various  departments  of  State. 

But  since   the   advisers  of  the  Crown   are  necessarily 
Privy  Councillors,  it  would  be  well  here  to  speak  of  the 
mode  of  appointment  and  dismissal  of  a  Privy  Councillor, 
and  of  any  special  matters  appertaining  to  his  status. 
How.  The  Privy  Councillor  is  nominated  by  the  King ;  he  takes 

the  oath  of  office  and  the  oath  of  allegiance  and  kisses  the 
King's  hand  at  a  meeting  of  the  Council. 

The  oath  of  office  is  as  follows : — 

The  oath.  You  shall  swear  to  be  a  true  and  faithful  Servant  unto  the 
King's  Majesty,  as  one  of  His  Majesty's  Privy  Council.  You 
shall  not  know  or  understand  of  any  manner  of  thing  to  be 
attempted,  done,  or  spoken  against  His  Majesty's  Person, 
Honour,  Crown,  or  Dignity  Royal ;  but  you  shall  lett  and 
withstand  the  same  to  the  uttermost  of  your  Power,  and  either 
cause  it  to  be  revealed  to  His  Majesty  Himself,  or  to  such  of 
His  Privy  Council  as  shall  advertise  His  Majesty  of  the  same. 
You  shall,  in  all  things  to  be  moved,  treated  and  debated  in 

'3*4  Will.  IV,  c.  41.  »  4o  &  4i  Viet.  c.  48,  s.  46. 

3  5a  *  53  Viet.  c.  55,  9.  9. 


Sect.  iv.§2  THE   PRIVY   COUNCIL  139 

Council,  faithfully  and  truly  declare  your  Mind  and  Opinion 
according  to  your  Heart  and  Conscience  ;  and  shall  keep  secret 
all  Matters  committed  and  revealed  unto  you  or  that  shall  be 
treated  of  secretly  in  Council.  And  if  any  of  the  said  Treaties 
or  Councils  shall  touch  any  of  the  Counsellors,  you  shall  not 
reveal  it  unto  him,  but  shall  keep  the  same  until  such  time  as, 
by  the  Consent  of  His  Majesty,  or  of  the  Council,  Publication 
shall  be  made  thereof.  You  shall  to  your  uttermost  bear  faith 
and  allegiance  unto  the  King's  Majesty  :  and  shall  assist  and 
defend  all  jurisdictions,  pre-eminences  and  authorities  granted 
unto  His  Majesty  and  annexed  to  the  Crown  by  Acts  of  Parlia- 
ment or  otherwise,  against  all  Foreign  Princes,  Persons, 
Prelates,  States  or  Potentates.  And  generally  in  all  things 
you  shall  do  as  a  faithful  and  true  Servant  ought  to  do  to  His 
Majesty.  So  help  you  God  and  the  Holy  Contents  of  this 
Book. 

An  affirmation  may  now  be  substituted  for  the  oath l. 

No  formality  beyond  this  is  required  for  the  appoint-  How  dis- 
ment  of  a  Privy  Councillor,  and  none  for  his  dismissal ;  it  m 
is  enough  for  this  purpose  that  the  King  should  send  for 
the  Council  book  and  strike  his  name  off  the  list  of  the 
Privy  Council.  The  demise  of  the  Crown  formerly  dissolved 
the   whole   Council   in   six  months  from  the  date  of  the 
demise,  unless  the  new  Sovereign  should  re-appoint  the 
Council  of  his  predecessors.     The  Demise  of  the  Crown 
Act2  provides  that  the  death  of  the  Sovereign  does  not 
affect  the  tenure  of  office  held  under  the  Crown. 

The  members  composing  the  Privy  Council  may  be  said  Composi- 
te fall  into  three  groups.     Members  of  the  Cabinet  must  council, 
necessarily  be  made  members  of  the  Privy  Council  as  the 
confidential  advisers  of  the  Crown.     Beyond  these  there 
are  great  offices  which,  though  unconnected  with  politics, 
are  usually  associated  with  a  place  on  the  Council  Board. 
Beyond   these   again   is   a  group  of  persons  eminent  in 
political  life  or  in  the  service  of  the  Crown,  upon  whom 
the  rank  of  Privy  Councillor  is  conferred   as   a   compli- 
mentary distinction3. 

1  51  &  52  Viet.  c.  46.  s  i  Ed.  I,  c.  5. 

8  A  king's  son  is  a  Privy  Councillor  by  birth,  during  his  father's  life- 
time, and  does  not  need  to  be  sworn.     Greville  Memoirs,  iv.  374. 


140  THE   COUNCILS   OF   THE   CROWN 

Alienage.  Until  1870  an  alien  born  could  not  become  a  member  of 
Parliament  or  of  the  Privy  Council  though  naturalized. 
This  disqualification  was  imposed  by  the  Act  of  Settlement, 
and  difficulties  in  removing  it,  even  by  Statute,  were  added 

1714-  by  i  Geo.  I,  c.  4.  Thus  in  order  that  naturalization  might 
confer  political  rights  in  an  individual  case,  it  was 
necessary  to  repeal  that  Act  for  the  purposes  of  that  case, 
before  a  bill  could  be  brought  in  to  remove  the  statutory 
disability  created  by  the  Act  of  Settlement.  The  Naturali- 
zation Act  of  1870  confers  upon  naturalized  persons  the 
full  political  rights  of  a  British  subject,  and  the  distinction 
between  citizens  by  birth  and  naturalization  is  abolished 
so  far  as  political  rights  are  concerned. 

The  right  The  members  of  the  Privy  Council,  like  the  judges  of 
11 '  the  High  Court  of  Justice,  are  in  the  Commission  of  the 
Peace  for  every  county.  The  right  of  the  Privy  Council, 
or  of  a  Committee  of  the  Council,  or  of  individual  mem- 
bers, to  commit  persons  to  prison  seems  to  have  been 
practically  settled  by  this  arrangement,  and  is  limited  by 
the  security  which  the  Habeas  Corpus  Acts  supply,  that 
a  prisoner  shall  not  be  detained  without  the  opportunity 
of  speedy  trial,  bail  or  discharge.  Thus  the  questions, 
which  once  were  of  interest1,  concerning  the  right  of 
a  Privy  Councillor  or  of  the  collective  Council  to  commit 
to  prison  are  answered,  and  need  no  further  discussion 
here. 

1  In  the  Seven  Bishops'  case  much  argument  was  expended  on  the 
legality  of  commitment  by  the  lords  of  the  Council,  because  it  was  not 
alleged  in  the  warrant  that  the  commitment  was  by  the  Privy  Council, 
but  only  by  certain  lords.  The  right  of  the  collective  Council  to  commit 
for  misdemeanour  seems  to  have  been  admitted,  and,  equally,  that  an 
individual  councillor  could  not  so  commit.  12  St.  Trials,  183. 


CHAPTER  III 

THE  DEPARTMENTS  OF  GOVERNMENT  AND  THE 
MINISTERS  OF  THE  CROWN 

I  HAVE  traced  the  history  of  the  Councils  of  the  Crown 
to  their  issue  in  the  Cabinet  of  the  present  day,  dependent 
for  its  existence  upon  the  continued  support  of  Parliament 
and  the  electorate. 

But  the  Cabinet  is  not  the  executive  in  the  sense  in  The 
which  the  Privy  Council  was  the  executive.     The  Cabinet 
shapes  policy  and  settles  what  shall  be  done  in  important  executive, 
matters,    and   it  consists  mainly   of   the  heads  of    great 
departments  of   government,  but  it  is  not  therefore  the 
executive. 

The  King  in  Council  gives  orders  that  certain  things 
shall  be  done  ;  but  the  Cabinet  gives  no  orders  ;  it  settles 
that  orders  shall  be  given,  or  —  if  the  personal  intervention 
of  the  Crown  is  necessary  —  that  the  King  shall  be  advised 
to  act  in  a  certain  manner.  When  we  have  learned  all 
that  can  be  learned  about  the  Cabinet,  we  have  only 
ascertained,  as  it  seems  to  me,  what  is  the  nature  of  that 
body  which,  while  Parliament  and  the  country  support  it, 
decides  with  an  irresistible  force  of  decision  what  action 
shall  be  taken,  what  orders  shall  be  given.  The  Cabinet 
advises  the  King  that  war  be  declared  with  a  foreign  but  the 
power,  the  Foreign  Secretary  in  the  name  of  the  King 


recalls  our  representative  at  the  Court  of  that  power,  the  in  the 
King  in  Council  proclaims  the  declaration  of  war.     The  eJ 
Cabinet  decides  that  ships  or  troops  shall  be  sent  here  or 
there;  the  First  Lord  of  the  Admiralty  or  the  Secretary 
of  State  for  War  gives  the  necessary  orders.     The  Cabinet 
decides  that  the  King  shall  be  advised  to  dissolve  Parliament, 
the  King  in  Council  proclaims  the  dissolution  of  Parlia- 
ment and  the  summons  of  a  new  one,  the  Chancellor  issues 
the  writs  which  bid  the  peers  to  attend  and  the  consti- 
tuencies to  elect  representatives, 


142          THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 

The  Cabinet  is  the  motive  power  in  our  executive.  The 
decisions  of  the  Cabinet  and  the  advice  thereupon  ten- 
dered to  the  Crown  bring  into  action  the  departments  of 
government  concerned.  Of  these  and  of  the  Ministers  who 
supervise  them  we  must  now  treat. 

SECTION  I 
THE  GROWTH  OF  DEPARTMENTS  OF  GOVERNMENT 

§  1.  The  Offices  of  the  Household. 

The  Ministers  of  the  Crown  represent  a  more  universal 
requirement  of  royalty  than  do  the  Councils  of  the  Crown. 
The  principle  that  some  form  of  representative  consent  is 
needed  to  alter  the  law  of  the  land,  and  that  the  King 
should  act  with  and  through  a  group  of  advisers,  is  a 
feature  common  to  our  own  and  some  other  western  con- 
stitutions :  but  every  King  must  have  Ministers  to  maintain 
the  dignity  of  his  household,  to  assist  in  the  transaction 
of  his  business. 

The  King's  Official  life  may  be  said  to  begin  with  the  King's  house- 
household,  hold.  The  chamberlain,  the  steward,  the  horsthegn  or 
marshal,  and  the  cupbearer  or  butler,  are  the  necessary 
ministers  of  the  Teutonic  court1  in  England  and  on  the 
continent :  and  the  Norman  King  had  his  Lord  High 
Steward,  his  Lord  Great  Chamberlain,  his  Constable  and 
his  Marshal2. 

The  On  these  it  is  not  necessary  to  dwell,  nor  to  trace  their 

history  down  to  the  present  time.  Shortly  it  may  be  said 
that  these  great  offices  became  hereditary  and  honorary  3, 
and  then  were  duplicated  in  order  that  their  work  might 
be  done.  The  Lord  Great  Chamberlain  survives,  as  does 
the  Earl  Marshal,  the  head  of  the  Herald's  College.  The 
Lord  Great  Chamberlain  has  the  charge  of  the  King's 
Palace  at  Westminster,  and  retains  authority  over  the 
buildings  of  both  Houses  of  Parliament  when  the  Houses 
are  not  sitting  4.  Both  officers  discharge  certain  honorary 
duties  at  a  coronation. 

1  Stubbs,  Const.  Hist.  i.  343.  a  Ibid.  354.  s  Ibid.  i.  345. 

4  See  Journal  of  Speaker  Denison,  p.  215,  and  Report  on  the  Presence 
of  the  Sovereign  in  Parliament,  1901. 


Sect.  i.§l      THE   OFFICES   OF   THE   HOUSEHOLD  143 

A  Lord  High  Steward  is  appointed  for  the  purpose  of 
presiding  at  the  trial  of  a  peer  for  treason  or  felony,  and 
also  for  the  ceremonial  of  a  coronation;  the  Lord  High 
Constable  is  brought  into  existence  for  the  coronation  only. 

But  there  is  a  Lord  Steward,  as  also  a  Lord  Chamberlain  The 
and  a  Master  of  the  Horse ;  they  have  functions  in  the 
King's  household  at  the  present  day,  and  the  Lord  Cham- 
berlain is  also  a  censor  of  plays,  and  of  theatrical  manage- 
ment. These  were,  as  we  have  seen,  Cabinet  offices  in  the 
last  century,  before  1782,  and  they  are  still  political  offices 
in  so  far  as  they  change  hands,  with  other  places  in  the 
household,  on  a  change  of  government l.  Two  offices,  those 
of  Treasurer  and  Controller  of  the  Household,  are  usually 
held  by  two  members  of  the  House  of  Commons  who, 
together  with  the  Junior  Lords  of  the  Treasury,  act  as 
Whips  for  the  Government  of  the  day. 

The  Chamberlain,  however,  needs  a  fuller  notice.     This  Th 
officer  was  originally  responsible  for  the  administration  of  {^ 
the   royal   household.      His  office   was  therefore   one  of 
financial  importance.     Of  this  indications  are  afforded  in 
the  fact  that  in  Saxon  times  the  words  hordere  or  thesau- 
rarius  were  synonyms  for  the  Chamberlain 2 ;  in  the  fact 
that  some  portions  of  the  Norman  King's  revenues  were 
not  paid  into  the  Exchequer  but  in  camera  regis 3 ;  in  the 
frequent  and  elaborate  ordinances  for  the  regulation  of  the 
royal  household ;  in  the  constant  demand  of  the  mediaeval  import 
Parliaments  that  'the  King  should  live  of  his  own,'  that 
the  Chamberlain  among  other  officers  of  State  should  be 
nominated  in  Parliament. 

So  when  the  office  became  hereditary  and  titular  there 

1  These  offices  are  : — 

The  Lord  Steward  of  the  House-  The  Captain  of  the  Gentlemen  at 

hold.  Arms. 

The  Lord  Chamberlain.  The  Captain  of  the  Yeomen  of 
The  Vice-Chamberlain.  the  Guard. 

The  Master  of  the  Horse.  The  Master  of  the  Buck  hounds. 

The  Treasurer  of  the  Household.  The  Chief  Equerry. 

The  Controller  of  the  Household.  The  Lords  in  Waiting. 

*  Kemble,  Saxons  in  England,  ii.  c.  3. 

*  Report  on  Public  Income  and  Expenditure,  1869,  p.  341. 


144          THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 

was  need  of  a  real  minister  to  do  its  work  :  this  was 
the  King's  Chamberlain,  represented  at  the  Exchequer 
by  two  camerarii.  The  duties  of  these  Chamberlains 
of  the  Exchequer  became  merely  formal  after  the  reign 
of  Henry  VII,  but  the  King's  Chamberlain  retained  his 
importance. 

He  was  not  merely  concerned  with  the  economy  of  the 
King's  household ;  he  was  a  medium  of  communication 
between  King  and  Council,  and  occasionally  endorsed 
petitions  which  the  King  had  signed,  or  carried  them  with 
his  instructions  to  the  Secretary  of  State 1.  In  the  Statute 
of  Precedency  he  ranks  above  the  King's  secretaries  2. 

As  late  as  the  reigns  of  William  III  and  Anne  the  office 
was  filled  by  statesmen  of  the  first  rank,  by  Shrewsbury 
and  Sunderland  in  the  reign  of  William,  by  Shrewsbury  in 
the  reign  of  Anne.  But  from  this  time  forth,  although  the 
office  was  long  regarded  as  one  of  Cabinet  rank,  it  ceased 
to  be  held  by  persons  of  such  political  eminence. 

§  2.     The  Political  Offices. 

The  Trea-  In  the  management  of  the  King's  household  we  find  the 
beginning  of  the  departments  of  government.  But  as  the 
business  of  the  kingdom  increases,  the  keeper  of  the  treasure, 
which  is  expended  on  national  purposes,  becomes  an  official 
distinct  from  the  Chamberlain  and  Steward,  who  receive 
and  expend  the  funds  by  which  the  royal  household  is 
maintained.  The  secretarial  business  is  transacted  by  the 
chief  of  the  royal  chaplains,  who  in  the  reign  of  Edward 

The  Chan-  the  Confessor  becomes  the  Chancellor.  The  Saxon  King 
seems  to  have  needed  a  great  officer  to  act  as  his  deputy  or 
representative,  and  the  Norman  King  of  necessity  appointed 
some  one  to  act  on  his  behalf  when  he  was  absent  in 

TheJusti-  France.  Hence  arises  the  Justiciar,  whose  name  indicates 
the  constant  unresting  activity  of  the  Norman  Kings  in 
enforcing  the  justice  of  their  courts,  and  in  asserting  their 
peace  as  against  the  justice  and  the  peace  of  localities  and 

1  Nicolas,  vol.  vi.  pp.  ccxiv,  ccxxiii.     Ordinance  of  1443. 
3  31  Hen.  VIII,  c.  10,  s.  4. 


Sect  i.  §2  POLITICAL   OFFICES  145 

great  lords  of  lands.  Thus  side  by  side  with  the  officers  Growth  of 
of  the  King's  household  arise  officers  for  the  conduct  of 
national  business.  These  fall  at  first  into  three  groups: 
the  administration  of  the  King's  justice  and  maintenance 
of  the  King's  peace ;  the  account,  receipt,  and  issue  of  the 
King's  treasure ;  the  communication  of  the  King's  will 
expressed  individually  or  in  Council. 

Throughout  the  greater  part  of  our  history  the  only  The  Ad- 
organized  department  for  the  defence  of  the  nation  is  the  m 
Admiralty;   feudalism,  and    the   institutions  which  grew 
out  of  feudalism,  supplied  the  place  of  an  organized  military 
system  for  offence  and  defence ;  the  War  Office  has  slowly  Develop- 
grown   up   as  Parliament  slowly  recognized  the  need  of  ^p°^f 
a  standing  army,  and  the  King  as  slowly  surrendered  his  ments. 
prerogatives  in  respect  of  military  command.     The  union 
with  Scotland,  the  union  with  Ireland,  the  growth  of  the 
colonies  and  the  acquisition  of  India,  have  created  new 
needs   for  organized  administration,  while   the   increased 
activity  of  the  State  has  established  central  control  over 
trade,    over  local   government,   over  education,  and  agri- 
culture. 

I  propose  in  this  chapter  to  deal  with  the  history  and 
constitution  of  these  various  departments,  leaving  to  a 
separate  chapter  the  administration  of  justice  and  the 
constitution  of  the  courts.  With  some  departments  I  must 
hereafter  deal  more  fully,  and  shall  therefore  speak  of  them 
briefly  in  this  chapter. 

One  searches  for  some  logical  arrangement  of  the  Arrange- 
functions  of  government  which  should  give  life  and  reality 
to  an  account  of  the  offices  of  State,  and  in  a  previous 
edition  I  tried  to  find  such  an  arrangement  by  a  division 
of  them  into  executive  and  regulative.  Apart  from  the 
offices  of  the  household,  the  departments  of  government 
might  be  regarded  as  falling  into  these  two  groups.  There 
are  some  things  which  are  necessary  to  be  done,  and  some 
rules  necessary  to  be  enforced,  if  a  State  is  to  be  solvent 
and  orderly  at  home  and  to  maintain  independence  and 
dignity  abroad.  There  are  other  things  which  are  not  Division 
necessary  but  expedient  to  be  done,  and  other  rules  in  like 


AN803.    CROWN 


146         THE   DEPARTMENTS   OF   GOVERNMENT       Chap.  Ill 

manner  to  be  observed,  for  the  well-being  of  the  community. 
The  first  of  these  represent  the  duty  of  the  executive  par 
excellence,  the  essential  business  of  government.  The 
second  represent  the  desire  of  the  State  to  regulate  human 
conduct  so  as  not  merely  to  secure  the  existence  of  the 
community,  but  to  promote  its  well-being. 

Historical  This  division,  however,  is  not  exhaustive,  nor  is  the  dis- 
tincti°n  always  easy  to  substantiate.  It  seems  better  to 
treat  these  offices  historically,  and  to  group  them  according 
to  their  origin.  Regarded  thus  they  fall  into  four  groups. 

Offices  in        Two  great  offices,  both  of  high  antiquity,  are  now  always 

sion?"  placed  in  commission,  the  office  of  Lord  High  Treasurer 
and  that  of  Lord  High  Admiral.  The  Treasury  therefore, 
with  its  subordinate  departments,  and  the  Admiralty  stand 
historically  apart  from  the  rest;  and  the  rest  may  be 
divided  into  those  which  have  grown  out  of  the  Secretariat 
and  those  which  have  grown  out  of  the  Council. 

TheSecre-  Under  the  Secretariat  I  would  include  all  those  offices 
which  take  their  origin  in  the  custody  of  the  royal  seals 
and  the  formal  communication  of  the  Bang's  pleasure. 
The  Chancellor,  the  Lord  Privy  Seal,  the  Secretaries  of 
State,  the  Secretary  for  Scotland,  and  the  Secretary  to  the 
Lord  Lieutenant  of  Ireland  would  fall  into  this  group. 

The  In  the  remaining  group  we  must  place  the  Privy 

s'  Council — for  many  purposes  the  formal  executive  of  the 
country — and  all  those  Boards  which  once  were  Committees 
of  the  Council,  and  which  still,  by  their  statutory  composi- 
tion, though  not  in  practice,  consist  of  a  number  of  great 
officers  of  State  with  a  President  who  is,  for  all  purposes  of 
administration,  the  Board. 

The  Privy  It  will  be  necessary  to  take  the  Privy  Council  apart  from 
ouncii.  ^e  various  Boar(jg  which  have  grown  out  of  its  Com- 
mittees, because  the  Privy  Council  is,  as  I  have  said,  for 
many  purposes,  the  formal  executive  of  the  country.  But, 
with  the  exception  of  the  Privy  Council,  I  will  take  the 
departments,  or  groups  into  which  they  fall,  in  the  nearest 
possible  approach  to  their  historical  order,  dealing  first 
with  the  Chancery,  the  Privy  Seal,  and  the  Secretariat: 
then  with  the  Treasury,  the  Admiralty,  and  the  Boards 


Sect.ii  THE   PRIVY  COUNCIL  147 

which  have  sprung  from  the  Privy  Council.  There  will 
still  remain  some  offices  which  cannot  be  grouped,  of  which 
that  of  the  Chancellor  of  the  Duchy  of  Lancaster  is 
politically  the  most  important. 


SECTION  II 
THE  PRIVY  COUNCIL 

I  have  spoken  of  the  Privy  Council  as  it  once  was,  a  The 
Council  of  the  Crown  as  well  as  a  branch  of  the  executive, 
a  body  which  assisted  the  Crown  to  decide  upon  policy  expressing 
and,  with  the  Crown,  gave  the  orders  for  carrying  that  pleasure, 
policy  into  effect. 

But  we  must  now  regard  it  as  divested  of  its  consultative 
duties,  as  a  formal  medium  for  expressing  the  royal  pleasure 
in  certain  matters  of  executive  government. 

These  are  dealt  with  either  by  Order  in  Council  or  by  By  Order. 
Proclamation ;  they  are  so  dealt  with  either  in  virtue  of  the 
discretionary  prerogative  of  the  Crown,  or  under  powers 
conferred  by  Statute ;  and  where  a  Statute  confers  powers 
it  may  enable  them  to  be  exercised  by  Lords  of  the  Council, 
or  any  two  of  them,  without  the  presence  of  the  King. 

Some  matters  are  of  a  formal  character.  The  entire 
Council  was  summoned  to  receive  Queen  Victoria's  announce- 
ment of  her  intended  marriage ;  in  the  Council  persons  are 
admitted  to  its  membership  or  to  the  offices  of  State.  It 
is  in  the  Council  that  a  Minister  takes  the  official  oath, 
kisses  the  King's  hands,  and  receives  the  insignia  of  his 
office ;  that  a  Bishop  does  homage  for  the  temporalities  of 
his  see ;  that  the  Sheriffs  of  counties  for  the  current  year 
are  chosen. 

When  matters  are  merely  approved  or  passed  by  the 
King  in  Council,  an  Order  is  made  to  that  effect.     When  it  By  Procla- 
is  desired  to  render  the  action  of  the  Council  widely  public,  m 
this  is  done  by  royal  Proclamation. 

Proclamations  are  of  unfrequent  use,  except  for  the  pur- 
pose of  summoning,  proroguing  or  dissolving  Parliament, 
for  declaring  war  or  peace,  in  fact  for  announcing  some 

L  a 


148        THE   DEPARTMENTS   OF   GOVERNMENT       Chap.  Ill 

matter  which  may  be  supposed  to  concern  the  nation  in  its 
entirety. 

The  multifarious  character  of  the  Orders  in  Council  made 
under  statutory  powers  may  be  seen  by  a  reference  to  the 

Nature  of  index  to  any  volume  of  the  London  Gazette.  Some  effect 
departmental  legislation  of  a  very  important  character. 
They  are  the  instruments  of  government  for  Crown 
colonies,  newly  settled  countries  and  protectorates;  they 
confirm  or  disallow  the  acts  of  colonial  legislatures ;  they 
give  effect  to  treaties,  grant  charters  to  companies  or 
municipal  bodies,  or  regulate  the  business  of  departments. 

Whence         In  such  cases  the  Council  usually  acts  at  the  instance 

originate  anc^  on  ^e  responsibility  of  a  department1,  the  Colonial 
Office,  the  Foreign  Office,  or  some  office  in  which  it  may  be 
desired  to  regulate  or  redistribute  the  duties  and  salaries. 
When  a  petition  is  addressed  to  the  Crown  for  the  grant  of 
a  charter,  the  matter  is  referred  to  a  Committee  of  the  Privy 
Council  for  advice.  It  is  only  thus,  through  the  agency  of 
Committees,  that  the  consultative  functions  of  the  Council 
survive.  In  other  cases  in  which  the  Council  may  be  left 
to  act  on  its  own  responsibility  it  can  consult  the  law 
officers  of  the  Crown.  The  modes  of  summons  to  meetings 
of  the  Council  and  of  Committees  have  been  set  forth 
earlier:  the  persons  summoned  need  not  consist  entirely 
of  Cabinet  Ministers,  nor  is  it  necessary  that  more  than 

How          three  should  be  present.     The  Orders  of  the  Council  are 

, «          .  •  i 

catedG.n  authenticated  by  the  signature  of  the  Clerk. 
The  Presi-  The  President  of  the  Council  is  appointed  by  a  declara- 
tion made  in  Council  by  the  King.  He  is  an  officer  of  the 
highest  dignity.  In  the  House  of  Lords  he  ranks  next 
after  the  Chancellor  and  Treasurer,  and  this  was  his 
position  in  the  Council.  He  now,  by  a  custom  the  com- 
mencement of  which  is  not  certain,  takes  the  first  place 
at  the  council  table  on  the  King's  right  hand. 

Transfer  We  may  note  the  constant  tendency  of  the  business  of 
to  depart-  ^ne  P^vy  Council  to  pass  into  the  hands  of  specially  con- 
ments.  stituted  departments  of  government.  Much  of  the  work 

1  See  Commons  Papers  for  1854,  vol.  27,  p.  221.     Reports  from.  Com- 
missioners [1715]. 


Sect,  ii  THE   PRIVY   COUNCIL  149 

which  is  now  done  entirely  by  the  Secretary  of  State  for 
Foreign  Affairs  was  formerly  dealt  with  by  a  Committee 
of  the  Lords  of  the  Council.  The  statutory  duties  of  the 
Board  of  Trade  are  discharged,  not  by  the  still  surviving 
Committee  of  Council  for  Trade  and  Plantations,  but  by 
the  President  and  Secretary  of  the  Board.  The  duties  of 
the  Council  in  regard  to  public  health  have  gone  to  the 
Local  Government  Board  ;  in  regard  to  agriculture  to  tho 
more  recently  constituted  Board  of  Agriculture1.  Until 
1899  there  was  a  Committee  of  Council  for  Education,  but 
this,  too,  is  now  superseded  by  a  Board  2.  This  transposi- 
tion of  business  has  gone  on  ever  since  the  Council,  in  its 
entirety,  ceased  to  be  a  consultative  and  became  a  purely 
executive  body.  The  process  began  with  the  development 
of  the  various  Secretaryships  of  State,  and  we  see  it  con- 
tinuing in  the  constitution  of  the  modern  Boards. 

Another  point  to  note  is  the  immense  importance  of  the  Impor- 
business  which  may  be  transacted  in  the  Council  without 


discussion,  and  with  no  opportunity  of  question  in  Parlia-  done  in 
ment,  at  the  instance  of  the  Cabinet  or  of  a  department. 
Some  of  these  matters  might  attract  the  attention  of  Parlia- 
ment, though  not  till  their  effects  could  no  longer  be 
cancelled  or  undone.  Of  others  Parliament  would  hardly 
take  heed.  The  redistribution  of  duties  in  the  War  Office 
or  Admiralty  determines  the  channels  through  which 
skilled  advice  may  reach  the  Secretary  of  State  or 
the  First  Lord  in  the  business  of  his  department; 
the  extension  of  the  powers  of  the  High  Commissioner 
in  South  Africa  amounts  to  an  assumption  of  sovereign 
rights  over  a  vast  territory  3,  but  the  discussion  on 
such  action  of  the  executive  may  be  nearly  nominal  4. 
No  doubt  this  is  desirable  in  the  interests  of  good  govern- 
ment. The  executive  could  not  transact  its  business  if 
every  action  depended  on  the  approval  of  irresponsible 
politicians,  and  the  collective  House  of  Commons  is  well 

1  From  1883  to  1889  there  was  a  Committee  of  the  Council  for  Agricul- 
ture.    Hansard,  cccxxxvi.  1768. 

2  62  &  63  Viet.  c.  33.  s  Order  in  Council,  gth  May,  1891. 
4  Order  in  Council,  aist  Feb.  1888.     Hansard,  cccxxii.  353. 


150         THE   DEPARTMENTS   OF   GOVERNMENT       Chap.  Ill 

advised  if  it  leaves  to  the  executive  the  responsibility 
in  their  inception  for  measures  for  the  results  of  which 
a  government  must  ultimately  render  an  account  to  the 
country. 

The  Privy  Council  is  one  of  the  channels  through  which 
the  pleasure  of  the  Crown  is  expressed,  but  there  are  indi- 
vidual departments  of  government  which  exist  or  have 
existed  for  the  same  purpose.  These  are  the  Chancery,  the 
office  of  the  Privy  Seal,  and  the  Secretariat. 

SECTION  III 
THE  CHANCERY  AND  THE  SECRETARIAT 

§  1.     The  Chancellor. 

Original         The  great  office  of  Chancellor  dates  back  in  our  history 

of  Chan*-3   to  the  reign  of  Edward  the  Confessor.     He  was  the  chief 

cellor.        of  the  King's  secretaries,  the  chief  of  the  King's  chaplains, 

and  custodian  of  the  royal  seal.     Edward  the  Confessor 

was  the  first  King  who  used  the  Norman  practice  of  sealing, 

instead  of  signing,  documents  to  which  he  was  a  party,  and 

the  Chancellor  is  thus  specially  associated  with  the  seal, 

though  it  is  probable  that  earlier  kings  than  Edward  had 

employed  one  officer  as  chief  of  their  secretarial  and  chapel 

staff1. 

Depart-  All  three  functions  combined  to  increase  the  Chancellor's 
a  '  importance.  As  Secretary  he  enjoyed  the  King's  confidence 
in  secular  matters;  as  Chaplain  he  advised  the  King  in 
matters  of  conscience;  as  Keeper  of  the  Seal2  he  was 
necessary  to  all  outward  and  formal  expressions  of  the 
royal  will.  In  the  reign  of  Henry  II  he  ranked  next  in 
dignity  after  the  Justiciar,  and  was  present  at  all  Councils 
of  the  King. 

In  the  reign  of  Edward  I  the  Chancellor  begins  to  appear 
in  the  three  characters  in  which  we  now  know  him:  as 

1  Stubbs,  Const.  Hist.  i.  352.  The  derivation  of  the  name  is  there 
traced  to  the  cancdli  or  screen,  behind  which  the  secretary's  business  was 
conducted,  not  to  the  jesting  explanation  of  John  of  Salisbury,  '  Hie  est 
qui  regni  leges  cancellat  iniquas.1 

*  For  the  history  of  the  Great  Seal,  see  Nicolas,  Proceedings  of  the 
Privy  Council,  vol.  vi.  p.  cli  et  seq. 


Sect.iii.  §1  THE   CHANCELLOR  151 

a  great  political  officer,  as  the  head  of  a  department  for 
the  issue  of  writs  and  the  custody  of  documents  in  which 
the  King's  interest  is  concerned,  as  the  administrator  of 
the  King's  grace. 

He  was  a  prominent  member  of  the  King's  Council,  and  con- 
where  as  a  learned  lawyer  his  opinion  would  carry  weight.  8U  ta  lve* 
His  original  staff  in  the  Chancery  consisted  of  certain  clerks 
whose  duty  it  was  to  hear  complaints  and  afford  remedy  by 
writ,  and  six  others  who  were  busied  in  engrossing  writs. 
The  formation  of  the  three  Common  Law  Courts  had 
doubtless  removed  from  the  Curia  or  the  Council  much 
judicial  business  in  which  the  Chancellor  had  taken  part, 
but  he  was  brought  into  contact  with  the  administration 
of  justice  as  head  of  the  department  whence  writs  were 
issued,  the  officina  brevium. 

To  the  Chancellor  were  also  specially  referred  petitions  His 
the  response  to  which  involved  the  use  of  the  seal;   in^U(*' 
common  with  the  justices  he  was  required  to  overlook  all 
petitions,  and  determine  what  could  and  what  could  not  be 
answered  without  reference  to  the  King's  grace.     These 
latter  the  Chancellor  and  other  chief  Ministers  were  directed 
to  take  to  the  King l. 

But  in  the  twenty-second  year  of  Edward  III  matters  Equitable, 
which  were  of  grace  were  definitely  committed  to  the 
Chancellor  for  decision2,  and  from  this  point  there  begins 
to  develop  that  body  of  rules — supplementing  the  defi- 
ciencies or  correcting  the  harshness  of  the  Common  Law — 
which  we  call  Equity. 

It  is  with  the  formation  and  development  of  the  rules  of 
Equity  that  we  commonly  associate  the  history  of  the  Chan- 
cellor's office.  But  the  Chancellor  as  judge  forms  part  of 
the  history  of  the  Courts.  His  equitable  jurisdiction,  thus 
created,  dissociated  itself  by  degrees  from  other  jurisdic- 
tions springing  from  the  high  office  which  had  made  him 
'  great  alike  in  Curia  and  Exchequer.'  For  some  time,  as 
appears  from  the  Calendar  of  Proceedings  in  Chancery,  he 
was  called  on  to  deal  with  cases  of  violence  and  oppression, 

1  Ordinance  of  ia8o.     Stubbs,  Const.  Hist.  ii.  263. 
a  Ibid.  269. 


152        THE   DEPARTMENTS   OF   GOVERNMENT       Chap.  Ill 

such  as  more  often  came  before  the  collective  Privy  Council l ; 
and  though  he  gradually  dropped  such  cases,  leaving  them 
to  the  Council  or  to  the  Star  Chamber,  the  tradition 
lingered  late2. 

Miscel-  It  was  doubtless  because  the  Chancellor  was  the  member 
of  the  Council  to  whom  matters  of  grace  were  habitually 
referred,  that  the  petition  of  rigid,  the  remedy  possessed  by 
the  subject  against  the  sovereign,  went  through  its  earliest 
stages  in  the  Chancery.  The  procedure  in  respect  of  this 
remedy  was  changed  in  1 860  3. 

Again,  as  having  once  been  a  member  of  the  Curia  and 
a  baron  of  the  Exchequer,  he  had  some  powers  in  common 
with  the  judges  of  the  Common  Law  Courts.  He  issued 
writs  of  Habeas  Corpus,  doing  this  in  vacation  as  well  as 
term,  and  writs  of  Prohibition  to  keep  inferior  Courts 
within  their  jurisdiction. 

Again,  the  Chancellor  acted  judicially  in  the  exercise 
of  certain  prerogatives  of  the  Crown,  its  prerogative  as  to 
trade  in  matters  of  bankruptcy,  its  prerogative  in  respect 
of  the  persons  and  estates  of  idiots  and  lunatics,  and  the 
custody  of  infants.  The  jurisdictions  in  these  matters  are 
now  governed  almost  entirely  by  Statute  4.  It  remains  to 
consider  the  official  duties  of  the  Chancellor. 

1  The  following  illustrate  the  text : — 

William  Midylton  v.  John  of  Cotyngham.  Defendant  assaulted  and 
attempted  to  murder  the  plaintiff  in  Waughen  Church  in  Holderness, 
and  still  lies  in  wait  for  him,  so  that  he  durst  not  abide  in  the  country. 
Calendar  of  Proceedings  in  Chancery,  vol.  i.  p.  xx. 

Robert  Burton,  Clerk  v.  Walter  Yerburgh  and  William  Heri.  Bill  filed 
against  defendants  (followers  of  Wyclyff )  on  account  of  various  outrages 
against  the  plaintiff,  in  consequence  of  his  opposition  to  the  doctrines  of 
Wyclyff.  Calendar,  vol.  i.  p.  xxv  temp.  Henry  VI,  and  see  p.  cxxviii 
temp.  Henry  VIII. 

8  Lord  Campbell,  writing  in  1843,  says>  '  Anciently  the  Chancellor 
took  cognizance  of  riots  and  conspiracies,  upon  applications  for  surety 
of  the  peace :  but  this  criminal  jurisdiction  has  been  long  obsolete, 
although  articles  of  the  peace  still  may  be,  and  sometimes  are,  exhibited 
before  him.'  Campbell,  Lives  of  Chancellors,  vol.  i.  p.  14. 

8  23  &,  24  Viet.  c.  34. 

4  The  Chancellor  is  entrusted  by  sign  manual  warrant  with  the  care 
and  custody  of  lunatics,  53  Viet.  c.  108  (Lunacy  Act,  1890)  ;  for  the  form 
of  warrant,  see  Campbell,  Lives  of  Chancellors,  i.  15.  The  wardship  of 
infants  and  care  of  their  estates  is  reserved  to  the  Chancery  Division  of  the 


Sect.  Hi.  §1  THE   CHANCELLOR  153 

His  place  in  Parliament,  as  Speaker  of  the  House  of  Hisparlia- 
Lords,  is  as  much  a  matter  for  a  treatise  on  Parliament,  as  duties!7 
his  place  in  the  Supreme  Court  of  Judicature  is  a  matter  for 
a  chapter  on  the  Courts.     We  must  pass  to  those  special 
matters  in  which  he  advises,  or  acts  on  behalf  of,  the  Crown. 

He  is  responsible  for  the  appointment  of  the  judges  of  the  Adminis- 
High  Court,  for  the  placing  of  names  on  the  Commission  £*tl™. 
of  the  Peace,  and  for  their  removal  in  case  of  need,  acting 
usually,  though  not  necessarily,  on  the  advice  of  the  Lord 
Lieutenant  in  the  case  of  the  county  magistrates.     Here, 
although  he  does  not  expressly  take  the  pleasure  of  the 
Crown,  he  acts  as  the  exponent  of  the  royal  will ;  it  would 
be  possible,  though  it  would  be  unusual,  for  directions  to 
come  to  the  Chancellor  through  a  Secretary  of  State  for  the 
insertion  or  removal  of  a  name  on  the  Commission J. 

In  the  appointment  and  removal  of  County  Court  Judges,  appoint- 
or  the  presentation  to  Crown  livings  valued  in  the  books  ments- 
of  Henry  VIII  at  £20  or  less,  he  is  not  expected  to  take 
the  King's  pleasure.     In  the  first  case  by  Statute 2,  in  the 
second  by  custom  3,  he  acts  independently  of  the  Crown  4. 

Besides  his  duties  as  a  judge,  and  his  responsibility  for 
many  judicial  and  some  ecclesiastical  appointments,  the 
Chancellor  is  the  head  of  the  office  in  which  his  first  duties 
began.  The  Crown  Office  in  Chancery  is  no  longer  the  The 
officina  brevium,  the  place  where  new  rights  of  action  were 
created  as  new  writs  were  devised.  The  inventive  powers  Chancery, 
of  the  clerks  in  Chancery  failed  to  keep  pace  with  the 
requirements  of  suitors ;  Equity  and  fictions  had  superseded 
the  original  writs  long  before  the  modern  simplifications  of 
procedure.  But  it  is  in  the  Crown  Office  in  Chancery  that 
the  Great  Seal  is,  for  most  purposes,  affixed 5.  At  the  head 

High  Court  by  the  Judicature  Act,  1873,  s.  34.     Bankruptcy  is  dealt  with 

under  the  Bankruptcy  Act  of  1883,  by  the  High  Court  and  County  Courts. 

1  Harrison  v.  Bush,  5  E.  &  B.  351.  *  51  &  52  Viet.  c.  43. 

3  Blackstone  (ed.  J.  Chitty,  1826),  vol.  iii.  p.  48  and  note. 

4  The  second  case  is  more  especially  noticeable  because  when  the  Prime 
Minister  presents  to  Crown  livings  of  greater  value,  he  takes  the  King's 
pleasure  before  the  appointment  is  made.     Hansard,  clxix.  1919. 

*  The  duties  of  the  Petty  Bag  Office  are  now  transferred  to  the  Crown 
Office,  37  &  38  Viet.  c.  81. 


154        THE   DEPARTMENTS   OF   GOVERNMENT       Chap.  Ill 

The  Clerk  of  the  permanent  staff  in  this  department  is  the  Clerk  of 
Crown  ^e  Crown  in  Chancery,  who  holds  an  office  of  great  dignity 
and  antiquity.  The  duties  and  emoluments  of  this  office 
were  stated  and  defined  as  long  ago  as  the  twenty-second 
year  of  Edward  III.  The  Clerk  of  the  Crown  may  claim 
to  be  '  the  first  esquire  and  first  clerk  of  England  V  He  is 
appointed  by  sign  manual  warrant,  and  he  takes  a  part  in 
many  important  acts  of  the  State.  From  his  office  issne  writs 
for  election  of  members  to  serve  in  the  House  of  Commons ; 
he  receives  and  makes  a  list  of  the  returns ;  when  the  royal 
assent  is  to  be  given  to  Bills  in  Parliament  he  attends  in 
the  House  of  Lords  to  read  the  Bills,  and  the  Clerk  of  the 
Parliament  gives  the  royal  answer ;  when  Sheriffs  are  to 
be  chosen,  as  described  later,  he  attends  in  the  Court  with 
the  list  of  justices  of  the  peace  and  notes  who  are  named. 
His  name  written  or  printed  at  the  end  of  documents  to 
which  the  Great  Seal  is  affixed  authenticates  the  fact  that 
the  sealing  has  taken  place  on  due  warrant 2. 

Some  few  important  matters,  such  as  powers  to  treat, 
and  ratifications 3,  do  not  pass  through  this  office,  but  the 
Chancellor  is  directly  responsible  in  all  cases  for  the  use  of 
the  Great  Seal,  the  ultimate  expression  of  the  will  of  the 
Sovereign. 

The  Chancellor  is,  and  always  has  been,  a  member  of  the 

Privy  Council,  and  of  the  Cabinet,  not  as  of  right,  but 

because  his  duties  as  holder  of  the  Great  Seal  make  him 

a  necessary  party  to  the  innermost  Councils  of  the  Crown. 

His  His  political  and  judicial  duties  do  not  come  into  conflict, 

duties.3      because  he  is  not  concerned  with  the  administration  of  the 

criminal  law,  and  so  is  not  liable  to  preside  in  Court  over 

prosecutions  which  he  has  advised  in  the  Cabinet. 

There  remain  but  a  few  points  connected  with  the  office: — 

(i)  The  Chancellor  is  Chancellor  of  that   part   of  the 

United  Kingdom   called   Great   Britain,  and   the  Act  of 

Union  with  Scotland  provides  that   there  should  be  but 

1  Crown  Office  MS.  •  47  A  48  Viet.  c.  29. 

*  Treaties  and  ratifications  were  at  one  time  prepared  and  enrolled  in 
the  Chancery.  This  practice  was  uniform  till  1624.  Thomas,  Hist,  of 
Public  Departments,  33. 


Sect.  iii.  §  1  THE   CHANCELLOR  155 

one  Great  Seal  for  the  two  kingdoms.     There  is  a  Lord 
Chancellor  for  Ireland,  but  the  Great  Seal,  though  it  exists  The  Great 
in  duplicate  for  Irish  use,  is  the  Great  Seal  of  the  United  Seal* 
Kingdom l. 

(2)  The  office  is  one  subject  to  a  religious  disability.  The 
The  Test  Act 2  required  that  every  one  who  held  an  office, 
civil   or  military,  under  the   Crown,  should   not  merely 
receive  the  sacrament  after  the  ritual  of  the  Church  of 
England,  but  should  take  the  oath  abjuring  the  doctrine 

of  transubstantiation. 

The  requirement  as  to  taking  the  sacrament  was  removed 
in  1828  3,  and  the  Roman  Catholic  Relief  Act,  1829  4»  altered 
the  form  of  oath  required,  whether  for  a  seat  in  Parliament 
or  for  entry  upon  a  civil  or  military  office,  making  it 
acceptable  to  a  Roman  Catholic.  But  it  was  provided  that 
neither  the  Chancellor  of  Great  Britain  nor  the  Lord 
Keeper,  nor  Lords  Commissioners  of  the  Great  Seal,  nor 
the  Lord  Lieutenant  of  Ireland  should  be  relieved  from  any 
requirements  to  which  they  were  at  the  time  subject.  The 
Statute  Law  Revision  Act,  1 863,  has  wholly  repealed  the 
Test  Act  of  Charles  II,  but  it  is  still  held  that  the  exception 
introduced  into  the  Catholic  Relief  Act  disables  a  Roman 
Catholic  for  the  offices  therein  mentioned 5. 

(3)  The  office  of  Lord  Keeper  of  the  Great  Seal  originated,  The  Lord 
as  it  would  seem,  in  the  practice  of  entrusting  the  Seal 
temporarily  to  an  officer  of  State  during  a  vacancy  in  the 
Chancellorship,  sometimes  with  limited  powers,  or  a  lower 

rank.  This  developed  into  more  permanent  appointments, 
in  which  the  Lord  Keeper  held  office  during  the  King's 
pleasure.  He  often  was  not  a  peer,  but  he  is  by  Statute 
entitled  to  the  '  like  place,  pre-eminence,  jurisdiction, 
execution  of  laws,  and  all  other  customs,  commodities,  and 
advantages e '  as  the  Lord  Chancellor.  The  last  Lord  Keeper 

1  See,  as  to  the  title  of  the  Lord  Chancellor,  McQueen,  House  of  Lords 
and  Privy  Council,  p.  ao. 
-J  25  Car.  II,  c.  a. 

3  9  Geo.  IV,  c.  17.  *  10  Geo.  IV,  c.  7. 

*  See  debate  in  House  of  Commons,  Feb.  4,  1891.  Hansard,  cccxlix.  1734. 
6  5  Eliz.  c.  18. 


156        THE   DEPARTMENTS   OF   GOVERNMENT       Chap.  Ill 

was  Sir  Robert  Henley  afterwards  Lord  Northington l,  who 
was  made  Chancellor  on  the  accession  of  George  III. 
Commis-  (4)  It  is  sometimes  desirable  to  appoint  by  commission 
under  the  Great  Seal  certain  persons  to  execute  the  office  of 
Lord  Chancellor.  Their  powers  are  declared  by  Statute  to  be 
in  all  respects  such  as  the  Lord  Chancellor  or  Lord  Keeper 
enjoys,  but  their  rank  is  not  the  same.  If  peers,  they  take 
their  place  according  to  their  peerage.  If  commoners,  they 
take  place  after  the  peers  and  the  Speaker  of  the  House  of 
Commons. 

§  2.    The  Lord  Privy  Seal. 

The  Privy  The  office  of  Lord  Privy  Seal  is  conferred  by  delivery  of 
the  Seal  and  by  Letters  Patent,  and  is  held,  usually  without 
emolument 2,  by  a  member  of  the  Cabinet ;  but  its  duties 
are  historical ;  having  long  ceased  to  be  more  than  formal, 
they  were  abolished  in  the  year  1884. 

its  objects.  The  authority  of  the  Privy  Seal  was  formerly  needed 
mainly  for  two  purposes,  the  issue  of  money  from  the  Ex- 
chequer, and  the  affixing  of  the  Great  Seal  to  Letters 
Patent,  for  it  had  been  the  desire  of  mediaeval  Councils 
and  Parliaments  to  secure  adequate  responsibility  for  the 
issue  of  public  money,  or  for  the  action  of  the  King  in 
matters  of  State. 

The  need  of  the  Privy  Seal  as  the  warrant  for  passing 
Letters  Patent  under  the  Great  Seal  was  made  a  rule  of  the 
Privy  Council  of  Henry  VI,  and  was  enforced  by  Statute 

in  I5353- 

The  need  of  this  Seal  for  the  issue  of  public  money  is 

thus  stated  by  Coke. 

1  Campbell's  Lives  of  the  Chancellors,  i.  ai,  v.  186,  199. 

3  In  1705  the  office  was  conferred  upon  the  Duke  of  Newcastle  by 
Letters  Patent,  with  a  salary  of  .£365  per  annum,  and  at  the  same  time 
an  order  was  made  under  the  Privy  Seal  to  the  Treasurer  of  the 
Exchequer  to  pay  to  the  Lord  Privy  Seal,  during  the  Duke  of  New- 
castle's tenure  of  the  office,  £4  a  day  in  lieu  of  '  the  dyet  of  16  dishes  of 
meat'  to  which  that  officer  had  previously  been  entitled.  St.  P.  Home 
Office,  Precedents,  vol.  i,  pp.  15,  16. 

3  27  Hen.  VIII,  c.  n,  and  see  p.  55  supra. 


Beet.  iii.§2  THE   PRIVY   SEAL  157 

'  Every  warrant  of  the  Queen  herself  to  issue  her  Treasure  is 
not  sufficient ;  for  the  Queen's  warrant  by  word  of  mouth  or, 
which  is  more,  her  warrant  in  writing  under  her  privy  signet  is 
not  sufficient.  But  the  warrant  which  is  sufficient  to  issue  the 
King's  Treasure  ought  to  be  under  the  Great  or  Privy  Seal1.' 

The  Great  Seal  Act,  18842,  provided  that  'it  shall  not  Its  disuse, 
be  necessary  that  any  instrument  shall  after  the  passing  of 
this  Act  be  passed  under  the  Privy  Seal ' ;  and  though  the 
clause  has  been  repealed  by  the  Statute  Law  Revision 
Act,  1898,  modern  enactments  as  to  the  use  of  the  Great 
Seal  and  the  issue  of  public  money,  have  superseded  the 
employment  of  the  Privy  Seal  for  any  purpose  to  which  it 
could  lawfully  be  applied. 

Yet  the  office  exists,  and  its  history  is  a  long  one.     '  A  History  of 
fit  clerk  to  keep  the  Privy  Seal '  was  one  of  the  officers  sealf 
who  by  the  ordinances  of  1311  was  to  be  chosen  by  the 
King  with  the  counsel  and  consent  of  the  baronage.     In 
the  reign  of  Edward  III  the  keeper  of  the  Privy  Seal  is 
a  member  of  the  King's  Council :   in  the  first  Parliament 
of  Richard  II  the  Commons  desire  to  control  his  appoint- 
ment.    The  office  was  regarded  with  jealousy  because  of 
the  frequent  use  of  letters  under  Privy  Seal  to  interfere 
with  the  ordinary  course  of  law. 

From  the  middle  of  the  sixteenth  century  the  office  has 
been  held  by  statesmen  of  the  first  rank.  Among 
the  most  interesting  figures  in  the  list  of  Lords  Privy 
Seal  are  Thomas  Cromwell  (1536);  Dr.  Robinson  (1711), 
who  was  at  the  same  time  Bishop  of  Bristol  and  Pleni- 
potentiary for  concluding  the  Treaty  of  Utrecht ;  and  Lord 
Chatham,  who  held  the  office  as  Prime  Minister  in  1766. 
The  office  was  assumed  by  Lord  Salisbury  in  1900,  after 
he  had  retired  from  the  Foreign  Office,  and  held  by  him 
until  his  resignation  in  1902  ;  it  was  then  held  for  a  short 
time  by  Mr.  Balfour. 

§  3.     The  Secretaries  of  State. 

His  Majesty's  Principal  Secretaries  of  State,  now  five  in  The  five 
number,  are  the  chief  means  of  communication  between  ^^'of 

1  Co.  Rep.  xi.  92.  «  47  &  48  Viet.  c.  30,  s.  3.  State  : 


158         THE   DEPARTMENTS   OF   GOVERNMENT       Chap.  Ill 

the  subject  and  the  King.     Peers  of  Parliament  are  Coun- 
cillors of  the  Crown,  and  have  a  right  of  access  to  the 
person  of  the  Sovereign.     Privy  Councillors  are  the  sworn 
advisers  of  the  King,  and  as  such  may  individually  or 
collectively  offer  counsel  for  which  they  must  hold  them- 
as  a  me-     selves  responsible  to  Parliament.     But  outside  of  these  is 
dmin  of     the  mass  of  the  King's  subjects  who  can  only  address  the 

communi- 
cation       Crown  in  Council  or  the  Crown  in  person,  and  in  the  latter 

Crown*8  case  *he  onty  aPProach  to  the  Crown  is  through  a  Secretary 
of  State.  A  department  of  government  may  be  reached  by 
direct  communication :  an  aggrieved  soldier  or  sailor  may 
complain  to  the  War  Office  or  to  the  Admiralty ;  a  Civil 
servant  whose  emoluments  do  not  correspond  with  his 
estimate  of  his  deserts  may  address  the  Lords  of  the  Trea- 
sury, but  no  communication  can  be  made  to  the  Sovereign 
save  through  the  intervention  of  a  Secretary  of  State  :  nor 
with  a  few  exceptions  can  any  authentic  communication 
be  made  by  the  Sovereign  that  is  not  countersigned  by  a 
Secretary  of  State. 

as  depart-  The  Secretaries  of  State  are  not  merely  the  channels  of 
chiefs!1  communication  between  subject  and  Sovereign.  Each  is 
the  head  of  an  important  department  of  government,  and 
in  that  department  is  invested  with  statutory  powers,  or 
administers  certain  prerogatives  of  the  Crown,  for  the 
exercise  of  which  he  is  responsible  to  Parliament.  Of 
these  powers  it  will  be  proper  to  speak  hereafter  in  dealing 
with  the  special  departments  of  these  officers.  It  is  enough 
here  to  trace  the  origin  of  the  office  of  Secretary  of  State 
and  the  assignment  to  it  of  duties  which  necessitate  the 
existence  of  five  principal  Secretaries  of  State. 

The  We  first  hear  of  the  King's  Secretary  in  the  reign  of 

Secreta  •  Henry  III.  The  duties  of  a  Secretary  had  doubtless  in 
earlier  times  been  discharged  by  the  Chancellor  and  his 
staff :  but  administrative  business  increased, — the  severance 
of  the  Chancery  from  the  Exchequer  at  the  end  of  the 
twelfth  century  indicates  the  increasing  importance  of 
both  departments, — and  the  King's  Clerk  or  Secretary 
became  an  officer  distinct  from  the  clerks  or  chaplains  who 
had  acted  under  the  Chancellor. 


Sect.iii.  §3  THE   SECRETARIAT  159 

The  office  was  at  first  a  part  of  the  royal  household.  Its  a  house- 
holder might  be  a  man  of  character  and  capacity,  fit  to  be 
a  member  of  the  King's  Council,  or  to  be  sent  as  an  envoy 
to  foreign  powers.  Such  were  the  Secretaries  of  Henry  III 
and  Edward  I.  Or  he  might  be  an  inferior  officer  of  the 
household,  and  such  seems  to  have  been  the  position  of  the 
Secretary  of  Edward  III,  who  ranked  in  place  and  emolu- 
ment with  the  surgeon  and  the  clerks  of  the  kitchen  l. 

In  1433  two  Secretaries  were  appointed,  one  by  the 
delivery  of  the  King's  Signet,  the  other  by  patent2.  A 
second  Secretary  had  become  necessary  for  the  transaction 
of  the  King's  business  in  France. 

In  1443  an  Ordinance  or  Order  in  Council  made  various  Becomes 
rules  to  ensure  the  responsibility  of  the  Council  and  officers  gib^011 
of  the  King  for  answers  given  or  grants  made  in  response  officer, 
to  Petitions.     Lords  of  the  Council  who  promoted  a  peti- 
tion were  required  to  sign  it:  if  the  petition  dealt  with 
matters  of  grace,  it  was  to  be  laid  before  the  King  thus 
endorsed :   if  he  assented  to  it  he  was  to  sign  it,  or  order 
the  Chamberlain  to  do  so,  or  to  take  it  with  his  commands 
to  the  Secretary :  if  the  answer  involved  a  grant,  the  bill 
which  contained  the  petition  was  to  be  delivered  to  the 
Secretary  to  prepare  letters  which,  sealed  with  the  Signet, 
should  be  authority  for  affixing  the  Privy  Seal :  and  this 
in  its  turn  authorized  the  confirmation  of  the  grant  by 
letters  under  the  Great  Seal 3.     Here  we  find  the  Secretary 
in  a  position  of  recognized  responsibility  for  the  expression 
of   the   King's   will.     And  soon  after,  in  1476,   a  newly  a  Prin- 
appointed  Secretary  is  described  as  '  Principal  Secretary,' 
not,  as  it  would  seem,  to  denote  a  difference  in  the  rank 
of    the    two   Secretaries,   but    to    mark    the    responsible 
character  of  the  office,  as  distinct  from  that  of  a  mere  clerk 


or  amanuensis 


The  reign  of  Henry  VIII  marks  an  important  advance 
in  the  position  of  the  Principal  Secretary.     The  responsi- 

1  Ordinances  for  the  Royal  Household,  10,  33,  162. 

2  Nicolas,  Proceedings  of  Privy  Council,  vi.  p.  criii. 

3  Ibid.  p.  clzzxviii ;  and  vide  supra,  Appendix  to  ch.  i. 
*  Ibid.  p.  cviii. 


160         THE    DEPARTMENTS    OF   GOVERNMENT       Chap.  Ill 

bility  for  the  use  of  the  Signet,  indicated  by  the  Ordinance 
of  1443,  is  confirmed  by  Statute1.  The  Secretaries  are 
still  members  of  the  King's  household,  but  they  rank  next 
to  the  greater  household  officers 2,  and  in  Parliament 3  and 
Council  they  have  their  place  assigned  by  Statute.  The 
Secretary,  if  a  baron,  is  to  sit  above  all  other  barons ;  if 
a  bishop,  above  all  other  bishops  ;  if  not  a  peer  he  is  to  sit 
on  the  uppermost  form  or  woolsack  of  the  House. 

Yet  they  lived  in  extreme  discomfort.  In  1545  Sir  W. 
Paget,  one  of  the  Secretaries  and  then  ambassador  in  France, 
wrote  to  the  other  Secretary  to  beg  that  his  lodging  might 
be  changed  for  the  better.  '  You  know  that  the  chambre 
over  the  gate  will  scant  reseyve  my  bedde  and  a  table  to 
write  at  for  myself.  The  study  you  know  is  not  mete  to  be 
trampled  in  for  diseasing  his  Majesty.  I  must  nedes  have 
a  place  to  kepe  my  table  in  V 

The  Secre-      And    yet    not    long    before     this    pathetic     complaint 
state*  °f     a    warrant,   issued  to    Thomas    Wriothesley    and    Ralph 
keepers  of  Sadler,  in  1539,  gave  them  'the  name  and  office  of  the 
igne  .       King's  Majesty's  Principal  Secretaries  during   his  High- 
ness' pleasure/  required  them  to  keep  two  Signets  and  a 
book  of  all  warrants  which  passed  under  their  hands,  and 
placed  them  in  Council  next  after  the  Vice-Chamberlain. 
They  were  both  members  of  the  Commons,  but  one  was 
always  to  sit  in  the  Upper  House,  and  one  in  the  Lower 
House,  interchanging  weeks,  unless  the  King  was  present 
in  the  House  of  Lords,  in  which  case  both  were  to  be 
there  6. 

Their  The  growing  importance  of  the  office  is  indicated  not 

frnpoi?8     merely  by  the  precedence  given  to  the  holders,  but  by  the 
tance,        quality  of  the  men  who  held  it.     Cromwell  was  for  a  short 

1  27  Hen.  VIII,  c.  ii. 

a  Ordinances  for  the  Royal  Household,  162. 

*  31  Hen.  VIII,  c.  10.  Stubbs,  Const.  Hist.  iii.  471,  472.  The  presence 
of  the  Secretary,  though  a  commoner,  and  of  the  judges,  shows  how  the 
House  of  Lords,  in  the  sixteenth  century,  did  double  duty  as  the  Magnum 
Concilium  and  as  a  House  of  Parliament. 

4  Thomas,  Hist,  of  Public  Departments,  p.  26.  Vol.  i.  p.  xiii  of  State 
Papers,  1830. 

6  Nicolas,  vi.  p.  cxxiii,  and  see  for  the  Warrant,  vol.  i.  p.  623  of  State 
Papers  :  published  1830. 


Sect.  iii.  §3  THE   SECRETARIAT  161 

time  Secretary  to  Henry  VIII,  and  Sir  William  Cecil  was 
Secretary  to  Elizabeth  from  her  accession  until  he  was 
made  Lord  Treasurer  in  157 1 .  After  the  reign  of  Henry  VIII 
it  would  seem  that  the  Secretary  ceased  to  be  an  officer  of 
the  household.  He  does  not  appear  as  an  item  in  the 
household  expenditure  of  Elizabeth,  and  in  the  reign  of 
James  I  he  was  one  of  the  few  who  might  bring  a  servant 
with  him  to  the  King's  Court l. 

During  the  greater  part  of  Elizabeth's  reign  there  was  their 
but  one  Secretary,  but  at  the  close  of  it  Sir  Robert  Cecil  number- 
shared  the  duties  with  another,  he  being  called  '  Our  Prin- 
cipal Secretary  of  Estate/  and  the  other,  'one  of  our 
Secretaries  of  Estate.'  From  this  time,  until  the  year 
1794,  it  was  the  rule  that  there  should  be  two  Secretaries 
of  State;  the  exceptions  occurred  in  1616,  when  there 
were  three, — from  1707  until  1746,  when  there  was  usually 
a  third  Secretary  for  Scotch  business,— and  from  1768 
until  1782,  when  there  was  a  third  Secretary  for  Colonial 
business. 

At  this  point  one  may  stop  to  consider  the  duties  and  Duties  of  a 
powers  of  the  Secretaries  of  State.  From  the  reign  of 
Henry  VIII,  certainly,  they  were  the  channel  through 
which  alone  the  Crown  could  be  approached  in  home  and 
foreign  affairs,  and  the  medium  through  which  the  pleasure 
of  the  Crown  was  expressed. 

Thus  the  Secretary  of  Henry  VIII  complains  that  the 
Lord  Mayor  of  London  has  communicated  with  Wolsey  on 
a  matter  of  State  without  first  addressing  him  in  order  that 
the  King's  pleasure  might  be  taken 2. 

The  rules  made  by  Edward  VI  for  the  conduct  of  busi- 
ness in  the  Council  make  the  Secretary  the  medium  of 
communication  between  the  King  and  his  Council  or  its 
Committees,  a  practice  observed  in  the  transmission  of 
Cabinet  minutes  until  comparatively  recent  times 3. 

Cecil  in  his  treatise  on  The  Dignity  of  a  Secretary  of 
Estate  ivith  the  care  and  peril  thereof,  speaks  of  the  Secre- 

1  Ordinances  for  the  Royal  Household,  p.  304. 

8  Nicolas,  vi.  p.  cxviii. 

3  Grenville  Corresp.  iii.  16  note. 

AN80N.    CROWS  M 


162          THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 

tary's  liberty  of  negotiation  at  discretion,  at  home  and 
abroad,  without '  authority  or  warrant  (like  other  servants 
of  princes)  in  disbursement,  conference  or  commission,  but 
the  virtue  and  word  of  his  Sovereign.' 

The  duties  of  a  Secretary  are  very  clearly  set  out  in 
a  memorandum,  probably  by  Dr.  John  Herbert,  who  was 
second  Secretary  about  the  year  1 6co.  They  are  a  formid- 
able list.  The  Secretary  was  expected  to  possess  a  general 
knowledge  of  our  relations  with  foreign  countries,  of  the 
affairs  of  Wales  and  of  the  state  of  Ireland,  while  he  had 
charge  of  all  the  Queen's  correspondence  with  foreign 
princes,  and,  as  it  would  seem,  of  the  preparation  of  business 
for  the  Council,  including  the  assignment  to  the  Council, 
the  Star  Chamber,  and  the  Court  of  Requests  of  matters 
falling  within  their  respective  provinces l. 

in  the  The  Secretaries  were  members  of  the  Privy  Council,  and 

Council,  after  the  Restoration  they  were  members  of  that  inner 
Council  which  prepared  and  settled  the  business  to  be 
brought  before  the  larger  body,  the  Privy  Council,  with 
whose  consent  and  advice  the  King  acted.  But  it  was  not 
until  the  Privy  Council  ceased  to  combine  deliberative  and 
executive  functions  that  the  office  of  Secretary  of  State 
assumed  its  present  importance. 

Before  this  change  took  effect,  a  Secretary  of  State 
assisted  at  the  private  discussion  of  business  to  be  brought 
before  the  Privy  Council,  he  was  a  necessary  instrument 
for  carrying  out  the  pleasure  of  the  King,  he  might  even 
be  a  personage  whose  opinion  carried  great  weight,  and  yet 
he  exercised  little  independent  discretion  in  executive 
government.  He  was  responsible  directly  to  the  King  and 
the  Council,  remotely,  to  Parliament.  The  Tudors  from 
their  own  force  of  character  had  given  importance  to  the 
office.  It  was  something  to  be  the  exponent  of  the  will  of 
one  who  always  had  a  will  of  his  own.  But  throughout 
the  greater  part  of  the  seventeenth  century  we  find  no 
Secretary  of  the  calibre  of  Cromwell  or  Cecil,  and  in  the 
reign  of  William  III,  although  Shrewsbury,  who  held  the 

1  Prothero,  Statutes  and  Constitutional  Documents,  166. 


Sect.  iii.  §  3  THE   SECRETARIAT  163 

office  for  some  years,  stood  high  in  the  confidence  of  the 
King  and  was  a  great  figure  in  the  State,  it  was  always 
possible  for  a  Secretary  who  was  not  of  high  rank  to  be 
regarded  as  a  clerk.  Sir  William  Trumbull  resigned  the 
office  because,  when  the  King  was  in  Holland,  the  Lords 
Justices  in  Council  treated  him  '  more  like  a  footman  than 
a  Secretary1.' 

But  when  the  Cabinet  superseded  the  Council  the  Secre-  in  the 
tary  was  not  the  servant  of  the  Cabinet,  as  he  had  been  ' 
the  servant  of  the  Council.  He  had  been  the  medium  of 
communication  between  the  King  and  his  Council,  and 
between  the  Crown  in  Council,  the  recognized  executive, 
and  the  outside  world.  But  when  the  Privy  Council  became 
an  administrative  department,  and  the  Cabinet  took  its 
place  as  the  motive  power,  a  body  unrecognized  by  law, 
the  Secretary  of  State  as  member  of  this  inner  circle 
became  more  independent,  more  responsible,  and  more 
important. 

The  tenure  of  the  office  by  men  of  the  political  import- 
ance of  Shrewsbury,  Harley,  and  Bolingbroke  may  probably 
have  helped  to  raise  its  character :  and  the  difficulty  with 
which  George  I  made  his  wishes  known  in  the  language  of 
his  new  subjects  may  also  have  contributed  to  the  independ- 
ence of  the  Secretaries.  At  any  rate  it  would  seem  that 
from  the  date  of  the  Hanoverian  succession  things  were  done 
by  the  direction  of  a  Secretary  of  State  which  had  previously 
been  done  by  royal  order  countersigned  by  a  Secretary 2. 

Domestic,  foreign,  and  colonial  business  which  had  been  The 
transacted  by  Committees  of  the  Privy  Council  passed  into 
the  hands  of  the  Secretaries,  and  they  became  the  autho-  of  state, 
rized  exponents  of    the   King's    pleasure    in    the  various 
departments  of  government.      In  the  management  of  his 
department  the  modern  Secretary  of  State  is  checked  by 
the  collective  responsibility  of  the  Cabinet,  but  he  does  not 
receive  the  orders  of  the  Council,  nor,  since  the  King  ceased 


1  Shrewsbury  Correspondence  (Coxe),  504. 

2  The  Warrant  Books  of  George  I  and  George  II  at  the  Record  Office 
furnish  evidence  of  this  statement. 

M  2 


164          THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 


The 

Northern 

and 


to  preside  at  Cabinet  meetings,  does  he  work  under  the 
constant  control  of  the  Crown. 

Increased  responsibility  to  Parliament  adds  to  the  power 
of  every  Minister,  for  responsibility  to  Parliament  means 
that  the  Minister  is  a  representative  of  the  majority  in 
Parliament  and  has  the  support  of  that  majority  at  his 
back.  Thus  the  Secretary  of  State  has  grown  from  being 
merely  a  confidential  servant  to  be  a  great  executive 
officer. 

So  much  for  the  general  history  and  powers  of  a  Secre- 
tary of  State.  I  will  now  speak  of  his  departmental  duties. 
Southern  From  the  Revolution  until  1782,  except  during  the  tempo- 
ments.  rary  existence  of  the  Scotch  and  the  Colonial  Secretary, 
the  duties  of  the  two  Secretaries  were  divided  by  a  geogra- 
phical division  of  the  globe  into  Northern  and  Southern 
Departments.  The  duties  of  the  Northern  Department 
consisted  in  communications  with  the  northern  powers  of 
Europe,  those  of  the  Southern  included  our  dealings  with 
France,  Spain,  Portugal,  Switzerland,  Italy,  Turkey,  as  well 
as  Irish  and  Colonial  business  and  the  work  of  the  Home 
Office. 

The  burden  laid  upon  the  shoulders  of  the  Southern 
Secretary  is  greater  in  appearance  than  in  reality.  Irish 
business  consisted  in  communications  as  to  general  policy, 
passing  through  the  Secretary  of  State  from  the  Ministry 
to  the  Lord  Lieutenant;  for  Ireland  had  its  own  Parlia- 
ment and  administration.  The  business  of  the  colonies 
was  shared  with  the  Committee  of  Privy  Council  for 
Trade  and  Plantations,  and  from  1768  to  1782  a  third 
Secretary  of  State  was  appointed,  to  deal  especially  with 
colonial  affairs.  The  bulk  of  the  work  now  cast  upon 
the  Home  Office  is  the  creation  of  modern  Statutes.  The 
Secretaries  of  the  eighteenth  century  represented  the 
Foreign  Office  cut  in  two,  with  some  miscellaneous  business 
assigned  to  that  portion  which  dealt  with  the  Southern 
powers  of  Europe. 

Inconvenient  as  this  arrangement  may  seem,  its  incon- 
venience is  not  brought  before  us  very  perceptibly  in  the 
records  of  the  time.  But  in  1782  came  a  great  change. 


Sect.  iii.  §3  THE   SECRETARIAT  165 

The  Southern  Department  became  the  Home  Office,  retain-  The 
ing  Irish  and  Colonial  business ;  the  Northern  Department 
became  the  Foreign  Office ;  the  Colonial  Secretaryship  was  Foreign 

i    v  i     j  Secre- 

abohshed.  taries. 

This  administrative  reform,  important  at  the  time,  and 
even  more  important  as  time  went  on,  took  place  with 
singularly  little  noise  or  notice. 

Down  to  1782  the  Northern  and  Southern  Secretaries 
were  described  in  official  documents  relating  to  the  staff 
common  to  both,  as  '  His  Majesty's  Principal  Secretaries  of 
State  for  Foreign  Affairs.' 

The  Northern  Secretary  on  announcing  his  appointment 
to  the  resident  Ministers  of  foreign  powers  tells  them  that 
'  Le  Hoi  m'ayant  fait  1'honneur  de  me  nommer  aujourd'hui 
son  Secretaire  d'fitat  pour  le  de'partement  du  Nord/  he 
will  be  glad  to  receive  them  on  the  following  day  to 
discuss  matters  committed  to  their  charge1.  Sometimes 
he  included  the  Ministers  of  the  Southern  powers  in  this 
invitation:  this  was  done  by  Lord  Weymouth  in  1768,  but 
he  informs  them  that  it  is  not  for  purposes  of  discussion ; 
and  by  Lord  Stormont  in  1779,  but  he  is  careful  to  say 
that  he  is  allowed  to  do  it  by  the  courtesy  of  his  colleague 2. 
But  on  the  27  March,  1782,  Fox  announces  to  all  the 
foreign  Ministers  that  he  will  receive  them  '  le  Roi  m'ayant 
fait  1'honneur  de  me  nommer  son  Secretaire  d'fitat  pour 
le  Departement  des  affaires  etranyeres'zi  and  the  reason  of 
the  change  of  title  is  to  be  found  in  a  document  issued  two 
days  later. 

This  is  a  circular  letter  to  our  representatives  at  foreign 
Courts  4,  and  runs  thus  : — '  The  King  having,  on  the  resig- 
nation of  the  Lord  Viscount  Stormont,  been  pleased  to 
appoint  me  to  be  one  of  His  Principal  Secretaries  of  State, 
and  at  the  same  time  to  'make  a  new  arrangement  in  the 
Departments  by  conferring  that  for  Domestic  Affairs  and 
the  Colonies  on  the  Earl  of  Shelbume,  and  entrusting  me 

1  St.  P.  Foreign,  Entry  Book,  262.  p.  202. 

3  Ibid.,  262.  pp.  156,  202.  3  Ibid.  p.  203. 

4  St.  P.  Domestic,  Entry  Book.  vol.  416.  p.  102. 


166          THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 

u'ith  the  sole  direction  of  the  Department  for  Foreign 
Affairs,  I  am  to  desire  that  you  will  for  the  future  address 
your  letters  to  me.' 

I  cannot  ascertain  that  any  Order  in  Council  or  Depart- 
mental minute  authorizes  or  records  this  important 
administrative  change. 

The  Army  Meantime  the  Home  Secretary  was  concerned,  to  some 
fariat  extent,  with  the  army :  at  least  he  was  the  ultimate 
exponent  of  the  King's  pleasure  in  matters  relating  to  the 
government  and  disposition  of  the  army,  and  was  respon- 
sible to  Parliament  for  the  amount  of  force  to  be  main- 
tained. There  was  a  Secretary  at  War,  who  was  not 
a  Secretary  of  State,  but  who  was  concerned  with  the 
passing  of  the  Mutiny  Bill,  and  was  responsible  for  all 
that  related  to  the  finance  of  the  Army.  He  directed  the 
movements  of  troops  subject  to  the  sanction  of  the  Secretary 
of  State.  It  may  be  mentioned  in  passing  that  the  Master 
General  of  the  Ordnance  provided  munitions  of  war  and 
controlled  the  Artillery  and  Engineers,  that  the  Treasury 
managed  the  commissariat,  and  the  Board  of  General 
Officers  the  clothing  of  the  soldiers.  The  Commander-in- 
Chief  was  concerned  with  discipline  and  promotions. 

This  medley  of  official  responsibility  needed  some  guiding 
spirit  in  time  of  war,  and  during  the  straggle  with  the 
French  Republic  it  was  found  that  the  Home  Secretary 
was  unequal  to  the  charge  of  home  and  colonial  affairs, 
together  with  the  conduct  of  a  great  war.  In  that  year 
a  third  Secretary  of  State  was  appointed,  for  War :  but  his 
responsibilities  in  respect  of  the  Army  were  limited  to  the 
amount  of  force  to  be  maintained,  to  the  allotment  of 
garrisons  to  our  colonies,  and  to  the  general  control  of 
operations  in  time  of  war. 

The  In  1 80 1  business  relating  to  the  Colonies  was  transferred 

Colonies.  to  the  secretary  of  State  for  War,  and  during  the  long 
peace  which  followed  upon  the  fall  of  Napoleon  the 
development  of  our  Colonies  caused  the  war  duties  of 
the  Secretary  of  State  to  fall  into  the  background.  The 
Crimean  war  revealed  the  chaos  of  our  military  system, 
and  enforced  the  need  of  some  simpler  method  of  providing 


Sect.  iii.  §3  THE  SECRETARIAT  167 

for  the  discipline,  arming,  feeding,  clothing,  and  general 
government  of  the  army. 

In  1 854  the  Secretary  of  State  for  War  and  the  Colonies 
was  relieved  of  his  duties  in  respect  of  the  army,  and 
a  new  Principal  Secretary  of  State  for  War  was  created, 
whose  office  was  intended  to  concentrate  and  supervise  the 
incoherent  machinery  which  had  attempted  to  provide  an 
army  and  its  equipment. 

The  constitution  of  this  new  Secretaryship  of  State  for 
War  involved  the  passing  of  Statutes,  but  it  must  not  be 
supposed  that  these  were  necessary  to  the  creation  of  the 
Secretary  of  State. 

Queen  Victoria  appointed  a  fourth  Secretary  of  State  Secretary 
by  Declaration  in  Council l ;  and  as  it  was  intended  that  for  ^a® 
he  should  absorb  the  powers  and  duties  of  the  Board  of 
Ordnance   and   the  Secretary  at  War,  such   powers   and 
duties  as  had  been  conferred  on  these  officers  by  Statute 
were  by  Statute  transferred  to  the  new  Secretary  of  State  2. 

In  like  manner,  when  the  territories  of  the  East  India  and  for 
Company  were  taken  over  by  the  Crown  at  the  close  of 
the  Indian  Mutiny,  in  1858,  Parliament  enacted  that  the 
powers  and  duties  hitherto  vested  in,  and  exercised  by,  the 
East  India  Company  should  be  held  and  discharged  by  one 
of  Her  Majesty's  Principal  Secretaries  of  State.  And  it- 
was  further  enacted  that,  if  Her  Majesty  was  pleased  to 
appoint  a  fifth  Secretary,  the  salaries  of  himself  and  his 
under  secretary  should  be  the  same  as  those  enjoyed  by 
their  colleagues3. 

Queen  Victoria  appointed  a  fifth  Secretaiy,  and  these  The  fivo 
five    departments    of    Government,    Home    and    Foreign 
Affairs,   the   Colonies,   War,   and   India,  are   each   super- 
intended by  a  Secretary  of  State. 

The  relations  of  the  Secretaries  of  State  for  War  and  for 
India  with  their  respective  Councils,  and  the  composition 


1  Hansard,  vol.  xxxvi.  p.  425. 

3  Ordnance  Board,  18  &  19  Viet.  c.  117.   Secretary  at  War,  a6  &  37  Viet, 
c.  12. 

3  21  k  aa  Viet.  c.  106,  ss.  i,  6. 


168  THE   DEPARTMENTS   OF   GOVERNMENT    Chap.  Ill 

of   those  Councils,  do   not   fall  within  the  scope  of  this 
chapter. 

Their  Except  in  so  far  as  Statute  gives  powers  to  one  or  other 

inter*        °^  *ne  ^ve  Secretaries  of  State,  each  is  capable  of  performing 

change-     any  one  of  the  functions  of  the  various  departments  which 

I   have   briefly  described l.      The  Secretaries  are  in  this 

respect  like  the  Judges  of  the  High  Court  of  Justice,  each 

individually  possesses  and  may  exercise  the  powers  of  any 

one  of  the  others,  but  as  its  special  business  is  assigned  to 

each  of  the  divisions  of  the  High  Court,  so  is  a  special 

department  of  government  assigned  to  each  of  the  members 

of  the  Secretariat.     Each  and  all  are  primarily  the  means 

by  which  the  royal  pleasure  is  communicated 2,  the  work 

of  each  department  is  the  work  of  the  Crown,  acting  on 

the  advice  of  responsible  Ministers,  and  for  such  action  and 

advice  each  of  these  Ministers  must  answer  to  Parliament. 

The  mode       The  Secretaries  of  State  are  all  appointed  in  the  same 

ment.         manner  by  the  delivery  to  them  of  three  seals,  the  Signet, 

a  lesser  seal,  and  a  small  seal  called  the  cachet :  all  these 

are  engraved  with  the  royal  arms,  but  the  Signet  alone 

bears  the  royal  arms  with  supporters. 

'  The  office  of  Secretary  of  State  in  the  legal  sense  depends 
on  the  grant  and  delivery  of  the  seals.  The  title  of  the  office 
is  "one  of  his  Majesty's  principal  Secretaries  of  State."  By  the 
grant  and  the  delivery  of  the  seals  3,  every  one  of  these  persons 

1  Mr.  Pitt  in  1797,  defending  the  creation  of  the  third  Secretaryship, 
denies  that  '  each  office  of  Secretary  of  State  has  (not  by  custom  or  con- 
venience for  practical  purposes,  but  by  law)  a  particular  designation, 
department  and  division.  I  say  the  office  of  Secretary  of  State  has 
no  such  department,  designation  and  division,  but  is  in  the  legal  sense 
independent  of  any  such  distinction.'  33  Parl.  Hist.  976. 

a  Much  discussion  took  place  in  1812,  when  the  Prince  Regent  employed 
a  Private  Secretary,  as  to  the  constitutional  position  of  such  an  officer. 
The  House  of  Commons  was  assured  that  he  was  quite  '  incapable  of 
receiving  the  royal  commands  in  the  constitutional  sense  of  the  words 
or  of  carrying  them  into  effect.'  In  fact  he  is  not  a  means  of  expressing 
the  official  will  of  the  Crown.  Cobbett,  Parl.  Debates,  22,  p.  339. 

8  It  is  stated  by  Todd  (Parl.  Gov.  in  England,  ii.  495),  and  others, 
that  a  Secretary  of  State  receives  letters  patent  appointing  him  during 
pleasure.  This  is  not  so.  Patents  were  issued  from  the  time  that 
a  second  Secretary  was  first  appointed  in  the  fifteenth  century,  and  the 
practice  appears  to  have  been  followed  until  1853.  In  that  year  Lord 


Sect.  Hi.  §  3  THE   SECRETARIAT  169 

becomes  a  legal  organ  to  countersign  any  act  of  State,  and  he 
is  placed  afterwards  in  that  department  of  business  which  his 
Majesty  thinks  fit  to  allot  for  him  '.' 

The  Signet  is  of  these  seals  the  one  which  has  the  longest  The  Seals. 
history,  for  the  custody  of  it  was  the  primary  duty  of  the 
King's  Secretary  long  before  the  Secretary  became  head  of 
a  department.     The  statutory  requirement  as  to  its  use  has 
been  set  forth  earlier. 

For  this  purpose  the  Secretary  of  State  had  an  office  and 
four  clerks,  and  as  the  Secretaries  increased  in  number,  the 
Signet  Office  was  considered  to  pertain  to  all  alike,  but  the 
business  was  transacted  through  the  Home  Office  2. 

This  use  of  the  Signet  was  abolished  in  1851.  The 
duties  heretofore  performed  by  the  Clerks  of  the  Signet, 
and  not  superseded  by  this  Act,  were  to  be  performed  in 
the  Home  Office.  But  such  use  of  the  Signet  as  continues 
to  be  made  does  not  call  for  the  intervention  of  the  Home 
Office.  In  the  Foreign  Office  the  instruments  which 
authorize  the  affixing  of  the  Great  Seal  to  powers  to  treat, 
and  ratifications  of  treaties  pass  under  the  Signet  as  well  as 
the  sign  manual,  and  are  countersigned  by  the  Secretary 
of  State.  In  the  Colonial  Office,  the  Signet  is  affixed  to 
Commissions,  and  also  to  Instructions ;  these  last  pass  the 
sign  manual  but  are  not  countersigned  by  the  Secretary  of 
State  3. 


John  Russell  became  Foreign  Secretary  and  Leader  of  the  House  of 
Commons  in  Lord  Aberdeen's  Ministry  and,  as  he  did  not  expect  to  be 
able  to  combine  these  two  duties  for  long,  he  did  not  take  out  a  patent, 
and  in  fact  resigned  the  Foreign  Office  within  two  months.  From  that 
time  the  practice  was  intermittent  (see  Hansard,  cxlii.  620,  cxliii.  1426, 
cliii.  1300,  1828)  until  1868.  Since  the  retirement  of  Mr.  Disraeli's 
Ministry  in  that  year  patents  have  not  been  issued  :  nor  in  any  case 
would  they  affect  the  powers  of  the  Secretary,  for  these  follow  the  seals. 

From  1855  until  i86r  a  supplementary  patent  was  issued  to  the 
Secretary  of  State  for  War  purporting  to  assign  separate  powers  in 
respect  of  military  appointments  and  discipline  to  the  Commander-in- 
Chief.  No  such  patent  was  issued  after  1861. 

»  Speech  of  Mr.  Pitt,  33  Parl.  Hist.  976.  *  14*15  Viet.  c.  82. 

8  This  is  an  exception  to  the  general  rule  of  counter-signature.  The 
King  signs  the  Instructions  at  the  head,  and  initials  them  at  the  foot. 
They  are  then  scaled  with  the  Signet. 


170          THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 

The  second  seal  is  used  for  royal  warrants  and  commis- 
sions, countersigned  by  the  Secretaries  of  State. 

The  cachet  is  used  to  seal  the  envelopes  of  letters  con- 
taining communications  of  a  personal  character  made  by 
the  King  or  Queen  to  a  foreign  sovereign. 

Thus  in  the  Foreign  Office  all  three  seals  are  used.  In 
the  Colonial  Office  the  first  two ;  the  second  only  in  the 
Home  Office  and  War  Office;  none  are  used  in  the  India 
Office. 

§  4.     The  Secretary  for  Scotland. 

Scotch  From   the    date    of   the   Union   until    1746  there   was 

a  Secretary  of  State  for  Scotland.  Thenceforward,  until 
1885,  the  connexion  of  Scotland  with  the  central  govern- 
ment was  maintained  chiefly  through  the  Home  Office, 
but  the  labours  of  that  heavily  burdened  department 
were  relieved  in  this  respect  by  the  assistance  rendered  to 
it  by  the  Lord  Advocate.  The  Lord  Advocate  is  the  first 
law  officer  of  the  Crown  in  Scotland,  corresponding  to  the 
Attorney- General  in  England,  and  he  added  to  his  duties 
as  a  law  officer  those  of  a  Parliamentary  Under  Secretary 
to  the  Home  Office  for  Scotch  business. 

In  1885  a  Secretary  for  Scotland  was  created1.  In  his 
office  was  concentrated  the  business  relating  to  Scotland 
which  had  before  been  transacted  in  various  departments. 

trans-  The  powers  and  duties  of  the  Home  Secretary  under 

45  Acts  '  and  any  Acts  amending  the  said  Acts,'  the  powers 

Home        ancl  duties  of  the  Privy  Council  as  regards  manufactures 

elsewhere  and  public  health,  certain  business  heretofore  transacted  at 
^ne  Treasury  and  the  Local  Government  Board,  and  the 
administration  of  the  Scotch  Education  Acts  were  assigned 
to  this  new  Secretary,  whose  duties  as  to  education  corre- 
spond to  those  of  the  President  of  the  Board  of  Education 
in  England.  Though  he  keeps  the  Great  Seal  of  Scotland 
he  is  not  a  Secretary  of  State,  but  a  representative,  for 
local  purposes,  of  various  departments  of  government.  He 
is  appointed  by  warrant  under  the  royal  sign  manual,  and 
since  1892  by  the  delivery  of  the  Seal. 

1  48  &  49  Viet.  c.  61. 


Sect.  Hi.  §5  THE   SECRETARIAT  171 

§  5.     TJte  Chief  Secretary  to  the  Lord  Lieutenant. 

Theoretically   the   executive  government  of  Ireland  is  The  Lord 
conducted  by  the  Lord  Lieutenant  in  Council,  subject  to  tenant 
instructions  which  he  may  receive  from  the  Home  Office 
of  the  United  Kingdom.    Practically  it  is  conducted  for  all 
important  purposes  by  the  Chief  Secretary  to  the  Lord  The  Chief 

Lieutenant.  Secretary. 

The  contrast  in  the  history  and  legal  position  of  this 
officer  with  that  of  the  Secretary  for  Scotland  is  curious. 
The  latter  owes  his  existence  to  Statute,  which  gives  him 
his  title,  powers,  and  duties.  The  former  does  not  often 
appear  in  the  Statute  book.  An  Act  of  1817  l  says  that 
he  is  to  keep  the  Privy  Seal  in  Ireland,  an  Act  of  i8722 
makes  him  President  of  the  Irish  Local  Government  Board, 
and  from  time  to  time  his  signature  or  other  act  is  ex- 
pressed to  be  of  equal  validity  with  that  of  the  Lord 
Lieutenant. 

Scotland  was  wholly  separate  from  England  until  the  Character 
Union  of  1707,  and  when  united  the  two  kingdoms  were  govern- 
wholly  united.     Ireland  has  always  been  in  the  position  of  ment- 
a  dependency;  to  which  from  1782  until  1800  legislative 
independence  was  conceded.     Its  separation  from  England 
by  the  sea  has  further  contributed  to  keep  up  the  apparatus 
of  a  provincial  government;  so  that  while  Scotland  has 
been  governed  directly  from  the  Home  Office,  Privy  Council, 
and  other  central  departments,  those  same  departments,  in 
so  far  as  they  were  not  reproduced  in  Ireland,  have  com- 
municated to  the  Lord  Lieutenant  the  instructions  of  the 
central  government. 

Thus  the  office  of  Chief  Secretary  has  varied  in  import-  Secre- 
ance  from  time  to  time.     When  Ireland  had  a  Parliament, 
still  more   when   it   had  an  independent  Parliament,  the  impor- 
Chief  Secretary  was  to  the  Lord  Lieutenant  what  a  Secre- 
tary of  State  is  to  the  Crown,  the  exponent  of  the  pleasure 
of  the  supreme  executive. 

After  the  Act  of  Union  the  Lord  Lieutenant  governed 

1  57  Geo.  Ill,  c.  62,  s.  ii.  z  35  &  36  Viet.  c.  69,  s.  3. 


172          THE   DEPARTMENTS   OF   GOVERNMENT       Chap.  Ill 


Irish 


indepen- 


Relations 

Lieu°r 
tenant 

Secretary, 


Ireland  subject  to  instructions  from  home,  and  his  Chief 
Secretary,  sitting  in  the  House  of  Commons,  did  no  more 
than  explain  small  matters  of  local  government.  Thus  when 
Sir  Arthur  Wellesley  took  a  military  command  in  Portugal 
in  1808  he  did  not  give  up  the  post  of  Chief  Secretary,  but 
employed  Mr.  Croker  to  explain  to  the  House  of  Commons 
such  Irish  business  as  might  arise  during  his  absence  l. 

But  as  the  business  of  departments  has  multiplied,  the 
Home  Office  has  ceased  to  deal  with  the  details  of  Irish 
administration  2  ;  and  as  communication  has  become  easier, 
the  formal  apparatus  of  Irish  government  has  become  less 
necessary.  The  Lord  Lieutenant  represents  the  splendour 
and  carries  out  the  formalities  of  executive  government, 
the  Chief  Secretary  conducts  the  business  of  the  various 
departments  of  Irish  Government.  One  of  the  two  is  in  the 
Cabinet,  but  not  both.  The  Lord  Lieutenant  may  have 
special  experience  in  Irish  policy  and  so  be  required  in  the 
Cabinet,  or  Irish  business  may  need  to  be  conducted  in  the 
House  of  Commons  by  a  Chief  Secretary  who  can  speak 
with  the  weight  attaching  to  Cabinet  office. 

The  Chief  Secretary  in  such  cases  helps  in  the  Cabinet 
to  settle  the  policy  which  shall  be  pursued  in  Ireland,  and 
is  practically  responsible  for  the  government  of  the  country, 
though  formal  communications  may  be  necessary  from  the 
Home  Office  to  the  Lord  Lieutenant  and  formal  acts  done 
by  the  Lord  Lieutenant  in  Council.  For  most  purposes 
the  Chief  Secretary  is  to  Ireland  what  the  Home  Office 
and  the  Local  Government  Board  are  to  England. 

Ireland  has  not  only  a  representative  of  royalty  and 
a  Privy  Council  of  its  own,  it  also  has  a  Chancellor,  law 

1  Croker  Correspondence,  i.  la. 

*  Sir  William  Harcourt,  speaking  in  1881  of  the  doctrine  that  he,  as 
Home  Secretary,  was  constitutionally  responsible  for  the  government 
of  Ireland,  says,  '  In  one  sense  that  is  true,  in  another  sense  it  is  not 
perfectly  accurate.  The  Right  Hon.  Gentleman  knows  perfectly  well 
that  the  Home  Secretary  is  the  only  medium  of  communication  between 
the  Sovereign  and  the  Lord  Lieutenant,  and  he  also  knows  that  the 
details  of  Irish  administration  do  not  pass  through  the  Home  Office. 
Therefore,  I  do  not  think  that  the  noble  Lord  can  seriously  suppose  that 
1  am  the  proper  source  of  information  with  regard  to  the  details  of  the 
dminbtratiou  of  the  Executive  of  Ireland.'  Hansard,  cclzii.  aa. 


Sect.  iv.  §  1 


THE    TREASURY 


173 


officers,  and  a  complete  duplication  of  Courts.     Of  these  it 
is  not  necessary  to  speak  here. 


SECTION  IV 

THE  TREASURY  AND  ITS  OFFICERS 
§  1.     Hidory  of  the  Treasury. 

The  Normans  introduced  into  our  institutions  a  method-  The  Nor- 
ical  system  of  finance.  The  Exchequer  was  the  Curia 
sitting  for  financial  purposes.  But  there  were  certain 
officers  of  the  Curia  whose  duties  lay  specially  in  the 
Exchequer,  and  a  clerical  staff  appropriate  to  the  business 
of  the  department. 

The  Exchequer  consisted  of  two  offices,  the  Upper l  and 
the  Lower :  the  first  was  a  court  of  Account,  the  second  of 
Receipt  What  was  due  to  the  King  was  ascertained  in 
the  Exchequer  of  Account  and  paid  in  to  the  Exchequer 

1  The  Dialogus  de  Scaccario  gives  a  description  of  the  Upper  Exchequer 
or  Exchequer  of  Account  which  may  be  thus  illustrated  : — 


Bishop  of  Winchester 
Treasurer 

Keeper  of  Chancery  Roll 
Keeper  of  Treasury  Roll 
Chancellor's  Clerk 
Constable's  Clerk 


Clerk  of  Chamberlain  with  Tallies 

'  Quidam  a  rege  missi  ' 

Accountant 

Necessarii 

Head  Clerk 


M 

r3 

*>      a 

«~       5 


« 


It  is  plain  that  the  position  of  Treasurer  is  one  of  less  dignity  than  that 
of  those  who  sat  beside  the  Justiciar.  His  proper  place  would  have  been 
at  right  angles  to  the  Justiciar,  but  that  place  was  temporarily  assigned 
to  the  Bishop  of  Winchester. 


174          THE    DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 

of  Receipt,  and  for  payments  made  in  the  latter  acquit- 
tance was  obtained  in  the  former.  The  procedure  of  the 
Exchequer  will  be  dealt  with  in  a  later  chapter.  I  will 
deal  here  with  the  staff. 

The  The  Treasurer  and  barons  sat  in  the  Upper  Exchequer 

Treasurer,  fa  £ake  account  of  what  was  due  to  the  King,  and  to 
exercise  a  general  financial  control '.  The  Treasurer  was 
also  responsible  for  the  receipts  and  issue  of  the  revenue 
in  the  Lower  Exchequer.  He  was  the  connecting  link 
between  the  two  departments,  but  by  no  means  the  most 
important  person  at  the  Exchequer  board.  Rather  he  was 
a  busy  official,  necessary  to  the  business  of  the  office  but 
overshadowed  in  dignity  by  the  Justiciar  and  Chancellor. 
In  the  reign  of  Richard  I  the  Chancery  was  separated  from 
the  Exchequer,  and  the  Treasurer  was  thus  relieved  from 
subordination  to  one  of  the  greater  officers  of  State 2. 
The  Great  Seal  was  now  no  longer  used  for  Exchequer 
purposes,  and  in  the  reign  of  Henry  III  the  Chancellor 
of  the  Exchequer  was  brought  into  existence,  partly  to 
take  charge  of  the  Seal  of  the  Exchequer,  partly  to  be 
a  check  on  the  Treasurer  3. 

The  Ex-  From  the  fall  of  Hubert  de  Burgh  in  1232  the  office  of 
Justiciar  rapidly  lost  importance,  till,  before  the  end  of  the 
reign  of  Henry  III  it  disappeared.  This  further  increased 
the  importance  of  the  Treasurer.  In  1300  the  Exchequer 
was  fixed  at  Westminster,  and  the  Treasurer  and  barons 
were  forbidden  to  hear  pleas  between  the  King's  subjects  4. 
The  attempt  to  confine  the  jurisdiction  of  the  Exchequer  to 
revenue  cases  was  evaded  by  fictions,  and  the  judicial  busi- 
ness which  had  been  transacted  before  the  barons  in  the 
Exchequer  of  Account  passed  to  a  definite  Court — the  Court 

1  Thomas,  Hist,  of  Public  Departments,  37. 
9  Madox,  History  of  Exchequer,  ch.  iy.  a.  10. 

*  Ibid.,  ch.  xxi.  s.  3.     The  Chancellor  of  the  Exchequer  was  not  the 
'  lieutenant '  of  the  Treasurer.     The  lieutenant  was  merely  a  deputy  to 
whom  the  Treasurer  might  from  time  to  time  assign  his  duties.     Ibid., 
ch.  xxi.  s.  a. 

*  28  Ed.  I,  c.  4.     This  clause  of  the  Articuli  super  cartas  did  but  enforce 
a  rule  the  breach  of  which  had  been  matter  of  frequent  complaint.    See 
Madox.  ch.  xxii.  s.  a. 


Sect.  iv.  §  1  THE    TREASURY  175 

of   Exchequer.     From    the   beginning  of   the   fourteenth 
century  a  Chief  Baron  presided  over  this  Court 1. 

Henceforth  the  office  of  the  Treasurer  increased  in  irapor-  The  Lord 
tance,  but  it  is  not  till  near  the  end  of  the  sixteenth  century  Treasurer 
that  he  became  an  officer  of  State  so  engrossed  in  the 
general  policy  of  the  country  as  to  be  unable  to  attend 
personally  to  the  detail  of  his  department.     Lord  Burleigh 
was  the  first  to  employ  a  secretary  to  communicate  his 
instructions  to  the  Exchequer  of  Receipt2.     Before  this 
time  the  title  underwent  a  change 3.     The  person  holding 
the   office   had   been   called  the  King's  Treasurer  or  the  31  Hen. 
Treasurer  of  the  Exchequer,  but  when  he  became  the  second        'c' ' r' 
officer  in  dignity  after  the  Chancellor  his  title  of  King's 
Treasurer  develops  into  that  of  Lord  High  Treasurer.      He 
was  also  Treasurer  of  the  Exchequer,  but  the  offices  were 
distinct:   the  first  was  conferred  by  delivery  of  a  white 
staff,  the  second  by  patent ;  the  first  was  a  great  office  of 
State ;  the  second  placed  him  at  the  head  of  the  Exchequer 4. 

The  office  of  Treasurer  was  first  put  into  Commission  on  The  Com- 
the  death  of  Lord  Salisbury  in  1612.     From  this  period,  ^he0" 
though  the  Treasurers  transacted  business  in  the  Exchequer  Treasury, 
of  Receipt  until  1643,  the  Treasury  has  become  a  separate 
department;  its  authority  is  necessary  for  the  issue   of 
money  from  the  Exchequer  of  Receipt,  and  it  exercises  the 
financial   control   once    possessed    by    the    Exchequer    of 
Account.     When  at  the  Restoration  the  Treasury  was  not 
only  put  for  a  short  time  into  Commission,  but  located  in 
a   separate   set  of  rooms  at  Whitehall,  the  severance  of 

1  Haydn,  Book  of  Dignities,  381.  Madox,  ch.  xxi.  s.  3.  The  title, 
'  capitalis  baro,'  seems  to  have  been  first  used  in  the  case  of  Walter 
Norwich  in  1317. 

*  Madox,  p.  568.     Report  on  Public  Income  and  Expenditure  (1869), 
i-  336. 

3  Thomas,  Hist,  of  Public  Departments,  p.  4. 

*  See  the  account  of  the  admission  of  Godolphin ;   Thomas,  Hist,  of 
Public  Departments,  p.  2 ;  and  of  Harley,  Calendar  of  Treasury  Papers, 
vol.  iv.  preface.     The  first  account  is  taken  from  the  Black  Book  of  the 
Exchequer  ;  the  second  from  an  entry  made  on  a  fly-leaf  of  the  Treasury 
Minute  Book.     It  is  difficult   to  conjecture  from  these  accounts  what 
would  have  been  the  duties  of  the  Lord  High  Treasurer  if  the  staff  and 
the  patent  had  been  conferred  on  different  persons. 


1 76          THE    DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 

Severance  Treasury  and  Exchequer  was  complete.  The  Upper  Ex- 
Treasury  chequer  may  by  that  time  be  said  to  have  passed  away  into 
and  Ex-  (ij  a  law  court — the  Court  of  Exchequer,  (ii)  a  body  of 
auditors,  of  whom  I  shall  have  to  speak  later,  and  (iii) 
a  department — the  Treasury.  Since  1835,  the  Paymaster- 
General  and  the  Treasury  have  discharged  the  duties  of  the 
Exchequer  of  Account,  apart  from  those  of  Audit  which 
have  gone  to  the  Controller  and  Auditor-General ;  the  Ex- 
chequer of  Receipt  is  now  the  Bank  of  England.  The  office 
of  Lord  High  Treasurer  was  filled  from  time  to  time  until 
October  13,  1714,  when  the  Duke  of  Shrewsbury  resigned 
the  white  staff.  Since  then  the  Treasury  has  always  been 
in  Commission. 

By  the  Act  of  Union  with  Scotland,  the  Scotch  and 
English  Treasuries  were  merged,  but  after  the  Union  with 
Ireland  the  office  of  Lord  High  Treasurer  for  Ireland  was 
continued  until  I8I61. 

§  2.     The  Commission  of  the  Treasury. 

The  Treasury  Board  is  created  by  letters  patent  under 
the  Great  Seal 2  appointing  the  persons  named  therein  to  be 
Commissioners  for  executing  the  office  of  Treasurer  of  the 
Exchequer  of  Great  Britain  and  Lord  High  Treasurer  of 
Ireland. 

The  Board  consists  of  the  First  Lord,  the  Chancellor  of 
the  Exchequer,  and  a  varying  number  of  Junior  Lords. 

Until  1711,  whenever  the  Treasury  was  put  into  Com- 
mission, the  King  named  all  the  Lords,  and  the  First  Lord 
was  only  a  more  important  minister  than  the  others,  'primus 
inter  pares  V     Since  1711  the  First  Lord  has  nominated 
the  Junior  Lords,  and  since  the  Ministry  of  Sir  Robert 
The  Prime  Walpole  (1721-1742)  the  office  of  First  Lord  has  usually 
asTirsT     ^een  associated  with  the  position  of  Prime  Minister.     The 
Lord.         exceptions  to  this  rule  are  of  two  kinds. 

1  As  to  the  inconveniences  which  arose  from  the  existence  of  the  two 
Treasuries,  see  Parker,  Memoirs  of  Sir  R.  Peel,  vol.  i.  pp.  111-14. 
*  See  the  form  of  patent,  Appendix  i. 
'  Todd,  Parl.  Gov.  in  England,  ii.  424. 


Sect.  iv.$2  THE   TREASURY  l?f 

There  have  been  occasions  in  the  last  century  when  there  Excep- 
was  no  definite  Prime  Minister,  as  in  the  chaotic  state  of  tlon<t 
parties  after  the  fall  of  Walpole,  when  Lord  Wilmington 
was  First  Lord  of  the  Treasury,  while  Carteret  and  Henry 
Pelham  struggled  for  ascendency  in  the  Ministiy ;  or  again 
when  William  Pitt  the  elder  was  Secretary  of  State  and 
controlled  the  policy  of  the  country,  while  Newcastle  dis- 
tributed the  patronage  as  First  Lord  of  the  Treasuiy ;  or 
again  as  in  the  coalition  Ministry  of  1783  when  the  Duke 
of  Portland,  who  was  First  Lord,  was  Prime  Minister  only 
in  name,  and  Fox  and  North  divided  the  responsibilities  of 
government. 

There  have  also  been  occasions  when  the  Prime  Minister  Excep- 
has  deliberately  chosen  an  office  either  less  or  more  laborious  tlons 
than  that  of  First  Lord.  Thus  Lord  Chatham  in  1766, 
when-  entrusted  by  George  III  with  the  formation  of 
a  Ministry,  chose  the  office  of  Lord  Privy  Seal.  At  this 
time  the  Treasury  Board  met  twice  a  week  for  the  transac- 
tion of  business,  and  Chatham  was  perhaps  desirous  of  being 
relieved  from  these  routine  duties.  Fox  in  1 806,  and  Lord 
Salisbury  in  1885  and  again  in  1887  and  1895,  undertook 
to  combine  the  duties  of  Foreign  Secretary  with  those  of 
Prime  Minister.  Such  an  arrangement  seems  hardly  prac- 
ticable nowadays,  unless  the  Prime  Minister  is  a  member  of 
the  House  of  Lords.  To  control  the  general  policy  of  the 
country,  to  manage  the  business  of  the  Ministry  as  leader 
of  the  House  of  Commons,  and  to  superintend  an  important 
department  of  government,  is  a  combination  of  duties  hardly 
within  the  compass  of  one  man's  powers.  Mr.  Gladstone 
united  the  duties  of  Prime  Minister  and  leader  of  the  House 
of  Commons  with  those  of  Chancellor  of  the  Exchequer  for 
a  few  months  in  1873  and  1874  when  Parliament  was  not 
sitting,  and  again  from  the  spring  of  1880  to  the  begin- 
ning of  1882,  but  this  combination  tends  to  become  less 
frequent l. 

In  1885  the  First  Lord,  Lord  Iddesleigh,  was  neither 
Prime  Minister  nor  a  member  of  the  House  of  Commons. 

1  Pitt,  Addington,  Perceval,  and  Peel  are  the  only  other  instances  in 
the  last  100  years. 

AHSOX.  CROWS  N 


178  THE   DEPARTMENTS   OF  GOVERNMENT      Chap.  Ill 

The  arrangement  was  anomalous,  though  the  large  expe- 
rience of  Lord  Iddesleigh  in  matters  of  finance  may  have 
rendered  it  not  inconvenient. 

Duties  of  The  First  Lord  of  the  Treasury  has  a  large  patronage,  but 
Lor(j.  takes  no  part  in  the  duties  of  the  Treasury,  unless  questions 
should  arise  in  the  business  of  the  department  which  the 
Chancellor  of  the  Exchequer  cannot  settle ;  in  such  a  case 
his  position  as  titular  head  of  the  Board  and  as  Prime 
Minister  or  leader  of  the  House  of  Commons  adds  weight 
to  his  decision. 

Business  The  Treasury  Board  does  not  now  meet  except  on  extra- 
Treasury  ordinary  occasions,  but  until  the  beginning  of  the  present 
Board.  century  its  meetings  were  a  reality1.  The  Lords  of  the 
Treasury,  and  the  Chancellor  of  the  Exchequer,  sat  round 
the  table,  at  the  head  of  which  the  King,  till  the  accession 
of  George  III,  used  to  preside2,  seated  in  a  large  chair, 
which  is  still  in  the  Treasury  offices;  the  Secretaries 
attended  with  their  papers ;  these  were  discussed  and 
minutes  kept  by  the  Secretaries  which  were  drawn  out 
and  read  the  next  day.  Business  increased  during  the 
great  wars  of  the  last  century,  till  it  grew  beyond  the 
powers  of  a  Board  to  transact ;  the  meetings  became  formal, 
taking  place  twice  a  week ;  after  1827  the  First  Lord  and 
Chancellor  of  the  Exchequer  ceased  to  attend  ;  the  business 
was  prepared  beforehand  for  the  sanction  of  the  lords  3. 
Since  1856  the  meetings  have  been  discontinued;  indi- 
vidual members  of  the  Treasury  staff  are  now  personally 

1  In  the  reign  of  Anne  the  Board  sat  on  four  days  of  the  week  ;  on 
Monday,  it  dealt  with  Scotch  and  Irish  business ;  on  Tuesday,  with  the 
Treasurer  of  the  Navy  in  the  morning,  Commissioners  of  the  Customs  in 
the  afternoon ;  Wednesday,  in  the  morning  it  made  up  the  cash  paper 
for  the  week,  in  the  afternoon  it  waited  upon  the  Queen  to  receive  her 
approval  of  the  cash  paper,  and  to  obtain  her  signature  where  necessary 
to  warrants  ;  on  Friday,  it  received  the  Paymaster  of  the  Forces  and  the 
Secretary  of  War  in  the  morning,  and  the  auditors  and  other  officers 
of  the  revenue  in  the  afternoon  ;  Thursday  was  reserved,  being  a  '  council 
day,'  and  on  Saturday  the  Board  seems  to  have  taken  a  holiday.  Calendar 
of  Treasury  Papers,  vol.  iv.  p.  xv. 

*  George  III  gave  up  the  hereditary  revenues  for  a  fixed  Civil  List,  and 
so  had  no  personal  interest  in  the  business  of  the  Treasury. 

3  Commons  Papers,  1847,  xviii.  141-8.  Evidence  of  Sir  Charles 
Trevelyan. 


Sect.  iv.§3  THE   TREASURY  179 

responsible   for  business  which  is   transacted    under   the 
general  control  of  the  Chancellor  of  the  Exchequer. 

§  3.     The  Chancellor  of  the  Exchequer. 

The  Chancellor  of  the  Exchequer  is  always  one  of  the 
Commission  of  the  Treasury,  but  he  is  appointed  Chan- 
cellor of  the  Exchequer  and  Under  Treasurer  by  separate 
patents,  and  by  the  receipt  of  the  Exchequer  Seals. 

His    duties    originally   consisted    in    the    custody   and  Duties  of 
employment  of  the  seal,  in  the  keeping  of  a  counter-roll  ^!|f0""0f 
which  should  check  the  accuracy  of  the  roll  kept  by  the  the  Ex- 
Treasurer,  and  in  the  discharge  of  certain  judicial  functions  c  e<lue 
in  the  Exchequer  of  Account,  of  which  there  remains  but 
one,  and  that  merely  formal.     The  more  strictly  financial 
duties  of  the  Chancellor  of  the  Exchequer  belong  to  the 
post  of  Under  Treasurer,  which  was  connected  with  his 
office  in  the  reign  of  Henry  VII 1. 

The  post  was  not  of  great  importance  so  long  as  the  Recent 
Treasury   Board  was   in  active  working.     Throughout  a  J^,°rQf 
great  part  of    the   last   century   it   was  not  necessarily  the  office, 
a  Cabinet  office,  unless  held  in  conjunction  with  the  first 
Lordship  of  the  Treasury2. 

In  1 809  Mr.  Perceval  offered  the  post  to  Lord  Palmerston, 
who  was  then  25  years  of  age,  and  had  made  one  speech 
in  the  House  !  '  Annexed  to  the  office,'  says  the  latter, 
'  he  offered  a  seat  in  the  Cabinet  if  I  choose  to  have  it, 
and  he  thought  it  better  that  I  should  have  it.'  Mr. 
Perceval  added  that  as  a  matter  of  course  he  should  him- 
self take  the  principal  share  of  the  Treasury  business  both 
in  and  out  of  the  House  3. 

As  the  Treasury  Board  has  diminished,  so  the  Chancellor 
of  the  Exchequer  has  risen,  in  importance.  At  the  present 
time  he  is  in  fact  a  Finance  Minister,  and  the  Board  of 
which  he  is  a  member  consists  of  persons  whose  duties  are 
unconnected  with  the  work  of  the  Treasury,  the  chief  of 

'  Report  on  Public  Income  and  Expenditure,  1869,  part  2,  p.  335. 
3  Memoir  of  Right  Hon.  W.  Dowdeswell.     Cavendish  Debates,  576. 
3  Bulwer,  Life  of  Palmerston,  i.  91. 

K  2 


180          THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 


Change  in 
character 
of  its 
duties. 


To  settle 
what  shall 
be  asked 
for: 


to  see 
that 
public 
money  is 
properly 
spent : 


to  adjust 
taxation 
to  outlay 


them  being  the  Prime  Minister  or  leader  of  the  House  of 
Commons.  Let  us  consider  the  duties  which  now  fall  upon 
the  staff  of  the  Treasury,  of  which  the  Chancellor  of  the 
Exchequer  is  the  Parliamentary  chief. 

The  duties  of  the  old  Exchequer  of  Account  and  of  the 
Treasurer  were  to  the  King.  It  was  the  business  of  the 
office  to  see  that  the  King's  debtors  paid  all  that  they 
owed,  and  that  the  King's  creditors  got  no  more  than  was 
their  due.  The  duties  of  the  Treasury  and  of  the  Chan- 
cellor of  the  Exchequer  are  to  the  taxpayer.  It  is  the 
business  of  the  department  to  see  that  no  more  money  is 
asked  for  than  is  wanted,  and  that  no  more  money  is  spent 
than  has  been  authorized  by  Parliament.  The  estimates 
are  supervised  in  the  Treasury  before  they  are  presented 
to  Parliament,  and  Bills  which  lay  a  charge  on  the  Con- 
solidated Fund,  or  on  money  which  Parliament  is  to  provide 
for  the  services  of  the  year,  must  receive  the  assent  of  the 
Treasury  before  they  are  introduced  into  Parliament.  If 
this  were  not  so  the  Chancellor  of  the  Exchequer  would 
not  be  able  to  balance  revenue  and  expenditure.  Besides 
this,  the  Treasury  exercises  a  general  control  over  official 
salaries,  fixing  them  in  the  first  instance,  and  afterwards 
ascertaining  from  time  to  time  that  work  which  is  paid  for 
is  actually  done.  It  is  responsible  not  merely  for  the 
amount  demanded  of  the  taxpayer,  but  also  for  the  expendi- 
ture of  public  money  in  the  mode  indicated  by  Parliament. 
With  this  I  shall  deal  hereafter.  It  is  impossible  for  the 
Chancellor  of  the  Exchequer  to  attend  personally  to  these 
matters  in  detail,  they  are  supervised  by  the  permanent 
staff  of  the  department;  but  the  policy  which  governs 
the  action  of  the  department  is  indicated  by  the  Chan- 
cellor of  the  Exchequer. 

And  he  has  other  duties.  It  is  his  business  when  he 
knows  the  amount  of  the  public  income,  and  the  extent 
of  the  demands  upon  it,  to  adjust  revenue  to  expenditure, 
to  raise  or  remit  taxation  as  the  occasion  may  justify,  and 
to  discover  how  money  may  be  raised  in  greatest  plenty, 
with  least  inconvenience. 

Furthermore,  it  is  his  business  to  obtain  the  assent  of 


Sect.  iv.  §3  THE    TREASURY  181 

Parliament  to  his  plans  for  the  taxation  of  the  year,  and  to  repre- 
assisted  by  the  Parliamentary  Secretary  to  represent  the 


department  in  the  House  of  Commons.     The  Chancellor  me°t  in 
of  the  Exchequer  and  his  staff  may  be  regarded  as  living  ment.' 
in   perpetual   conflict — with   servants  of    the   State,  who 
want  more  pay  than  the  Treasury  thinks  they  are  worth — 
with  departments  of  government,  which  want  more  money 
than  the  Chancellor  is  prepared  to  ask  Parliament  to  grant 
— with  the  House  of  Commons,  which  contests  the  amount 
demanded,  and  the  mode  in  which  it  is  proposed  to  be 
raised— and  with  the  taxpayer  who  wishes  to  have  every- 
thing handsome  about  him,  and  does  not  like  to  pay  for  it. 

It  remains  to  consider  the  remnant  of  the  Chancellor's  His 
judicial   powers.      The    Chancellor    and    Treasurer   were  Judlclal 
entitled  to  sit  with  the  Barons  of  the  Exchequer  when 
that  Court  sat  as  a  Court  of  Equity.     Sir  Robert  Walpole 
sat  and  gave  a  casting  vote  in   1735.     But  the   Equity 
jurisdiction  of  the  Court  was  taken  away  in  1 841  l,  and 
the  Judicature  Act  excludes  the  Treasurer  and  the  Chan- 
cellor of  the  Exchequer  from  judicial  powers  in  the  High 
Court  or  Court  of  Appeal2. 

But  in  the  appointment  of  Sheriffs  the  Chancellor  The  ap- 
resumes  his  old  place  as  though  in  the  Exchequer  of 
Account.  The  ceremony  which  takes  place  on  the  lath 
of  November,  the  morrow  of  St.  Martin,  recalls  the  ancient 
Exchequer,  wherein  the  Sheriffs  were  the  connecting  link 
between  the  shiremoot  and  the  Curia.  Not  only  are  the 
Judges  summoned  for  this  appointment,  but  all  the  mem- 
bers of  the  Cabinet.  The  justiciarii  and  great  officers  of 
State  sit  once  more  on  the  Exchequer  side  of  the  Curia, 
only  the  Exchequer  and  its  Barons  have  gone,  and  the 
Chancellor  of  the  Exchequer  finds  himself  presiding  in 
the  King's  Bench  division  of  the  High  Court  of  Justice  '\ 
The  King's  Remembrancer  reads  out  the  names  on  the  list 
for  the  ensuing  year,  the  Judges  supply  names  sufficient  to 
complete  the  number  of  three  for  each  county,  the  Clerk 
of  the  Privy  Council  reads  out  excuses,  and  the  Lords  of 

1  5  Viet.  c.  5.  *  36  &  37  Viet.  c.  66,  9.  96. 

3  44  &  45  Viet.  c.  68,  a.  16. 


182          THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  TIT 

the  Council  and  Judges  accept  or  reject  the  excuses.  The 
list  is  made  out,  and  the  subsequent  proceedings  take  place 
at  the  Privy  Council '. 


§  4.     The  Parhamentaiy  Staff. 

The  The  Junior  Lords  who,  with  the  First  Lord  and  Chan- 

Lords*  cellor  of  the  Exchequer,  make  up  the  Commission  of  the 
Treasury,  are  usually  three  in  number,  and  there  is  a 
tradition,  not  uniformly  observed,  that  there  should  be  an 
English,  a  Scotch,  and  an  Irish  Lord.  They  have  from 
time  to  time  some  departmental  business  assigned  to  them, 
and  to  one  is  specially  entrusted  the  consideration  of 
claims  of  public  servants  to  superannuation  allowances. 
But  their  duties  are  mainly  political ;  they  act  as  assistant 
Whips,  and  help  the  Patronage  Secretary,  the  senior  Whip, 
to  bring  up  the  rank  and  file  of  the  Government  supporters 
when  required  for  a  division.  One  of  them  may  represent 
the  Board  of  Works,  or  the  Board  of  Agriculture,  if  the 
head  of  either  of  those  departments,  each  of  which  has 
but  a  single  political  representative,  chances  to  be  a  peer. 
The  It  will  be  seen  that  the  Treasury  as  at  present  constituted 

side,'0  nas  *wo  sides,  a  political  and  a  financial ;  the  political 
represented  by  the  First  Lord  and  the  Junior  Lords,  the 
financial  by  the  Chancellor  of  the  Exchequer.  The  First 
Lord  is  usually  Prime  Minister  or  leader  of  the  House  of 
Commons,  or  both,  and  is  entrusted  with  the  extensive 
patronage  of  the  Treasury.  Each  of  these  great  officers 
and  the  has  a  Parliamentary  Secretary.  The  Patronage  Secretary 
*s  ^ne  subordinate  of  the  First  Lord,  assists  him  in  the 
distribution  of  the  patronage  of  the  Treasury,  and  acts  as 
the  chief  Government  Whip,  attending  to  the  maintenance 
of  the  Government  majority  in  and  out  of  Parliament. 

1  The  Sheriffs  Act,  50  &  51  Viet.  c.  55,  does  not  require  that  more  than 
one  great  officer  of  State  should  be  present,  and  two  judges.  Practically 
it  is  necessary  that  six  or  seven  judges  should  attend.  Report  of  Select 
Committee  of  Lords  on  the  office  of  High  Sheriff,  Com.  Papers,  257, 
1888.  The  Lords  of  the  Council  determine  the  order  in  which  the  names 
shall  stand,  and  at  a  subsequent  meeting  the  King  pricks  the  name 
selected  for  each  county. 


Sect.iv.  §4  THE  TREASURY  183 

The  Financial  Secretary  is  the  subordinate  of  the  Chan-  The 
cellor  of  the  Exchequer.      He  is  usually  responsible  for 
the  estimates  for  the  revenue  departments  and  the  civil 
service,  and  for  votes  of  credit ;  he  has  to  do  the  drudgery 
of  the  financial  business  transacted  in  Parliament,  to  take  and  Secre- 
charge  of  Bills  which  affect  the  Revenue,  and  to  defend  tary' 
the  estimates  laid  before  the  House  of  Commons. 

The  history  of  these  last-mentioned  officers  is  somewhat 
obscure.  Lord  Burleigh  appears  to  have  been  the  first 
Treasurer  who  employed  a  Secretary  to  give  his  instructions 
to  the  Treasury.  The  first  notice  of  joint  Secretaries  was 
when  Lord  Rochester  was  Treasurer  in  the  reign  of  James  I ; 
after  that  there  was  but  one  until  1 7 14,  when  there  were 
again  two.  From  the  commencement  of  the  eighteenth 
century  the  post  was  held  with  a  seat  in  the  House  of  Com- 
mons *.  Since  then  they  have  generally,  and  for  some  time 
past  always,  been  members  of  the  House.  Their  offices  are 
not  held/rom  or  under  the  Croivn,  and  they  are  appointed 
simply  by  being  '  called  in  '  to  the  Treasury  Board. 

The  mode  of  appointment  is  a  curious  anomaly.  The 
position  of  the  Financial  Secretary  gives  him  an  intimate 
knowledge  of  the  work  of  an  important  department,  and 
therewith  an  administrative  and  Parliamentary  experience 
which  usually  leads  to  Cabinet  office.  The  Patronage  Secre- 
tary, as  chief  Whip,  guides  the  Parliamentary  destinies  of  a 
Government,  and  may  be  called  upon  to  advise  a  Cabinet 
on  questions  of  Parliamentary  policy  of  the  gravest  import- 
ance. But  these  two  officers,  though  their  selection  is  a 
matter  of  concern  in  the  formation  of  a  Government,  are 
nominally  and  formally  appointed  by  a  Board  of  which  the 
majority  consist  of  the  assistant  Whips,  the  junior  Lords  of 
the  Treasury,  whose  duties,  as  defined  by  Canning,  were 
'  to  make  a  House,  keep  a  House,  and  cheer  the  Minister.' 

§  5.     The  Permanent  Stuff. 

So  far  I  have  spoken  of  the  Treasury  as  a  body  of 
political  officers,  some  connected  very  remotely,  if  at  all, 

1  See,  as  to  the  history  of  the  Secretory  to  the  Treasury,  Thomas, 
Hist,  of  Public  Departments,  16,  17. 


184  THE   DEPARTMENTS   OF   GOVERNMENT      Chaj..  Ill 

with  financial  business,  others,  such  as  the  Chancellor  of 
the  Exchequer  and  the  Financial  Secretary,  responsible  for 
the  course  of  our  financial  policy,  and  with  its  exposition 
and  conduct  in  Parliament. 

The  Per-  But  these  political  officers  who  change  with  the  rise  and 
Secretary  ^  °f  parties  are  the  temporary  chiefs  of  a  permanent 
staff.  The  practical  inconvenience  of  frequent  change  in 
the  Secretaries  of  the  Treasury  was  felt  in  1805,  and  was 
met  by  the  creation  of  a  Permanent  Secretary,  whose 
office  is  incompatible  with  a  seat  in  Parliament,  whose 
duty  it  is  to  supervise  the  daily  work  of  the  Treasury, 
and  to  inform  and  assist  the  Parliamentary  representatives 
of  the  department. 

and  staff.  The  wide-reaching  financial  control  exercised  by  the 
Treasury  over  all  the  departments  of  government  gives  a 
peculiar  importance  to  its  permanent  staff;  for  all  estimates 
must  be  approved  by  the  financial  head  of  the  Treasury, 
the  Chancellor  of  the  Exchequer,  and  the  details  of  these 
estimates  must  necessarily  be  scrutinized  by  the  persons 
who  are  from  long  experience  familiar  with  such  matters, 
and  can  supply  the  Chancellor  with  materials  for  forming 
conclusions.  All  expenditure  must,  in  one  form  or  another, 
receive  the  authority  of  the  Lords  of  the  Treasury;  and 
this  phrase  is  kept  in  use  although  neither  the  First  Lord 
nor  the  junior  Lords  concern  themselves  with  the  details 
of  departmental  expenditure.  When  the  applicant  for 
money  is  informed  that  '  my  Lords '  cannot  assent  to  his 
demands,  he  must  understand  that  the  permanent  staff  have 
raised  objections,  and  that  if  he  wants  the  matter  to  go 
further  he  must  obtain  access  to  the  Parliamentary 
Secretary  or  to  the  Chancellor  of  the  Exchequer.  Statu- 
tory control  is  given  to  the  Treasury  in  respect  of  the 
form  of  keeping  the  public  accounts;  and  in  the  employ- 
ment, as  well  as  in  the  grant,  of  public  money  the  Treasury 
possesses,  either  by  Statute,  by  custom,  or  by  arrangement, 
a  wide  supervision. 

This  control  can  only  be  efficient,  or  even  possible,  by 
reason  of  the  permanence  of  the  body  of  officials  who  exer- 
cise it.  Economy  can  only  be  maintained  by  constant 


Sect.  ir.  §6  THE   TREASURY  185 

watchfulness  over  the  springs  and  sources  of  expenditure. 
It  would  be  idle  to  expect  officials,  who  were  dependent  for 
their  position  on  the  continued  existence  of  a  government, 
to  take  up  the  threads  of  departmental  policy  just  where 
their  predecessors  had  laid  them  down,  to  incur  the  un- 
popularity which  is  the  lot  of  the  economist,  without  the 
prospect  of  seeing  the  fruits  of  their  labours.  The  im- 
portance of  the  permanent  Civil  Service  will  be  dealt 
with  later :  but  it  is  impossible  to  conclude  an  account 
of  the  Treasury  and  its  powers  without  alluding  to  the 
necessity  to  such  a  department  of  a  skilled  and  permanent 
staff. 

§  6.    Departments  connected  u'ith  the  Treasury. 

In  close  connexion  with  the  Treasury  are  several  depart-  Depart- 
ments of  government.   The  reason  of  such  connexion  differs  ™nnecte 
in  the  different  cases,  as  does  the  character  of  the  con-  with 
nexion.     Of  some  of  these   departments  I  shall  have   to 
speak  later  in  dealing  with  the  revenue  and  expenditure  of 
the  Crown. 

The  Comptroller  and  Auditor-General  is  an  official  inde-  Control 
pendent  of  any  government  department,  but  discharging 
functions  which  keep  him  in  constant  communication  with 
the  Treasury  :  for  the  departments  of  government  cannot 
obtain  money  without  the  intervention  of  the  Treasur}', 
and  the  Treasury  cannot  supply  their  needs  or  check  their 
expenditure  without  the  aid  of  the  Comptroller  and 
Auditor-General.  But  he  stands  apart  from  politics :  his 
salary  does  not  come  under  the  annual  consideration  of 
Parliament,  but  is  charged  on  the  Consolidated  Fund  l. 

The  other  departments  which  are  in  immediate  con- 
nexion with  the  Treasury  are  somewhat  miscellaneous, 
with  the  exception  of  those  which  are  concenied  with  the 
collection  of  the  revenue :  these  are  the  Commissioners  of 
Customs ;  of  Inland  Revenue ;  of  Woods  and  Forests,  i.  e.  of 
the  Land  Revenues  of  the  Crown  ;  and  the  Postmaster- 
General. 

1  29  &  30  Viet.  c.  39,  s.  4.  For  a  fuller  account  of  the  duties  of  this 
officer,  see  chapter  vii. 


186          THE   DEPARTMENTS   OF  GOVERNMENT      Chap.  Ill 

The  Pay-  Certain  offices  appear  in  the  estimates  as  the  departments 
General.  °f  the  Treasury ;  such  is  that  of  the  Paymaster-General, 
an  office  which  has  by  successive  Statutes1  absorbed  all 
the  offices  through  which  public  money  voted  by  Parlia- 
ment was  previously  paid.  The  office  is  political,  but 
honorary ;  it  is  tenable  with  a  seat  in  the  House  of  Com- 
mons, and  the  holder  is  not  required  to  offer  himself  for 
re-election  on  its  acceptance.  The  appointment  is  by 
Sign  Manual  warrant.  The  duties  are  discharged  by  the 
permanent  staff  of  the  Pay  Office,  with  powers  granted  by 
the  Paymaster-General. 

ThePari;*-  Such  also  is  the  office  of  the  Parliamentary  Counsel,  who 
Counsel  are  appointed  by  Treasury  Minute.  The  duty  of  these 
gentlemen  is  to  draft  the  Bills  which  embody  the  Govern- 
ment measures.  It  is  a  difficult  duty  to  discharge,  for 
they  must  not  only  put  the  intentions  of  the  Government 
into  an  artistic  statutory  form,  making  this  form  consistent 
with  previous  legislation  on  the  subject,  if  necessary  by 
repeal  of  portions  of  existing  Statutes,  but  they  have  to 
deal  with  the  unskilled  energies  of  the  private  member  in 
the  way  of  amendment,  and  to  keep  in  view  the  more 
formidable  ordeal  of  judicial  ingenuity  in  the  way  of 
construction.  Thus  they  are  required  to  watch  the  Bill 
through  every  stage  in  either  House,  and  to  supply  the 
Minister  in  charge  of  it  with  the  necessary  arguments  to 
meet  amendments  which  would  frustrate  the  object,  or 
embarrass  the  construction,  of  a  clause. 

Other  minor  departments  figure  in  the  Civil  Service 
estimates  as  subordinate  to  the  Treasury,  but  we  may  pass 
from  these  to  the  departments  which  are  concerned  with 
the  collection  of  Revenue. 

The  These  ]are  the  Commission  of  Woods  and  Forests,  the 

Depart"-6    Board  of  Customs,  the  Board  of  Inland  Revenue,  and  the 

ments.         Post  Office. 

Woods  The  Commissioners  of  Woods  and  Forests  are  a  depart- 

Forests.      ment  of  the   Civil   Service   entrusted   with  the  duty  of 

administering  the  Crown  Lands  and  collecting  the  land 

revenues  of  the  Crown. 

1  5  &  6  Will.  IV,  c.  35,  and  n  &  12  Viet.  c.  55. 


Sect.  iv.  §7  THE   TREASURY  187 

They  are  appointed,  two  in  number,  by  Sign  Manual 
warrant.  They  are  connected  with  the  Treasury  as  being 
responsible  for  a  branch,  though  a  small  branch,  of  the 
revenue :  and  also  because,  not  being  otherwise  represented 
in  the  House  of  Commons,  they  must  look  for  explanation 
or  defence  of  their  conduct,  if  called  in  question,  to  the 
representatives  of  the  Treasury. 

Boards   of   Commissioners  of  Customs   and   of   Inland  Customs 
Revenue  are  appointed  by  Letters  Patent,  and  the  Chair-  j|^nd 
man  of  each  Board  by  Sign  Manual  warrant.     They  are  Revenue, 
distinctly  revenue  departments,  and  their  work  is  more 
appropriately  considered  when  we  come  to  deal  with^the 
sources  of  public  revenue,  distinguishing  that  which  springs 
from  duties  levied  on  foreign  goods  entering  the  country 
and  that  which  comes  from  other  forms  of  taxation.     The 
Post  Office  demands  separate  treatment. 

§  7.    The  Post  Office. 

The  Post  Office  differs  from  the  Commission  of  Woods 
and  Forests  in  that  it  is  treated  as  a  revenue  department, 
and  not  as  a  branch  of  the  Civil  Service.  It  differs  from 
all  three  of  the  foregoing  departments  in  that  it  is  directly 
represented  in  Parliament. 

The  Postmaster-General  is  a  political  officer  appointed 
from  time  to  time  by  letters  patent  under  the  Great  Seal. 

From  the  early  part  of  the  sixteenth  century  it  would  History  «t 
seem  that  postal  arrangements  existed,  not  for  public  con- 
venience, but  for  the  use  of  the  King  and  his  Court,  and 
these  were  under  a  Master  of  the  Posts.  In  the  reign  of 
James  I  and  Charles  I  posts  were  organized  for  general 
convenience,  and  from  the  reign  of  Charles  II  they  furnished 
an  appreciable  item  of  the  revenue  settled  upon  the  King. 
But  until  1710  the  duties  were  carried  on  by  one  or  more 
persons  under  the  supervision  of  a  Secretary  of  State. 

In   1710  a   Postmaster-General  was  appointed,  holding  The  Post- 
office  by  Letters  Patent  :   and  the  office   fell   under  the  JJJjJjJ^ 
disabilities  attaching  to  new  offices  by  the  Place  Bill  of  9  Anne, 
1707.     Throughout  the  last  century,  and  until  1823,  the 


188          THE   DEPARTMENTS   OF  GOVERNMENT      Chap.  TIT 

office  was  held  usually  by  two  joint  Postmasters ;  since 
then  it  has  been  held  by  one  person.  Except  for  the  short 
period  of  Mr.  Canning's  Ministry,  it  was  always  held  by 
a  peer,  with  a  view  to  the  Parliamentary  representation  of 

may  sit  in  the  Post  Office,  until  in  1866  the  disability  was  removed 
and  the  Postmaster- General  rendered  capable  of  sitting  in 
Parliament1,  subject  to  the  rule  that  acceptance  of  the 
office  vacates  the  seat  of  the  holder,  leaving  him  eligible  for 
re-election. 

In  1831  the  English  and  Irish  Post  Offices,  which  had 
until  that  date  been  under  separate  management,  were 
brought  under  one  head,  and  since  1837  the  office  of  Post- 
master has  been  regarded  as  political,  changing  hands  with 
changes  of  Ministry. 

Privileges      The  year  1837  marks  an  epoch  in  the  history  of  the  Post 

Oflk-T*  Office.  In  that  year  a  group  of  Statutes 2  was  passed,  one  of 
which  repealed  in  its  entirety  the  immense  mass  of  legisla- 
tion which  had  then  accumulated  about  the  Post  Office, 
while  another  defined  its  privileges  and  conditions  of 
management.  It  is  the  latter  Act  which  gives  a  monopoly 
to  the  Post  Office  in  the  carriage  of  letters  and  newspapers : 
private  enterprise  is  not  allowed  to  compete  with  the 
Government,  although  in  the  process  of  crushing  private 
competition  the  Post  Office  may  be  stimulated  to  new  efforts 
for  meeting  the  public  convenience. 

Position         The  position  of  the  Postmaster-General  is  exceptional. 

of  Post-      From  one  point  of  view  the  office  is  a  department  of  the 

master-  r 

General :  Revenue,  and  as  a  revenue  department  it  is  controlled  by 
the  Treasury.  But,  unlike  other  such  departments  which 
are  merely  concerned  with  collection  and  receipt,  the  Post 
Office  transacts  a  business  which  is  immense  in  compass  and 
variety,  which  no  private  enterprise  could  transact  so  cheaply 
or  conveniently  to  the  public,  and  which,  though  conducted 
primarily  with  a  view  to  public  convenience,  incidentally 
produces  revenue3.  As  head  of  a  great  business  concern 
the  Postmaster-General  is  a  large  employer  of  labour  ;  he  is 
also  concerned  in  dealings  with  steamship  companies  as 

1  39  &  30  Viet.  c.  55.  2  7  Will.  IV.  &  i  Viet.  c.  33,  c.  33. 

3  Post,  ch.  vii.  sect.  i.  §  5. 


Sect.  iv.  §7  THE   TREASURY  189 

regards  contracts  for  the  carriage  of  mails  ;  and  with  inter- 
national questions  in  respect  of  treaties  as  to  postal  arrange- 
ments with  foreign  countries  1.    He  is  also  therefore  the  head 
of  a  great  administrative  office,  but,  though  he  may  suggest 
and  advocate  means  for  increasing  the  usefulness  of  his 
department,  his  powers  are  conferred  and  very  precisely  his  power 
defined  by  Statutes,  and  their  exercise,  wherever  it  goes  g 
beyond  mere  regulation  and  touches  the  Revenue,  is  subject 
to  Treasury  control. 

His  power  to  fix  rates  of  postage  where  they  are  not  subject  to 
settled  by  Parliament  must  be  used  subject  to  the  approval  control'.7 
of  the  Lords  of  the  Treasury.     So  too  Parliament  gives 
authority  for  contracts  for  the  conveyance  of  mails ;  but  if 
Parliament  does  not  fix  the  rates,  they  must  be  settled  by 
the  Postmaster-General,  with  the  consent  of  the  Treasury. 

His  regulations  as  to  the  Post  Office  Savings  Banks,  and 
money-orders,  are  in  like  manner  subject  to  the  approval  of 
the  Treasury,  and  the  consent  of  that  department  is  required 
to  enable  him  to  purchase,  sell,  or  exchange  land,  and  to 
purchase,  lease,  or  regulate  the  business  of  the  Telegraph 2. 

His  position  is  in  this  respect  different  to  that  of  the  other 
chiefs  of  great  spending  departments.  The  Treasury  has 
a  voice  in  the  amount  of  the  sums  asked  of  Parliament  for 
the  various  services  of  the  army  and  the  fleet,  but  the  assent 
of  the  Treasury  is  not  required  to  the  pattern  of  a  new 
rifle  or  the  design  of  a  ship.  In  the  department  of  the 
Postmaster- General  Parliament  lays  down  the  rules  of 
management  in  great  detail,  and  leaves  it  to  the  Treasury 
to  see  that  these  rules  are  carried  into  effect.  The  Post- 
master-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. 
He  may  suggest  to  the  Government  an  extension  of  postal 

1  See  Hansard,  N.  S.,  vol.  clxxxii.  pp.  1077,  1082,  speeches  by  Mr.  Childers 
and  Mr.  Gladstone  on  the  Bill  which  made  the  office  tenable  with  a  seat  in 
the  Commons. 

2  I  have  not  attempted  to  give  references  to  the  numerous  Statutes  by 
which  the  powers  of  the  Postmaster-General  are  conferred  and  defined. 
Such  information  may  be  found  in  the  Chronological  Table  and  Index 
to  the  Statutes. 


190  THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 

arrangements  with  foreign  countries,  which  the  King  may 
effect  by  treaty :  but  it  is  only  in  Parliament  and  by  legisla- 
tion that  he  can  introduce  new  methods  for  the  conduct  of 
his  business,  or  new  departments  of  work  to  be  undertaken 
by  his  office.  And  it  is  from  his  Parliamentary  position 
that  his  office  derives  the  influence  which  gives  it 
importance. 

SECTION  V 

THE  COMMISSION  OF  THE  ADMIRALTY 
§  1.     Its  History. 

The  The  Admiralty,  like  the  Treasury,  represents  a  great 

Bo-lrd  y  °ffice  entrusted  from  time  to  time  to  Commissioners 
appointed  by  Letters  Patent  under  the  Great  Seal.  The 
office  is  that  of  Lord  High  Admiral,  and  it  has  been  in 
Commission  since  1708,  except  in  the  year  1827,  when 
for  a  short  time  the  Duke  of  Clarence  was  Lord  High 
Admiral. 

But  before  1832  the  Commissioners  of  the  Admiralty  were 

not  entrusted  with  the  entire  management  of  naval  affairs : 

they  dealt  with  'the  appointment  and  promotion  of  officers, 

the  movements  of  ships,  and  the  general  control  of  the  policy 

Navy         of  the  navy  V     There  were  two  Boards  subordinate  to  them, 

Board,       ^he  Navy  Board,  which  dealt  with  pay  and  stores,  other 

Victual-     than  ordnance,  or  victuals,  and  the  Victualling  Board,  which 

Board        attended  to  the  supply  of  meat,  biscuit,  and  beer ;  besides 

these  the  Treasurer  of  the  Navy,  though  a  member  of  the 

Navy  Board,  had  a  separate  office ;  he  obtained  from  the 

Treasury  and  paid  over  the  sums  which  the  Navy  Board 

directed  him  to  pay 2. 

Treasurer.  In  1833  Sir  James  Graham,  then  First  Lord  of  the 
Admiralty,  obtained  the  passing  of  an  Act 3  which  abolished 

1  Report  of  Royal  Commission  to  inquire  into  civil  and  professional 
administration  of  naval  and  military  departments,  1890  [c.  5979],  Ap- 
pendix i. 

3  The  Laws,  &c.,  of  the  Admiralty  of  Great  Britain,  Civil  aud  Military, 
vol.  ii.  p.  410  (published  1746). 

3  a  Si  3  Will.  IV,  c.  40. 


Sect.  v.  §2  THE   ADMIRALTY  191 

these  two  Boards  and  placed  their  duties  in  the  hands  of 
officers  each  of  whom  was  subordinate  to  a  Lord  of  the 
Admiralty.  Three  years  later  the  office  of  Treasurer  was 
abolished,  and  its  duties  assigned  to  the  Paymaster- 
General  1. 

Thenceforth  the  entire  business  of  the  Navy  has  been 
conducted  under  the  supervision  of  the  Admiralty  Board. 
The  Letters  Patent  constituting  the  Commission  of  the 
Admiralty,  after  revoking  the  previous  Patent,  appoint 
certain  persons  named  to  be  Commissioners  for  executing 
the  office  of  Lord  High  Admiral,  with  power  to  do  every- 
thing which  that  officer  might  do  if  in  existence,  to 
discharge  all  the  duties  which  had  once  been  done  by  the 
Navy  and  Victualling  Boards,  and  to  make  all  appointments, 
not  only  professional,  as  the  Lord  High  Admiral  had  been 
wont  to  do,  but  in  the  civil  departments  of  the  service. 

It  will  be  necessary  hereafter  to  speak  again  of  the 
Admiralty  and  its  working  in  a  chapter  on  the  Armed 
Forces  of  the  Crown,  but  at  the  risk  of  repetition  some 
points  may  be  mentioned  here. 

§  2.    Its  Constitution. 

The  constitution  of  the  Board  is  now  settled  by  Order  The  Board. 
in  Council,  of  the  loth  August,  1904'-,  and  consists  of 
the  First  Lord,  four  Sea  Lords,  and  a  Civil  Lord.  There 
are  two  Secretaries  appointed  by  the  Board,  one  Parlia- 
mentary and  Financial,  a  political  officer  changing  with  a 
change  of  Government;  one  Permanent,  and  independent 
of  political  changes. 

The  Board  now  meets  once  a  week,  or  of tener  if  the  its  meet- 
First   Lord   so  pleases.      In   former  times  it   met   more  lugs" 
frequently,  but  much  administrative  work  is  done  by  the 
Lords  and  Secretaries  in  their  respective  department*. 

The    Lords    Commissioners    are    nominally     upon    an  The 
equality.      The    Patent    makes    no    distinction   in    their  J^ "^on 
respective  positions :  the  political  chief  of  the  Admiralty  FirstLord, 
is  only  the  Lord  whose  name  stands  first   in   the  Com- 

1  5  &  6  Will.  IV,  c.  35.  'J  1905.    [Cd.  24i6.J 


192  THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 

mission.     But  in  fact  the  First  Lord  is  supreme,  and  for 
two  reasons. 

(i)  as  a  The  First  Lord  has  for  a  very  long  time  been  a  member 

of  the  °f  ^ne  Cabinet.  He  therefore  speaks  to  his  colleagues 
Cabinet ;  with  the  force  of  the  Cabinet  behind  him.  If  the  other 
Lords  differ  from  him  at  the  Board  he  can  say  that  unless 
his  wishes  are  carried  out  he  will  not  remain  a  member  of 
the  Board  *.  If,  as  would  be  probable,  the  rest  of  the 
Cabinet  support  the  First  Lord  against  his  colleagues,  the 
King  would  be  advised  to  issue  fresh  Letters  Patent,  con- 
stituting a  new  Commission  of  the  Admiralty,  in  which 
other  names  would  be  substituted  for  those  of  the  dissen- 
tient members  of  the  Board. 

(a)  Under       Again,  successive  Orders  in  Council  have  made  the  First 
iifcouncil  ^°r^  responsible  to  the  King,  and  to  Parliament,  for  all 
the  business  of  the  Admiralty,  and  have,  in  addition,  made 
the  other  members  of  the  Board  responsible  to  the  First 
Lord  for  the  business  assigned  to  them. 
Thedistri-      By  Order  in  Council  of  the  loth  of  August,  iQCH2,  the 


business*  First,  Second,  and  Fourth  Sea  Lords  are  to  be  responsible 
to  the  First  Lord  for  so  much  of  the  general  business  of  the 
Navy,  and  the  movement,  condition,  and  personnel  of  the 
Fleet,  as  may  be  assigned  to  them  or  each  of  them  by  the 
First  Lord ;  the  Third  Sea  Lord  and  Controller  is  similarly 
responsible  for  the  materiel  of  the  Navy ;  the  Parlia- 
mentary Secretary  for  the  Finance  of  the  Department  and 
for  such  other  business  of  the  Admiralty  as  may  be  from 
time  to  time  assigned  to  him  ;  while  the  duties  of  the  Civil 
Lord  and  the  Permanent  Secretary  are  left  to  be  assigned 
to  them  from  time  to  time. 

§  3.    Distribution  of  Business. 

The  present  distribution  of  business  rests  on  a  Minute  of 
the  First  Lord,  made  on  the  aoth  October,  1904'.     Its 

1  Report  of  Select  Committee  of  the  Commons  on  the  Board  of 
Admiralty,  1861,  p.  185.  Evidence  of  Sir  John  Pakington. 

1  [Cd.  2416.] 

3  Statement  showing  present  distribution  of  business  between  the 
various  members  of  the  Board  of  Admiralty,  1905.  [Cd.  2417.] 


Sect.  v.§3  THE   ADMIRALTY  193 

general  character  is  indicated  by  the  terms  of  the  Order  in 
Council,  but  we  may  note  that  the  Civil  Lord  has  to  do 
with  the  Civil  business  of  the  Navy,  and  the  Permanent 
Secretary  with  the  internal  working  of  the  office,  with 
correspondence,  and  with  the  transaction  of  routine  busi- 
ness. 

Two  things  may  be  noted  about  the  distribution  of  The  Par- 
business.  The  Parliamentary  Secretary  holds  a  position  of  ta'ry  6" 
very  high  importance  in  the  Ministry,  though  his  office  Secretary, 
does  not  bring  him  into  the  Cabinet.  He  commonly 
represents  the  Department  in  the  Commons,  and  is  respon- 
sible to  the  First  Lord  for  the  Finance  of  the  Navy,  for 
all  proposals  for  new  expenditure,  and  for  the  purchase 
and  sale  of  ships  and  stores.  But  he  is  not  a  member  of 
the  Board,  he  is  appointed  by  the  Board,  and  a  minute  of 
the  Board  is  the  only  record  of  his  appointment.  Among 
those  who  appoint  him  is  the  Civil  Lord  whose  name 
appears  in  the  Patent  constituting  the  Commission,  whose 
office,  unlike  that  of  the  Parliamentary  Secretary,  requires 
him  to  seek  re-election.  And  yet  the  political  positions  of 
these  two  ministers  in  point  of  importance  and  responsibility 
curiously  reverse  the  technical  and  formal  rank  of  their 
respective  offices. 

The  First  Sea  Lord  is  given  a  position  of  greater  The  First 
importance  than  heretofore  in  the  Minute  of  the  aoth 
October,  1904.  In  any  matter  of  great  importance  he  is 
always  to  be  consulted  by  the  other  Sea  Lords,  the  Civil 
Lord,  and  the  Secretaries,  and  though  these  officers  have 
direct  access  to  the  First  Lord,  if  they  desire  it,  the  First 
Sea  Lord  becomes,  in  all  matters  of  great  importance,  the 
necessary  intermediary  between  them  and  their  political 
chief. 

This  is  not  the  place  to  speak  more  fully  of  the  working 
of  the  Admiralty  or  of  the  large  permanent  staff  which 
secures  continuity  in  the  details  of  administration. 

The  Admiralty  is  constituted  with  the  object  of  securing  General 
responsibility  to  Parliament  by  entrusting  the  affairs  of  tion'of 
the  Navy  to  a  civilian  who  shall  represent  the  department  Admiralty 
in  one  or  other  House,  while  care  is  taken  to  supply  this 


ANSON.      CROWS 


194  THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 

civilian  minister  with  the  best  professional  advice.  As 
regards  the  general  policy  of  the  Board  this  advice  conies 
through  the  Sea  Lords,  who  change  with  changes  of 
government:  in  matters  of  detail  the  First  Lord  has  the 
assistance  of  an  efficient  permanent  staff  in  all  the 
numerous  departments  of  naval  administration. 

SECTION  VI 
THE  BOARDS 

There  is  one  large  and  distinct  group  of  those  depart- 
ments of  government  which  remain,  consisting  of  a  number 
of  Boards.  These,  unlike  the  Treasury  Board  and  the 
Admiralty  Board,  do  not  represent  great  offices  put  into 
Commission.  In  earlier  times  they  would  have  been 
Committees  of  the  Privy  Council.  The  oldest  of  them, 
the  Board  of  Trade,  has  never,  strictly  speaking,  ceased 
to  be  a  Committee  of  the  Council :  the  youngest,  the  Board 
of  Education,  was  a  Committee  of  the  Council  until  the 
year  1899.  In  every  case  the  Board  includes,  besides  the 
President,  a  number  of  great  officials,  usually  the  Presi- 
dent of  the  Council,  the  five  Secretaries  of  State,  and  the 
Chancellor  of  the  Exchequer.  The  President,  except  in 
the  case  of  the  Board  of  Works,  is  appointed  by  Order  or 
Declaration  in  Council ;  the  Board  is  a  phantom ;  the  Presi- 
dent, though  by  its  statutory  constitution  he  would  play 
a  minor  part  among  the  great  officers  of  State  of  whom 
the  Board  consists,  is,  in  fact,  the  sole  head  of  his 
department.  These  Boards  are  not  merely  indications  of 
diminished  administrative  importance  of  the  Council ;  they 
mark  also  the  increased  activity  of  the  State  in  compelling 
or  controlling  the  action  of  the  individual  in  many  depart- 
ments of  human  affairs. 

§  1.     The  Board  of  Trade. 

History          This  Board  has   a  long  history.    In    1660   Charles   II 

Board.       created  two  Councils,  one  for  Trade  and  one  for  the  Foreign 

Plantations.     These  were  combined  under  one  Commission 

in  1672,  which,  being  revoked  in  1675,  the  control  of  trade 


Sect.  vi.  §  1  THE   BOARD   OF   TRADE  195 

returned  to  the  Privy  Council.  In  1695  ^ne  Board  of  Trade 
and  Plantations  was  created.  This  Board  was  abolished  in 
1781.  The  sarcasms  of  Burke1  on  its  costliness  and  in- 
efficiency were  doubtless  justified;  but  the  Board  would 
seem  to  have  had  difficulties  from  a  want  of  executive 
power,  which  might  account  for  its  incapacity.  It  could 
collect  information  and  make  suggestions  to  the  Secretary 
of  State  for  the  Southern  Department,  but  it  could  do  no 
more,  and  in  the  hands  of  persons  not  naturally  very 
zealous  to  give  a  return  of  work  for  their  salaries,  it 
became  an  expensive  machine  for  making  inquiries  which 
were  seldom  made,  and  for  having  in  readiness  advice 
which  was  seldom  asked  for.  From  1782  until  the  present 
time  the  Board  of  Trade  has  been  a  Committee  of  the  Privy 
Council.  An  Order  in  Council  of  August  23,  1 786,  never  since 
revoked,  constitutes  a  Committee  of  the  holders  of  certain 
high  offices,  conspicuous  among  whom  are  the  Archbishop 
of  Canterbury  and  the  Speaker  of  the  House  of  Commons. 
A  President  and,  until  1867,  a  Vice-President  were  from 
time  to  time  appointed  in  Council,  and  individuals  were 
added  to  the  Committee  for  special  purposes2.  The  Com- 
mittee very  rarely  met,  and  its  duties  were  discharged  by 
the  President  and  Vice-President. 

In  1862  it  was  enacted  that  this  Committee  of  Council 
should  henceforth  be  described  as  the  Board  of  Trade,  and 
the  Board  is  defined  in  the  Interpretation  Act,  1889,  as  'the 
Committee  of  the  Privy  Council  appointed  for  the  con- 
sideration of  matters  relating  to  Trade  and  Plantations3,' 
and  in  i  867  the  Vice-President  ceased  to  exist,  and  a  Parlia- 
mentary Secretary  was  appointed.  The  President  and  Secre- 
tary are  both  capable  of  sitting  in  the  House  of  Commons. 

The  duties  of  the  Board  before  1 840  were  almost  entirely  Its  con- 
consultative;  it  collected  statistics  on  the  subject  of  trade,  duties? * 
and  was  ready  to  offer  advice  to  the  Foreign  Office  on  the 
subject  of  commercial  treaties,  and  to  the  Colonial  Office  on 

1  Burke,  Speech  on  Economical  Reform  ;  but  see  Life  of  Shelburne,  by 
Lord  Fit /.-Man  rice,  i.  240. 

2  See  Return  to  an  Order  of  the  House  of  Commons  for  1871    482  . 

3  24  &  25  Vi=t.  c.  47,  s.  65,  and  see  52  &  53  Viet.  c.  63,  s.  12. 

O  2 


196         THE    DEPARTMENTS    OF   GOVERNMENT      Chap.  Ill 

questions  arising  out  of  our  dealings  with  the  colonies.  In 
1840  it  began  to  acquire  its  modern  executive  functions; 
it  was  then  for  the  first  time  called  upon  to  settle  and 
approve  the  by-laws  of  railway  companies.  Its  duties  in 
this  respect  grew,  and  for  some  time  the  department  had 
a  double  aspect.  It  was  the  Committee  of  Council  for 
trade  and  foreign  plantations ;  in  this  capacity  the  Com- 
mittee met  to  consider  and  report  to  the  Colonial  Office 
upon  the  constitutions  proposed  for  our  colonies  in  Africa 
and  Australia1.  It  was  also  the  Board  of  Trade,  and  in 
this  capacity  the  President  and  V ice-President  exercised 
an  administrative  control  over  railways,  harbours,  and 
other  matters  committed  to  the  Board  by  Statute.  Gradually 
the  consultative  functions  dwindled,  and  the  administrative 
functions  grew.  In  1865,  after  some  discussion  as  to  the 
relation  of  the  Foreign  Office  and  the  Board  of  Trade,  the 
former  department  established  a  new  division  to  carry  on 
correspondencs  in  commercial  matters,  not  only  with  the 
Board  of  Trade  but  with  representatives  of  foreign  powers 
in  England2;  and  a  few  years  later,  in  1872,  the  consul- 
tative branch  of  the  Board  wholly  disappeared  3. 
Its  regu-  We  have  then  to  consider  what  are  the  present  duties  of 
duties  *ne  Board.  They  are  now  mainly  executive  and  regula- 
tive rather  than  advisory. 

statistics.  The  part  of  its  present  work  which  most  nearly  repre- 
sents the  old  functions  of  the  Board  as  an  adviser  in  trade 
and  colonial  matters  is  the  statistical  department.  The 
Board  collects  and  publishes  the  statistics  of  the  trade  of 
the  United  Kingdom,  the  colonies,  and  foreign  countries, 
and  of  agriculture,  including  the  average  price  of  corn  in 
England  and  Wales,  calculated  from  weekly  returns.  This 
department  also  keeps  and  publishes  a  record  of  the  con- 
ditions of  the  labour  market.  Here  too  is  kept  a  register 
of  the  rates  of  duty  levied  by  foreign  countries  on  British 
goods.  In  general  it  may  be  said  that  persons  in  search  of 
statistical  information  on  the  subject  of  trade  and  naviga- 

1  Hansard,  cvi.  1120.  2  Hansard,  clxxvii.  1880. 

*  Hansard,  ccix.  1150. 


Sect.vi.  §1  THE   BOARD    OF   TRADE  197 

tion,  and  of  the  conditions  of  labour  in  the  United  Kingdom, 
will  obtain  it  at  the  Board  of  Trade. 

Beyond  this  it  may  be  said  that  wherever  the  State 
regulates  trade  in  the  interest  of  the  public  safety,  con- 
venience, or  profit,  it  is  represented  by  the  Board  of  Trade l. 

In  some  matters  the  Board  exercises  ancient  royal  pre- 
rogatives transferred  by  Statute  to  departments  of  govern- 
ment. In  others  it  represents  the  modern  activity  of  the 
State. 

The  ancient  claim  of  the  Crown  to  create  monopolies  in  Patents, 
the  buying,  selling,  making,  or  using  commodities  was 
limited  by  an  Act  of  James  I  to  the  grant  of  Letters  Patent 
for  the  exclusive  use  of  new  inventions 2.  This  prerogative 
has  been  regulated  by  subsequent  Statutes :  and  the  grant 
of  patents,  together  with  the  registration  of  designs  and 
trade  marks,  is  now  placed  under  the  superintendence  of 
the  Board  of  Trade3. 

Upon  the  commercial  department  is  thrown  the  duty  of  Standards, 
keeping  the  standard  of  weights  and  measures,  formerly 
the  business  of  the  Exchequer.     The  entire  machinery  of 
Bankruptcy,  apart  from  the  consideration  of  legal  questions,  Bank- 
is  in  the  hands  of  the  Board  4 ;  so  is  the  registration  of  Joint  ruPtcy- 
Stock  Companies,  conducted  by  a  separate  office,  but  one  Com- 
included  in  the  railway  department,  of  which  something  Pames- 
must  be  said. 

The  powers  and  privileges  conferred  upon  companies 
which  provide  things  of  indispensable  use  or  convenience 
are,  generally  speaking,  exercised  under  the  control  of  the 
Board. 

Such  bodies  are  railway  and  tramway  companies,  gas  and  Railways 

mi  .  .  -  ,-i  and  Tram- 

Water  companies.     They   are  in  possession  or  a  practical  waySf 

monopoly  of  things  which  man  cannot  do  without — light, 
water,  and  the  means  of  locomotion.  The  State  entrusts  to 
the  Board  of  Trade  the  task  of  seeing  that  these  bodies  act 

1  I  do  not  attempt  to  refer  the  reader  to  any  but  the  most  important 
of  the  vast  accumulation  of  Statutes  whence  the  Board  derives  its  powers. 
The  Chronological  Table  and  Index  to  the  Statutes  must  be  referred  to 
for  further  information. 

3  21  Jas.  I,  c.  3.  3  46  &  47  Viet.  c.  57.  4  46  &  47  Viet.  c.  53. 


198          THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 

with  due  regard  to  the  interest  and  to  the  safety  of  the 
public.  Safety  would  seem  to  be  the  main  object  of  the 
control  exercised  by  the  Board  over  electric  lighting. 
Electric  The  control  is  exercised  in  various  ways.  Where  legis- 
lg  Ing<  lation  by  private  bill  or  provisional  order  is  required 
to  effect  the  objects  of  the  company,  a  government 
department  can  effectively  intervene.  When  the  company  is 
in  possession  of  its  powers,  it  is  controlled  by  inspection  of 
works,  by  approval  of  by-laws  and  regulations,  by  inquiry 
into  accidents. 

Harbours.  The  Harbour  department  is  one  in  which  the  Board 
exercises  an  ancient  royal  prerogative.  The  soil  of  ports 
and  navigable  rivers  was,  under  the  feudal  land  law,  vested 
in  the  Crown.  This  right  of  ownership  involved  a  duty  to 
secure  the  safety  of  the  country  from  hostile  invasion  and 
the  due  payment  of  revenue  arising  from  the  Customs. 

These  prerogatives  reappear  in  the  departments  of 
government  which  have  charge  of  ports.  The  Treasury 
and  the  Commissioners  of  Customs  determine  what  shall 
be  landing-places  for  merchandise l,  the  Board  of  Trade  has 
charge  of  harbours,  subject  to  the  intervention  of  the 
Admiralty  where  national  safety  is  concerned,  and  of  the 
Commissioners  of  Woods  and  Forests  as  regards  the  pecu- 
niary interests  of  the  Crown  in  the  soil 2.  Closely  con- 
nected with  its  responsibility  for  the  maintenance  of  har- 

Light-       bours  is  the  control  exercised  by  the  Board  over  the  bodies 
5CS'       to  whom  is  entrusted  the  business  of  managing  lighthouses  3, 
and  the  funds  for  their  maintenance.   The  power  of  regulat- 
ing sea  and  fresh-water  fisheries  has  been  transferred  to 
the  Board  of  Agriculture 4. 

The  Marine  department  offers  a  very  complete  representa- 
tion of  State  control  over  commercial  transactions. 

Merchant  A  merchant  ship  when  built  is  measured,  her  name  entered 
wit,h  a  description  of  her  in  the  books  of  the  Board,  and 
a  certificate  of  registry  given  to  her  owner  which  is  hence- 

1  10  &  ii  Viet.  c.  27,  s.  24.  2  25  £.  26  Viet.  e.  69. 

'  These  are  the  Trinity  House  in  England,  the  Commissioners  of 
Northern  Lighthouses  in  Scotland,  and  the  Commissioners  of  Irish 
Lighthouses  for  Ireland.  *  3  Ed.  VII,  c.  31. 


Sect.  vi.  §  1  THE   BOARD   OF   TRADE  199 

forward  the  evidence  of  her  identity  and  nationality  ;  the 
register  is,  in  addition,  the  owner's  title,  and  this  does  not 
merely  put  his  title  under  the  protection  of  a  department 
of  government,  it  enables  him  by  a  change  of  the  registered 
name  to  sell  and  convey  his  ship  to  another  with  the 
minimum  of  expense. 

The  safety  of  ship  and  crew  is  the  next  concern.  '  The 
officers  of  a  merchant  ship  are  required  to  pass  examina- 
tions in  technical  proficiency,  and  to  produce  evidence  of 
character;  they  then  receive  certificates  enabling  them  to 
act  as  masters,  mates,  and  engineers  V  Certain  rules  are 
made  and  enforced  by  the  Board  for  the  conduct  of  055061*8 
and  men,  for  the  settlement  of  disputes,  and  for  the  dis- 
charge of  the  crew,  with  their  due  wages  if  at  home,  with 
means  of  return  if  discharged  abroad. 

Besides  securing  that  the  ship  shall  be  competently 
officered  and  manned,  the  Board  makes  rules  as  to  the 
number  of  passengers,  the  lights  to  be  shown,  and  the  boats 
to  be  carried,  the  position  in  the  ship  of  certain  sorts  of 
cargo ;  and  it  is  further  invested  with  power  to  detain 
ships  which  are  suspected  of  being  unfit  to  go  to  sea. 

The  Finance  department  of  the  Board  is  the  outcome  of  Finance, 
all  the  above-mentioned  duties.  The  staff  required  to  effect 
this  elaborate  supervision,  the  maintenance  of  harbours  and 
of  lighthouses,  the  arrangements  for  merchant  seamen's 
savings  banks,  money  orders,  pensions  for  the  relief  and 
conveyance  home  of  distressed  seamen,  for  the  custody 
and  transmission  of  the  wages  and  effects  of  deceased  sea- 
men— all  these  matters  involve  not  merely  the  keeping  of 
accounts,  but  the  administration  of  funds.  The  financial 
business  of  the  Board  involves  therefore  considerable  labour 
and  some  cost 2. 

§  2.    The  Board  of  Works. 

The  Board  of  Works  traces  its  origin  to  the  control  pro- 
vided for  the  expenditure  on  royal  buildings  which  at  one 
time  fell  entirely  upon  the  Civil  List. 

1  The  State  in  its  Relation  to  Trade,  Sir  T.  Farrer,  p.  123. 

3  See  Return  to  an  Order  of  the  House  of  Commons  for  1871  (482). 


200         THE   DEPARTMENTS    OF   GOVERNMENT      Chap.  Ill 

In  J7821  these  were  placed  under  the  control  of  a  Sur- 
veyor of  Works,  who  was  to  be  an  architect,  and  regulations 
were  made  as  to  outlay  on  new  buildings  and  repairs.  In 
i8i42  a  Surveyor-General  was  appointed  'for  His  Majesty's 
works  and  public  buildings,'  whether  provided  out  of  the 
Civil  List  or  by  Parliamentary  grant. 

In  1 832  3  the  work  of  the  Surveyor-General  was  taken 
from  him  and  entrusted  to  a  department  of  revenue,  the 
Commissioners  whose  duty  it  was  to  manage  the  Woods, 
Forests,  and  Land  Revenues  of  the  Crown. 

These  Commissioners,  as  was  inevitable,  applied  the  pro- 
ceeds of  the  Crown  lands  to  the  repair  of  buildings  and 
the  maintenance  of  the  public  parks,  and  they  did  this 
without  Parliamentary  sanction.  In  1 85 1  4  these  depart- 
ments were  severed.  The  salaries  of  the  Commissioners  of 
Woods  and  Forests  were  brought  into  the  annual  votes  for 
Civil  Service  expenditure,  and  the  revenues  which  they  col- 
lected were  to  pass  into  the  Exchequer.  A  new  department, 
the  Board  of  Works  and  Public  Buildings,  was  created, 
consisting  of  a  First  Commissioner,  the  Secretaries  of  State, 
and  the  President  of  the  Board  of  Trade.  The  Commis- 
sioners must  apply  to  Parliament  for  funds  to  carry  out 
any  public  improvement.  The  First  Commissioner  may 
sit  in  the  House  of  Commons,  and  the  Commissioners  of 
Woods  and  Forests  were  by  the  same  Statute  declared 
ineligible  for  seats  in  that  House. 

The  First       The  First  Commissioner  is  appointed  by  warrant  under 
C.ommis-    the  royal  sign  manual :  he  acts  alone ;  the  Board  never 

sioner.  » 

meets  unless  it  should  so  chance  that  the  office  of  First 
Commissioner  was  vacant  and  business  had  to  be  done. 
Hisduties.  The  First  Commissioner,  then,  with  or  without  his 
Board,  has  charge  of  royal  palaces  and  parks,  and  beyond 
this  he  has  charge  of  the  fabric  and  furnishing  of  all 
public  buildings,  including  the  Palace  of  Westminster, 
unless  these  should  be  specially  assigned  to  any  other 
department.  He  is  thus  responsible  not  merely  for  the 

1  28  Geo.  Ill,  c.  82,  ss.  6,  7,  8.  *  54  Qeo.  Ill,  c.  157. 

1  2  &  3  Will.  IV,  c.  i.  «  14  &  15  Viet.  c.  42. 


Sect.  vi.  §  3       THE   LOCAL   GOVERNMENT   BOARD  201 

security  of  these  buildings,  but  for  the  comfort  and  con- 
venience of  their  inmates. 

§  3.  The  Local  Government  Board. 

The  Local  Government  Board  is  the  creation  of  an  Act  of 
1871 x,  by  which  the  powers  possessed  by  the  Privy  Council, 
by  the  Home  Secretary,  and  by  the  Poor  Law  Board  in 
respect  of  public  health,  local  government,  and  the  adminis- 
tration of  the  poor  law,  were  transferred  to  a  Board  con- 
sisting of  the  Lord  President  of  the  Council,  the  Secretaries 
of  State,  the  Lord  Privy  Seal,  the  Chancellor  of  the  Ex- 
chequer, and  a  President,  to  be  appointed  by  an  Order 
in  Council  and  to  hold  office  during  pleasure. 

To  this  Board  was  given  power  to  appoint  Secretaries, 
Inspectors,  and  the  necessary  staff,  with  the  sanction  of  the 
Treasury.  The  President  and  one  of  the  Secretaries  were 
made  eligible  for  a  seat  in  the  House  of  Commons.  As  I 
shall  have  to  deal  hereafter 2  with  the  government  of  the 
United  Kingdom,  central  and  local,  I  will  leave  for  con- 
sideration at  that  point  the  wide  and  important  duties  and 
powers  of  the  Local  Government  Board,  merely  saying  here 
that,  as  in  the  case  of  the  Board  of  Works,  the  Board  does  not 
meet,  and  that  responsibility  for  the  conduct  of  its  business 
is  vested  in  the  President  and  Parliamentary  Secretary. 

§  4.    The  Board  of  Agriculture  and  Fisheries. 

The  Board  of  Agriculture  dates  from  the  year  i8893. 
Like  its  brethren  the  Boards  of  Trade,  Local  Government, 
and  Works,  it  consists  of  a  number  of  distinguished  persons 
who  never  meet,  of  a  President,  who  may  sit  in  the  House 
of  Commons,  as  its  political  chief,  and  a  permanent  staff. 

It  does  not  represent  to  any  great  extent  a  new  inter-  The  Board 
ference  by  the  State  with  the  ordinary  business  of  life,  culture. 
The  Act  which  constitutes  it  does  no  more  than  assign  to 
a  Board  powers  exercised  by  various  bodies,  create  a  new 
office  so  as  to  enable  the  exercise  of  those  powers  to  be 
represented    and   criticized  in   Parliament,  and  impose  a 
duty  to  promote  the  studies  of  agriculture  and  forestry  by 
collecting  and  publishing  statistics,  by  assisting  courses  of 

1  34  &  35  vict.  c.  70.         2  Ch.  v.  sect.  i.  §  5.         3  52  &  53  Viet.  c.  30. 


202          THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 


Exercises 
powers  . 
taken 
from 
Privy 
Council : 


from  Land 
Commis- 
sioners : 


from 
Board  of 
Trade. 


instruction,  and  by  inspecting  schools  in  which  such  instruc- 
tion is  given. 

The  Board  of  Agriculture  has  acquired  powers  from  three 
sources.  From  the  Privy  Council  it  has  taken  the  powers, 
given  in  1877,  for  the  destruction  of  the  Colorado  beetle,  and 
by  various  subsequent  Acts  for  preventing  the  spread  of 
contagious  disease  among  animals.  The  only  new  power  of 
this  sort  created  by  the  Act  is  a  control  with  which  the 
Board  is  invested  over  dogs  for  the  purpose  of  muzzling 
them  at  its  pleasure,  or  making  rules  for  their  detention  or 
even  destruction  if  they  stray. 

Perhaps  the  most  important  are  the  powers  taken 
over  from  the  Land  Commissioners,  who,  having  them- 
selves accumulated  the  powers  and  duties  of  other  Boards, 
are  wholly  absorbed  and  disappear  in  the  Board  of  Agri- 
culture. The  commutation  of  tithe,  the  enfranchisement 
of  copyhold,  and  the  enclosure  of  commons  took  place 
under  the  provisions  of  various  Statutes,  the  operation 
of  which  was  subject  to  the  control  of  bodies  of  Com- 
missioners. So,  too,  were  the  powers  of  limited  owners  of 
real  property  to  pledge  the  credit  of  the  land  which  they 
enjoyed  for  drainage  or  other  purposes  of  improvement,  or 
to  employ  for  like  purposes  the  produce  of  sale  of  such 
property  effected  under  the  Settled  Land  Act.  So,  too, 
were  the  powers  of  the  Universities  and  the  Colleges 
therein  to  deal  with  property  in  the  management  of  which 
the  public  was  supposed  to  have  an  interest.  All  these 
powers  had  been  concentrated  in  a  body  of  Commissioners, 
who  were  not  represented  in  Parliament. 

From  the  Board  of  Trade  are  taken,  by  an  Act  of  1903, 
powers  and  duties  in  respect  of  the  fishing  industry 1 :  and 
the  King  may,  by  Order  in  Council,  transfer  to  the  Board 
of  Agriculture  any  powers  and  duties  of  a  Government 
Department  which  appear  to  relate  to  agriculture,  to  forestry, 
or  to  the  industry  of  fishing  2. 

1  3  Ed.  VII,  c.  31.     These  duties  may  seem  incongruous,  but  Lord 
Onslow,  the  President  of  the  Board,  urged  that  the  department  which 
had  the  care  of  the  loaves  should  also  be  entrusted  with  the   fishes. 
Hansard,  cxxiv.  232  :  23  June,  1903. 

2  52  &  53  Viet.  c.  30,  s,  4  ;  3  Ed.  VII,  c.  31,  s.  i  (3). 


Sect.  vi.  §  5          THE   BOARD   OF   EDUCATION  203 

§  5.    The  Board  of  Education. 

This  department  of  government  illustrates  the  extent  of  Character 
State  interference  in  a  matter  which  seems  so  essentially 
one  of  private  judgment  as  the  education  of  children. 

When  first  the  State  came  in  contact  with  education,  in  its 
1833,  it  contributed,  by  a  grant  of  £20,000  a  year,  ad- 
ministered through  the  Treasury,  sums  in  aid  of  voluntary 
contributions  for  public  elementary  education.  In  1839 
the  grant  was  enlarged  to  £30,000,  and  the  duty  of  ad- 
ministering it  was  transferred  to  a  Committee  of  the 
Privy  Council.  This  Committee  developed  into  a  depart- 
ment, and  in  1856  the  Queen  was  empowered  by  19  &  20 
Viet.  c.  116  to  appoint  a  V ice-President  of  the  Committee 
of  the  Privy  Council  on  Education,  who  should  be  capable 
of  sitting  and  voting  in  Parliament.  Thus  was  created 
a  Minister  of  Education,  responsible  to  Parliament.  The 
duties  of  this  Minister  have  increased  with  the  increased 
insistence  of  the  State  on  the  education  of  its  citizens. 

The  Act  of  1870*  put  compulsion  upon  every  school  district 
to  provide  school  accommodation  for  its  children,  either  by 
voluntary  effort,  or  by  the  creation  of  a  School  Board  and 
the  imposition  of  a  rate.  The  Act  of  1876  2  imposed  a  duty 
on  the  parent  of  every  child  to  cause  that  child  to  receive 
efficient  instruction  in  reading,  writing,  and  arithmetic. 
The  Act  of  1 902  3  placed  elementary  education  under  the 
authority  of  municipal  bodies,  the  councils  of  counties,  and 
of  boroughs  and  urban  districts  of  a  given  population,  and 
required  all  elementary  schools,  whether  voluntary  or  rate- 
provided,  to  be  maintained  out  of  rates  supplemented  by 
a  Parliamentary  grant  amounting  to  about  £2  2s.  per  child. 
As  the  State  contributes  so  largely  to  the  maintenance  of 
the  schools,  it  exercises  a  corresponding  control  over  their 
conduct.  Unless  the  conditions  laid  down  in  the  '  Minutes 
of  the  Education  Department,'  commonly  called  the  Code, 
are  complied  with,  the  grant  sanctioned  by  Parliament  is 
not  forthcoming  in  respect  of  the  delinquent  school. 
Voluntary  aid  has  dropped  out,  except  for  keeping  up 

1  23  &  24  Viet.  c.  75.        2  39  &  40  Viet.  c.  79.        s  a  Ed.  VII,  c.  34. 


204          THE   DEPARTMENTS    OF   GOVERNMENT      Chap.  Ill 

the  fabric  of  voluntary  schools,  and  while  the  burden  on 
the  ratepayer  is  heavy,  the  taxpayer  contributes  a  sum  of 
nearly  twelve  millions  a  year  to  elementary  education. 
Itsconsti-  The  constitution  of  the  Board  concerns  us.  Until  1899 
tution.  if.  wag  a  Committee  of  the  Privy  Council,  but  its  chief  was 
the  Lord  President  of  the  Council,  not,  as  in  the  case  of 
the  Board  of  Trade,  a  President  for  that  particular  Com- 
mittee. Nor  has  the  course  of  its  history  followed  that 
of  the  Board  of  Trade.  It  has  wholly  ceased  even  in  theory 
to  be  a  Committee  of  the  Council,  and  has  become  a  Board 
similarly  constituted  to  the  Board  of  Agriculture  and  the 
Local  Government  Board.  Like  the  latter  Board  it  possesses 
a  Parliamentary  Secretary  as  well  as  a  President,  and  this 
is  necessary,  for  the  Board  needs  to  be  represented  in  both 
Houses,  since  both  take  an  amount  of  interest  in  educa- 
tional details  which  is  sometimes  embarrassing  to  the 
Parliamentary  representatives  of  the  department.  If  both 
President  and  Parliamentary  Secretary  are  in  the  House  of 
Commons  the  Lord  j.  resident  of  the  Council  attends  to  the 
business  of  the  department  in  the  House  of  Lords  and  is 
prepared  to  take  responsibility  for  its  action. 

Transferor  The  Board  of  Education  Act l  (i 899)  made  it  lawful  for  the 
Chmrit8  °f  Crown  in  Council,  by  Order,  to  transfer  to  the  Board  any 
Commis-  powers  of  the  Charity  Commissioners  relating  to  educa- 
tion, and  under  Orders  made  in  pursuance  of  this  Act  the 
powers  exercised  by  the  Charity  Commission  under  the 
Endowed  Schools  Acts  have  been  so  transferred 2.  Hence 
the  Board  is  enabled  to  frame,  approve,  and  amend  schemes 
for  the  use  of  educational  endowments  where  lapse  of  time 
and  change  of  circumstance  have  combined  to  render 
useless,  or  even  harmful,  the  application  of  his  property 
contemplated  by  the  founder.  It  rests  with  the  Charity 
Commissioners  to  determine  whether  an  endowment  or  any 
part  of  it  is  held  or  should  be  applied  for  educational 
purposes  2. 

The  Education  Acts  of  1 902-3  3  have  given  large  powers 
to  Local  Authorities,  acting  through  Education  Committees, 

1  62  &  63  Viet.  c.  33,  s.  a.  2  See  p.  216,  note. 

3  2  Ed.  VII,  c.  42 ;  3  Ed.  VII,  c.  24. 


Sect.  vi.§5         THE   BOARD   OF   EDUCATION  205 

over  all  forms  of  education  within  their  areas;  but  to 
discuss  the  nature  and  extent  of  these  powers  would 
involve  an  incursion  into  the  field  of  Local  Government. 

But  the  relations  of  the  Board  of  Education  to  these  bodies  Relations 
need  to  be  touched  upon  here.     In  elementary  education  Author?-*1 
there    exists    considerable    administrative    control.      The  ties: 
Local  Authority  must  maintain   the   number  of  schools 
requisite  for  the  children  of  the  area,  and,  in  order  to  earn 
the  money  granted  by  Parliament  for  the  maintenance  of  in  ele- 
the  schools,  must  comply  with  the  conditions  of  the  Code.  e 
The  Code,  or  Minutes  of  the  Board,  annually  issued,  lays 
down   regulations   as   to   the  subjects   to  be   taught,  the 
qualifications  of  teachers,  the  staffing  of  schools,  and  the 
dimensions  and  sanitary  condition  of  the  school  buildings. 

The  powers  of  the  Board  in  respect  of  education  other  in  educa- 
than  elementary,  apart  from  those  which  it  has  taken  over  th>an°ele-r 
from   the   Charity  Commission,  depend   for  their   extent  mentary. 
almost  entirely  upon  the  funds  at  its  disposal.     By  the 
offer  of  grants  of  money  to  schools  and  other  educational 
institutions,  conditioned   on  their  satisfying  the  require- 
ments of  the  Board,  the  types  of   instruction  given  may 
be  determined,  and  the  action  of  Local  Authorities  guided 
by  the  policy  of  the  Board. 

But  it  must  not  be  supposed  that  the  Board  of  Education  Educa- 
is  the  only  department  concerned  with  educational  subjects.  Duties  of 
The   Local   Government    Board    exercises    administrative other 
powers  over  schools  provided  by  Boards  of  Guardians  for  meents. 
workhouse  children 1.     The  Home  Office  has  the  control  of 
industrial  schools,  day  or  residential.    These  are  for  children 
found  begging  or  destitute,  or  in  bad  company,  or  con- 
victed of  a  criminal  offence,  or  beyond  the  control  of  their 
parents  in  persistent  truancy  from  school 2. 

The  Board  of  Agriculture  has  certain  administrative 
powers  in  respect  of  education  in  agriculture  and  forestry. 
The  Treasury  makes  grants  to  Universities  and  University 
Colleges,  and  these  are  determined  in  respect  of  amount 

1  7  &  8  Viet.  c.  101. 

•  29  &  30  Viet.  c.  118,  Industrial  Schools  Act ;  i  Ed.  VII,  c.  20,  Youthful 
Offenders  Act. 


206          THE   DEPARTMENTS   OF   GOVERNMENT      Cliaj..  TIT 

and  conditions  by  the  Chancellor  of  the  Exchequer.  Lastly, 
the  Civil  Service  Commissioners,  by  determining  the 
character  of  the  examination  for  the  higher  branches  of 
the  Civil  Service,  can  exercise  an  appreciable  effect  on  the 
teaching  of  the  universities  and  the  public  schools. 

It  must  be  admitted  that  the  relations  of  the  State  to  our 
educational  system,  though  the  Act  of  1903  has  done  much 
to  give  them  force  and  reality,  are  still  unsystematic  and 
incomplete. 

SECTION  VII 

MISCELLANEOUS,  SUBORDINATE,  AND  NON-POLITICAL 

OFFICES 
§  1.     The  Chancellor  of  the  Duchy  of  Lancaster. 

Historical      The  Chancellor  of  the  Duchy  of  Lancaster  is  the  repre- 

of  the°n     sentative  of  the  Crown  in  the  management  of  its  lands  and 

Duchy.       the  control  of  its  courts  in  the  Duchy  of  Lancaster,  the 

property  of  which  is  not  confined  to  Lancashire  but  is 

scattered  over  various  counties. 

These  lands  and  privileges  have  always  been  kept 
separate  from  the  hereditary  revenues  of  the  Crown, 
though  the  inheritance  has  been  vested  in  the  King 
and  his  heirs.  The  palatine  rights  of  the  Duke  of  Lan- 
caster were  distinct  from  his  rights  as  King;  writs  and 
indictments  ran  in  his  name ;  the  peace  of  the  Duchy  was 
his  peace  and  not  the  King's ;  the  Courts  were  his  Courts 
and  he  appointed  the  Judges.  The  Judicature  Act  has  left 
only  the  Chancery  Court  of  the  Duchy,  but  the  Chancellor 
appoints  and  can  dismiss  the  County  Court  Judges  and 
their  subordinates  within  the  limits  of  the  Duchy.  Beyond 
this  he  is  responsible  for  the  management  of  the  land 
revenues  of  the  Duchy,  which  are  the  private  property  of 
the  Crown,  and  he  has  charge  of  the  Seal  of  the  Duchy. 
He  is  appointed  by  letters  patent,  and  his  salary  comes  from 
the  revenues  of  the  Duchy  and  not  from  the  Consolidated 
Fund. 

In  fact  the  office,  except  for  some  formal  business,  is 
a  sinecure,  since  the  judicial  and  estate  work  of  the  Duchy 
is  done  by  subordinate  officials.  The  Chancellor  is  usually 


Sect.  vii.  §  2  THE   LAW  OFFICERS  207 

a  minister  whose  advice  or  assistance  is  necessary  to 
a  government,  although  he  may  from  health  or  other 
reasons  be  unable  to  undertake  the  charge  of  an  exact- 
ing department. 

§  2.    The  Law  Officers  of  the  Crown. 

The  King  cannot  appear  in  his  own  Courts  in  person  to  Attorney- 
plead  his  cause  where  his  interests  are  concerned.     So  from  j^$citor. 
very  early  times  he  has  used  the  service  of  an  Attorney,  General : 
or  agent,  to  appear  on  his  behalf.     The  list  of  Attorneys- 
General   begins   early   in   the    reign   of   Edward   I.     The 
Solicitor- General,  whose  title  and  date  of  appearance  sug- 
gest that  he  represented  the  King  in  matters  arising  in 
the  Chancery,  appears  first  in  the  reign  of  Edward  IV. 

These  law  officers  are  not  only  the  legal  advisers  and  their 
representatives  of  the  Sovereign ;  they  are  at  the  service 
of  the  State  where  offences  against  the  good  order  of  the 
community  are  not  left  to  a  private  prosecution  but  are  dealt 
with  by  the  government  of  the  day. 

The  government  may  call  for  their  advice,  and  so  may 
each  department  of  government ;  they  are  expected  to 
defend  in  the  House  of  Commons  the  legality  of  ministerial 
action  if  called  in  question.  They  are  not  necessarily  or 
even  usually  Privy  Councillors,  but  they  receive  a  writ  of 
attendance,  together  with  the  Judges,  to  the  House  of  Lords 
at  the  commencement  of  every  Parliament '. 

The  Crown,  or  it  is  more  true  to  say  the  Government, 
has  its  legal  advisers  for  Scotland  and  for  Ireland  :  the 
Lord  Advocate  and  Solicitor-General  for  Scotland,  the 
Attorney-  and  Solicitor-General  for  Ireland.  The  Lord 
Advocate  and  the  Irish  law  officers  are  Privy  Councillors. 

The  law  officers  of  the  Crown  play  a  various  part.  They 
are  the  legal  advisers  of  the  Crown,  the  Ministry,  and 
the  departments  of  government ;  they  are  members  of  the 

These  writs  mark  the  position  of  the  Attorney-  and  Solicitor-General 
as  members  of  that  outer  Council,  the  Concilium  Ordinarium  as  opposed  to 
the  Concilium  Privatum,  which  was  so  noticeable  in  the  sixteenth  century. 
The  summons  is  a  form,  but,  like  other  constitutional  forms,  throws  light 
on  the  character  of  the  office  to  which  it  is  attached. 


208          THE   DEPARTMENTS   OF  GOVERNMENT      Chap.  Ill 

Ministry,  though  never  of  the  Cabinet,  and  come  and  go 
with  the  change  of  party  majorities ;  they  are  members  of 
the  House  of  Commons,  and  responsible  to  Parliament  for 
the  advice  given  to  the  Crown  and  its  servants ;  they  are  the 
chiefs  of  the  legal  profession  in  their  respective  countries, 
and  represent  the  Bar  when  the  Bar  takes  collective  action. 

§  3.     Subordinate  Offices. 

Subor-  Most  of  the  Parliamentary  heads  of  departments  have 

dl?**°  ,     the  assistance,  in  administration  and  debate,  of  a  Parlia- 
pohucal 

offices.  mentary  subordinate ;  and  even  in  the  case  of  those  offices 
which  appear  to  be  single-handed,  provision  is  made  for 
their  representation  in  the  House  of  which  the  political 
chief  is  not  a  member. 

Patronage  The  First  Lord  of  the  Treasury  is,  almost  always,  the 
or'cWeT'  Ijea(^er  °^  the  House  of  Commons,  and  one  of  his  most 
Whip.  onerous  duties  is  the  arrangement  of  the  business  of  the 
House.  He  is  expected  to  insure  the  passing  of  a  certain 
number  of  Bills  which  the  Government  of  the  day  consider 
it  necessary  to  pass,  either  in  the  fulfilment  of  promises 
made  at  a  past  general  election,  or  with  a  view  to  the  pros- 
pects of  an  approaching  general  election,  or  because  they 
are  needed  for  the  advantage  of  the  country.  If  he  is  to 
secure  the  legislation  which  he  requires  he  must  appropriate 
to  the  best  advantage  the  amount  of  Parliamentary  time 
which  is  at  the  disposal  of  the  Government.  In  doing  this 
the  First  Lord  must  rely  on  the  assistance  and  advice  of  the 
Patronage  Secretary  to  the  Treasury  who  is  ex  officio  the 
chief  Whip  of  the  party  in  power.  He  knows,  or  should 
know,  the  extent  to  which  the  habitual  supporters  of  the 
Government  can  be  relied  on  to  aid  the  passing  of  Govern- 
ment Bills,  what  questions  may  arise  which  would  have 
a  tendency  to  divide  the  party,  and  how  far  the  Leader  of 
the  House  can  tax  the  loyalty  of  his  followers,  if  he  should 
call  upon  them  to  sit  for  long  or  late  hours,  or  to  forego  the 
time  which  would  ordinarily  be  given  to  occupations  other 
than  Parliamentary. 

The  Patronage  Secretary  is  the  Parliamentary  assistant 


Sect.  vii.  §  3  SUBORDINATE  OFFICES  209 

of  the  Leader  of  the  House,  but  the  Leader  must  be  a  man 
of  strong  character  and  business  capacity  if  he  would  not 
have  the  Patronage  Secretary  mould  the  destinies  of  the 
party.  The  Financial  Secretary  to  the  Treasury  assists 
the  Chancellor  of  the  Exchequer  as  I  have  described  in  an 
earlier  part  of  this  chapter. 

Every    Secretary   of    State   has   the  assistance    of    an  Under- 
Under- Secretary.    The  Presidents  of  the  Boards  of  Trade,  ^ries! 
Local   Government,   and   Education   have   each  a  Parlia- 
mentary Secretary.     An  Under- Secretary  is  appointed  by 
letter    from    the    Secretary   of    State ;    a    Parliamentary 
Secretary   by   a   minute   of  the  Board,  which   for   these 
purposes  is  the  President.     Beyond  this  difference  in  the 
mode  of  appointment,  and  the  fact  that  the  Under- Secretary 
receives  a  somewhat  larger  salary  than  the  Parliamentary  Parlia- 
Secretary,  there  is  no  difference  in  their  duties.     The  sub-  g1eec1Je*ry 
ordinate  who  represents  his  department  single-handed  in  taries. 
the  House  of  Commons  has  necessarily  harder  work,  and 
a  position  of  greater  responsibility  and  influence,  than  the 
subordinate  whose  chief  is  with  him  in  the  Commons,  or  even 
than  the  subordinate  who  is  single-handed  in  the  House  of 
Lords.     But  this  feature  of  their  political  life  is  common 
to  the  Under-Secretary  and  the  Parliamentary  Secretary. 

The  War  Office  has  a  larger  Parliamentary  staff,  and  so 
has  the  Admiralty.  The  Secretary  of  State  for  War  is 
assisted  by  a  Financial  Secretary  as  well  as  by  an  Under- 
secretary. The  First  Lord  of  the  Admiralty  by  a  Parlia- 
mentary and  Financial  Secretary  as  well  as  by  a  Civil  Lord. 
The  Boards  of  Agriculture  and  of  Works,  if  their  political 
chiefs  are  in  the  House  of  Lords,  are  represented  in  the 
Commons  by  two  of  the  Junior  Lords  of  the  Treasury, 
and  the  Financial  Secretary  to  the  Treasury  represents  the 
Post  Office  if  the  Postmaster- General  is  a  peer. 

Irish  business  is  dealt  with  in  the  House  of  Lords  by  the 
Lord  Lieutenant ;  and  if  the  Secretary  for  Scotland  should 
be  a  peer  the  Lord  Advocate  represents  that  department  in 
the  House  of  Commons.  The  Lord  President l,  Lord  Privy 

1  Before  the  passing  of  the  Board  of  Education  Act,  1899,  the  Lord 
President  of  the  Council  would  represent  the  Education  Office  in  the 

AJiSOX.      CKOWH  P 


5 ID         THE   DEPARTMENTS   OP   GOVERNMENT      Chap.  Ill 

Seal,  and  Chancellor  of  the  Duchy  needs  no  Parliamentary 
assistance. 

The  Parliamentary  Under- Secretaries  are  not  considered 
as  holding  office  under  the  Crown.  They  do  not  kiss  hands 
or  go  through  any  other  formality  on  their  appointment, 
nor  does  the  acceptance  of  such  office  vacate  their  seats l. 

§  4.     Ministers  and  Cabinet. 

Cabinet  The  offices  which  necessarily  bring  their  holders  into  the 
jffices.  Cabinet  used  not  to  be  more  than  ten  in  number.  The  First 
Lord  of  the  Treasury,  the  Lord  Chancellor,  the  Lord 
President,  the  five  Secretaries  of  State,  the  Chancellor  of 
the  Exchequer,  and  the  First  Lord  of  the  Admiralty, 
must  be  members  of  every  Cabinet,  though  the  Chancellor 
of  the  Exchequer  was  not  considered  essential  to  a  Cabinet 
at  the  beginning  of  the  last  century,  nor  the  First  Lord  of 
the  Admiralty  at  the  beginning  of  the  eighteenth 2.  The 
Lord  Privy  Seal  is  assumed  to  hold  an  office  of  Cabinet 
rank,  and  Scotland,  Ireland,  Trade,  Local  Government, 
and  Agriculture  and  Education  have  now  acquired  a 
prescriptive  right  to  representation  in  the  Cabinet.  The 
Chancellors  of  Ireland  and  of  the  Duchy  of  Lancaster,  the 
Postmaster-General  and  the  First  Commissioner  of  Works, 
may  or  may  not  be  in  the  Cabinet ;  this  would  depend  on  the 
importance  of  the  holder  of  the  office,  or  on  the  willingness  of 
a  Prime  Minister  to  gratify  his  supporters  in  the  Ministry. 
Size  of  But  the  size  of  Cabinets  tends  to  increase,  and  it  may 

Cabinets.  ^  that  the  system  is  changing  under  our  eyes.  Mr. 
Gladstone's  Cabinet  of  1886  consisted  of  14  members.  In 
1892  Lord  Salisbury's  Cabinet  had  grown  to  17.  Mr. 
Balfour's  Cabinet  in  1905  reached  the  number  of  20,  and 
the  Cabinet  of  Sir  Henry  Campbell-Bannerman  consists 

House  of  Lords,  and  he  does  so  now  if  the  Board  is  otherwise  unrepre- 
sented in  that  House.  The  Act  provides  that  the  President  of  the  Board 
and  the  President  of  the  Council  may  be  the  same  person. 

1  Vol.  i,  Parliament,  ch.  v.  sect.  i.  §  6. 

2  See  Bulwer's  Life  of  Palmerston,  i.  91,  as  to  the  Chancellor  of  the 
Exchequer.     Hardwicke  State  Papers,  ii.  461,  as  to  the  First  Lord  of  the 
Admiralty. 


Sect.  vii.  §5      MINISTERS   AND   PARLIAMENT  211 

of  the  same  number.  The  work  of  deliberation  cannot  be 
facilitated  or  strengthened  by  this  increase  of  numbers, 
and  we  may  find  that  we  are  returning,  in  some  respects, 
to  the  practice  of  the  last  century, — to  an  inner  circle,  the 
confidential  Cabinet,  and  an  outer  group  of  persons  to  whom 
Cabinet  office  is  given  in  order  to  please  an  individual,  a 
constituency,  or  an  interest. 

§  5.     Ministers  and  Parliament. 

The  departments  of  government  with  which  I  have  dealt  Con- 
are  all  in  immediate  contact  with  Parliament  because  their 
official  chiefs,  though  holding  office  under  the  Crown,  are  and  Par- 
excepted  from  the  official  disability  imposed  by  the  Act  of  " 
1707.     So  completely  has  opinion  changed  since  the  Act  of 
Settlement  forbade  persons  holding  office  under  the  Crown 
to  sit  in  the  House  of  Commons,  that  no  one  of  the  offices 
which  I  have  described  can  be  held  for  many  weeks  together 
without  a  seat  in  Parliament.   This  rule  is  based  on  custom 
created  by  convenience.     For  purposes  of  administration 
an  officer  of  State  could  conduct  the  business  of  his  depart- 
ment as  well  or  better  without  a  seat  in  Parliament.     But 
the  great  departments  of  government  are  filled   by   the 
King  from  a  group  of  statesmen  indicated  by  the  electorate, 
and  their  business  must  be  conducted  subject  to  the  criti- 
cism of  the  representatives  of  the  people.     If  a  department  necessary 
is  not  represented  in  Parliament,  criticism  goes  unheeded  dewlrV 
or  the  department  is  undefended.     If  comment  upon  bad  ments. 
administration  is  to  be  effective,  if  good  administration  is 
to  be  justified  and  supported  by  public  opinion,  it  is  essen- 
tial that  the  great  departments  should  be  represented  both 
in  the  House  of  Lords  and  also  in  the  House  of  Commons. 
This  matter  will  be  better  dealt  with  in  the  next  section. 
Here  it  may  be  noted  that  the  most  recent  instance  of 
a  Cabinet  Minister  remaining  without  a  seat  in  Parliament 
for  any  length  of  time  is  that  of  Mr.  Gladstone  in  1846. 
On  being  appointed  Colonial  Secretary  in  December,  1845, 
he  vacated    his  seat  for  Newark,  and,  failing  to  obtain 
re-election,  he  was  out  of  Parliament  until  he  went  out  of 
office  with  Sir  Robert  Peel  in  June,  1846, 

P  2 


212         THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 

§  6.     Non- Political  Departments. 

Depart-  We  should  bear  in  mind  that  when  we  have  described  the 
without  a  various  departments  of  government  as  represented  by  their 
political  political  chiefs,  we  have  only  drawn  in  outline  the  salient 

chief 

features  of  the  executive.  There  are  important  depart- 
ments which  are  not  thus  represented  in  Parliament,  and 
every  department,  whether  it  does  or  does  not  possess 
a  political  chief,  possesses  a  staff  of  permanent  officials 
by  whom  the  daily  business  of  government  is  carried  on. 
The  departments  which  may  be  described  as  non-political 
are,  broadly  speaking,  the  outlying  departments  of  the 
Treasury,  the  Ecclesiastical  Commission,  and  the  Charity 
Commission. 

Those  But  since  a  department  which  has  no  authorized  spokes- 

wTth6'       man  in  either  House  is  apt  to  fare  badly  under  adverse 

Treasury,   criticism,  it  will  be  found  that  provision  is  made  for  some 

Parliamentary  representation  of  each  of  these  departments. 

Offices  connected  ivith  the  Treasury. 

The  members  of  the  Treasury  Board  would  naturally 
defend  or  explain,  if  required,  the  action  of  the  offices  with 
which  it  is  connected  ',  and  which  have  no  political  chiefs. 
Of  these  some  discharge  duties  which  are  almost  wholly 
ministerial.  Such  are  the  Inland  Revenue  and  Customs 
Commissions.  Others  discharge  duties  which  may  bring 
them  within  range  of  criticism,  as  the  Commissioners  of 
Woods  and  Forests,  who  manage  the  Crown  lands  not 

1  The  offices  are : — 

The  Audit  Office.  Civil  Service  Commission. 

Customs  Establishment.  London  Gazette  Office. 

Exchequer  Office  ^  Scotland).  National  Gallery  and  National  Por- 
]  aland  Revenue  Department.  trait  Gallery. 

Meteorological  Office.  Parliamentary  Counsels'  Office. 

Mint.  Board  of  Works  (Ireland). 

National  Debt  Office.  Stationery  Office. 

Paymaster-General's  Office.  Post  Office. 

Public  Works  Loan  Board.  Office  of  Works. 
Office  of  Woods. 

The  last  two  have  their  parliamentary  chiefs, 


Feet.  vii.  §6  NON-POLITICAL   DEPARTMENTS  213 

only  for  revenue  purposes,  but  in  the  interest  of  the  public 
generally.  Such,  too,  is  the  case  of  the  Civil  Service 
Commissioners,  whose  control  over  the  topics  and  conduct 
of  the  examinations  by  which  young  men  are  admitted 
into  public  employment  might  enable  them  to  exclude  the 
Universities  from  the  Civil  Service  or  the  public  schools 
from  the  Army. 

The  Ecclesiastical  Commission. 

The  Ecclesiastical    and  Church  Estates   Commission  is  The  Eccle- 
not  connected  with  any  government  department.     I  shall  commts- 
have  to  speak  of  it  in  a  later  chapter,  so  will  only  say  sion. 
here  that  in  respect  of  the  management  and  distribution 
of  Church  property  it  exercises    large  powers   conferred 
upon   it  by  various  Statutes1.     In  the   discharge  of   the 
duties  thus  laid  upon  the  Commission  it  may  very  possibly 
become  the  subject  of  hostile  criticism  or  inquiry,  and  this 
possibility  is  met,  not  by  giving   to   the   Commission   a 
changing  political  chief,  but  by  placing  among  its  members 
the  Bishops  and  certain  great  officers  of  State,  and  by  the 
further  introduction  into  its  body  of  two  paid  Commis- 
sioners 2,  one  of  whom  is  eligible  for  a  seat  in  the  House  of 
Commons,  and  may  there  defend  its  action. 

The  Charity  Commission. 

The  Charity  Commission  needs  a  longer  notice.     It  dates  Tho 
from  1 853 ;    and  its  objects  are  to  protect  property  held  coimliU- 
upon  charitable  trusts ;  to  inquire  into  the  administration  8ion- 
of  such  property;    to  adapt  the  use  of  the  charity  from 
time  to  time  to  purposes  corresponding  to  the  intentions 
of  the  donor,  where  those  purposes  cannot  profitably  be 
carried  out  as  originally  expressed  ;   and  to  cheapen  and 
facilitate  legal  proceedings  incidental  to  the  use  of  charities. 

A  charity  is  for  these  purposes  a  grant  of  property  in  Natm-e  of 
trust  for  the  benefit  of  the  public,  or  of  some  class  of  the  a  ch"rlty : 
public,  not  necessarily  for  the  benefit  of  the  poor.  In 

1  6  &  7  Will.  IV,  c.  77,  3  &  4  Viet.  c.  113,  13  &   14  Viit.  o.  94   31  A  32 
Viet.  c.  114  are  among  the  more  important  of  these. 
*  13  &  14  Viet.  c.  94,  a.  3. 


214         THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 

process  of  time  such  a  grant  may  come  to  be  lost,  wasted 
or  misapplied.     The  body  of  trustees  may  fail  to  be  re- 
liability    newed,  and  funds  which  stood  in  their  joint  names  may 
to  loss,       ^&as  j^  f.ne  nan(js  Of  the  survivor,  and  thence,  if  the 

trust  be  not  reconstituted,  may  become  confused  with  his 
personal  property.  Careless  administration  of  the  property 
may  lead  to  a  diminution  of  its  capital  value,  or  an  im- 
or  misuse,  provident  distribution  of  its  income.  Lapse  of  time  may 
alter  the  conditions  of  the  grant  so  as  to  make  its  applica- 
tion useless  or  even  harmful. 

Legal  The  legal  position  of  charities  before  the  appointment  of 

charities0  ^ne  Charity  Commission  was  this  : — the  trustees  could  not 

before        deal  with  the  capital  or  corpus  of  the  property  without 

the  approval  of  the  Court  of  Chancery,  nor  without  such 

approval  could  they  alter  the  distribution  of  the  revenue. 

Thus,   though   trustees  of   charities  enjoyed  some  special 

facilities    in    coming  before   the   Court,   they   could    not 

make   an  advantageous   sale    of    property   or  a  suitable 

change  in  the  disposition  of  the  income  without  entering 

upon  legal  proceedings  which  often  involved  expense  and 

delay. 

Charitable      The  better  management  of  charities  had  been  under  the 

,  -  -  i 

A™*. S       consideration  of  Parliament  for  a  long  time  before  the  first 

Act  on  the  subject  was  passed  in   1 853  l.     The  object  of 

this  Act  was  to  place  in  the  hands  of  a  public  body  many 

of  the  powers  which  before  could  only  be  exercised  by  the 

The  Court  of  Chancery.     It  empowered  the  Crown  to  appoint 

Commis-    by  s^n  manual  warrant  four  Commissioners,  three  to  hold 

aion.          office    during  good   behaviour   and  one  during   pleasure. 

The  last   was   to    be   unpaid,   and   a   mode  was   thereby 

provided  for  representing  the   department   in  the  House 

of    Commons.     To   this   body    two    Commissioners   were 

The  added  in  1874,  when  the  work  of  the  Endowed  Schools 

schools      Commission  was  transferred  to  the  Charity  Commission, 

Commis- 

'  A  Parliamentary  Commission  sat  from  1818-1837,  and  reported  on 
all  the  charities  in  the  country.  A  select  Committee  of  the  House  of 
Commons,  appointed  in  1835,  examined  and  reported  on  this  report:  and 
a  Royal  Commission  sat  in  1849  to  consider  the  completed  reports  of  the 
Commission  of  1818. 


Sect.  vii.  §6  THE   CHARITY   COMMISSION  215 

and  two  more  in  1883  under  the  City  Parochial  Charities 
Act.  Under  the  Act  of  1853  an(^  successive  Acts  which 
have  modified  or  extended  the  powers  originally  conferred, 
the  Commissioners  can  inquire  into  the  administration  of 
charities  and  compel  the  production  of  their  accounts1,  their 
In  various  ways  they  can  cheapen  and  facilitate  the 
management  of  property  held  on  charitable  trusts.  They  ment ; 
can  appoint  new  trustees  by  simple  order,  can  advise  them 
in  matters  of  doubt,  and  can  give  them  a  statutory  in- 
demnity for  acting  on  such  advice.  They  can  sanction 
and  control  sales,  mortgages  and  leases  of  lands.  They 
can  vest  property  in  official  trustees,  thus  not  only  securing 
the  property,  but  simplifying  the  title  to  it.  By  these 
means  charities  are  saved  the  delay  and  cost  of  proceed- 
ings in  the  Chancery  Division. 

Again,  where  it  is  desirable  to  alter  the  mode  of  ad-  as  to 
ministering  a  charity  because  of  a  change  in  the  circum-  scheme  • 
stances  of  the  place  which  was  to  be  benefited,  or  of  the 
property  constituting  the  endowment,  or  of  the  general 
conditions  of  society,  the  Charity  Commission  have  received 
power,  since  1860,  to  frame  new  schemes  for  effecting  the 
intention  of  the  founder  of  the  charity.  This  power,  as 
regards  charities  which  have  an  income  exceeding  £50 
a  year,  is  exerciseable  on  the  application  of  a  majority 
of  the  trustees,  in  the  case  of  charities  which  have  a  less 
income  the  Commission  may  act  on  the  application  of  a 
single  trustee  or  two  inhabitants  of  the  parish  within 
which  the  charity  is  to  be  administered.  In  the  case  of 
educational  endowments  under  the  Endowed  School  Acts, 
an  initiative  was  given  to  the  Commissioners  and  very 


1  The  Acts  relating  to  the  Charity  Commission  are,  as  regards  inquiry 
into  administration  of  Charitable  Trusts,  16  &  17  Viet.  c.  137  (1853), 
18  &  19  Viet.  c.  124  (1855)  ;  as  regards  Schemes,  23  &  24  Viet.  c.  136 
(1860),  32  &  33  Viet.  c.  no  (1869)  ;  ns  regards  Endowed  Schools,  32  &  33 
Viet.  c.  56  (1869),  36  &  37  Viet.  c.  87  (1873)  ;  as  regards  the  City  Parochial 
Charities,  46  &  47  Viet.  c.  36  (1883).  The  transfer  to  the  Charity  Com- 
missioners of  the  powers  of  the  Endowed  Schools  Commission  was 
effected  by  37  &  38  Viet.  c.  87  (1874%  They  are  nlso  empowered  hy 
45  &  46  Viet.  c.  80  ',1882)  to  promote  and  control  the  use  of  land  held  on 
trust  for  the  poor  for  the  purpose  of  allotments. 


216          THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  II 

considerable   powers   of   altering,   or    adding   to   existing 
trusts  and  of  making  new  trusts. 

itslimita-  The  power  is  further  limited  in  its  exercise  by  the 
tions.  doctrine  of  cy  pres.  This  requires  that  the  end  contem- 
plated by  the  founder  should  be  kept  in  view,  though  the 
means  may  require  variation.  A  wider  range  of  variance 
appears  to  be  permitted  under  the  Endowed  Schools  Acts 
than  under  the  Charitable  Trusts  Acts,  though  schemes 
under  the  former  are  now,  by  the  Act  of  1 899,  dealt  with  by 
the  Board  of  Education.  If  the  proposed  scheme  be  re- 
garded by  trustees  as  too  widely  divergent  from  the  objects 
of  the  founder,  an  appeal  lies,  in  the  case  of  a  charity, 
to  the  Chancery  Division  of  the  High  Court,  in  the  case 
of  an  educational  endowment,  to  the  Judicial  Committee 
of  the  Privy  Council l. 

Transfer  As  has  been  already  stated,  the  Board  of  Education  Act, 
of  powers  1899,  made  provision  for  the  transfer,  by  Order  in  Council, 
Board  of  to  the  Board  of  Education  the  powers  of  the  Commission 
in  respect  of  such  trusts  as  the  Charity  Commissioners 
determined  to  be  educational.  In  pursuance  of  this 
enactment  Orders  in  Council  have  transferred  to  the  Board, 
in  respect  of  educational  trusts,  all  powers  of  obtaining 
information,  of  making  schemes,  and  of  dealing  with 
property,  which  were  previously  possessed  by  the  Charity 
Commission  2. 

SECTION  VIII 

THE  CIVIL  SERVICE  AND  THE  TERMS  OF  OFFICIAL  TKNURE 
§  1.     The  Permanent  Civil  Service. 

In  one  way  or  other  every  public  office  is  provided, 
directly  or  indirectly,  with  a  spokesman  in  Parliament, 
who  has  some  special  knowledge  or  official  connexion  with 
its  business,  though  he  may  not  be  its  political  chief. 

1  See  cases  in  re  Campden  Charities,  18  Ch.  D.  310.  St.  Leonard,  Shore- 
ditch,  Parochial  Schools,  10  App.  Ca.  (P.  C.)  304. 

3  The  Orders  in  Council  which  affect  this  change  are  dated  the 
7th  August  1900,  the  24th  July  1901,  and  the  nth  August  1902.  See 
Owen,  Education  Acts  Manual,  ed.  20,  pp.  446-450. 


Educa- 
tion. 


Sect.  viii.  §  1       THE   PERMANENT   CIVIL   SERVICE  217 

This  is  the  more  important,  because  no  one  but  a  servant  Ministers 
of  the  Crown  can  speak  on  behalf  of  a  government  depart-  j|  °"£  foi" 
ment l ;  its  officers  are  in  the  employ  of  the  King ;  so  are  depart- 
the  great  Ministers  of  State,  who  are  individually  respon-  "" 
sible  for  their  departments  and  collectively  for  the  conduct 
of  the  King's  business,  and  these  latter  are  alone  entitled 
to  represent  the  service  of  the  Crown  in  all  its  branches. 
If  things  go  wrong  it  is  for  the  King's  advisers  to  suggest 
a  change  of  measures  to  the  department,  or  failing  this, 
a  change  of  men  to  the  Crown.     The  Cabinet  can  almost 
always   in   the  last  resort  ask   the  King  to  exercise  his 
power  of  dismissal,  and  treat  a  refusal  as  a  mark  of  want 
of  confidence  in  themselves  2. 

It  is  always  possible  to  turn  a  non-political  into  a  political 
department  by  removing  the  Parliamentary  disability  of 
its  chief  officer.  Custom  and  convenience  would  then 
require  that  he  should  have  a  seat  in  Parliament,  and 
direct  responsibility  to  Parliament  would  at  once  give  him 
the  control  over  the  policy  of  his  office. 

The  Parliamentary  chief  for  the  time  being  personifies  the  Political 
department  in  the  view  of  the  public ;  but  the  business  of  pe^aan 
the  country  is  done  by  the  permanent  officials.     They  are  "ent  staff, 
severed  from  political  life  not  merely  by  the  Statutes  which 
disable  them  from  sitting  in  the  House  of  Commons,  but 
by  the  usage  of  the  Civil  Service,  applicable  to  both  Houses 
of  Parliament,  which  secures  '  that  the  members  of  the 
service  remain  free  to  serve  the  government  of  the  day 
without  necessarily  exposing  themselves  to  public  charges 
of  inconsistency  or  insincerity  V     The  Parliamentary  chief 
changes,  but  they  are  unaffected  by  the  ebb  and  flow  of 

1  Mr.  Todd  (Parl.  Gov.  in  England,  i.  752    states  that  the  votes  in 
supply  for  the  British  Museum  are   an   exception   to   this  rule,  being 
proposed  by  one  of  the  trustees.     This  seems  to  have  been  the  practice  at 
least  as  late  as  1866.     When  it  was  altered  I  do  not  know,  but  the  vote 
appears  now  to  be  moved  by  the  Parliamentary  Secretary  to  the  Treasury. 

2  See  post,  p.  aai,  as  to  offices  tenable  'during  good  behaviour/ 
Order  in  Council,  291)1  Nov.  1884,  whereby  a  civil  servant  standing 

for  a  constituency  must  resign  his  post  when  he  announces  himself  as 
a  candidate. 


218         THE    DEPAKTMENTS   OF   GOVERNMENT      Chap.  Ill 

political  opinion.     To  this  circumstance  we  owe   several 

advantages. 

Advan-  Security  of  tenure  and  the  reasonable  prospect  of  pro- 
perman-  motion  induce  men  of  distinguished  ability  to  enter  the 
ence  m  public  service.  They  take  an  interest  in  their  work  which 

securing      f  \ 

better  they  would  not  feel  if  they  knew  that  their  official  careers 
might  be  brought  to  an  end  by  matters  over  which  they 
have  no  control — an  adverse  division  in  the  House  of  Com- 
mons, or  the  blunders  of  another  department,  leading  to  the 
retirement  of  the  Ministry.  Thus  the  country  is  well  served, 
and  it  is  well  served  on  more  economical  terms  than  would 
be  possible  if  the  tenure  of  office  were  precarious, 
and  And  one  may  say  further,  that  but  for  this  rule  of  perma- 

work.  nence  the  Civil  Service  would  not  merely  fall  short  of  its 
present  standard  of  excellence;  it  would  not  attain  to  an 
ordinary  standard  of  efficiency.  If  we  picture  to  ourselves 
a  new  staff  of  officials  on  each  change  of  Ministry  beginning 
afresh  to  master  the  elaborate  system  of  Treasury  control 
or  the  multitudinous  detail  of  the  Home  Office,  we  can 
form  some  idea  of  the  difficulties  which  would  befall  us  if 
the  entire  patronage  of  the  Crown  was  placed  at  the  dis- 
posal of  an  incoming  Prime  Minister.  When  we  recollect  that 
during  two  years — 1885,  1886 — four  Ministries  held  office, 
that,  in  the  case  of  two  of  these,  one  lasted  for  327  days, 
and  the  other  for  178,  it  is  plain  that  a  system  which  is 
said  to  lead  to  departmental  inefficiency  in  America,  where 
there  is  necessarily  a  four  years'  tenure  of  office,  would 
lead,  with  us,  to  departmental  collapse. 

It  is  in  the  permanent  character  of  our  Civil  Service 
that  we  find  not  only  the  security  for  its  efficiency,  but 
the  opportunity  of  obtaining  the  highest  class  of  ability  at 
a  comparatively  low  rate  of  emolument.  Men  of  great 
organizing  and  administrative  powers  devote  the  best  part 
of  their  lives  to  the  discharge  of  duties  which  bring  no 
great  reward  of  wealth  or  fame,  though  the  sense  of  power 
which  the  permanent  head  of  a  department  must  possess 
may  be  some  compensation  for  the  larger  and  more  specu- 
lative prizes  of  public  life  which  he  foregoes.  A  Minister, 
however  ignorant  he  may  be  of  the  work  of  the  office  over 


Sect.  viii.  §  1       THE   PERMANENT   CIVIL   SERVICE  219 

which  he  may  be  called  to  preside,  finds  that  the  knowledge 
and  capacity  of  a  staff'  of  able  men  are  placed  readily  at  his 
service,  and  that  if  he  does  not  learn  the  business  of  the 
department  it  is  not  the  fault  of  those  who  work  the 
machine.  It  remains  to  ask  how  is  the  administration 
affected  by  the  frequent  change  of  the  Parliamentary 
chief. 

Mr.  Bagehot  has  dwelt  at  length  on  the  advantages  of  Advan- 
the  system.     Official  work,  however  capable  and  zealous  *?vlrty 
the  public  servant  may  be,  is  apt  to  get  into  grooves.     The  chief. 
Parliamentary   chief  brings  a  fresh  mind  to  bear  on  the 
routine  of  office,  and  may  ensure  a  circulation  of  ideas  in 
its   intellectual  life.     Perhaps  Mr.  Bagehot's  ideal  is  not  Mr. 
always  attained.     He  pictures  the  political  leader  bringing  id^  !° 
intelligent  curiosity  and  quickening  impulse  to  bear  on  the 
work  of  his   department,  while  a  permanent  staff  with 
a  precise  knowledge  of  the  action  of  the  official  machinery 
is  prepared  to  welcome  with  zeal  his  suggestions  for  making 
it  move  quicker,  more  smoothly,  more  cheaply l.    This  may 
not  always  be  so.     Perhaps  some  heads  of  departments  are 
too  ready  to  assume  that  everything  is  right ;  and  others, 
that   everything  is  wrong.     Some  are   willing  to  accept, 
without  question,  the  traditions  of  the  office,  others  are 
ready  to  pull  to  pieces,  at  once,  a  machine  the  working  of 
which  they  have  not  had  time  to  understand. 

But  whether  or  no  the  Parliamentary  chief  promotes  the 
administrative  capacity  of  his  department  he  is  certain  to 
render  it  one  great  service.     He  stands  between  his  staff  he  defend* 
and  the  House  of  Commons.  attack ; 

It  is  possible  that  the  permanent  staff  know  too  much  to 
be  tolerant  of  criticism  ;  they  may  meet  it  with  resentment 
and  contempt :  but  assuredly  it  is  certain  that  a  popular 
assembly  knows  too  little  to  be  a  fair  judge.  Its  criticism  may 
be  perverse,  its  interest  intermittent,  its  action  capricious. 

It  is  the  duty  of  the  Parliamentary  chief  to  aid  his  depart- 
ment by  answering  criticism  which  needs  to  be  answered, 
by  resisting  expressions  of  censure,  or  legislative  action, 

1  Bagehot,  English  Constitution,  ch.  vi.  'Change  of  Ministry.' 


220         THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 


which  is  ill  considered  or  unjust.  He  can  speak  with  some 
experience  of  the  ways  of  the  House  of  Commons,  and  with 
some  sympathy  for  its  ignorance,  for  he  has  but  lately 
learned  the  business  of  the  department  himself:  if  his 
powers  of  persuasion  fail,  he  has  the  government  majority 
at  his  back. 

he  i-epre-  And  not  only  in  dealings  with  the  House  of  Commons  is 
^ne  Parliamentary  chief  of  use  to  his  department.  He  is  to 
the  general  public  the  interpreter  of  official  life  ;  he  repre- 
sents his  office  in  the  view  of  the  country.  If  he  gets 
credit  for  its  successes  he  also  suffers  for  its  shortcomings 
or  failures. 

It  might  be  possible  to  have  as  good  a  public  service  if 
the  departments  were  not  represented  in  Parliament,  but  it 
is  certain  that  we  should  not  have  so  strong  a  public  service, 
and  that  its  place  in  popular  esteem  is  raised,  even  at  the 
cost  of  some  want  of  appreciation  of  the  merits  of  the 
permanent  staff,  by  its  connection  with  party  politics. 

It  is  well  to  bear  in  mind  that  the  permanence  of  the 
cjvj|  service  though  we  regard  it  as  following  necessarily 

°  °  °  * 

from  the  general  disqualification  of  officials  for  a  seat  in 
the  House  of  Commons,  is  really  only  a  matter  of  con- 
vention. It  is  impossible  to  read  Swift's  diary  or  the 
letters  of  Bolingbroke  without  seeing  that  the  American 
maxim  —  'the  spoils  to  the  victor'  —  was  very  present  to 
the  minds  of  the  Tory  party  in  the  reign  of  Anne.  Walpole 
and  George  Grenville  deprived  officers  of  their  commissions 
for  voting  against  the  Government  in  Parliament.  Henry 
Fox  in  1763  dismissed  opponents  of  the  Government  from 
non-political  places  on  such  a  scale  as  to  excite  general 
disgust.  Since  then  we  have  heard  nothing  of  a  pro- 
scription ;  but  it  would  be  perfectly  legal,  though  neither 
just  nor  politic,  for  an  incoming  minister  to  obtain  from 
the  Crown  as  a  proof  of  confidence  the  dismissal  of  every 
civil  servant  who  holds  his  office  during  pleasure. 


Liability 
to  a  pro- 

script  ion. 


Sect.  viii.  §  2  TENURE   OF   OFFICE  221 

§  2.    Conditions  of  Tenure. 

This  brings    us  to  the  nature  of   official  tenure.     On  Tenure 
what  terms  do  public  servants  hold  their  offices?  of  public 

r  servants : 

All  offices,  whether  limited  as  to  tenure  by  a  specified 
time  or  not  so  limited,  are  held  subject  to  one  of  two 
conditions :  they  are  held  either  '  at  pleasure,'  or  '  during  at  plea- 
good  behaviour,'  and  unless  it  is  otherwise  stated  their  occu- Sl 
pants  hold  '  at  pleasure.'  '  Persons  employed  in  the  service 
of  the  Crown,  except  in  cases  where  there  is  some  statutory 
provision  for  a  higher  tenure  of  the  office,  are  ordinarily 
engaged  on  the  understanding  that  they  hold  their  employ- 
ments at  the  pleasure  of  the  Crown.'  Thus  Lord  Herschell 
in  the  case  of  Dunn  v.  The  Queen l,  and  the  rule  is  equally 
applicable  to  civil  and  to  military  appointments.  Of  the 
servants  of  the  State  some  hold  directly  of  the  Crown,  and 
are  appointed  either, 

(i)  By  delivery  of  symbols  of  office,  e.g.  the  seals  of  forms  of 
a  Secretary  of  State; 

or  (2)  by  Order  or  declaration  of  the  King  in  Council, 
e.  g.  the  President  of  a  Board  or  a  Civil  Service  Commis- 
sioner ; 

or  (3)  °y  letters  patent  under  the  Great  Seal,  e.g.  the 
Chancellor  of  the  Duchy  of  Lancaster,  or  the  Comptroller 
and  Auditor-General ; 

or  (4)  by  warrant  or  commission  under  the  sign  manual, 
e.g.  the  Viceroy  of  India,  the  First  Commissioner  of 
Works,  or  an  officer  when  first  given  permanent  rank  in 
the  Army. 

Some  are  not  directly  appointed  by  the  Crown,  but  are 
appointed  with  more  or  less  of  form  by  heads  of  depart- 
ments. An  officer  in  the  navy,  for  instance,  holds  a  com- 
mission from  the  Lords  of  the  Admiralty,  an  Under-Secre- 
tary  of  State  is  appointed  without  form  by  his  political 
chief,  a  Parliamentary  Secretary  by  a  minute  of  his  Board, 

1  [1896]  i  Q.  B.  (C.  A.)  116,  and  see  Shenton  v.  Stuart  (1895)  A.  C.  229. 
But  statutory  provision  may  be  made  for  some  restriction  on  the  power 
of  dismissal  as  in  the  New  South  Wales  case  of  Gould  v.  Stuart  (1896) 
A.  C.  575. 


222          THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  Ill 


during 
good  be- 
haviour. 


Some- 
times to 
Parlia- 
mentary 
Address. 


Grounds 
of  Dis- 

j in-  ah 


the   Receiver-General    of   Inland    Revenue    by    treasury 
warrant. 

But  all  hold  on  one  or  other  condition,  the  royal  pleasure 
or  good  behaviour. 

To  this  last  a  third  is  sometimes  added  which  has  given 
rise  to  misunderstanding.  The  Judges,  the  members  of 
the  Council  of  India,  the  Comptroller  and  Auditor-General, 
hold  office  during  good  behaviour,  '  but  upon  the  address 
of  both  Houses  of  Parliament  it  may  be  lawful  to  remove 
them.'  This  has  been  construed  to  mean  that  such  officers 
can  only  be  removed  on  address  of  the  two  Houses.  But 
the  words  mean  simply  that  if,  in  consequence  of  mis- 
behaviour in  respect  of  his  office,  or  from  any  other  cause, 
an  officer  of  state  holding  on  this  tenure  has  forfeited  the 
confidence  of  the  two  Houses,  he  may  be  removed,  although 
the  Crown  would  not  otherwise  have  been  disposed  or 
entitled  to  remove  him.  Such  officers  hold,  as  regards  the 
Crown,  during  yood  behaviour ;  as  regards  Parliament, 
also  during  good  behaviour,  though  the  two  Houses  may 
extend  the  term  so  as  to  cover  any  form  of  misconduct 
which  would  destroy  public  confidence  in  the  holder  of  the 
office ].  We  may  then  dismiss  this  condition  of  tenure, 
as  being  part  of  the  law  relating  to  Parliament.  Apart 
from  this  the  question  of  dismissal  is  not  wholly  free 
from  difficulty. 

Appointments  made  during  good  behaviour  create  a  life 
interest  in  the  office,  unless  specifically  made  for  a  term  of 
years.  Such  as  are  made  directly  by  the  Crown  are  made 
by  sign  manual  warrant  or  by  letters  patent.  Good 
behaviour  means  good  behaviour  in  respect  of  the  office 
held.  Misbehaviour  appears  to  mean  misconduct  in  the 
performance  of  official  duties,  refusal  or  deliberate  neglect 
to  attend  to  them,  or,  it  would  seem,  conviction  for  such 


1  For  the  procedure  in  such  cases  see  Parl.  Deb.  N.S.  xiv.  500,  502,  for 
u  statement  by  the  Speaker,  in  the  case  of  Mr.  Kenrick,  as  to  the  courses 
open  to  the  House.  Todd.  Parl.  Gov.  of  England  (od.  a),  vol.  ii,  p.  867, 
gives  a  full  account  of  the  case  of  Sir  Joseph  Barringtou  :  a  case  in  which 
the  king  acted  upon  an  address  of  the  two  Houses. 


Sect.  viii.  §  2  TENURE   OF   OFFICE  223 

an  offence  as  would  make  the  convicted  person  unlit  to 
hold  a  public  office1. 

Where  an  office  is  thus  forfeited  by  breach  of  the  con- 
dition of  tenure,  the  mode  of  removal  does  not  seem  per- 
fectly clear. 

The  forfeiture  of  an  office  held  by  letters  patent  must,  Modes  of 
it  is  said 2,  be  enforced  by  a  writ  of  wire  facias,  which  has  dlsmissal- 
been  thus  described  :— 

The  writ  of  scire  facias  to  repeal  or  revoke  grants  or  chart-era 
of  the  Crown  is  a  prerogative  judicial  writ  which,  according  to 
all  the  authorities,  must  be  founded  on  a  Kecord.  These  Crown 
grants  and  charters  under  the  Great  Seal  are  always  sealed  in 
the  Petty  Bag  Office,  which  is  on  the  Common  Law  side  of  the 
Court  of  Chancery  and  become  Kecords  there  3. 

The  duties  of  the  Petty  Bag  Office  are  now  discharged 
in  the  Crown  Office  in  Chancery  4,  but  the  writ  of  scire 
facias  must  none  the  less  be  founded  on  a  Record,  and 
thus  would  be  inapplicable  to  the  forfeiture  of  offices 
granted  by  sign  manual  warrant. 

There  appears  to  be  authority 5  for  saying  that  a  sign 
manual  warrant,  making  a  grant  of  property,  may  be 
revoked  simply  :  if  so  it  would  seem  that  a  grant  of  office 
might  on  the  occurrence  of  cause  of  forfeiture  be  revoked 
in  like  manner.  Probably  the  warrant  would,  on  just 
cause,  be  revoked  and  the  ejected  officer  left  to  proceed,  it' 
so  minded,  against  the  Lords  of  the  Treasury  for  his 
salary  in  the  form  of  a  Petition  of  right,  or  by  writ  of 
quo  warranto  against  the  person  who  had  replaced  him 
in  his  office. 

1  Coke,  Rep.  9.  50.     R.  v.  Richardson,  i  Burr.  539. 

a  '  Regularly  there  must  be  a  scire  facias  to  remove  the  party  where  ho 
has  the  office  by  matter  of  record;  for  he  cannot  be  removed  without 
matter  of  recoid.'  Com.  Dig.  Tit.  Offices,  k.  n. 

3  R.  v.  Hughes,  L.  R.  i  P.  C.,  p.  87.  4  37  &  38  Viet.  c.  81.  s.  5. 

8  Forsyth,  Cases  in  Constit.  Law,  385  :  but  where  a  borough  petitioned 
that  a  grant  of  a  separate  Quarter  Sessions  (made  under  5  &  6  Will.  IV, 
c.  76,  s.  103)  should  be  revoked  the  Law  Officers  advised  that  this  could 
not  be  done,  partly  because  a  Court  of  Justice  established  by  Law  could 
not  be  abrogated  by  a  mere  act  of  prerogative,  partly  also  because  the 
office  of  Recorder  being  tenable  during  good  behaviour  could  not  be  thus  taken 
away  from  the  holder.  Ibid.  p.  386. 


224          THE   DEPARTMENTS   OF   GOVERNMENT      Chap.  TIT 

There  remain  the  cases  of  appointments,  such  as  those  of 
the  Council  of  India,  made  during  good  behaviour,  but  not 
made  by  any  formal  document  proceeding  from  the  Crown. 
The  power  of  the  Secretary  of  State  for  India  to  dismiss 
a  member  of  the  Council  for  misbehaviour  in  respect  of  his 
office  must  be  assumed.  The  form  in  which  it  could  be 
questioned  must  remain  matter  for  speculation. 


CHAPTEE  IV 

THE    TITLE    TO    THE    CROWN    AND    THE    RELATION    OP 
SOVEREIGN    AND    SUBJECT 

§  1.     The  History  of  the  Title  to  the  Crown. 

THE  title  to  the  Crown  of  this  country  has  been  a  very 
simple  matter  for  a  long  time  past,  owing  to  the  constitution 
of  a  Parliamentary  entail  by  the  Act  of  Settlement,  and  to 
the  fact  that  the  royal  line  has  never  failed  since  the  House 
of  Brunswick  succeeded  under  the  provisions  of  that  Act. 

But  inasmuch  as  disputed  titles  have  played  a  large  part 
in  our  history,  and  since  the  forms  of  the  coronation  recall 
the  elements  which  went  to  make  up  the  title  to  the  Crown, 
it  is  worth  while  to  review  the  history  of  the  matter. 

The  Saxon  King  was  the  elect  of  the  Witan,  but,  as  in 
many  other  cases  of  seemingly  free  choice,  the  Witan  were 
practically  bound  by  conventions  to  choose  from  within 
a  narrow  circle.  Outside  the  royal  family  they  did  not  go, 
till  conquest  put  constraint  upon  them,  and  Canute  was 
chosen  King.  But  within  the  royal  family  they  were  not 
limited  by  the  modern  rules  of  hereditary  succession.  Thus 
the  title  was  made  up  of  various  elements.  Royal  birth  was  Title  by 
a  preliminary  qualification ;  the  election  by  the  Witan  gave  e 
the  legal  sanction  to  a  claim  which  would  not  have  been  made 
if  the  elected  had  not  been  born  in  the  royal  line  ;  the  cere- 
mony of  coronation  confirmed  the  election  with  the  support 
of  the  Church,  and  the  oath  of  fidelity  sworn  by  the  nobles 
gave  substantial  force  to  hereditary,  legal,  and  religious 
claims.  From  the  time  that  Canute's  line  failed  no  King 
reigned  who  could  show  a  good  hereditary  right  till  Henry  II. 
Edward  the  Confessor  was  the  eldest  surviving  son  of 


AN80N.     CROWN 


226 


THE   TITLE   TO   THE   CROWN 


Chap.  IV 


Title  by 
inherit- 


Ethelred,  but  the  son  of  his  elder  brother,  Edmund  Ironside, 
was  still  living.  Harold's  connexion  with  the  house  of 
Cerdic  was  remote  if  not  imaginary,  and  here  again  Edgar, 
the  grandson  of  Edmund,  was  the  heir.  William  I  claimed 
partly  as  next  of  kin,  which  was  absurd,  for  he  was 
a  bastard:  partly  under  the  recommendation  of  Edward 
the  Confessor,  who  certainly  had  not  acquired  any  right  to 
the  regard  of  the  English  people.  But  each  of  these  Kings 
established  a  good  legal  title  in  election  by  the  Witan, 
a  title  which  was  valid  enough  so  long  as  the  holder  had 
physical  force  at  his  command  to  maintain  it.  The  first 
four  Norman  Kings,  whatever  their  claims  may  have  been 
apart  from  election,  showed  the  utmost  respect  for  an 
election  by  that  body  which  corresponded  to  the  Witan,  the 
Commune  Concilium. 

Gradually  the  notion  of  hereditary  right  grew  stronger. 
This  arose  in  part  because  the  feudal  land  law,  resting  on 
the  territorial  character  of  kingship,  assimilated  the  descent 
of  the  Crown  to  the  descent  of  an  estate  in  fee  simple. 
Hence  it  is  that  so  many  medieval  wars  and  dynastic 
quarrels  bear  so  strong  a  resemblance  to  litigation  of  that 
tedious  sort  in  which  pedigrees  are  in  question.  In  the 
endeavour  to  show  that  might  is  right  the  learning  and  arts 
of  the  conveyancer  are  called  into  play. 

And  the  rule  of  hereditary  succession  received  readier 
ceptance.  acceptance  in  the  more  settled  state  of  society.  The  fact 
that  the  Witan  or  Commune  Concilium  passed  over  the 
infant  children  of  a  deceased  King  in  favour  of  a  more 
vigorous  member  of  the  royal  house,  was  evidence  that 
hereditary  right,  popular  election,  and  religious  ceremonial, 
needed  the  help  of  a  strong  arm  to  maintain  the  right  they 
conferred.  The  succession  of  Henry  III  and  Richard  II, 
especially  of  Richard,  who  had  uncles  living  of  full  age  and 
experience  in  affairs,  shows  that  society  so  far  recognizes 
legal  right  as  to  make  an  invasion  of  that  legal  right 
a  difficult  matter  for  an  aggressor. 

Meantime  the  title  of  our  earlier  Kings  rested  less  upon 
such  hereditary  right  as  they  might  be  able  to  assert,  as  in 
the  solemnity  of  election  and  coronation.  The  election  by 


Causes 
of  its  ac- 


Eleotion. 


§  1  HISTORY   OF  THE    TITLE  227 

the  Witan  or  Great  Council  of  the  realm  gave  the  pre- 
liminary right  to  demand  that  the  subsequent  stages  of 
the  ceremonial  which  perfected  the  title  should  be  gone 
through. 

The  ceremony  of  coronation,  which  gave  religious  sanction  Corona- 
to  the  title  by  election,  was  preceded  by  the  formal  compact tlon' 
between  King  and  people  that  the  King  should  govern  well, 
and  that  the  people  should  obey.  The  King's  promise  made 
by  oath  or  charter,  or  both,  was  to  keep  Church  and  people 
in  peace,  to  forbid  wrong  and  rapine  in  all  degrees  of  men, 
and  to  do  justice  with  mercy :  the  people  by  acclamation 
accepted  him,  the  great  men  by  oath  promised  him  their 
fealty  and  allegiance,  while  the  coronation  service  invested 
the  title  of  the  new  King  with  the  sanctity  of  divine 
approval. 

That  these  ceremonials  were  no  mere  form  is  plain  from  The  inter- 
the  fact  that  there  was  a  real  interregnum  between  the  resnum- 
death  of  one  King  and   the  election  and  coronation   of 
another.   Hence  until  the  new  King  was  crowned  the  King's 
peace  was  in  abeyance;   the  maintenance  of  order  might 
well  be  in  jeopardy,  while  the  State  had  no  one  to  represent, 
it  for  the  purpose  of  enforcing  the  peace 1. 

As  the  conception  of  hereditary  right  strengthened,  the  its  incon- 
importance  of  the  election  and  coronation  dwindled,  and  the  venience- 
practical  inconvenience  of  the  interregnum  was  curtailed. 

The  reign  of  Edward  I  began  before  his  coronation.     He  How  ob- 
was  absent  in  Palestine  when  his  father  died.     Four  days  V1 
after  his  father's  death  the  Barons  swore  fealty  to  him  in 
his  absence,  and  three  days  later  the  royal  Council  put 
forth   a   proclamation   in   his   name,  announcing   that  he 
reigned  by  hereditary  right  and  the  will  of  the  magnates, 
and  that  he  enjoined  the  peace.     The  formal  coronation  did 
not  take  place  for  nearly  two  years.     Edward  II  dated  his 


1  Before  the  accession  of  Edwsird  I  the  peace  had  been  maintained  by 
the  justiciar  during  the  interval  preceding  the  coronation  of  the  new 
King  (Stubbs,  Select  Charters,  446)  :  and  hereditary  right  so  far  camo 
in  aid  of  the  maintenance  of  the  peace,  that  the  prospective  King  claimed 
to  be  lord  of  England,  and  to  enjoin  the  peace  in  that  capacity.  Pollock 
and  Maitland,  Hist,  of  English  Law,  i.  507. 

Q  2 


228  THE   TITLE   TO   THE   CROWN  Chap.  IV 

reign  from  the  day  after  his  father's  death.  Edward  III 
proclaimed  the  peace  before  he  was  crowned l,  but  he  had 
been  declared  and  accepted  as  guardian  of  the  realm  before 
his  father's  deposition,  and  in  that  capacity  would  be 
entitled  to  maintain  the  peace. 

Deposi-  The  depositions  of  Edward  II  and  Richard  II  bring 
P°r1siaa_nd  Parliament  into  the  place  occupied  by  the  Witan  and  the 
mentary  Commune  Concilium.  The  popular  acclamation  necessarily 
sinks  into  a  mere  form  when  the  representatives  of  the 
Commons  in  Parliament  become  parties  to  the  choice  of 
Henry  IV.  a  King.  The  accession  of  Henry  IV  is  the  best  illustration 
of  all  the  safeguards  by  which  a  medieval  King  could  fence 
about  his  title  to  the  throne.  He  was  not  satisfied  with 
his  election  by  the  estates  of  the  realm,  with  the  resignation 
by  Richard  II  of  the  fealty  and  allegiance  of  his  barons, 
and  the  transfer  of  that  fealty  to  himself.  He  claimed  the 
Crown  as  descended  from  Henry  III,  reviving  thus  a  tradi- 
tion that  Edmund  Crouchback,  the  second  son  of  Henry  III, 
was  really  the  elder.  His  title  thus  based  on  election,  on 
feudal  recognition  by  the  vassals  of  the  Crown,  on  alleged 
hereditary  right,  was  further  confirmed  by  Parliament,  and 
the  Crown  entailed  by  Statute  on  him  and  the  heirs  of  his 
body.  But  hereditary  right,  supported  by  force,  broke 
through  these  carefully  constructed  defences. 

Edward  Edward  IV  was  proclaimed  King  as  soon  as  he  had 
successfully  asserted  his  title  by  force  and  arms.  His  right 
to  be  proclaimed  King  was  based  not  on  election  by  estates 
of  the  realm,  nor  upon  fealty  sworn  by  the  magnates,  nor 
upon  the  formalities  of  the  coronation.  It  was  a  mere 
question  of  pedigree.  Edward  IV  was  the  nearest  male 
Title  by  representative  of  the  eldest  surviving  line  of  Edward  III, 
and  on  that  ground  he  claimed  to  set  aside  not  only  the 
proceedings,  regular  otherwise  and  valid,  which  had  placed 
Henry  VI  on  the  throne,  but  the  Act  of  Parliament  which 
had  entailed  the  Crown  upon  the  line  of  Henry  IV. 

From   this   time  forth  our  history  illustrates   the  con- 
flict between   two   views  of   kingship,  the  one  based   on 

1  Stubbs,  Const.  Hist.  ii.  360,  368. 


inherit- 
ance. 


$  1  HISTORY   OF   THE   TITLE  229 

title  by  Parliamentary  choice,  the  other  on  title  by  inheri- 
tance. The  old  forms  of  election  give  way  to  Parliamen- 
tary title. 

Henry  VII  claimed  the  Crown  by  hereditary  right,  but  Combina 
gave  his  assent  to  a  Bill  which  settled  the  Crown  on  him-  titles?' 
self  and  the  heirs  of  his  body.     Henry  VIII  obtained  from 
Parliament  a  power  to  dispose  of  the  Crown  by  will,  and 
devised  it,  failing  issue  of  Edward,  Mary  or  Elizabeth,  to 
the  grandchildren  of  his  younger  sister 1,  thus  disinheriting 
his  elder  sister  Margaret  and  her  issue.     But  when  James, 
the  great-grandson  of  Margaret,  succeeded  to  Elizabeth  in 
spite  of  the  Parliamentary  entail  created  by  the  will  of 
Henry  VIII,  he  claimed  to  reign  by  hereditary  right,  and 
Parliament,    though   it   fortified    his  title   by  an  Act  of  a  Jac.  I, 
Recognition,  recited  in  the  Act  that  he  was  entitled  to  c'  I- 
reign  by  descent. 

Title  by  descent,  and  title  by  choice  of  Parliament,  came  They  re- 
to  express  two  different  views  of  kingship.  But  the  force  { 
of  either  ground  of  claim  was  always  recognized.  Theof.kin8- 
King  who  claimed  by  hereditary  right  fortified  his  title 
by  an  Act  of  Parliament.  The  King  who  rested  his  title 
on  an  Act  of  Parliament  recited  in  it  his  hereditary  claims. 
The  theory  of  hereditary  right  had  in  the  middle  ages 
possessed  this  advantage,  that  it  dispensed  with  the 
interregnum  which  had  prevailed  when  the  title  of  the 
new  King  depended  on  his  election.  As  feudalism  passed 
away,  the  feudal  bond  ceased  to  furnish  the  ground  of 
political  obligation ;  hereditary  right  came  in  to  supply  the 
want,  and  was  enhanced  with  divine  sanction.  Throughout 
the  seventeenth  century  it  was  maintained  by  the  upholders 
of  the  rights  of  kings,  not  only  that  the  throne  was  never 
vacant  and  that  the  feudal  rules  of  succession  at  once 
indicated  an  heir,  but  that  the  heir  reigned  by  divine  right, 
and  that  resistance  to  his  rule  or  the  recognition  of  any 
other  title  to  rule  was  not  merely  unlawful  but  sinful. 
The  official  representative  of  his  people  was  lost  sight  of 
in  the  ruler  chosen  by  God. 

1  Bailey,  Succession  to  the  English  Grown,  p.  135. 


230 


THE   TITLE   TO   THE   CROWN 


Chap.  IV 


The  pro- 
cedure of 
1688. 


Difficul- 
ties of  the 
Stuart 
party. 
Divine 
right. 


The  two  theories  came  to  a  practical  issue  in  the  reign 
of  James  II.  James  left  his  kingdom  and  his  subjects  to 
take  care  of  themselves :  during  his  short  reign  he  had  not 
merely  strained  his  indefinite  prerogative  in  order  to  do 
violence  to  the  spirit  of  the  constitution,  but  had  again 
and  again  broken  the  law  of  the  land.  The  Prince  of 
Orange,  on  arriving  in  London,  desired  to  establish  himself, 
as  nearly  as  circumstances  admitted,  within  the  lines  of 
the  constitution.  He  therefore  summoned  the  Peers,  as 
many  of  the  members  of  the  Parliament  of  Charles  II  as 
were  in  town,  and  some  of  the  citizens,  and  by  their  advice 
he  issued  letters  to  the  same  effect  as  writs  to  the  Lords 
Spiritual  and  Temporal,  and  to  certain  officers  in  counties 
and  boroughs  for  the  summons  of  a  convention.  The 
estates  of  the  realm  were  thus  brought  together  to  settle 
the  affairs  of  the  nation.  The  convention  was  a  Parlia- 
ment in  every  respect  except  the  form  of  summons,  and 
consisted  of  all  the  persons  who  would  have  been  sum- 
moned to  a  regular  Parliament.  The  want  of  formality 
in  the  summons  arose  from  the  fact  that  the  King  had 
fled,  and  the  first  business  of  the  convention  was  to  supply 
the  place  of  an  official  whose  existence  was  necessary  not 
only  for  the  conduct  of  the  business  of  government  but  for 
the  legal  summons  of  Parliament. 

The  upholders  of  divine  hereditary  right  were  placed 
in  a  difficulty.  To  invite  James  to  return  without  con- 
ditions was  impossible,  but  to  negotiate  with  a  divinely 
appointed  ruler  was  contrary  to  the  principles  of  their 
political  faith.  What  was  to  happen  if  King  and  subjects 
could  not  come  to  terms  ?  Either  the  subjects  must  resist 
the  King's  return,  or  they  must  receive  him  back  on  his 
own  terms.  A  middle  course  was  proposed — the  appoint- 
ment of  a  Regent.  This  involved  the  assumption  that 
James'  unfortunate  malady  of  misgovernment  reduced  him 
to  the  position  of  an  infant  or  lunatic,  and  that  his  rights 
remained  to  him,  though  they  must  be  exercised  by  a 
representative.  But  if  the  people  could  determine  the 
moment  at  which  the  King's  misconduct  justified  his  super- 
session, there  was  no  reason  why  they  should  stop  short 


onveni- 
ence. 


§  1  HISTORY   OF  THE   TITLE  231 

at  a  Regency :  the  appointment  of  a  Regent  involved  all 
the  theoretical  difficulties,  without  the  practical  convenience, 
of  the  choice  of  a  new  King.  There  were  also  these  further 
objections,  that  a  King  de  facto  would  coexist  with  a  King 
de  jure,  neither  of  whom  would  acknowledge  the  rights 
of  the  other ;  that  a  Regency  being  necessarily  a  temporary 
arrangement  afforded  no  permanent  solution  of  existing 
difficulties,  while  it  might  create  others  peculiar  to  itself. 

On  the  other  side  it  was  said  that  the  relation  of  King  Practical 
and  subjects  had  always  been  one  of  mutual  obligations,  £' 
that  Kings  had  before  now  been  deposed  for  misgovern- 
ment,  and  that  James  had  not  only  committed  divers  acts 
of  misgovernment   and   illegality,   but   had   deserted   his 
people  and  taken  refuge  with  a  foreign  power. 

Common    sense   triumphed    alike    over   sentiment    and  The 
technicality.     James  II  was  alleged  in  the  Declaration  of  ti^  &* 
Rights  to  have  '  abdicated ' :  it  was  left  open  to  the  one  Rights, 
side  or  the  other  to  interpret  this  as  a  voluntary  or  an 
involuntary  retirement  from  the  throne.     More  important 
were  the  next  words — '  the  throne  being  thereby  vacant  '- 
for  it  was  thus  declared  by  the  assembly  of  the  estates  of  the 
realm  that  the  throne,  unlike  a  piece  of  real  property,  might 
be  without  an  owner  ;  that  its  occupant  was  not  necessarily 
designated  by  the  rules  of  succession  to  an  estate  in  land ; 
that  the  King  might  die  in  the  sense  that  royalty  might 
for  the  moment  fall  into  abeyance ;    and  that  this  might 
happen  not  through  some  catastrophe,  which  extinguished 
the  royal  line  by  the  death  of  all  its  representatives,  but 
by  the  misconduct  of  a  King,  who,  having  occupied  the 
throne  with  an  unimpeachable  title,  had  been  adjudged  by 
his  people  to  be  unfit  to  reign. 

When  therefore  it  is  said,  as  it  often  is  said,  that  the  A  re- 
prerogative  of  the  Crown  was   very  greatly   affected   by 
what  happened  in  1688  and  1689,  we  do  well  to  bear  in  rules, 
mind  that  the  changes  which  then  took  place  were  either 
declarations  of  principle,  or  changes  of  practice,  and  that 
of  actual  legal  limitation  there  was  but  little.     Parliament 
had  settled  the  succession   to  the  Crown  before,  and   it 
settled  the  succession  again,  only  since  the  last  occasion 


232  THE   TITLE   TO   THE   CROWN  Chap.  IV 

of  a  Parliamentary  settlement  the  theory  of  divine  right 
had  arisen  in  support  of  the  hereditary  claim,  and  the 
conception  of  a  royal  prerogative  superior  to  all  the  rules 
of  law  had  survived  the  catastrophe  of  the  Rebellion. 

The  Settle-      To  this  the  action  of  the  convention  was  a  final  answer ; 

le&j1  °  *t was  an  assertion  that  the  nation  could  depose  a  King  for 
misgovernment,  could  give  the  Crown  to  another,  and 
could  determine  the  course  of  succession,  and  further,  that 

Feb.  1689.  the  Crown  could  be  given  upon  conditions.  The  Declara- 
tion of  Rights  declared  that  James  had  abdicated,  that  the 
throne  was  vacant.  As  James  did  not  admit  this,  he  must 
be  regarded  as  having  been  deposed.  The  Crown  was 
then  offered  to  William  and  Mary,  during  their  lives  and 
the  life  of  the  survivor,  providing  that  the  sole  and  full 
exercise  of  the  royal  power  should  be  only  in,  and  executed 
by,  the  said  Prince  of  Orange,  in  the  names  of  the  said 

Oct.  1689.  Prince  and  Princess,  during  their  joint  lives.  By  the  Bill 
of  Rights  the  limitations  after  the  death  of  the  survivor 
were  to  the  heirs  of  the  body  of  Mary,  failing  them  to  the 
heirs  of  the  body  of  Anne,  and  failing  them  to  the  heirs 
of  the  body  of  William. 

TheSettle-      Such  was  the  settlement  of  1689,  but  in  the  year  1700 

ment  of  a  further  limitation  of  the  Crown  had  become  necessary. 
For  Mary  had  died,  and  William  was  dying,  and  Anne 
had  survived  her  numerous  offspring,  and  had  reached 
a  childless  middle  age.  It  became  necessary  then  to  look 
for  a  Protestant,  of  kin  to  the  royal  line,  who  could  be 
brought  into  the  succession,  and  the  nearest  so  qualified 
was  Sophia,  widow  of  the  Elector  of  Hanover,  daughter  of 
Elizabeth,  Queen  of  Bohemia,  the  daughter  of  James  I. 
The  Crown,  then,  failing  heirs  of  Anne  and  William,  was 
settled  on  the  heirs  of  the  body  of  Sophia,  and  under  this 
Parliamentary  Settlement  the  Crown  is  now  held. 

Condi-  But  the  right   to  the  Crown  under  this  Settlement  is 

- subJect  to  conditions1,  for:- 

(i)  Every  person  who  is  or  shall  be  reconciled  to  the 
Church  of  Rome,  or  shall   hold  communion   with 

1  i  Will.  &  Mary,  st.  2,  c.  3 ;  12  &  13  Will.  Ill,  c.  2. 


§  1  HISTORY   OF   THE   TITLE  233 

the  Church   of  Rome,  or  shall  profess  the  Popish  Securities 
Religion,  or  shall  marry  a  Papist,  becomes  thereby  *sainst  a 

i    j    i     e  •  i     •  Roman 

excluded   from,  and    incapable    of,  inheriting    the  Catholic 
Crown,  the  government  of  the  realm,  Ireland,  and  kmg* 
the  dominions  of  the  Crown,  or  any  part  of  them : 
and    incapable    of   exercising     any    regal    power, 
authority,  or  jurisdiction  in  the  same:  the  people 
are  absolved  from  their  allegiance ,  and  the  Crown 
goes  to  the  next   in    succession   being  Protestant, 
as  if  the  person  who  incurred  the   disability   was 
dead. 

(2)  Every  King  or  Queen  succeeding  to  the  throne  by 
virtue  of  the  Act  of  Settlement  is  to  make  the  de- 
claration against  transubstantiation  l  at  the  first  day 
of  the  meeting  of  the  first  Parliament,  or  at  the 
Coronation. 

(3)  Every  King  or  Queen  shall  have  the  Coronation 
Oath  administered  at  his  or  her  Coronation,  accord- 
ing to  the  provisions  of  i  Will.  &  Mary,  c.  6. 

(4)  Every  person  who  shall  come  into  possession  of 
the  Crown  shall  join  in  communion  with  the  Church 
of  England. 

There  is  much  vagueness,  as  Macaulay  has  pointed  out 2, 
in  the  provisions  of  the  first  of  these  clauses.  The  Sove- 
reign is  subject  to  certain  tests ;  no  test  is  prescribed  by 
which  to  ascertain  the  religious  denomination  of  the  person 
whom  the  Sovereign  may  marry.  The  words  which  follow 
as  to  the  people  being  absolved  from  their  allegiance  have 
the  same  vague  character;  but  this  must  needs  be  in 
attempting  to  make  statutory  provision  for  a  revolution. 

The  Act  of  Union  with  Scotland  in  1707  provided  that  The  Union 
the  succession  to  the  Crown  of  Great  Britain  should  be  ^^l  & 
the  same  as  the  succession  provided   for   the   Crown   of 
England  by  the  Act  of  Settlement,  and  a  similar  provision 
was  inserted  in  the  Act  of  Union  with  Ireland  in  1800. 

The  title  to  the  Crown  of  the  United  Kingdom  of  Great  with 
Britain  and  Ireland  is  vested  by  statute  in  the  heirs  of  the  Ireland- 

1  This  is  provided  in  35  Car.  II,  c.  a.  -  Macaulay,  Hist.  c.  15. 


234  THE   TITLE   TO   THE   CROWN  Chap.  IV 

body  of  Princess  Sophia,  who  is  the  stock  of  descent,  whose 
lineal  heir  must  be  sought  on  each  occasion  of  the  demise 
of  the  Crown. 

§  2.    Modern  Forms. 

The  The  forms  which  took  place  on  the  accession  and  corona- 

ofTiuf01     ^on  °^  t'he  King  are  worth  noticing,  as  illustrating  some 
King.         statements  which  have  gone  before. 

Queen  Victoria  died  at  Osborne,  on  the  22nd  January, 
1901,  in  the  late  afternoon,  and  on  the  following  day  the 
Lords  of  the  Privy  Council,  of  whom  more  than  100  were 
present,  the  Lord  Mayor l,  Aldermen,  and  other  officials  of 
the  City  of  London,  and  other  noblemen  and  gentlemen 
assembled  at  St.  James'  Palace  to  approve  a  form  of  Pro- 
clamation, which  proclaimed  King  Edward  VII. 
The  Proclamation  was  in  the  following  form  : — 

The  Pro-         <  Whereas  it  has  pleased  Almighty  God  to  call  to  his  mercy 
clamation.  *    .  °  . 

our  late  {sovereign  Lady  Queen  Victoria  of  blessed  and  glorious 

memory,  by  whose  decease  the  Imperial  Crown  of  the  United 
Kingdom  of  Great  Britain  and  Ireland  is  solely  and  rightfully 
come  to  the  High  and  Mighty  Prince  Albert  Edward.  We, 
therefore,  the  Lords  Spiritual  and  Temporal  of  this  realm, 
being  here  assisted  with  these  of  his  late  Majesty's  Privy 
Council,  with  numbers  of  others  principal  gentlemen  of 
quality,  with  the  Lord  Mayor,  Aldermen,  and  Citizens  of 
London,  do  now  hereby  with  one  voice  and  consent  of  tongue 
and  heart  publish  and  proclaim  that  the  High  and  Mighty 
Prince  Albert  Edward  is  now  by  the  death  of  our  late  Sovereign 
of  happy  memory  become  our  only  lawful  and  rightful  Liege 
Lord  Edward  the  Seventh,  by  the  Grace  of  God  King  of  the 
United  Kingdom  of  Great  Britain  and  Ireland,  Defender  of 

1  The  Lord  Mayor  of  London  is  summoned  to  the  meeting  at  which 
a  new  Sovereign  is  proclaimed,  but  retires  immediately  after.  He  has  no 
rights  as  a  Privy  Councillor  (Qreville  Memoirs,  iv.  79-82).  But  Greville 
does  not  seem  to  have  taken  note  of  the  differences  in  character,  as 
apparent  from  the  Proclamation,  between  the  meeting  at  which  Queen 
Victoria  was  proclaimed  and  the  meeting  of  the  Privy  Council  held 
immediately  after.  The  London  Gazette  for  June  29,  1837,  gives  the 
names  of  those  present.  The  same  difference  is  apparent  at  the  Pro- 
clamation and  subsequent  assemblage  of  the  Privy  Council  on  the  ayd  of 
January,  1901. 


§  2  MODERN   FORMS  235 

the  Faith,  Emperor  of  India.  To  whom,  we  do  acknowledge 
all  faith  and  constant  obedience  with  all  hearty  and  humble 
affection ;  beseeching  God,  by  whom  Kings  and  Queens  do 
reign,  to  bless  the  Royal  Edward  the  Seventh  with  long  and 
happy  years  to  reign  over  us.' 

It  should  be  noticed  that  the  King  was  proclaimed,  not 
by  the  Privy  Council,  but  by  the  Lords  Spiritual  and  Tem- 
poral, and  others.  This  body  is  something  more  than  the 
Privy  Council.  It  represents  a  more  ancient  assemblage, 
the  Witan  or  Commune  Concilium  meeting  to  choose  and 
proclaim  the  new  King. 

The  King  then  entered  the  Council  Chamber  and   ad-  Fultil- 
dressed    the   Council ;    and   took  and  subscribed  the  oath  statutory 
for  the  security  of  the  Church  of  Scotland,  as  required  by  require- 
the  Act  of  Union.     The  late  Queen's  Privy  Council  were 
then  sworn,  and  the  King  issued  a  proclamation  continuing 
in  their  offices  during  pleasure  all  who,  on  the  death  of 
Queen  Victoria,  were  'duly  and  lawfully  possessed  of  or 
fully  invested  in  any  office,  place,  or  employment,  civil  or 
military,'  within  the  dominions  of  the  Crown1.     On  the 
1 4th  February  the  King   made    the   declaration    against 
transubstantiation  in  the  presence  of  both  Houses '-',  as  re- 
quired by  the  Bill  of  Rights  and  Act  of  Settlement. 

The  coronation  of  the  King  did  not  take  place  until  the  The  Coro- 
9th  of  August,  1902.     The  ceremonial  is  full  of  historical  natlou- 
interest.      It    falls    into    three    stages.      The    first    is   an 
important  and   necessary  preliminary,  and  comprises  the 
Recognition   or   formal   acceptance   of   the   new  King  by 
the  people,   and    the    Oath    which   embodies    the   King's 
undertaking  of  the  duties  of  royalty3. 

Next  follows  the  series  of  ceremonies  which  invoke 
divine  sanction  upon  the  people's  choice  and  confers  upon 
royalty  its  sacred  character,  the  anointing,  the  investiture, 
and  the  actual  crowning.  The  third  stage  is  the  natural 
sequel  to  these.  The  King  duly  chosen,  anointed,  and 

1  Times  Newspaper,  25  January,  1901,  p.  ir. 

"  Hansard,  Fourth  Series,  vol.  Ixxxix,  p.  27. 

3  The  form  and  order  of  the  Coronation  Service  is  set  out  in  Sir  R. 
Phillimore's  Ecclesiastical  Law,  ed.  a,  p.  813,  but  the  service  was  in  some 
respects  altered  and  curtailed  at  the  coronation  of  King  Edward  VII. 


236  THE   TITLE   TO   THE   CROWN  Chap.  IV 

crowned  is  placed  upon  his  throne  and  receives  the  homage 
of  the  lords  spiritual  and  temporal.1 

First  then  comes  the  Recognition.  The  Archbishop,  accom- 
panied by  the  Lord  Chancellor  and  the  great  hereditary 
officers  of  State,  addresses  the  assemblage  in  these  words  :— 
TheRecog-  'Sirs,  I  here  present  unto  you  King  Edward,  the  undoubted 
King  of  this  realm  :  Wherefore  all  you  who  are  come  this  day 
to  do  your  Homage,  are  you  willing  to  do  the  same  ? 

The  people  'signify  their  willingness  and  joy  by  loud 
and  repeated  acclamations,  all  with  one  voice  crying  out, 
"God  save  King  Edward."2' 

Until  the  coronation  of  Edward  VII  the  King  had  been 
presented  by  the  Archbishop  turning  to  all  four  points  of 
the  compass.  On  the  9th  of  August,  1902,  the  King  was 
only  presented  once. 

The  Oath.       After  some  further  ceremonials  comes   the   Coronation 
Oath,  administered  by  the  Archbishop  :— 

'  Will  you  solemnly  promise  and  swear  to  govern  the  people 
of  this  United  Kingdom  of  Great  Britain  and  Ireland,  and  the 
Dominions  thereto  belonging,  according  to  the  Statutes  in 
Parliament  agreed  on,  and  the  respective  laws  and  customs  of 
the  same  ? 

'  I  solemnly  promise  so  to  do. 

'  Will  you  to  your  power  cause  Law  and  Justice,  in  mercy, 
to  be  executed  in  all  your  judgments  ? 

'  I  will. 

'Will  you,  to  the  utmost  of  your  power,  maintain  the  Laws 
of  God,  the  true  profession  of  the  Gospel,  and  the  Protestant 
reformed  religion  established  by  law  ?  And  will  you  maintain 
and  preserve  inviolably  the  Settlement  of  the  Church  of  Eng- 
land, and  the  doctrine,  worship,  discipline  and  government 
thereof,  as  by  Law  established  in  England  ?  And  will  you  pre- 
serve unto  the  Bishops  and  Clergy  of  England,  and  to  the  Church 
there  committed  to  their  charge,  all  such  rights  and  privileges, 
as  by  law  do,  or  shall  appertain  to  them,  or  any  of  them  ? 

'All  this  I  promise  to  do.' 

1  Wickham  Legg,  English  Coronation  Records,  Introduction  xix. 

3  The  people  are  for  this  purpose  more  especially  represented  by  the 
boys  of  Westminster  School,  who  rehearse  beforehand  the  part  played  by 
the  crowd  at  a  medieval  coronation. 


§  2  MODERN   FORMS  237 

The  Anointing  follows  on  the  head,  the  breast,  and  the  The 
palms  of  both  hands.     Then  comes  the  Investiture  of  the 
King  with  the  regal  vestments  with  the  spurs,  sword,  orb  vestiture. 
and  sceptre,  then  the  putting  on  of  the  Crown,  the  gift  to 
the  King  of  a  copy  of  the  Bible,  and   the  benediction. 
Then  comes  the  final  stage  of  the  proceedings.    The  King 
lias  been  accepted  by  his  people  and  has  given  the  assur- 
ances of  the  Coronation  Oath:   he  has  been,  as  it  were, 
consecrated  to  the  service  of  the  State  before  the  Crown  is 
placed   on   his   head.     Now   he   ascends   his   throne   and  The  En- 
receives  the  homage  of  the  Peers.     At  the  Coronation  of  ^ent  and 
King  Edward  this  was  not  done  by  every  Peer,  but  first  Homage, 
the  Archbishop  of  Canterbury  (the  Bishops  kneeling),  then 
the  Prince  of  Wales  for  himself  and  the  Princes  of  the 
Blood  Royal,  and  then  the  premier  nobles  in  each  of  the 
five  ranks  of  the  peerage,  the  Duke  of  Norfolk,  the  Marquis 
of  Winchester,  the  Earl  of  Shrewsbury,  Viscount  Falkland, 
and  Lord  de  Ros,  uttered  the  words  of  Homage,  touched  the 
King's  Crown  and  kissed  him  on  the  left  cheek. 

The  spiritual  peer  uses  the  following  words : — 

'  I will  be  faithful  and  true,  and  Faith  and  Truth  will 

bear,  unto  our  Sovereign  Lord,  and  your  Heirs,  Kings  or 
Queens  of  the  United  Kingdom  of  Great  Britain  and  Ireland. 
And  I  will  do,  and  truly  acknowledge,  the  Service  of  the  Lands 
which  I  claim  to  hold  of  you,  as  in  right  of  the  Church.  So 
help  me  God.' 

The  Homage  of  the  temporal  peer  is  thus  expressed : — 

'  I do  become  your  Liegeman  of  Life  and  Limb,  and 

of  earthly  worship,  and  Faith  and  Truth  I  will  bear  unto  you 
to  live  and  die  against  all  manner  of  Folks.  So  help  me  God.' 

The  portions  of  the  ceremonial  to  which  I  have  called 
special  attention  take  us  far  back  into  the  past. 

The  Recognition  represents  the  great  officers  of  the 
Witan  or  Council  presenting  the  Sovereign  of  their  choice 
to  the  assembled  people,  who  are  asked  to  record  the 
national  approval  of  the  chosen  King. 

The  Coronation  Oath  indicates  the  contractual  character 
of  English  Sovereignty,  a  character  which  was  common  as 


238  THE   TITLE    TO   THE   CROWN  Chap.  IV 

well  to  the  official  chief  of  Saxon  times  as  to  the  territorial 

Survival     lord  of  feudalism.    The  form  survived  the  high  prerogative 

require-     days  °^  ^he  Tudors  and  Stuarts  and  the  theory  of  Divine 

ments.       Right.     The  wording  of  the  oath  was  settled  immediately 

after  the  Revolution  l.     Its  substance — to  keep  the  Church 

and  all  Christian  people  in  peace — to  restrain  rapine  and 

wrong — to  temper  justice  with  mercy — is  as  old  as  the 

eighth  century  2. 

The  Anointing  is  that  which  would  seem  to  confer  upon 
royalty  its  sacred  character,  and  to  give  the  sanction  of 
the  Church  to  the  choice  of  the  people,  while  the  investi- 
ture blends  the  knightly  and  religious  elements  in  the 
symbolic  vestments  and  insignia  of  sovereignty. 

The  Homage  of  the  Peers  represents  the  taking  of  the 
oath  of  fidelity  by  the  Ministri  of  Saxon  times,  and  later 
by  the  great  vassals  of  the  Crown,  which  gave  practical 
security  to  the  new  reign. 

§  3.     Allegiance. 

The  The  counterpart  to  the  Coronation  Oath  is  the  Oath  of 

Aiiegi-      Allegiance,  which  represents  the  undertaking  of  the  subject 

ance.         to  be  loyal  in  return  for  the  promise  of  the  Sovereign  to 

govern  well ;  and  we  may  now   pass  to  the  relation  of 

Sovereign  and  subject.     The  subject  owes  allegiance  to  the 

Sovereign,  as  the  Sovereign  owes  good  government  to  the 

subject.     The  Sovereign  is  required  to  promise  this  in  the 

Coronation  Oath,  but  the  subject  is  not,  except  for  certain 

purposes,  required  to  take  the  Oath  of  Allegiance. 

The  form  of  this  is  now  settled  by  31  &  32  Viet.  c.  72  : 
an  affirmation  to  the  same  effect  may  be  made  under  the 
Oaths  Act,  i8883.  But  allegiance  is  due  whether  oath  or 
declaration  of  allegiance  has  or  has  not  been  taken  or 
made  :  and  it  is  due  from  resident  aliens,  as  well  as  from 
citizens ;  in  the  first  it  is  local,  in  the  second  it  is  natural 
allegiance.  It  was  once,  no  doubt,  a  personal  tie,  binding 

1  i  Will.  &  Mary,  st  r,  c.  6. 

*  Stubbs'  Select  Charters,  p.  62,  excerpt  from   pontifical   of  Egbert, 
Archbishop  of  York,  dr.  760. 
8  51  &  53  Viet.  c.  46. 


§  3  ALLEGIANCE  239 

two  individuals  by  mutual  assurances  of  fidelity  and  pro- 
tection ;  it  is  now  a  test  of  citizenship,  a  mode  of  ascertain- 
ing to  what  country  a  man  belongs. 

Allegiance  differs  from  homage  and  from  fealty.     Fealty  Nature  of 
is  the  simple  undertaking  to  be  faithful,  an  undertaking  Alles1' 
fortified  by  an  oath.     Homage  is  the  undertaking  to  be 
faithful  in  respect  of  land,  binding  the  vassal  to  the  lord 
of  whom  he  holds  lands.     Allegiance  is  the  duty,  which 
every  man  owed,  to  be  faithful  to  the  head  of  the  nation, 
land  or  no  land '.     And  as  the  King  was  supreme  land- 
owner and  judge,  the  ideas  of  homage  and  fealty,  in  the 
case  of  the  holder  of  lands,  were  merged  in  allegiance. 

The  territorial  character  of  feudal  sovereignty  made 
a  man's  allegiance  depend,  not  on  his  parentage,  but 
on  the  place  of  his  birth.  A  Frenchman,  born  in  the  Test  of 
dominions  of  the  Crown,  could  not  escape  the  liabilities, 
nor  could  a  man  born  of  English  parents  abroad  acquire 
the  rights,  of  an  English  citizen.  Nemo  potest  exuere 
patriam. 

But  a  man  might  be  a  citizen  of  this  country,  though  by 
birth  and  parentage  he  belonged  to  another,  if  both  were 
in  allegiance  to  the  same  King.  Calvin's2  case  decided 
that  persons  born  in  Scotland  after  James  I  succeeded  to 
the  English  Crown  were  born  in  the  allegiance  of  the  King 
of  England,  and  were  citizens  of  both  countries  ;  and  in  like 
manner  the  English  post  nati  were  citizens  both  of  Scotland 
and  England.  But  if  the  Crowns  are  severed  the  citizen- 
ship thus  acquired  may  be  lost.  Hanoverians  born  in 
Hanover  while  William  IV  was  king  of  Hanover  were 
citizens  of  the  United  Kingdom,  but  they  became  aliens 
upon  the  accession  of  Queen  Victoria  3. 

1  The  limitation  of  liege  homage — free  or  undisputed  homage— to  the 
homage  done  to  the  King  was  of  gradual  growth.  '  Liege '  moans  '  free,' 
'undisputed,'  'unconditional,'  and  has  no  connexion  with  '  ligare.' 
Skeat,  Diot.,  s.v.  Liege.  Pollock  and  Maitland,  Hist,  of  English  Law,  i. 
279,  280.  The  oath  of  fealty  required  by  the  Norman  Kings  of  their 
subjects  was  independent  of  all  conditions  of  tenure,  or  of  fealty  due  to 
another,  and  thus  lligeaunce'  or  'allegiance'  came  to  mean  the  fealty  due 
to  the  King. 

•  St.  Tr.  559  (e). 

3  Isaacson  t.  Durant  In  re  Stepney  Election  Petition,  17  Q.  B.  D.  54. 


240  THE   TITLE   TO   THE   CROWN  Chap.  IV 

Change  of  The  Common  Law  rule  on  the  subject  is  clear.  A  person 
aUty°n  born  in  the  dominions  of  the  King  is  a  natural  born 
British  subject ;  a  person  born  beyond  the  limits  of  the 
King's  dominions  is  an  alien.  A  man  might  be  made 
a  citizen  by  statute,  or  a  denizen  by  prerogative,  but  the 
Act  of  Settlement  forbad  such  a  person  from  holding  office 
or  a  place  in  the  Privy  Council  or  either  House  of  Parlia- 
ment, or  receiving  lands  from  the  Crown. 

Statute    has   engrafted    on   these    rules    the   following 
exceptions. 

1.  A  person  born  abroad  whose   father  was  a  natural 
born  British  subject1,  and  the  son  of  a  person  so  born 
abroad 2,  are  to  all  intents  and  for  all  purposes  natural  born 
British  subjects,  always  assuming  that  the  father  up  to  the 
date  of  the  birth  has  done  nothing  to  divest  himself  of  his 
British  nationality. 

Natural-  But  this  statutory  exemption  is  construed  strictly.  If 
a  natural  born  British  subject  settles  in  France,  his  son 
and  his  grandson  (assuming  the  family  to  continue  to  reside 
in  France)  are  natural  born  British  subjects.  But  his 
great-grandson  is  an  alien3. 

2.  An  alien  may  obtain  a  certificate  of  naturalization 
under  the  Naturalization  Act,  1870  (33  &  34  Viet.  c.  14), 
after  five  years'  residence  in  England,  and  may  then  acquire 
all  the  political  and  other  rights  and  obligations  of  a  natural 
born  British  subject 4.     He  need  not  lose  his  earlier  nation- 
ality, but  then  he  will  not  be  deemed  to  be  a  British  subject 
when  he  is  within  the  limits  of  the  state  whose  citizenship 
he  retains. 

3.  If  the  person  who  has  obtained  such  a  certificate  of 
naturalization  be  the  father  or  widowed  mother  of  a  child, 
who  at  the  date  of  the  certificate  is  an  infant,  and  who 
becomes  resident  with  the  father  or  mother  in  the  United 
Kingdom,   such   a   child   becomes    a    naturalized    British 
subject 5. 


1  4  Geo.  II,  c.  21,  s.  i.  *  13  Qeo.  Ill,  c.  21. 

3  De  Geer  v.  Stone,  22  Ch.  Div.  243. 

4  33  &  34  v'ct-  c-  r4»  s-  7-  5  Ibid.  ss.  4,  10. 


§3  ALLEGIANCE  241 

But  here  again  the  statutory  exemption  must  be  con-  Naturali- 
strued  strictly.  The  child  of  a  naturalized  alien,  if  of  full  zation> 
age  at  the  date  of  the  naturalization,  is  unaffected  by  it. 
If  born  abroad  after  the  naturalization  he  would  seem  not 
to  come  under  the  provisions  of  13  Geo.  Ill,  c.  31  l.  In 
fact  the  child  of  a  naturalized  British  subject  is  only 
a  British  subject  if  (i)  he  is  born  in  the  King's  dominions, 
or  (2)  he  be  an  infant  at  the  date  of  his  parents'  natural- 
ization and  become  a  resident  in  the  United  Kingdom  after 
it,  or  (3)  he  reside  with  his  father,  while  the  father  is  in 
the  service  of  the  Crown,  out  of  the  United  Kingdom 2. 

4.  The  marriage  of  an  alien  woman  with  a  British  subject  Marriage, 
makes  her  a  British  subject;  conversely,  the  marriage  of 

a  female  British  subject  with  an  alien  makes  her  an  alien. 

5.  A  foreigner  born  in  the  United  Kingdom  may  under  Alienage, 
the  Naturalization  Act  make  a  declaration  of  alienage  and 

so  divest  himself  of  the  allegiance  which  the  locality  of  his 
birth  imposed  upon  him.  And  a  British  subject  of  the 
King  may  do  what  is  equivalent  to  a  declaration  of 
alienage,  and  divest  himself  of  his  British  nationality  by 
becoming  a  naturalized  citizen  of  a  foreign  state 3.  (§  6  of 
the  Act  of  1870.) 

6.  An  Act  of  Parliament  can  do  anything,  and  a  foreigner 
may  be  naturalized  by  statute,  so  as  to  make  his  children 
under  all  circumstances  citizens  of  this  country  4. 

The  disabilities  of  aliens  have  been  greatly  diminished  by  Disabili- 
the  Naturalization  Act,  1870.  Formerly  they  could  not 
acquire  lands;  now  an  alien  is  under  no  disabilities,  pro- 
prietary or  contractual,  save  that  he  cannot  own  the  whole 
or  any  part  of  a  British  ship.  But  he  enjoys  no  political 
privileges.  He  cannot  vote  at  any  parliamentary  or  muni- 
cipal election,  nor  is  he  qualified  to  hold  any  office 5. 

Allegiance  may  be  natural  or  local.   One  who  is  a  natural 

1  In  re  Bourgeoise,  41  Ch.  Div.  310.  a  58  &  59  Viet.  c.  43. 

3  But  a  British  subject  cannot  divest  himself  of  his  nationality  by 
becoming  naturalized  in  an  enemy's  state  in  time  of  war.     Not  only 
would  he  have  no  defence  on  this  ground  for  treasonable  acts,  but  such 
naturalization  is  itself  an  act  of  treason.     R.  v.  Lynch,  [1903]  i  K.  B.  444. 

4  Co.  Litt.  129  a. 

5  The  Crown  can  confer  a  gwosi-uaturalization  by  letters  patent.    The 

ANSOX.      CROWS  & 


242  THE  TITLE  TO  THE  CttOWN  Chap.  IV 

born  subject  of  the  Crown,  whether  at  Common  Law  or  by 
statute,  owes  allegiance  to  the  Crown  wheresoever  he  may 
be.  Local  allegiance  is  due  from  an  alien  resident  in  the 
King's  dominions,  during  the  period  of  his  residence. 
During  such  period  he  is  bound  to  observe  those  rules  of 
conduct  which  the  State  enjoins  for  the  maintenance  of 
order,  and  to  respect  the  institutions  under  which  he  is 
living  for  the  time  by  refraining  from  any  such  attempt  to 
change  them  by  violence  as  the  law  considers  to  be  treason. 
Nor  is  he  absolved  from  this  liability  by  a  foreign  occupa- 
tion which  leads  to  a  temporary  withdrawal  of  the  State 
forces,  and  their  protection.  '  It  is  the  duty  of  a  resident 
alien  so  to  act  that  the  Crown  shall  not  be  harmed  by 
reason  of  its  having  admitted  him  as  a  resident  V 

§  4.     Treason. 

The  law  relating  to  treason  is  connected  with  the  law 
relating  to  allegiance  in  two  ways. 
Treason         Treason  committed  by  a  person  in  allegiance,  wheresoever 

and  aile-    ^e  may  be,  has  long  been  treated  as  triable  in  the  English 
giance. 

Courts,  if  at  any  time  the  offender  can  be  brought  within 

their  jurisdiction2.  The  liability  to  be  dealt  with  for 
treasonable  practices  by  the  Courts  of  this  country  adheres 
to  the  British  subject,  and  is  personal,  not  local.  This  is 
an  exception  to  the  rule  of  law  which  is  expressed  in  the 
words  '  all  crime  is  local 3.'  Murder  and  manslaughter,  if 
committed  on  land,  are  triable  in  England  or  Ireland 
though  the  offence  be  committed  without  the  King's 
dominions 4 ;  and  the  same  rule  applies  to  bigamy,  though 
the  second  marriage  has  taken  place  '  in  England,  Ireland, 
or  elsewhere5.'  Only  in  these  cases  can  the  Englishman 

person  so  privileged  is  called  a  denizen,  Blackstone,  Comm.  i.  374.  He 
is,  since  1870,  in  no  better  position  practically  than  an  alien. 

1  De  Jager  v.  Attorney-General  of  Natal,  [1907]  A.  C.  329. 

2  By  35  Henry  VIII,  c.  a,  s.  a,  this  rule  is  laid  down  in  all  cases  of 
treason,  misprision  or  concealment  of  treason.    The  Act  purports  to  be 
declaratory,  and  passed  to  allay  doubts.     '  Misprision '  means  failure  to 
give  information  within  a  reasonable  time. 

3  Macleod  c.  Attorney-Gen,  for  New  South  Wales,  [1891]  App.  Ca.  455. 

4  24  &  25  Viet.  c.  100,  s.  9. 

•  84  &  25  Viet.  c.  100,  s.  57.     Trial  of  Earl  Russell,  [1901]  App.  Ca.  446. 


§  4  TREASON  243 

who  commits  a  crime  abroad  be  tried  for  it  in  England  or 
Ireland. 

Again,  treason,  when  we  first  get  an  approximate  defini-  The 
tion  of  the  offence,  depended,  like  allegiance,  on  the  personal 
character  of  the  feudal  relation.  Treason  was  an  offence 
against  the  person,  the  representatives,  or  the  personal 
rights  of  the  King:  it  was  a  breach  of  the  feudal  bond, 
a  betrayal  in  one  form  or  other  of  a  lord.  The  vagueness 
of  the  early  law  on  this  subject  led  to  a  request  by  the 
Commons  in  1352  that  the  King  would  legislate  on  the 
subject  of  treason,  and  the  answer  to  their  request  was 
the  statute  on  which  the  law  of  treason  is  still  founded  *. 
25  Edward  III,  stat.  5,  c.  2  names  seven  distinct  offences  :— 

(i)  To  compass  or  imagine  the  King's  death,  the  Queen's, 
or  that  of  the  heir  of  the  throne :  (2)  to  levy  war  against 
the  King  in  his  realm :  (3)  to  adhere  to  the  King's  enemies : 
(4)  to  violate  the  King's  wife,  the  wife  of  his  eldest  son,  or 
his  eldest  daughter,  being  unmarried :  (5)  to  counterfeit  the 
Great  Seal,  the  Privy  Seal,  or  coin :  (6)  to  issue  false  money : 
(7)  to  kill  the  Chancellor,  Treasurer,  King's  Justices  of  either 
bench,  or  of  assize,  in  the  discharge  of  his  office. 

One  cannot  fail  to  notice  the  personal  character  of  all  Its  detiui- 
these  offences.  The  King — not  the  Crown  in  Parliament, 
or  the  State  as  embodied  in  the  existing  constitution — is 
the  object  which  the  statute  designs  to  protect.  The  King's 
person ;  the  King's  sovereignty ;  the  King's  family  rela- 
tions ;  the  indicia  of  the  royal  will  in  administration,  the 
seals;  the  representatives  of  the  royal  will  in  judicature, 
the  Chancellor  and  judges ;  the  privileges  of  royalty,  the 
coinage :  these  are  what  a  feudal  society  thought  it  treason 
to  infringe. 

The  last  four  offences  need  no  special  notice ;  they  remain 
as  treasons  on  the  Statute  book,  though  they  may  be  dealt 
with  as  felony2.  The  first  three  have  been  extended  by 

1  Mr.  Maitland  has  pointed  out  that  the  object  of  the  promoters  of  this 
Statute  was  not  so  much  to  define  the  limits  of  political  obligation  as  to 
mark  the  distinction  between  treason  and  felony ;  the  former  resulted 
in  a  forfeiture  to  the  king,  the  latter  in  an  escheat  to  the  lord.  Pollock 
and  Maitland,  Hist,  of  English  Law,  ii.  506. 

*  24  &  25  Viet.  cc.  98,  99,  100. 

11  2 


244  THE   TITLE   TO   THE   CROWN  Chap.  IV 

construction,  and   have  been   the  subject  of  much   legal 
comment. 

The  additional  treasons  chiefly  created  in  the  reign  of 
Henry  VIII,  of  Elizabeth  and  Anne,  none  of  long  duration, 
and  all  now  repealed,  will  be  found  to  fall  into  two  classes. 
They  were  the  product  of  statutes  which  aimed  at  securing 
the  kingdom  against  the  aggression  or  influence  of  the  Pope, 
or  else  at  securing  the  succession  to  the  throne  as  at  the 
time  settled. 

Extension      But   the   extensions  by  construction  of  the  statute  of 

tfon6fini     Edward  III  are  important  in  legal  history.     Compassing 

or  imagining  the  King's  death  was  construed  to  mean  any 

act  directed  to  the  deposition  or  imprisonment  of  the  King, 

or  to  acquiring  the  control  of  his  person,  or  any  measure 

concerted  with  foreigners  for  an  invasion  of  the  kingdom,  or 

going  or  intending  to  go  abroad  for  such  purpose  l.   Cases  of 

mere  riot  were  treated  as  '  levying  war  against  the  King  V 

The  Riot        The  Riot  Act,  i  Geo.  I,  st.  2,  c.  5,  made  it  unnecessary  to 

strain  the  definition  of  treason  in  order  to  punish  disorder 

which  had  no  political  end  in  view.    But  the  law  of  treason 

took   no  cognizance  of   offences  against  the  State  which 

could  not  be  construed  to  be  also  offences  against  the  person 

or  personal  authority  of  the  King.     It  was  not  until  1795 

that  statutory  force  was  given  to  the  extended  interpreta- 

Modern      tions  of  the  Act  of  Edward  III,  and  an  actual  or  contem- 

of  treason.  P^ed    forcible   attempt   to   make   the   King    change    his 


counsels,  or  to  intimidate  both  Houses  or  either  House 
of  Parliament  was  made  treason.  This  Act  was  made 
perpetual  in  1817.  In  1848  all  the  acts,  or  compassings 
mentioned  therein,  which  did  not  tend  to  the  death,  personal 
injury,  or  personal  restraint  of  the  Sovereign,  were  made 
treason-felony,  and  so  not  necessarily  punishable  with 
death  3.  The  treasons  of  25  Ed.  Ill  still  remain  treasons  on 
the  Statute  book. 

Treason,  therefore,  as  distinct  from  treason-felony,  is  the 
doing  or  designing  anything  which  would  lead  to  the  death, 

1  Stephen,  History  of  the  Criminal  Law,  266. 

*  Dammaree's  Case,  State  Trials,  vol.  xv.  p.  521. 

*  ii  &  ia  Viet.  c.  la. 


$  5  INCAPACITY   OF   THE   KING  245 

bodily  harm,  or  restraint  of  the  King,  levying  war  against 
him,  adhering  to  his  enemies,  or  otherwise  doing  acts  which 
fall  under  the  Statute  of  Edward  III. 

Conspiracies  to  levy  war,  to  deprive  the  King  of  the  Treason- 
crown,  or   of    any   part  of  his    dominions,  or   to   incite  felony- 
foreigners  to   invade   the  realm,  are   treason-felony,  and 
may    perhaps    be    dealt    with   as    constructive    treason1. 
And   force   contemplated,  or  applied,  to  make    the  King 
change  his  counsels,  or  to  intimidate  either  House  or  both 
Houses  of  Parliament  is  treason-felony.2 

I  have  thought  proper  to  treat  to  this  extent  of  the  law 
of  treason,  because  it  is  a  consequence  of  the  relation  of 
Sovereign  and  subject,  or,  as  it  might  be  expressed,  of  State 
and  citizen.  It  is  necessary  for  the  purpose  of  this  chapter 
to  explain  what  are  the  special  liabilities  of  citizenship 
attaching  to  the  subjects  of  the  King,  wheresoever  they  may 
be,  as  distinct  from  the  general  liability  to  obey  the  rules 
of  public  order,  within  the  jurisdiction  of  the  King's 
Courts.  Beyond  this  it  would  be  out  of  place  here  to  deal 
with  the  legal  definition  of  treason,  or  with  the  history  of 
procedure  in  trials  for  treason. 

§  5.     Incapacity  of  the  King. 

We  have  now  to  consider  how  the  rights  and  duties  of  Causes  of 
royalty  are  affected,  when   the  King,  from  one  cause  or  pacity. 
another,  is  incapable  of  discharging  the  duties  of  his  office. 
This  may  arise  in  any  one  of  four  ways.    The  King  may  be 
absent  from  the  kingdom.     The  King  may  be  of  imperfect 
capacity  for  his  office  by  reason  of  his  youth.     The  King 
may  have  lost  the  capacity  for  his  office  by  reason  of  his 
insanity.     The  King  may  prove  that  he  does  not  possess 
the  capacity  for  his  office  from  neglect  of  or  contempt  for 
the  conditions  under  which  it  must  be  held. 

In  the  first  three  cases  the  question  arises  of  the  con- 
stitution in  one  form  or  another  of  a  Regency ;  in  all 
four,  difficulties  may  arise  which  are  essentially  similar  in 
character. 

1  Stephen,  History  of  the  Criminal  Law,  vol.  ii.  p.  286. 
3  ii  &  12  Viet.  c.  12,  s.  3. 


246  THE   TITLE   TO   THE  CROWN  Chap.  IV 

(a)  Ab-  The  Absence  of  the  King,  until  recent  times,  was  met  by 
the  appointment  of  one  or  more  persons  to  transact  the 
formal  business  of  government  in  his  absence.  Until  the 
office  of  Justiciar  fell  into  disuse  in  the  reign  of  Henry  III 
it  had  been  customary  that  the  Justiciar  should  discharge 
the  duties  of  royalty  during  the  absence  of  the  King. 
Repre-  From  this  time  it  seems  to  have  been  most  usual  to 

onthvHn  aPP°int  custodes  regni,  or  locum  tenentes,  the  first  instance 
absence,  of  such  appointment  being  in  the  thirty-seventh  year  of 
Henry  III,  when  the  Queen  and  the  Earl  of  Cornwall  were 
made  guardians  of  the  realm  during  the  King's  absence  in 
Gascony l.  For  the  absence  of  Edward  I  at  the  time  of 
his  father's  death  special  arrangements  appear  to  have 
been  made,  and  a  small  Council  of  Regency  settled  upon 
a  year  beforehand,  but  the  arrangements  were  confirmed 
by  a  council  of  the  magnates  held  shortly  after  the  com- 
mencement of  the  reign2. 

The  appointment  of  Lords  Justices  under  the  Great  Seal 
began  with  the  absence  of  William  III  after  the  death  of 
Mary,  who,  during  her  short  reign,  had  been  given  power 
by  statute  to  exercise  the  royal  prerogative  whenever 
William  was  out  of  England  3.  The  last  instances  of  the 
appointment  of  a  Regent,  for  this  purpose,  were  in  1716, 
when  the  Prince  of  Wales  was  made  Guardian  and  Lieu- 
tenant of  the  Kingdom,  and  in  1732,  when  Queen  Caroline 
occupied  the  same  position.  On  other  occasions  since  1695 
Lords  Justices  have  been  appointed  under  the  Great  Seal 
with  powers  specified  in  the  Letters  Patent,  which  gave 
them  their  commission.  This  has  not  been  done  since 
1821.  The  fact  that  the  Sovereign  is  absent  from  the 
realm  does  not  impair  the  validity  of  any  executive  act 
done  during  such  absence;  and  modern  facilities  of  com- 


1  Stubbs,  Const.  Hist.  ii.  67.  For  a  list  of  such  appointments  see 
Report  of  Committee  appointed  in  1788  to  inquire  into  precedents  in 
cases  of  the  royal  authority  being  interrupted  by  sickness,  &c.  Parl. 
Paper,  1781-1791  (Reports  of  Committees),  iii.  p.  80.  Comm.  Journ.  44, 
pp.  11-42.  s  Stubbs,  Const.  Hist.  ii.  104. 

*  This  did  not  disentitle  William  from  exercising  royal  powers  when 
abroad,  a  Will.  &  Mary,  st.  i,  c.  6. 


§5  INCAPACITY   OF   THE   KING  247 

munication  have  enabled  the  King  to  give  the  royal  assent 
to  bills  by  commission,  and  to  transact  other  business 
without  inconvenience  to  the  conduct  of  government 
during  his  visits  to  the  continent1. 

The  Infancy  of   the  Sovereign   raises   other  questions,  (b)  In- 
The  fiction  of  law  is  that  the  King  must  always  be  in  fancy> 
the  full  maturity  of  intellectual  power,  and  so  would  be 
exempt  from  the  ordinary  disabilities  and  immunities  of 
infancy.     Testamentary   guardianship   is   the  creation   of 
statute,  nor   has   it   ever  been    suggested   that  the  pre- 
rogative enables  a  King  to  appoint  a  guardian  to  his 
successor. 

In  our  early  history  the  case  of  an  infant  sovereign  was 
variously  met.  The  Barons  appointed  a  Rector  Regis  et 
Regni  during  the  minority  of  Henry  III,  and  a  small 
Council  with  whom  he  should  act:  in  the  cases  of 
Edward  III  and  Henry  VI  Parliament  made  the  nomina-  Regencies 
tion :  the  King  himself  and  the  magnates  appointed  a 
Council  of  Regency  during  the  youth  of  Richard  II :  but 
Edward  III  and  Richard  II  were  both  capable  of  executing 
some  of  the  formalities  of  government,  and  opened  the 
Parliaments  at  which  the  Councils  of  Regency  were  chosen. 
The  Privy  Council  made  Richard  of  Gloucester  protector  of 
the  realm  during  the  brief  reign  of  Edward  V.  In  the 
reign  of  Henry  VIII  we  come  upon  the  first  Regency  Act,  28  Hen. 
and  the  only  one  of  the  kind  that  ever  took  effect.  Parlia-  s  '  c<  7l 
ment  gave  to  Henry  the  power  of  nominating  a  Council  of 
Regency,  by  Letters  Patent  or  by  will.  This  Council  was 
to  act  in  case  the  successor  was  a  male  and  less  than  18, 
or  a  female  and  less  than  1 6  years  of  age.  The  King  made 
the  appointment,  and  though  the  Council  exceeded  its 
powers  by  making  Somerset  protector  of  the  realm,  its 
action  was  confirmed  by  the  Lords  and  by  Letters  Patent 
issued  by  the  young  King  himself. 

On  other  occasions  since  the  reign  of  Henry  VIII 
Regency  Acts  have  been  passed,  nominating,  or  giving  to 

1  See  May,  Parl.  Practice,  ed.  n,  p.  515,  and  the  reply  of  Lord  Lynd- 
hurst  to  Lord  Campbell  on  the  occasion  of  Queen  Victoria's  visit  to 
Germany  in  1845;  Hansard,  3rd  Series,  vol.  Ixxxii,  p.  1510. 


248  THE   TITLE    TO   THE   CROWN  Chap.  IV 

the  King  the  power  of  nominating,  a  Regent  or  a  Council. 

But  the  duties  of  royalty  have  never  since  been  discharged 

by  a  Regent  in  consequence  of  the  infancy  of  the  King. 

(c)  In-  The  insanity  of  the  Sovereign  is  not  a  matter  which  can 

sanity.       ^  provi(je(j  for  beforehand,  as  is  possible  in  the  case  of 

Regencies  *  .  . 

during       a  minority.     Happily  the  difficulty  which  it  occasions  has 

Insanity.    onjy  arisen  jn  ^wo  reigns,  those  of  Henry  VI  and  George  III. 

Henry  VI.  The  proceedings  in  the  reign  of  Henry  VI  are  marked  with 
much  simplicity  and  common  sense,  as  compared  with  those 
of  the  later  reign.  Early  in  1454  the  insanity  of  the  King 
was  attested  by  a  committee  of  the  Lords,  and  the  Duke 
of  York  was  chosen  by  the  Lords  to  be  protector  and 
defender  of  the  realm.  He  accepted  the  appointment,  the 
proceeding  was  thrown  into  the  form  of  an  Act  which 
received  the  assent  of  the  Commons,  and  the  Duke  was 
Regent  until  the  King  recovered  ten  months  later1.  At 
the  end  of  the  year  of  his  recovery  Henry  VI  became  once 
more  insane ;  Parliament,  which  had  been  prorogued,  met, 
and  at  the  request  of  the  Commons  the  Lords  nominated 
a  Protector,  their  choice  again  falling  on  the  Duke  of 
York.  This  time  the  King  seems  to  have  been  able  to  go 
through  some  formalities,  and  to  appoint  the  Duke  by 
Letters  Patent.  In  a  few  months  he  recovered. 

George  In  the  reign  of  George  III  Parliamentary  procedure  had 

become  so  far  settled  as  to  raise  technical  difficulties  which 
had  not  occurred  to  the  Lords  and  Commons  of  the  fifteenth 
century.  And  yet,  when  George  III  became  insane,  the 
Houses  had  the  precedents  of  1688  before  them,  and  might 
have  followed  the  procedure  of  the  Convention  Parliament, 
with  this  advantage,  that  at  the  time  of  James'  flight 
Parliament  was  dissolved,  while  in  1788  a  Parliament  was 
in  existence,  though  not  sitting. 

The  Convention  Parliament  had  proceeded  by  Address, 
requesting  William  and  Mary  to  undertake  the  kingly 
office.  It  would  have  seemed  obvious  that  the  same  course 
should  be  followed  in  17  88,  and  that  the  two  Houses  should 
present  an  address  to  the  Prince  of  Wales  requesting  him 

1  Stubbs,  Const.  Hist.  iii.  166,  167. 


§5  INCAPACITY   OF   THE   KING  249 

to  discharge  the  duties  of  royalty  during  the  insanity  of 
the  King. 

There  was  no  practical  dispute  between  Pitt  and  Fox  as  The  dis- 
to  the  person  who  should  be  Regent.  Fox  maintained  that  pUg|8  of 
the  Prince  had  a  right  to  the  Regency,  and  that  Parlia- 
ment was  bound  to  give  effect  to  this  right,  Pitt  held  that 
the  Prince  had  no  right  in  the  matter,  but  that  he  was  the 
most  proper  person  to  be  invited  to  become  Regent.  That 
which  really  exercised  the  two  parties  in  the  State  was  the 
limit  which  should  be  set  upon  the  exercise  of  the  pre- 
rogative by  the  Regent.  Pitt  wished  to  impose  restraints 
but,  inasmuch  as  the  Prince  was  on  friendly  terms  with 
the  Opposition,  Fox  wished  to  minimize  the  restraints 
which  were  admittedly  necessary.  It  was  difficult,  if  not 
impossible,  to  combine  procedure  by  address  and  limitation 
of  powers.  The  Convention  Parliament  had  affixed  con- 
ditions to  the  tenure  of  the  Crown  but  had  not  limited  the 
prerogative.  It  followed  that  a  Regency  must  be  created 
by  statute :  but  a  statute  needed  the  royal  assent :  the  King 
could  not  give  the  royal  assent  in  person,  nor  could  he 
authorize  by  sign  manual  the  affixing  of  the  Great  Seal  to  a 
Commission  which  should  enable  others  to  give  his  assent. 

The  difficulty  was  overcome  by  a  series  of  fictions.     The  The 
two  Houses  were  invited  by  Ministers  to  concur  in  directing  ^ ^gg 
the  Chancellor  to  put  the  Great  Seal  to  a  Commission  for  and  1810. 
opening   Parliament,  and   subsequently  to  another   Com- 
mission for  giving  assent  to  the  Regency  Bill  when  it  had 
passed  the  two  Houses.     Before  the  matter  reached  this 
stage  the  King  had  recovered,  but  the  same  procedure  was 
employed   when   in  1810  it   became  necessary  to   pass  a 
Regency  Bill. 

It  is  to  be  observed  that  the  Irish  Parliament,  being 
unaffected  by  the  considerations  of  English  parties,  pro- 
ceeded by  address,  and  thus  avoided  the  use  of  a  fiction 
at  once  grotesque  and  dangerous 1. 

The  last   form  of   royal    incapacity  for  government  is 

1  For  a  clear  account  of  the  Regency  question  as  it  presented  itself  to 
the  British  and  Irish  Parliaments,  see  Lecky,  Hist,  of  England  in  the 
Eighteenth  Century,  vi.  pp.  416-27. 


250  THE   TITLE   TO   THE   CROWN  Chap.  IV 

(d)  Moral  illustrated  in  Edward  II,  Richard  II,  and  James  II.     The 

pacity.       cases  differ,  since  the  first  two  were  cases  of  formal,  if 

involuntary,  resignation,  the  last  was  a  flight.    The  deposi- 

Edward     tion  of  Edward  II  was  marked  by  forms  which  do  not 
II 

conceal  the  violence  of  the  transaction.     Parliament  was 

summoned  by  writs  issued  in  the  King's  name  by  the 
younger  Edward,  who  had  been  proclaimed  guardian  of 
the  kingdom  on  the  assumption  that  the  King  had  fled. 
Before  Parliament  met  the  Great  Seal  had  been  obtained 
from  Edward  II,  and  the  writs  were  issued  in  proper  form. 
Parliament,  having  met,  accepted  the  younger  Edward  as 
King,  and  drew  up  reasons  for  the  deposition  of  Edward  II ; 
when  the  deposed  King  would  not  meet  the  Houses,  they, 
by  their  procurator,  renounced  their  homage  and  fealty. 

Richard  In  the  case  of  Richard  II  a  deed  of  resignation  was 
executed  by  the  King,  and  presented  to  the  Parliament 
summoned  to  receive  it.  A  statement  of  reasons  for  his 
deposition  was  drawn  up,  as  in  the  case  of  Edward  II ; 
these  were  voted  to  be  sufficient,  Richard  was  deposed,  and 
the  sentence  was  communicated  to  him  by  Commissioners, 
who  bore  at  the  same  time  the  renunciation  of  homage  and 
fealty.  It  was  not  till  then  that  Henry  IV  came  forward 
to  state  to  Parliament  his  claim  to  the  throne ;  this  was 
admitted,  the  assembly  accepted  him  as  king,  and  he  was 
led  to  the  throne. 

James  II.  Tne  Q^^  of  James  II  has  been  fully  treated  earlier  in 
this  chapter.  It  differs  from  the  other  cases  mainly  in  two 
points.  James  did  not  resign  but  fled,  and  the  members  of 
the  Convention  Parliament  treated  this  flight  as  a  con- 
structive abdication,  while  they  added  in  the  Petition  of 
Right  such  a  list  of  misdeeds  on  the  part  of  James  as  made 
the  construction  which  they  put  on  his  flight  amount  to 
a  formal  deposition.  And  secondly,  the  question  was  com- 
plicated by  the  political  theories  and  Parliamentary  forms 
with  which  a  medieval  Parliament  did  not  allow  itself  to 
be  embarrassed ;  while  the  religious  questions  unknown  to 
the  thirteenth  and  fourteenth  centuries  caused  religious 
disabilities  to  be  attached  to  the  Crown  and  gave  a  distinctly 
conditional  character  to  its  tenure. 


§  6  DEMISE   OF   THE   CROWN  251 

§  6.     The  Demise  of  the  Crown. 

We  have  still  to  consider  the  effect  of  the  Demise  of  the  Effect  of 
Crown,  either  by  death,  or  by  forfeiture  under  the  conditions  ^h^ 
of  the  Bill  of  Rights.     We  need  only  deal  with  the  effects  Crown, 
as  illustrated  by  the  death  of  the  Sovereign. 

I  described  in  an  earlier  part  of  this  chapter  the  steps  by 
which  the  interregnum  between  the  death  of  one  King  and 
the  accession  of  another  was  bridged  over.  From  the  acces- 
sion of  Edward  IV  the  new  King  was  regarded  as  succeeding 
without  interval  of  time  to  the  rights  of  his  predecessor; 
but  the  theory  that  Parliament  was  present  in  response  to 
a  personal  summons  from  the  King,  and  that  ministers  and 
others  holding  office  or  employment  in  the  service  of  the 
State  were  the  personal  servants  of  the  King,  caused 
difficulties  which  have  been  gradually  and  almost  entirely 
removed. 

The  rule  that  Parliament  was  dissolved  by  the  death  of  on  exist- 
the  King  might  always  have  produced  inconvenient  results,  p^iia- 
but   no   steps   were   taken   to   remedy   the  inconvenience ment ; 
until  the  passing  of  7  &  8  Will.  Ill,  c.  15,  wherein  it  was 
enacted  that  a  Parliament  in  existence  at  the  time  of  a 
King's  death  should  continue  in  existence  for  six  months 
if  not  sooner   dissolved  by  the  successor  to  the   throne. 
After  the  Union  with  Scotland  this  rule  was  extended  by 
6  Anne,  c.  41,  to  the  Parliament  of  Great  Britain.    The 
Act  37  Geo.  Ill,  c.   127,  made  further  provision  for  the 
event  of  a  demise  of  the  Crown  at  a  time  when  Parliament 
had  been  dissolved,  and,  finally,  the  Representation  of  the 
People   Act,  iK6j\  makes   the  duration  of  a  Parliament 
independent  of  the  demise  of  the  Crown. 

The  tenure  of  office  has  raised  questions  of  a  different  on  tenure 
character.  The  practical  inconvenience,  and  even  danger, 
to  which  the  legal  theory  might  give  rise  became  evident 
in  the  reign  of  Anne.  In  all  probability  the  successor  to 
the  Crown,  designated  by  Statute,  would  be  in  Hanover  at 
the  moment  of  the  Queen's  death.  A  rival  claimant  to  the 
Crown  was  no  further  off  than  St.  Germains,  and  at  this 

1  30  &  31  Viet.  c.  102,  s.  51,  §§  8,  9. 


252  THE   TITLE   TO   THE   CROWN  Chap.  IV 

The  Sue-  critical  time  the  Privy  Council  would  be  dissolved,  all  the 
thTcrown  grea*  offices  of  State  would  be  vacant,  and  every  corn- 
Act,  mission  in  the  army  would  have  lapsed. 

For  such  circumstances  the  Succession  to  the  Crown 
Act J  made  provision.  The  dissolution  of  the  Privy  Council 
and  the  avoidance  of  office,  place,  and  employment  on  the 
death  of  the  Sovereign  are  assumed,  and  the  Act  provides 
that  the  Privy  Council  shall  continue  and  act  for  six 
months  unless  sooner  determined  by  the  new  Sovereign, 
and  that  neither  the  great  offices  of  State,  or  of  the  House- 
hold, nor  any  office,  place,  or  employment  within  the 
dominions  of  the  Crown,  shall  become  void  by  reason  of 
the  death  of  the  Queen  or  her  successors.  The  holders 
of  the  great  offices  mentioned,  and  every  other  per- 
son in  any  'office,  place,  or  employment,  civil  or 
military/  within  the  dominions  of  the  Crown,  '  shall  con- 
tinue in  their  respective  offices,  places,  and  employments  for 
six  months  next  after  such  death  or  demise  unless  sooner 
removed  or  discharged  by  the  next  in  succession.' 
and  its  Between  1 707  and  1 830  the  dominions  of  the  Crown 
lions'  had  so  far  extended  that  six  months  was  not  long  enough 
for  the  continuance  in  office  of  persons  employed  in  some 
remote  dependency,  and  the  term  of  continuance  is  extended 
to  eighteen  months  by  i  Will.  IV,  c.  4,  in  the  case  of  '  office 
or  employment  in  His  Majesty's  plantations  or  possessions 
abroad.' 

By  an  Act  of  1837  2  commissions  in  the  Army  and  Royal 
Marines  are  to  continue  in  force  until  cancelled,  notwith- 
standing a  demise  of  the  Crown. 

So  stood  the  law  on  the  accession  of  King  Edward  VII ; 
but  in  the  case  of  ministers  who  were  members  of  the 
House  of  Commons  the  matter  was  complicated  by  the  law 
under  which  a  seat  in  the  House  is  vacated  on  the  accep- 
tance of  office. 

The  Succession  to  the  Crown  Act3,  s.  24,  renders  the 
holder  of  any  new  office  or  place  of  profit  under  the  Crown 


1  6  Anne,  c.  41,  s.  8  (6  Anne,  c.  7,  Ruffhead). 

2  7  Will.  IV  &  i  Viet.  c.  31.  '  6  Anne  c.  41  (c.  7  Ruffhead). 


§6  DEMISE   OF   THE   CROWN  253 

(i.e.  any  office  created  since  the  25th  October,  1705)  in- The  state 
capable  of  sitting  in  the  House  of  Commons ;   and  s.  25  °*  *^/f  ^ 
provides  that  the  acceptance  of  any  office  of  profit  from 
the  Crown  by  a  member  of  the  House  of  Commons  vacates 
his  seat,  but  leaves  him  eligible  for  re-election.     This  pro- 
vision has  always  been  construed  to  extend  only  to  offices 
in  existence  on  the  25th  October,  1 705,  or  by  Statute  since 
rendered  tenable  with  a  seat  in  the  House  of  Commons. 

It  would  seem  that  on  previous  occasions  of  a  demise  of 
the  Crown  Ministers  continued  to  hold  office  under  the  pro- 
visions of  the  Succession  to  the  Crown  Act,  unless  sooner 
dismissed,  and  that  such  forms  as  they  went  through  for 
the  purpose  of  indicating  that  they  were  ministers  of  the 
new  Sovereign  were  not  regarded  as  an  acceptance  of  office 
such  as  would  at  once  vacate  a  seat. 

But  on  all  such  previous  occasions  Parliament  was  dis- 
solved within  six  months  of  the  commencement  of  the  new 
reign,  so  that  the  expiration  of  the  term  of  continuance  in 
office  must  necessarily  synchronize  with  the  vacating  of  the 
seat,  if  indeed  a  dissolution  did  not  send  the  minister  back 
to  his  constituents  before  six  months  were  out '. 

But  in  1901  a  new  state  of  things  had  arisen,  for  the  «s  affected 
duration   of   Parliament   was   no   longer  affected    by   fche0^l8£* 
demise  of  the  Crown.    The  Parliament  of  1901  had  barely 
been  in  existence  for  a  year,  and  ministers  would  have  been 
obliged  to  re-accept  office  formally  and  thereupon  vacate 
their  seats  within  six  months  of  the  accession  of  the  King. 

On  the  23rd  of  January,  1901,  the  King  issued  a  Procla-  The 
mation  reciting  the  relevant  provisions  of  the  Succession  pr"ciama- 
to  the  Crown  Act.  and  directing  every  person  who,  at  the  t>on. 
time  of  the  death  of  Queen  Victoria,  held  any  office,  place, 
or  employment,  civil  or  military,  in  any  part  of  the  King's 
dominions,  to  proceed  in  the  duties  of  their  respective  offices 
during  the  royal  pleasure. 

1  William  IV  died  on  the  aoth  of  June,  1837,  and  Parliament  was 
dissolved  on  the  i7th  July.  Between  those  dates  certain  of  the  principal 
ministers  went  through  some  of  the  formalities  of  re-appointment.  See 
the  London  Gazette  for  July,  1837.  But  the  re-appointment  of  the  two 
Secretaries  of  State  who  were  members  of  the  House  of  Commons  did 
not  take  place  until  the  day  of  the  dissolution 


254  THE  TITLE  TO  THE  CROWN  Chap.  IV 

Events  of       At  the  same  Council  orders  were  made  for  the  prepara- 
I9°I-         tion  of  warrants  for  the  King's  signature  authorizing  the 

use  of  the  existing  official  seals  until  new  seals  could  be 

prepared. 

On  the  23rd  and  24th  of  January  the  principal  ministers 

of  the  Crown  kissed  the  King's  hands  and  took  the  official 

oath. 

'I,  ,  do  swear  that  I  will  well  and   truly  serve  His 

Majesty  King  Edward  VII  in  the   office  of   .     So  help 

me  God.' 

None  of  the  formalities  incident  to  an  original  appoint- 
ment were  gone  through,  no  patents  were  cancelled  and 
re-issued,  nor  were  seals  delivered  up  and  returned ;  but  it 
was  questioned  whether  ministers  had  not  by  acceptance  of 
office  under  the  new  King  at  once  vacated  their  seats,  or 
whether  the  vacancies  would  be  postponed  to  the  end  of 
the  first  six  months  of  the  new  reign. 

These  questions  were  raised  in  the  discussions   on  the 
Demise  of  the  Crown  Bill l  and  settled  by  its  passing. 
The  Some  legislation  on  the  subject  was  necessary,  for  the 

thTcrown  Succession  to  the  Crown  Act  did  not  apply  to  offices  held 
Act.          abroad,  or  held  within  the  protectorates  which  technically 
are  not  included  within  the  dominions  of  the  Crown. 
The  Demise  of  the  Crown  Act 2  briefly  enacts  that : — 

(1)  The  holding  of  any  office  under  the  Crown,  whether 

within  or  without  His  Majesty's  dominions,  shall 
not  be  affected,  nor  shall  any  fresh  appointment 
thereto  be  rendered  necessary,  by  the  demise  of 
the  Crown. 

(2)  The  Act  shall  take  effect  as  from  the  last  demise  of 

the  Crown. 

Thua  the  demise  of  the  Crown  no  longer  affects  the 
duration  of  Parliament,  nor  the  tenure  of  office,  though 
legislation  has  in  no  way  affected  the  prerogative  of  the 
Crown  as  to  the  dissolution  of  Parliament  or  the  dismissal 
of  ministers. 

1  See  debate  on  the  second  reading  of  the  Bill,  i  April,  1901,  Hansard, 
4th  Series,  vol.  xcii.  p.  382. 
3  i  Ed.  VII,  c.  5. 


§7  THE   KING'S   FAMILY  255 

§  7.     The  King's  Family. 

We  must,  in  conclusion,  consider  what  are  the  relations 
of  the  King  or  Queen  Regnant  to  the  royal  family,  and 
wherein  the  family  relations  of  the  Sovereign  differ  from 
those  of  a  subject. 

The  Queen  Consort  is  a  subject,  though  privileged  in  A  King's 
certain  ways.  Her  life  and  chastity  is  protected  by  the  Wlfe> 
law  of  treason.  She  has  always  been  regarded  as  free 
from  the  disabilities  of  married  women  in  matters  of 
property,  contract,  and  procedure.  She  could  and  can 
acquire  and  deal  with  property,  incur  rights  and  liabilities 
under  contract,  sue  and  be  sued,  as  though  she  were  feme 
sole.  She  has  her  separate  officers  and  legal  advisers. 
But  in  all  other  respects  she  is  a  subject,  and  amenable  to 
the  law  of  the  land,  save  in  respect  of  some  small  privileges 
which  are  not  in  use.  At  one  time  she  had  a  revenue  from 
the  demesne  lands  of  the  Crown,  and  a  portion  of  any  sum 
paid  by  a  subject  to  the  King  in  return  for  a  grant  of  any 
office  or  franchise.  This  was  the  aurum  reyinae  or  queen- 
gold  x.  Provision  is  now  made  by  statute  for  the  main- 
tenance of  a  Queen  Consort. 

A  Queen  Dowager  ceases  to  be  under  the  protection  of  A  Queen's 
the  law  of  treason.     It   is   said   by  Coke  that  she  may  husband- 
not  marry  again  without  the  King's  licence,  but  this  is 
questioned 2. 

A  Queen  Regnant  holding  the  Crown  in  her  own  right  Philip  of 
has  all  the  prerogatives  of  a  King :J.    The  position  of  the  sP*ln- 
husband  of  a  Queen  Regnant  has  varied  in  each  case  that 
has  arisen. 

On  the  marriage  of  Mary  Tudor  with  Philip  of  Spain  it 
was  provided  that  the  Queen  should  enjoy  all  the  pre- 
rogatives and  possessions  and  exercise  all  the  powers  of 
Crown  as  sole  Queen,  though  official  documents  should 
issue  in  their  joint  names  :  that  Philip  should  not  alter  the 

1  Blackstone,  Commentaries,  i.  220.  Queen-gold  is  the  subject  of  a 
learned  treatise  by  Prynne.  *  Blackstone,  Comm.  i.  223. 

3  This  was  declared  by  Statute  in  1554.     i  Mary  I,  st.  3,  c.  i. 


256 


THE   TITLE   TO   THE   CROWN 


Chap.  IV 


William 
of  Orange. 


George  of 
Denmark. 


Albert  of 
Saxe-Co- 
burg  and 
Gotha. 


laws,  nor  compel  the  Queen  to  leave  England,  nor  introduce 
aliens  into  office,  nor  if  he  survived  his  wife  set  up  any 
claim  to  power  or  property  l.  A  later  Act  made  it  treason 
to  compass  his  death.  It  is  impossible  to  read  the  first  of 
these  Statutes  without  being  struck  by  the  difficulties  which 
must  have  arisen  if  Philip  had  wished  to  reside  in  England 
or  had  taken  an  active  interest  either  in  his  wife  or  her 
kingdom. 

William  III  declined  to  be  a  King  Consort :  and  the  Bill 
of  Rights  provided  that '  entire,  perfect,  and  full  exercise  of 
the  regal  power  should  be  only  in  and  executed  by  his 
Majesty  in  the  names  of  both  their  Majesties  during  their 
joint  lives.'  When  William  was  absent  from  the  kingdom, 
Mary  was  given  a  general  power  to  '  exercise  and  administer 
the  regal  powers  and  government,'  saving  the  validity  of 
acts  of  State  done  by  William  during  his  absence  abroad  2. 

George  of  Denmark  did  not  occupy  so  favourable  a 
position.  He  had  been  introduced  into  the  Privy  Council, 
though  not  sworn,  in  1685,  and  he  was  naturalized  by  Act 
of  Parliament  in  1689.  But  by  the  time  that  Anne  suc- 
ceeded to  the  throne,  the  Act  of  Settlement  had  been 
passed,  and  he  would  have  fallen  under  the  disqualifications 
as  to  property  and  office  which  attached  to  aliens  as  soon 
as  that  Act  came  into  force  by  the  death  of  Anne.  This 
disability  was  cured  by  a  clause  in  an  Act  which  enabled 
the  Queen  to  grant  him  a  revenue  if  he  survived  her 3,  but 
he  died  before  his  wife.  George  was  therefore  a  subject  of 
the  Queen,  differing  from  others  only  in  the  conditions  of 
his  naturalization. 

When  Queen  Victoria  had  declared  her  intention  to  ally 
herself  in  marriage  with  Prince  Albert  of  Saxe-Coburg 
and  Gotha,  the  Prince  was  given  by  Statutes4  the  full 
rights  of  a  citizen  of  the  United  Kingdom  when  and  so 


1  i  &  a  Ph.  &  M.  c.  10,  s.  3. 

a  2  Will.  &  M.  st.  i,  c.  6.  3  i  Anne,  c.  2. 

4  3  &  4  Viet.  cc.  i  and  2.  The  first  of  these  Acts  set  aside  the  effect  of 
i  Geo.  I,  stat.  a,  c.  4,  which  forbade  the  passing  of  any  naturalization  bill 
without  a  clause  confirming  the  political  incapacities  imposed  by  the  Act 
of  Settlement.  This  Act  was  repealed  in  1867. 


§  7  THE  KING'S  FAMILY  25 7 

soon  as  he  had  taken  the  oaths  of  allegiance  and  supremacy. 
The  Prince  was  therefore  a  subject  of  the  Queen.  Like 
George  of  Denmark  he  was  introduced  into  the  Privy 
Council  but  not  sworn  l,  unlike  him  he  was  never  a  Peer  of 
Parliament  His  precedence  was  determined  by  an  exercise 
of  the  prerogative  to  be  next  to  that  of  the  Queen,  and  in 
1857  the  title  of  Prince  Consort  was  conferred  upon  him 
by  Letters  Patent.  As  a  matter  of  law  he  differed  only  in 
title  and  precedence  from  any  other  subject  of  the  Queen 2. 

Of  the  children  of  a  reigning  Sovereign,  the  eldest  son  The  eldest 
and  daughter,  and  the  eldest  son's  wife,  alone  have  any  son- 
special  privilege.     The  eldest  son  is  Duke  of  Cornwall  by 
birth,  and  is  created  Prince  of  Wales  and  Earl  of  Chester 
by  Letters  Patent.     It  is  treason  to  compass  his  death,  or 
to  violate  the  chastity  of  his  wife,  or  of  the  eldest  daughter, 
unmarried,  of  the  King  or  Queen.     But  the  royal  children 
have  only  such   precedence   as   is   conferred   upon   them 
in  the   Parliament  and   Council  Chamber  by  an  Act  of 
Henry  VIII  3. 

In  1718  the  judges  by  a  majority  of  10  to  2  advised  that  The 
the  care  and  education  of  the  King's  grandchildren,  being  l^ro yal°f 
minors,  belonged  to  the   King,  the  rights   of  the   father  children, 
being  to  this  extent  superseded.     The  question  arose  in  the 
quarrels  of  George  I  and  his  son.      No  such  point  was 
raised  in  the  disputes  which  raged  between  George  II  and 
Frederick,  Prince  of  Wales ;  but  George  III,  early  in  his  Their 
reign,  quarrelled  with  his  brothers  for  marrying  subjects,  mamase- 
and   obtained   the   passing  of  the  Royal  Marriage   Act4. 
By  this   Act   no   descendant   of   the   body  of  George  II, 
except  the  issue  of  princesses  married  into  foreign  families, 

1  Greville  Memoirs,  iv.  269,  and  see  Greville's pamphlet  on  'The  Royal 
Precedency  Question,'  printed  as  an  Appendix  to  vol.  iv. 

1  The  question  whether  he  should  be  made  a  peer  was  discussed. 
Queen  Victoria  urged  sound  reasons  against  such  a  course.  Letters  of 
Queen  Victoria,  i.  252. 

1  31  Hen.  VIII,  c.  10.  The  King's  sons  are  privy  councillors  by  birth, 
and  can  b«  introduced  into  the  Council  when  the  King  pleases.  But  on 
the  demise  of  the  Crown  they  are  not  privy  councillors  of  the  new 
Sovereign  until  sworn.  Greville,  iv.  274. 

1  12  Geo.  Ill,  c.  ii. 

A5SUS.        CKOWM  8 


258  THE  TITLE   TO  THE  CROWN  Chap.  IV 

can  make  a  valid  marriage  unless  the  King  or  Queen 
Regnant  has  given  consent  under  the  Great  Seal.  But  such 
descendants  at  the  age  of  25  may  marry  without  the 
royal  sanction,  after  giving  12  months'  notice  to  the 
Privy  Council,  unless  during  that  time  the  two  Houses  of 
Parliament  have  expressed  disapproval. 


APPENDIX 

§  1.    LETTERS  PATENT  CONSTITUTING  THE  COMMISSION 
OF  THE  TREASURY  '. 

VICTORIA,  by  the  Grace  of  God,  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  Queen,  Defender  of  the  Faith.  To  Our  right 
trusty  and  well-beloved  Councillors  A.  B.  and  C.  D.,  and  Our 
trusty  and  well-beloved   E.  R,  G.  H.,  and   I.  J.,   greeting. 
Whereas  We  did,  by  Our  Letters  Patent,  under  the  Great  Seal  Recitation 
of  the  United  Kingdom  of  Great  Britain  and  Ireland,  nominate,  ?iff rller 
assign,  and  appoint  Our  right  trusty  and  well-beloved  Coun-  Patent, 
cillors  M.  N.  and  P.  Q.,  Our  trusty  and  well-beloved  K.  S., 
T.  XL,   and   V.  W.,    to   be   Our   Commissioners   during   Our 
pleasure  for  executing  the  offices  of  Treasurer  of  the  Exchequer 
of  Great  Britain  and  Lord  High  Treasurer  of  Ireland,  and  to 
be  called  Commissioners  of  Our  Treasury  of  Our  United  King- 
dom of  Great  Britain  and  Ireland,  as  by  the  said  Letters  Patent 
(relation  being   thereunto  had)  may  more  fully  and  at  large 
appear.     Now  know  ye  that  We  have  revoked  and  determined,  Revoca- 

and  by  these  presents  do  revoke  and  determine  the  said  recited  tion  of  tne 

same. 
Letters  Patent,  and  every  clause,   article,  and  thing  therein 

contained.     And   further  know  ye  that  We,  trusting   in  the 
wisdom  and  fidelities  of  you,  the  said  A.  B.,  C.  D.,  E.  F.,  G.  H., 
and  I.  J.,  of  Our  special  grace,  certain  knowledge,  and  mere 
motion,  have  nominated,  assigned,  and  appointed,  and  by  these 
presents  do  nominate,  assign,  and  appoint  you,  the  said  A.  B., 
C.  D.,  E.  F.,  G.  H.,  and  I.  J.,  to  be  Our  Commissioners  -  The  new 
during  Our  pleasure,  for  executing  the  offices  of  Treasurer  of  c.ommis' 
the  Exchequer  of  Great  Britain  and  Lord  High  Treasurer  of 
Ireland,  and  to  be  called  Commissioners  of  Our  Treasury  of  Our 
United  Kingdom  of  Great  Britain  and  Ireland,  and  to  do  and 

1  The  form  of  these  Letters  has  undergone  no  change. 

3  The  number  of  Lords  Commissioners  was  limited  by  6  Anne,  c.  41, 
s.  26  to  the  number  then  existing.  The  Treasury  Commission  then 
consisted  of  a  First  Lord,  the  Chancellor  of  the  Exchequer,  and  three 
junior  Lords.  By  56  Geo.  Ill,  c.  98  the  Treasuries  of  Great  Britain  and 
Ireland  were  amalgamated,  and  power  was  given  (s.  14)  to  increase  the 
number  of  Commissioners  by  two.  This  power  has  been  partially 
exercised  since  December,  1905  :  in  Sir  Henry  Campbell-Bannermau's 
government  there  are  four  junior  Lords. 

8  2 


260  APPENDIX 

perform  all  things  whatsoever  which  might  have  heretofore 
been  done  and  performed  by  the  Commissioners  of  the  Treasury 
in  Great  Britain  or  Ireland  respectively,  by  whatsoever  names 
or  descriptions  such  Commissioners  of  the  Treasury  shall  or 
may  have  been  at  any  time  known  or  described,  save  and  except 
in  so  far  as  any  powers  or  authorities  heretofore  vested  in  such 
Commissioners  were  altered  or  amended  by  an  Act  of  Parlia- 
ment made  and  passed  in  the  fifty-sixth  year  of  the  reign  of 
Our  late  Royal  Grandfather,  King  George  the  Third,  intituled 
The  union  '  An  Act  to  unite  and  consolidate  into  one  fund  all  the  public 
and  iVish  revenues  °f  Great  Britain  and  Ireland,  and  to  provide  for  the 
Trea-  application  thereof  to  the  general  service  of  the  United  King- 
ies'  dom.'  And  to  that  end  and  purpose  We  do,  by  these  presents, 
give  and  grant  unto  you.  Our  said  Commissioners,  or  any  two 
or  more  of  you.  full  power  and  authority,  immediately  from 
henceforth,  from  tune  to  time  during  the  vacancy  of  the  office 
or  place  of  Lord  High  Treasurer  of  Our  United  Kingdom  of 
Powers  of  Great  Britain  and  Ireland,  to  confirm  and  approve  of  all  those 
sioiimiS  Orders  and  Warrants  which  have  been  already  signed  by  the 
late  Commissioners  of  Our  Treasury  of  Our  United  Kingdom  of 
Great  Britain  and  Ireland,  and  which  are  remaining  unexecuted, 
and  which  unto  you  shall  seem  reasonable  and  for  Our  service, 
and  to  cause  the  same  to  be  duly  executed  ;  and  also  to  perform 
and  execute  all  and  every  act  and  acts,  thing  and  things, 
whatsoever,  which  heretofore  might  or  ought  to  have  been 
performed  by  the  Commissioners  of  Our  Treasury  in  Great 
Britain  or  Ireland  respectively,  except  as  aforesaid,  in  as  ample 
manner  and  as  fully  and  effectually  to  all  intents  and  purposes 
as  the  Commissioners  of  the  Treasury  in  Great  Britain  or 
Ireland  respectively  heretofore  have  done  or  might  have  done 
by  virtue  of  any  power  or  authority  to  them  respectively 
belonging,  or  of  any  Act  or  Acts  of  Parliament,  or  any  law, 
usage,  or  custom  in  force  in  Great  Britain  or  Ireland  respec- 
tively. And  to  the  end  Our  pleasure  in  the  premises  may  be 
the  better  effected,  We  do  hereby  require  and  authorize  Our 
or  any  two  High  Chancellor  of  Great  Britain,  or  Our  Keeper  of  the  Great 
them.  geaj  Of  QUI.  United  Kingdom,  or  Our  Commissioners  for  the 
Custody  of  the  Great  Seal  of  Our  United  Kingdom ;  and  also 
Our  High  Chancellor  of  Ireland,  or  Our  Keeper  of  the  Great 
Seal  there,  or  Our  Commissioners  for  the  Custody  of  the  Great 
Seal  there,  and  all  other  Officers,  Ministers,  and  persons  what- 


APPENDIX  261 

soever  for  the  time  being  whom  these  presents  shall  or  may  in 
anywise  concern,  to  give  full  allowance  of  all  things  to  be  done 
by  you  Our  said  Commissioners,  or  any  two  or  more  of  you, 
according  to  Our  pleasure  hereinbefore  declared.  In  witness 
whereof  We  have  caused  these  Our  Letters  to  be  made  Patent. 
Witness  Ourself  at  Westminster,  the  day  of  in 

the  year  of  Our  Reign. 

By  Warrant  under  the  Queen's  Sign  Manual. 
[To  this  the  Great  Seal  is  affixed.] 

§  2.    SIGN  MANUAL  WARRANTS. 

(a)  Warrant  as  an  executive  act  appointing  First  Commissioner 

of  Works. 
VICTORIA  R. 

Whereas  We  being  graciously  pleased  to  give  and  grant 
during  Our  pleasure  unto  Our  right  trusty  and  well-beloved 
A.  B.  the  office  of  First  Commissioner  of  Works  and  Public 
Buildings,  constituted  and  appointed  under  and  by  virtue  of  an 
Act  passed  in  the  fourteenth  and  fifteenth  years  of  Our  Reign 
entitled  '  An  Act,  .  .  . ' ' 

We  do  by  these  Our  presents  hereby  constitute  and  appoint 
him  the  said  A.  B.  to  be  First  Commissioner  of  Works  and 
Public  Buildings  during  Our  Pleasure,  with  all  the  interest, 
powers,  titles,  authorities,  privileges,  and  duties  appertaining 
unto  and  vested  in  the  said  office. 

Given  at  Our  Court  at  Windsor  this  day  of 

in  the  Year  of  Our  Reign. 

By  Her  Majesty's  Command. 

(Countersigned  by  two  Lords  Commissioners  of  the  Treasury.) 

(b)  Warrant  as  an  executive  act,  abolishing  purchase  in  the 

army. 

VICTORIA  R. 

Whereas  by  the  Act  passed  in  the  Session  holden  in  the 
fifth  and  sixth  years  of  the  reign  of  King  Edward  VI,  ch.  16, 
intituled  '  Against  buying  and  selling  of  offices,'  and  the  Act 
passed  in  the  forty-ninth  year  of  the  reign  of  George  III,  ch.  1 26, 
intituled  '  An  Act  for  the  prevention  of  the  brokerage  and  sale 
of  offices,'  all  officers  in  Our  Forces  are  prohibited  from  selling 

1  The  Act  is  14  &  15  Viet.  c.  42,  dealing  with  the  management  of 
Woods,  Forests,  nnd  Land  Revenues,  and  the  direction  of  Public  Works 
and  Buildings,  ante,  p.  200. 


262  APPENDIX 

or  bargaining  for  the  sale  of  any  Commission  in  Our  Forces, 
and  from  taking  or  receiving  any  money  for  the  exchange  of 
any  such  Commission  under  the  penalty  of  forfeiture  of  their 
Commissions  and  of  being  cashiered,  and  of  divers  other 
penalties ;  but  the  last-mentioned  Act  exempts  from  the 
penalties  of  the  said  Acts,  purchases  or  sales,  or  exchanges 
of  any  Commissions  in  Our  Forces  for  such  prices  as  may  be 
regulated  and  fixed  by  any  regulation  made  or  to  be  made  by 
Us  in  that  behalf. 

And  whereas  We  think  it  expedient  to  put  an  end  to  all  such 
regulations,  and  to  all  sales  and  purchases,  and  all  exchanges 
for  money  of  Commissions  in  Our  Forces,  and  all  dealings 
relating  to  such  purchases,  sales,  or  exchanges. 

Now  Our  Will  and  Pleasure  is,  that  on  and  after  the  first 
day  of  November  in  this  present  year,  all  regulations  made 
by  Us  or  any  of  Our  Koyal  predecessors  or  any  officers  acting 
under  Our  authority,  regulating  or  fixing  the  prices  at  which 
any  Commissions  in  Our  Forces  may  be  purchased,  sold  or 
exchanged,  or  in  any  way  authorizing  the  purchase  or  sale  or 
exchange  for  money  of  any  such  Commission,  shall  be  cancelled 
and  determined. 

Given  at  Our  Court  at  Osborne,  this  twentieth  day  of  July, 
in  the  thirty -fifth  year  of  Our  Reign. 

By  Her  Majesty's  Command. 

EDWARD  CARDWELL. 

(c)  Warrant  conferring  Precedence  on  Hie  Prime  Minister. 
EDWARD  R.  &  I. 

Edward  the  Seventh  by  the  Grace  of  God  of  the  United 
Kingdom  of  Great  Britain  and  Ireland,  and  of  the  British 
Dominions  beyond  the  Seas,  King,  Defender  of  the  Faith,  to 
our  right  trusty  and  right  entirely  beloved  cousin  and  Coun- 
cillor Henry  Duke  of  Norfolk,  Knight  of  Our  most  noble  Order 
of  the  Garter,  Knight  Grand  Cross  of  Our  Royal  Victorian 
Order,  Earl  Marshal,  and  our  Hereditary  Grand  Marshal  of 
England,  Greeting. 

Whereas  We  taking  into  Our  Royal  consideration  that  the 
precedence  of  Our  Prime  Minister  has  not  been  declared  and 
defined  by  due  authority,  We  deem  it  therefore  expedient  that 
the  same  should  be  henceforth  established  and  defined. 

Know  ye  therefore  that  in  the  exercise  of  Our  Royal  Pre- 


APPENDIX  263 

rogative  We  do  hereby  declare  Our  Royal  Will  and  Pleasure 
that  in  all  times  hereafter  the  Prime  Minister  of  Us,  Our  Heirs 
and  Successors  shall  have  place  and  precedence  next  after  the 
Archbishop  of  York. 

Our  Will  and  Pleasure  further  is  that  you  Henry  Duke  of 
Norfolk  to  whom  the  cognizance  of  matters  of  this  nature  doth 
properly  belong  do  see  this  Order  observed  and  kept,  and  that 
you  do  cause  the  same  to  be  recorded  in  Our  College  of  Arms 
to  the  intent  that  Our  Officers  of  Arms  and  all  others  upon 
occasions  may  take  full  notice  and  have  knowledge  thereof. 

Given  at  our  Court  at  Sandringham  the  second  day  of  Decem- 
ber nineteen  hundred  and  five  in  the  fifth  year  of  Our  Reign. 
By  His  Majesty's  Command, 

A.   AKERS  DOUGLAS. 

(d)  Warrant  as  an  authority  for  affixing  the  Great  Seal 
to  the  Eatiftcation  of  a  Treaty l. 

EDWARD  R. 

Our  Will  and  Pleasure  is,  that  you  forthwith  cause  the  Great 
Seal  of  Our  United  Kingdom  of  Great  Britain  and  Ireland  to  be 
affixed  to  an  Instrument  bearing  date  with  these  Presents  (a  copy 
whereof  is  hereunto  annexed)  containing  Our  Ratification  of  a 

between  Us  and 

concluded  and  signed  at  on  the 

day  of  1 9       ,  by  the 

Plenipotentiaries  of  Us  and  of 

duly  and  respectively  authorized  for  that  purpose.  And  for  so 
doing  this  shall  be  your  Warrant. 

Given  at  Our  Court  of  St.  James's 

the  day  of  19 

in  the  year  of  Our  Reign. 

By  His  Majesty's  Command,       (Countersigned) 

To  Our  Right  Trusty  and 
Well-beloved  Councillor 

Our  Chancellor  of  Great 
Britain 

1  This  is  an  exceptional  document :  usually  a  sign  manual  warrant  for 
affixing  the  Great  Seal  sets  out  (i)  the  authority,  (a)  the  document  to  be 
sealed,  (3)  the  purport  of  the  document  in  a  brief  form  called  the  docket 
(p.  51).  The  authority  to  seal  powers  connected  with  treaties  does  not  pass 
through  the  Crown  Office,  as  do  most  matters  requiring  the  Great  Seal. 


264  APPENDIX 


(e)  Warrant  for  affixing  the  Great  Seal  to  the  appointment 
of  a  Lord  Lieutenant. 

EDWARD  R.  &  I. 

(ZBDtoatll  tl)0  ^etientl)  by  the  Grace  of  God  of  the 
United  Kingdom  of  Great  Britain  and  Ireland  and  of  the 
British  Dominions  beyond  the  Seas  King  Defender  of  the  Faith 
TO  Our  right  trusty  and  well-beloved  Councillor 

Our  Chancellor  of  that  part  of  Our  said  United  Kingdom  called 
Great  Britain  GREETING  ;  WE  WILL  AND  COMMAND 
that  under  the  Great  Seal  of  Our  said  United  Kingdom 
remaining  in  Your  custody  You  cause  these  Our  Letters  to 
be  made  forth  Patent  in  form  following: 

<£Dtoar&  t|je  -o>etjentf)  by  the  grace  of  God  of  the  United 
Kingdom  of  Great  Britain  and  Ireland  and  of  the  British 
Dominions  beyond  the  Seas  King  Defender  of  the  Faith  TO 

GREETING;  WHEREAS  by  the  Militia  Act  1882  it  was 
(amongst  other  things)  enacted  that  it  should  be  lawful  for 
Us  with  regard  to  Great  Britain  and  for  the  Lord  Lieutenant 
with  regard  to  Ireland  from  time  to  time  to  appoint  Lieutenants 
for  the  several  Counties  in  the  United  Kingdom  NOW  KNOW 
YE  that  We  by  virtue  of  the  said  Act  of  Parliament  HAVE 
nominated  and  appointed  and  by  these  presents  DO  NOMI- 
NATE AND  APPOINT  You  the  said 

to  be  Our  Lieutenant 
of  and  in 

and  of  all  cities  boroughs  liberties  places  incorporated 
and  privileged  and  other  places  whatsoever  within  Our  said 

and  the  limits  and  precincts 
of  the  same  for  and  during  Our  Pleasure  in  the  Room  of 

AND  WE  DO  by  these  Presents 

GIVE  AND  GRANT  unto  You  full  power  and  authority  to  do 
execute  transact  and  perform  all  and  singular  the  matters  and 
things  which  to  a  Lieutenant  to  be  nominated  and  appointed 
by  Us  for  the  said 

do  by  force  of  any  Law  in  anywise  belong  to  be  done  executed 
transacted  or  performed  AND  THEREFORE  WE  DO 
HEREBY  COMMAND  YOU  that  according  to  the  tenor  of 


APPENDIX  2f>5 

these  Our  Letters  Patent  you  proceed  and  execute  all  those 
things  with  effect  IN  WITNESS  &c.  WITNESS  &c. 

GIVEN  at  Our  Court  at  the  day  of 

One  thousand  nine  hundred  and 
in  the  year  of  Our  Reign. 

BY  HIS  MAJESTY'S 

COMMAND. 
H.  J.  Gladstone. 

MAY  IT  PLEASE  YOUR  MOST  EXCELLENT 
MAJESTY  This  contains  a  Warrant  to  the  Lord  High 
Chancellor  to  pass  Letters  Patent  under  the  Great  Seal 
whereby  Your  Majesty  is  pleased  to  nominate  and  appoint 

Your  Lieutenant  of  and  in 
during  Your  Majesty's 
pleasure  in  the  room  of 

And  this  Warrant  is  prepared  according  to  Your  Majesty's 
Royal  Command. 

Signified  by  Mr.  Secretary  Gladstone. 

MUIR   MACKENZIE, 
Clerk  of  the  Crown  in  Chancery. 

§  3.    COMMISSIONS  AND  ORDERS. 
(a)  Commission  under  Sign  Manual  for  instituting  an  Inquiry. 

EDWARD  R.  &  I. 

Edward  the  Seventh  by  the  Grace  of  God  of  the  United 
Kingdom  of  Great  Britain  and  Ireland  and  of  the  British 
Dominions  beyond  the  Seas  King  Defender  of  the  Faith  to 

A.  B.  C.  D.  E.  F. 

Whereas  we  have  deemed  it  expedient  that  a  Commission 
should  forthwith  issue  to  inquire  into 

Here  the  Subjects  are  Set  Out. 

Now  know  ye  that  We  reposing  great  trust  and  confidence 
in  your  knowledge  and  ability,  have  authorized  and  appointed, 
and  do  by  these  presents  authorize  and  appoint  the  said  A.  B. 
C.,  &c.  to  be  our  Commissioners  for  the  purposes  of  the  said 
inquiry. 

Then  fottoiv  Hie  Poteers  Conferred,  e.  g.  to  Call  Witnesses, 

and  Inspect  Places,  $c. 
And  Our  further  Will  and  Pleasure  is  that  you  do  with  as 


266  APPENDIX 

little  delay  as  possible  report  unto  Us  under  your  hands  and 
seals  or  the  hands  and  seals  of  any  five  or  more  of  you  your 
opinion  upon  the  matters  herein  submitted  for  your  consider- 
ation. 

Given  at  Our  Court  at  the  day  of 

19       ,  in  the  year 

of  Our  Reign. 

By  His  Majesty's  Command. 

(b)  Form  of  Commission  on  First  Appointment  to  Permanent 
Hank  in  the  Army. 

EDWARD  R.  &  I. 

Edward  by  the  Grace  of  God,  of  the  United  Kingdom  of 
Great  Britain  and  Ireland,  and  of  the  British  Dominions 
beyond  the  Seas  King,  Defender  of  the  Faith,  Emperor  of 
India,  &c. 

To  Our  Trusty  and  Well  beloved 

We  reposing  especial  trust  and  confidence  in  your  Loyalty, 
courage  and  good  conduct,  do  by  these  presents  constitute  and 
appoint  you  to  be  an  Officer  in  Our  Forces  from  the 

day  of  19-     You  are  therefore 

carefully  and  diligently  to  discharge  your  duty  as  such  in  the 
rank  of  or  in  such  higher  rank  as  We  may 

from  time  to  time  hereafter  be  pleased  to  promote  or  appoint 
you  to,  of  which  a  notification  will  be  made  in  the  London 
Gazette,  and  you  are  at  all  times  to  exercise  and  well  discipline 
in  arms  both  the  inferior  Officers  and  Men  serving  under  you, 
and  use  your  best  endeavours  to  keep  them  in  good  order  and 
discipline.  And  We  do  hereby  command  them  to  obey  you  as 
their  superior  Officer,  and  you  to  observe  and  follow  such 
orders  and  directions  as  from  time  to  time  you  shall  receive 
from  Us  or  any  your  superior  Officer,  according  to  the  rules 
and  discipline  of  war,  in  pursuance  of  the  trust  hereby  reposed 
in  you. 

Given  at  Our  Court  at  Saint  James's  the  day  of 

19       ,  in  the  Year 

of  Our  Reign. 

By  His  Majesty's  Command. 


APPENDIX  267 

(c)  Royal  Order  for  Public  Supply  Sen-ices. 
(For  Her  Majesty's  Royal  Sign  Manual.) 

Supply  Services. 
VICTOKIA  K. 

Whereas  the  several  sums  mentioned  in  the  Schedule  here- 
unto annexed  have  been  granted  to  Us  [ly  Act,  or  by  Eesoht- 
tion  of  the  House  of  Commons,  as  tlie  case  may  be]  to  defray 
the  expenses  of  the  Public  Supply  Services  therein  specified, 
which  will  come  in  course  of  payment  in  the  year  ending  the 
3ist  March,  18—  ;  Our  Will  and  Pleasure  is,  that  you  do, 
from  time  to  time,  authorize  the  Governor  and  Company  of 
the  Bank  of  England,  or  the  Governor  and  Company  of  the 
Bank  of  Ireland,  to  issue  or  transfer  from  the  Account  of  Our 
Exchequer  at  the  said  Banks  to  the  Accounts  of  the  persons 
charged  with  the  payment  of  the  said  Services,  such  sums  as 
may  be  required,  from  time  to  time,  for  the  payment  of  the 
same,  not  exceeding  the  amounts  respectively  stated  in  the 
said  annexed  Schedule. 

Provided  that  such  issues  or  transfers  shall  be  made  out  of 
the  Credits  granted  or  to  be  granted  to  you,  from  time  to  time, 
on  the  Account  of  Our  Exchequer  at  the  said  Banks,  by  the 
Comptroller  and  Auditor-General,  under  the  authority  of  the 
Exchequer  and  Audit  Departments  Act,  1866  (29  &  30  Viet.  c. 
39,  s.  15),  and  shall  not  exceed  in  the  whole  the  amount  of  the 
Credits  so  granted  out  of  the  Ways  and  Means  appropriated  by 
Parliament  to  the  Service  of  the  said  year. 

Given  at  Our  Court  at  this         day  of  1 8 

By  Her  Majesty's  Command, 

To  be  countersigned  by  hco  j 
Lords  of  the  Treasury,     ) 

To  the  Commissioners  of  Our  Treasury. 
SCHEDULE. 


Supply  Services  for  which  voted 
or  granted. 


Amount. 


£      s.      d. 


Resolutions  reported. 


268  APPENDIX 


(fl)  Order  for  a  Free  Pardon. 

EDWARD  R.  &  I. 

Whereas  A.  B.  was,  at  the  Assizes  holden  at  Chester  in  and 
for  the  County  of  Chester,  on  ist  January,  1907,  convicted  of 
Arson  and  sentenced  to  ten  years'  penal  servitude. 

We  in  consideration  of  some  circumstances  humbly  repre- 
sented unto  Us,  are  Graciously  pleased  to  extend  Our  Grace 
and  Mercy  unto  him  and  to  Grant  him  Our  Free  Pardon  for 
the  offence  which  he  stands  so  convicted.  Our  Will  and 
Pleasure  therefore  is,  that  you  cause  the  said  A.  B.  to  be  forth- 
with discharged  out  of  custody. 

And  for  so  doing  this  shall  be  your  Warrant  Given  at  Our 
Court  at  St.  James's  the  twenty-ninth  day  of  February  1907, 
in  the  seventh  Year  of  Our  Reign. 

To  Our  Trusty  and  Well     \  T>    TT-    -M-  •    i  >    n  j 

J  By  His  Majesty  s  Command. 

beloved  The  Governor  of  Our 


Prison  at  Dartmoor 

and  all  others  whom  it  may 

concern. 


(Signed) 
H.   J.    GLADSTONE. 


§  4.    OATHS. 

For  the  Coronation  Oath  see  p.  236. 
For  the  Privy  Councillor's  Oath,  see  page  138. 

The  Oath  of  Allegiance. 

I  do  swear  that  I  will  be  faithful  and  bear 

true  allegiance  to  His  Majesty  King  Edward,  His  Heirs  and 
Successors  according  to  Law. 

So  help  me  God. 

The  Official  Oath. 

I  do  swear  that  I  will  well  and  truly  serve 

His  Majesty  King  Edward  in  the  Office  of 

So  help  me  God. 

The  following  are  the  persons  who  are  required  to  take  this 
oath  by  31  &  32  Viet.  c.  72. 


APPENDIX  269 

ENGLAND. 

First  Lord  of  the  Treasury. 

Chancellor  of  the  Exchequer. 

Lord  Chancellor. 

President  of  the  Council. 

Lord  Privy  Seal. 

Secretaries  of  State. 

First  Lord  of  the  Admiralty. 

Chief  Commissioner  of  Works  and  Public  Buildings. 

President  of  the  Board  of  Trade. 

Lord  Steward. 

Lord  Chamberlain. 

Earl  Marshal. 

Master  of  the  Horse. 

Commander-in-Chief. 

Chancellor  of  the  Duchy  of  Lancaster. 

Paymaster-General. 

Postmaster-General. 

Secretary  for  Scotland  by  48  &  49  Viet.  c.  61,  s,  3. 

The  President  of  the  Board  of  Agriculture  by  52  &  53 

Viet.  c.  30,  s.  8. 
The  President  of  the  Board  of  Education  by  62  &  63  Viet. 

c.  33.  s.  8. 

[The  President  of  the  Local  Government  Board  must,  it 
is  presumed,  be  required  to  take  the  Oath,  as  the 
President  of  the  Poor  Law  Board  was  by  the  Act  of 
1868,  but  it  is  not  so  specified  in  the  Act  which 
constitutes  his  office.] 

SCOTLAND. 

The  Lord  Keeper  of  the  Great  Seal. 
The  Lord  Keeper  of  the  Privy  Seal. 
The  Lord  Clerk  Register. 
The  Lord  Justice  Clerk. 

IRELAND. 

The  Lord  Lieutenant. 

The  Lord  Chancellor. 

The  Commander  of  the  Forces. 

The  Chief  Secretary  for  Ireland. 


270  APPENDIX 

For  England  the  oath  is  tendered  by  the  Clerk  of  the  Council 
and  taken  in  the  King's  presence  in  Council  or  otherwise  as 
he  may  direct. 

For  Scotland  the  oath  is  tendered  by  the  Lord  President  of 
the  Court  of  Session  at  a  sitting  of  the  Court. 

For  Ireland  the  oath  is  tendered  by  a  Clerk  of  the  Council 
and  taken  at  a  meeting  of  the  Privy  Council  in  Ireland. 

The  Judicial  Oath. 

I  do  swear  that  I  will  well  and  truly  serve  our 

Sovereign  Lord  King  Edward  in  the  Office  of 
and  I  will  do  right  to  all  manner  of  people  after  the  laws  and 
usages  of  this  realm  without  fear  or  favour,  affection  or  ill-will. 

This  oath  is  required  of  the  Lord  Chancellor  and  all  the 
judges  of  the  Supreme  Court  of  Judicature,  in  England  and 
Ireland,  by  the  Kecorders  of  London  and  Dublin.  By  the 
Lord  Justice  General  and  President  of  the  Court  of  Session, 
the  Lord  Justice  Clerk,  the  Judges  of  the  Court  of  Session,  and 
the  Sheriffs  in  Scotland,  and  by  Justices  of  the  Peace  for 
Counties  and  Boroughs  in  the  three  kingdoms. 

In  all  places  and  for  all  purposes  in  which  an  oath  is 
required  by  law  an  affirmation  may  now  be  made  under  the 
provisions  of  51  &  52  Viet.  c.  46. 


INDEX 


Aberdeen,  Lord  : 

Coalition  Government  of,  39, 123. 
Acton,  Lord,  97. 
Act  of  State  : 

ministers'  responsibility  for,  46. 
Addington,  Mr.,  105,  106,  117,  130. 
Admiral,  Lord  High : 

an  office  in  commission,  190. 
Admiralty,  Board  of : 
how  constituted,  191-3. 
its  duties,  191,  192. 

how  distributed,  192,  193. 
secretaries  to,  193. 
how  concerned  with    harbours, 

198. 

Admiralty,  First  Lord  of : 
his  relation  to  Board,  191,  192. 
a  Cabinet  Minister,  210. 
First  Sea  Lord,  193. 
Africa : 
powers  of  High  Commissioner  for 

South  Africa,  149. 
Order  in  Council  for,  149. 
Agriculture,  Board  of : 

took    some    duties    from    Privy 

Council,  149. 

its  creation  and  duties,  201,  202. 
President  of,  201. 
right  to  representation  in  Cabi- 
net, 210. 
Albert,    Prince,   of   Saxe   Coburg 

Gotha  : 
his  constitutional  position,  255, 

256. 
Alien  : 

disabilities  of,  140,  239-42. 
Allegiance  : 

meanings  of,  4,  238. 
oath  of,  238,  268. 
duty  of,  338,  239. 
natural  and  local,  242. 
Althorp,  Lord,  137. 
Anne,  Queen: 

her  choice  of  ministers  not  free,37- 
her  presence  at  Cabinet  meet- 
ings, 40. 

her  dealings  with  foreign  minis- 
ters, 43. 

her  correspondence  with  Boling- 
broke,  94. 

ANBOK.      CKOWM 


Anne,  Queen : 
action  of  the  Council  in  her  last 

illness,  96. 
Anointing  : 

in  coronation  service,  337. 
Archbishop  of  Canterbury : 

was  a  member  of  Cabinet,  86,  87, 

ioo.  101. 
is  a  member  of  Board  of  Trade, 

195- 

Argyll,  Duke  of,  124. 
Arlington,  Earl  of,  8r,  113. 
Army,  Standing  : 

fear    of,    created    by    Common- 
wealth, 31. 
declared  unlawful,  33. 
how  legalized,  34. 
warrant  for  abolition  of  purchase 

in,  261. 

Ashley,  Lord,  81. 
Attorney-General  : 

a  Councillor  of  the  Crown,  207. 
not  necessarily  of  Privy  Council, 

207. 

his  duties,  207. 
his  fiat,  for  use  of  Great  Seal,  56. 

B. 
Bacon,  Lord  : 

on  the  duty  of  judges,  30. 

on  the  Star  Chamber,  73  n. 
Bagehot,  Mr.  : 

on  the  permanent  Civil  Service, 

219. 
Balfour,  Mr.  : 

his  ministry,  127,  133. 
Bankruptcy  : 

formerly  under  jurisdiction    of 
Chancellor,  152. 

a  department  of  Board  of  Trade, 

197. 
Baron  : 

of  Exchequer,  174. 
Barre,  Colonel,  107. 
Bath,  Lord,  104. 
Beacoiisfleld,  Lord  : 

describes  himself  as  '  Prime  Min- 
ister of  England,'  137. 
Bedchamber  Question,  125. 
Bill  for  affixing  Signet,  55. 
Bill  of  Bights  : 

general  character,  33,  33. 


272 


INDEX 


Bill  of  Bights  : 

limitation  of  succession,  232. 

religious  disabilities  created  by, 

232,  233. 
Board  : 

consists  of  President  and  Parlia- 
mentary Secretary,  78. 

of  Admiralty  :  see  Admiralty. 

of  Agriculture  :  see  Agriculture. 

of  Education  :  see  Education. 

of  Trade  :  see  Trade. 

Treasury  :  see  Treasury. 
Bolingbroke : 

correspondence  of,  94,  163. 
British  Museum  : 

votes  for,  217  n. 
Brougham,  Lord,  121. 
Burke : 

his  criticism  on  Board  of  Trade, 

195- 
Burnet,  Bishop,  65,  66,  67,  71,  82, 

92,  "3- 
Bute,  Earl  of : 

his  introduction  to  Cabinet,  98  n. 
his  expulsion  of  Newcastle,  102. 

C. 

Cabal,  the,  82. 
Cabinet : 

in  reign  of  Charles  I,  67,  69. 

in  reign  of  Charles  II,  40. 

absence  of  King  from,  its  effect, 

4<>,  4*>  97,  98. 

in  reign  of  William  III,  84-9. 

objected  to  by  Commons,  90,  91. 

of  Anne,  94-6. 

of  George  II,  100. 

the  motive  power  in  the  Execu- 
tive, 60,  97,  141,  142. 

grew  out  of  Privy  Council,  79-83. 

how  designated,  98,  105. 

how  summoned,  99. 

confused  with  Lords  of  the  Coun- 
cil, 93. 

and  with  Committees  of  Council, 
94. 

numbers  of,  100-101,  118,  119. 

composition  of,  100,  101.  208-10. 

efficient  and  non-efficient,  101-5. 

the  Grand  Cabinet,  105. 

collective  responsibility  of,  107-9, 
131- 

unanimity  of,  in  advising  Crown, 
109,  no, 

secrecy  of,  no,  in,  124. 

inner  circle  of,  122,  123. 

committees  of,  122. 

entitled  to  royal  confidence,  128. 
129. 

how  far  dependent  on  Parlia- 
ment, 130,  133,  141. 


Cabinet : 

duties  of,  as  to  legislation,  132. 
as  to  executive  government,  60, 

141. 
ministers  who  are  members  of, 

154,    156,   163,   179,    192,    208, 

210. 

minutes  of,  102,  no,  in. 

committees  of,  122. 

an  inner  Cabinet,  123. 
Cachet : 

secretarial  seal  used  in  Foreign 

Office,  168-70. 
Ciimden,  First  Lord  : 

his  disavowal  of  colleagues.  106. 
Canning,  George  : 

his  relations  with  George  IV,  43, 

no. 

Carteret,  Lord,  38,  115. 
Catholic,  Roman  : 

disabilities  of,  155,  232,  233. 
Cawdor,  Lord  : 

attended  meetings  of  Cabinet  be- 
fore sworn  as  Privy  Councillor, 

112. 

Cecil,  Sir  B. : 

treatise  on   secretary  of  estate, 

i6t. 
Chamberlain  : 

antiquity  of  office,  142. 

its  former  importance,  20,    142, 

143- 
held  by  Lord   Sunderlaud,  113, 

144. 

present  duties,  142. 
King's  Chamberlain,  143,  144 
Lord  Great  Chamberlain,  142. 
Chamberlain  of  Exchequer,  144, 

173- 

Chancellor : 
of  Edward  the  Confessor,  10,  144, 

150. 

his  duties  in  Exchequer,  10,  179. 
to  be  nominated  in  Parliament, 

20. 
responsible  for  use  of  Great  Seal, 

55>  56)  *54. 
protected  by  Statute  of  Treasons, 

243- 

his  place  in  the  Lords,  75. 
his  duties,  150-4. 
departmental,  150. 
judicial,  62,  151. 
consultative,  151. 
a  Cabinet  office,  210. 
and  subject  to  religious  disability, 

155- 

Chancellor  of  Exchequer  :  see  Ex- 
chequer. 

Chancellor  of  the  Duchy  of  Lan- 
caster :  see  Lancaster. 


INDEX 


273 


Chancery  :  see  Crown  Office,  King. 

its  separation   from   Exchequer, 
15,  62,  158. 

its  staff,  151. 

its  dealing  with  charities,  216. 
Charity  Commission  : 

its  duties,  213-16. 
Charles  I : 

his  exercise  of  prerogative,  30. 
Charles  II : 

his  corruption  of  Parliament,  32, 
81. 

his  Inner  Council,  40,  81,  82. 

his  Privy  Council,  80,  82. 

his  Council  of  Trade,  194. 

his  ministers  more  closely  con- 
nected with  Parliament,  77,  79. 
Charter : 

the  Great,  9,  14. 

of  pardon,  21. 

of  parliamentary   boroughs,    26, 
32. 

limitations  of  prerogative  as  to, 

34- 

issued  by  letters  patent,  53. 
after  Order  in  Council,  57. 
Cholmondeley,  Lord  : 

dismissed  for  opposition  at  Coun- 
cil, 96. 
Churchill,    Lord   Randolph,    127, 

130. 
Civil  Service  : 

a  disqualification  for  Parliament, 

125,  217,  and  n. 
the  permanent,  185,  216-20. 
its   relation  to  political  leaders, 

217-20. 
Civil    Service    Commission,    186, 

212. 
Clarendon : 

constitutions  of,  13. 
Assize  of,  13. 

Clarendon,  Earl  of,  81,  82,  113. 
Clerk  : 

of  the  Signet,  55,  169. 
of  the  Council,  99,  148. 
of  the  Crown,  51,  154. 
Coke,  Sir  E.  : 
definition  of  proclaiming  power, 

29. 
on  the  rule  that  the  King  can  do 

no  wrong,  5. 

on  the  Councils  of  the  Crown,  61. 
on  the  Court  of  Requests,  70. 
Colchester,  Lord,  Speaker  of  House 

of  Commons,  105. 
Colonies  : 

Secretary  of  State  for,  164-7. 

—  formerly  also  for  War,    166, 
167. 

—  his  use  of  seals,  168-70. 

ARSON       CROWH 


Commission  : 
of  Customs,  186,  187. 
of  Inland  Revenue,  186,  187. 
of  Woods  and  Forests,  186,  187. 
Charity,  213-16. 
Ecclesiastical,  213. 
Endowed  Schools,  214. 
of  Escheat,  57. 
of  peace,  140,  153. 
for  executing  royal  powers,  52, 

58,  249. 
for  executing  office  of  Chancellor, 

144,  155- 

of  Lord   High   Admiral,    144, 
190. 

of  Lord  Treasurer,  1 76. 
as  a  mode    of   appointment    to 

office,  221. 

under  sign  manual,  52,  259,  265. 
under  sign  manual  and  signet, 

52,  169. 

of  colonial  governor,  52. 
of  officer  in  army,  52,  59,  221,  252. 

—  form  of,  266. 

of  officer  in  navy,  221. 
Commissioners : 
of  Works,  200. 

—  form  of  warrant  on  appoint- 
ment of  commissioner,  261. 

of  Woods  and  Forests,  105. 
of  Customs,  185,  187. 
of  Inland  Revenue,  185,  187. 
Committee : 

of  the  Privy  Council,  69-71,  78, 

80,  81,  98,  137. 
Foreign,  80,  83,  95. 
Secret,  of  Charles  II,  81,  82. 
Judicial,  of  the  Privy  Council, 

137. 

for  trade,  83,  138,  195. 
for  education,  203. 
for  Channel  Islands,  137. 
for  Universities,  138. 
of  Cabinet,  122. 
for  Imperial  defence,  135. 
Commons,  House  of : 
in  relation  to  supply,  19. 
and  to  public  accounts,  19. 
its  relation  to  ministers,  20,  36, 

81,  82,  132,  133. 

defeat  in,  when  first  a  cause  of 

ministers'  retirement,  132. 
Comptroller  and  Auditor-General : 

his  relation  to  Treasury,  185. 
Concilium  : 
Commune  : 

its  composition,  9.  n,  13. 
its  relation  to  Parliament,  14. 
its  control  of  choice  of  minis- 
ters, 1 6,  20. 
as  referred  to  by  Hale,  61,  62. 


274 


INDEX 


Concilium  : 
Magnum  : 
its  reappearance  on  demise  of 

Crown,  235. 
how  far  the  same  as  House  of 

Lords,  61.  62. 

Ordinarium,  65,  66,  73,  207  n. 
Consort  :  King  or  Queen,  256,  257. 
Constable,  Lord  High,  143. 
Controller  : 
of  Navy,  192. 
of  the  Household,  143. 
Controller  and  Auditor-General, 

185- 

Cornwall,  Duchy  of : 
belongs  to  eldest  son  of  reigning 

sovereign,  257. 
Coronation  :  see  Oath, 
gave  religious  sanction  to  royal 

title,  7,  14,  17,  227. 
a   compact    between    King   and 

people,  227. 
forms  of,  235-8. 
Council  : 

of  the  Crown  : 

its  gradual  formation,  15,  6r. 

necessary  to  royal  action,  7,  18, 

63- 
Councils  described  by  Coke  and 

Hale,  61,  64. 
judicial  functions,  20,  25,  26,  68, 

74- 

distinct  from  Star-chamber,  72. 
limited  in  1641,  31,  74. 
choice  of,  by  Parliament,  22,  64. 
powers   of,    under  Lancastrians, 

22,  23. 

—  under  Tudors,  24. 
Great,  when  summoned,  63,  94. 
Privy  :  King  acts  with,  18. 
is  present  at  meetings  of,  40. 
members  of,  how  appointed,  47, 

138- 

and  dismissed,  47,  139. 
acts  through  Orders  in  Council, 

50. 

first  use  of  term,  65  n. 
records  of  proceedings  in,  65,  79. 
divisions  of,  65. 
members  of,  in  Tudor  period,  66, 

67. 
its  connexion  with   Parliament, 

75- 

dignity  of  its  members,  75. 

their  presence  in  Commons,  75. 

its  united  action,  77. 

reconstitution,  by  advice  of  Tem- 
ple, 82. 

distinct  from  Cabinet,  98. 

form  of  summons  to,  99. 

Oath  of  Councillor,  no,  138,  139. 


Council,  Privy  : 

its  duties  reduced  by  existence  of 
Cabinet,  77. 

—  by  creation  of  new  offices,  148, 
149,  170,  171,  194. 

—  by  growth  of  Secretariat,  163. 
disqualifications  for,  140,240,256. 
composition  of,  139. 

business  transacted  in,  148,  149. 

persons  summoned,  148. 

its  duties  in  advising  as  to  char- 

ters, 57,  148. 

Committees  of,  67,  69,  78.  79,  80, 
83,  98,  137,  138  :  and  see  Com- 
mittee. 

Council  of  Kegency  :  see  Regency. 
Counsel  : 

King's  or  Queen's,  learned  in  the 

law,  65. 
Court  : 

Common  law  courts,  and  the 
Council,  22,  23,  26. 

—  and  the  Crown,  21,  31. 

•-  their  severance  from  Curia,  62. 

of  Requests,  70. 
Crimean  War  : 

and  army  administration,  166 
Cromwell,  Thomas,  157,  160. 
Crown  :  see  Prerogative. 

sources  of  its  power,  2,  3,  4. 

connected  with  landownership,  8. 

regarded  as  property,  17. 

in  Council  and  in  Parliament, 
1  8,  19,  20. 

moral  irresponsibility  of,  41. 

legal  irresponsibility  of,  45. 

its  pleasure,  how  expressed,  55. 

in  what  forms,  50-4. 

in  England,  ratifies  treaties,  53. 

practical  influence  of,  44.  59. 

demise  of  :  see  Demise  of  Crown. 
Crown,  Clerk  of,  in  Chancery,  154. 
Crown  Office,  153. 
Curia  Regis  : 

its  growth  within  the  Concilium, 
10,  n,  61,  62. 

the  origin  of  executive  offices,  it, 


—  of  judicial  institutions,  13,  14. 

—  of  the  King's  Council,  15. 
Customs  : 

Commissioners  of,  185,  212. 

D. 

Danby,  Earl  of,  41.  92.  93. 
Demise  of  Crown  : 
formerly  caused  interregnum,  337, 

251- 
effect  on  existence  of  Parliament, 

251- 


INDEX 


275 


Demise  of  Crown  : 

effect  on  tenure  of  office,  252,  253. 

legislation  of  1001,  254. 
Denizen  : 

how  made,  242  it. 
Departments  of  Government : 

their  growth,  142,  143. 

division   of,   into  executive  and 

regulative,  146. 

Dicey,  definition  of  prerogative,  3. 
Dispensing  power  : 

its  restriction,  32,  34. 
Dissolution  : 

of  Parliament  a  personal  act  of 

Sovereign,  47. 
Divine  Bight  : 

theory  of,  29. 

ended  with  Bill  of  Rights,  33. 
Docket : 

form  of,  51. 
Dun  das,  Mr.,  117,  126. 
Dunkirk  : 

Sale  of,  81,  96. 

E. 

Ealdorman  : 

his  position  and  duties,  7,  10. 
Ecclesiastical  and  Church  Estat  s 
Commission  :  see  Commission. 
Education  : 
Board  of,  202-6. 
Scotch,  170. 
Departments     concerned     with, 

205,  206. 
Committee  of  Privy  Council  on, 

203. 

Edward  the  Confessor  : 
his  chancellor,  10,  144,  150. 
his  title,  225. 
Edward  I : 

Prerogative   and   Parliament    in 

his  reign,  19. 
reigned  before  he  was  crowned, 

227. 
Edward  II  : 

magnates  claim    to    choose    his 

ministers,  20. 
date   of  commencement    of    his 

reign,  227. 

his  deposition,  228,  250. 
Edward  III  : 

Statute  of  as  to  Treasons,  243-5. 
regency  during  his  minority,  247. 
Councils  employed  by  him,  63. 
Edward  IV : 

reigned  by  hereditary  right,  4, 

228. 

forbidden  to  effect  arrest  in  per- 
son, 28. 
character  of  his  Councils,  67. 


Edward  V  : 

provision  for  his  minority,  247. 
Edward  VI : 

his  minority,  247. 

his  Councils,  24,  27,  28,  66,  67, 

72. 
EDWARD  VII  : 

his  influence  in  Foreign  policy, 
129. 

his     accession    and    coronation, 

234-7- 

Eldon,  Lord,  105. 
Electric  Lighting : 

under  control  of  Board  of  Trade, 

198. 
Elizabeth  : 

creation  of  boroughs  by,  37. 

her  order  insufficient  for  issue  of 

treasure,  28. 
the  Star-chamber  in  her  reign, 

73. 

her  Secretaries,  161. 
Ellenborough,  Lord,  107. 
Endowed  Schools : 
Commission,  214. 
Exchequer  : 

its  relation  to  Curia,  n. 

its  severance  from  the  Chancery, 

15,  62,  174. 

—  and  from  Treasury,  175. 
of  Account,   173,  174,    176,    177, 

181. 

of  Receipt,  173,  175. 
Exchequer : 

Chancellor  of,  175,  179-82. 
varying  importance  of  office,  179, 

210. 

character  of  his  duties,  180. 
in  appointment  of  sheriffs,  181. 
a  cabinet  office,  aio. 
his  control  of  estimates,  180,  184. 
Exchequer  : 

Treasurer  of,  is  Lord  High  Trea- 
surer, 175. 
Under  Treasurer  of,  is  Chancellor 

of  Exchequer,  179. 
Executive  :   see  Cabinet,  Council, 

Crown,  Ministers. 
as  distinct  from  legislature,  i,  a. 
where  it  resides,  141,  142. 

F. 

Fealty  : 

nature  of,  239. 
Feudalism  : 

and  theory  of  prerogative,  4,  8. 

strengthened  the  Crown,  16. 
Fiat  : 

of  Chancellor,  56. 

of  Attorney-General.  56. 


T  2 


276 


TXDEX 


Foreign  affairs : 
sovereign  takes  no  independent 

action  in,  43. 

Secretary  of  State  for,  43,   118, 
121,  126,  129,  164, 165,  167,  169. 
his  duties  to  Crown,  43.  129. 
Foreign  Committee  : 

of  the  Privy  Council,  79,  80,  83, 

94- 

Foreign  Office : 

when   made   a   separate  depart- 
ment, 165. 
seals  used  in,  169. 
Fortescue,  Sir  John  : 

Governance  of  England,  22,  24. 
Fox,  C.  J.  : 

on  Regency  question,  249. 

on  ministerial  responsibility,  107, 

108. 

his  coalition  with  North,  117. 
the  first  Foreign  Secretary,  165. 

G. 

Gas: 

and  water  companies  controlled 

by  Board  of  Trade,  197. 
George  I  : 

his  acceptance  of  Whig  ministry, 

37,  97- 
his   non-attendance   at   Cabinet, 

40,  97- 

his  commissions  to  Lords  Justices, 

59- 

his  quarrels  with  his  son,  257. 
George  II  : 

tried  to  choose  his  own  ministers, 
38. 

his  martial  instincts,  42. 

his  Cabinets,  42,  100. 

his  relations  with  Walpole,  126. 

restraint  on  marriage  of  his  de- 
scendants, 257. 
George  III : 

his  influence  in  choice  of  minis- 
ters, 38,  43,  131. 

his  insanity,   provision   for,    78, 

79- 

and  the  Royal  Marriage  Act,  257. 

size  of  his  first  Cabinets,  101,  102. 

disloyal   to   his    ministers,    104, 
n8,  131. 

resisted  party  combination*,  116, 

117. 
George  IV  : 

his  influence  in  choice  of  minis- 
ters, 38. 

his  independent  action  restrained, 

43- 
substitute  for  his  sign  manual, 

59- 


George,  of  Denmark,  256,  257. 
Gladstone,  Mr. : 

not  consulted  as  to  his  successor 

in  1894,  39. 
his  opinion  on  the  Palmerston- 

Russell  controversy,  121. 
offices  held  in  combination,  177. 
his  Cabinet  of  1886,  210. 
Secretary  of  State  without  seat, 

211. 

Godolphin  : 
his  war  policy,  36. 
as  first  minister,  114. 
Governor : 

how  appointed,  52. 
Grafton,  Duke  of: 
his  ministry,  103,  no. 
his  disavowal  of  its  action,  106. 
divulged  what  passed  at  Cabinet 

meetings,  no. 
Privy  Seal    without    a    seat  in 

Cabinet,  103,  104. 
his    idea    of    Prime    Minister's 

office,  117. 
Graham,  Sir  James  : 

at  the  Admiralty,  190. 
Grand  Remonstrance,  75,  76. 
Granville,  Lord,  39,  in. 
Grenville,  George  : 
composition  of  his  Cabinet,  1 02, 

107. 
Grenville,  Lord  : 

Minutes  of  his  Cabinet,  1 10. 
Grey,  Earl : 
and  William  IV,  109,  no,  124, 

128. 

his  retirement,  127. 
Guardian  of  the  Kingdom,  246. 
Guilford,  Lord,  83,  93. 

H. 

Habeas  Corpus  : 

writ  of,  74,  140. 

issued  by  Chancellor,  152. 
Hale: 

Councils  described  by,  61,  65,  66. 
Halo's  Case,  33. 
Hallam,  Mr. : 

views  on  Cabinet  responsibility, 

108. 

Hampden's  Case,  33. 
Hanover  : 

citizens  of,  239. 
Harbours  : 

control  of,  198. 
Hardwicke,  Lord  : 

his  description  of  Cabinets,  100, 

loi,  106. 
Hardwicke,  Second  Lord  : 

and  Rockingham  Cabinet,  103. 


INDEX 


277 


Harley  : 
reluctantly  dismissed   by  Anne, 

37,  "4- 

attempted  murder  of,  94  w. 
first   Prime   Minister  so  called, 

114. 

Heinsius,  Pensionary  : 
correspondence   of  William    III 

with,  84. 
Henry  II  : 

his  administration,  13. 
Henry  III : 
effect  of  his  minority,  5,  15,  62, 

63- 

the  magnates  claim  to  choose  his 
ministers,  15,  20. 

his  title,  226. 

provision   for  his  absence  from 

kingdom,  246. 
Henry  IV : 

nomination  of  his  ministers,  22. 

his  title,  228. 
Henry  VI : 

character  of  his  reign,  22,  23. 

provision  for  his  minority,  247. 

—  for  his  insanity,  248. 
Henry  VII : 

his  title,  229. 
Henry  VIII : 

his  Council,  24,  66. 

powers  given  him  by  Parliament, 
34,  25. 

used     stamp     in     lieu     of    sign 
manual,  58,  59. 

his  will,  229. 

his  Council  of  Regency,  247. 

ordinance  for  his  household,  69. 

his  secretaries,  159,  160,  161. 
Herbert,  Dr.  J. 

on  duties  of  Secretaries  of  State, 

162. 
Hervey,  Lord : 

his  account  of  Cabinets,  101. 
Homage  : 

of  peers  at  coronation,  237,  238. 

nature  of,  239. 
Home  Office : 

its  origin,  164-7. 
Household  : 

offices  in,  how  far  political,  125, 

M3- 
character  of,  142,  144. 

I. 

Impeachment,  20,  22,  42,   75,   76, 

88,  107. 

Imperial  Defence  Committee,  136. 
India : 

Secretary  of  State  for,  167. 

Governor-General  of,  52,  221. 


Infancy  : 

of  sovereign,  247. 
Inland  Revenue : 

Commissioners  of,  185,  aia. 
Insanity  : 

of  sovereign,  241,  249. 
Instructions  : 

to  Colonial  Governor,  169 
Investiture  : 

part  of  Coronation  ceremony,  237. 
Ireland  : 

union  with,  171,  233. 

Chancellor  of,  155,  210. 

Treasury  of,  176. 

Post  Office  of,  1 88. 

Lord    Lieutenant    of,    171,    172, 
209. 

Chief  Secretary  for,  171,  172. 

Parliament  of,  171. 

Privy  Council  of,  172. 

J. 
James  I : 

forbidden  to  sit  as  judge,  28. 

his  title  to  the  throne,  229. 
James  II : 

legal  results  of  his  flight,  4,  230, 
231. 

his  dealing  with  the  Bench,  32. 

his  supersession,  230,  231,  250. 
Judges : 

tenure  of  office,  30,  32,  33,  222. 

action  under  the  Stuarts,  31. 

how  appointed,  153. 
Junto,  Lords  of  the,  60,  79. 

Committee  for  Foreign  Affairs  re- 
ferred to  as,  79. 
Jury  : 

early  uses  of,  14. 
Justice  of  the  Peace  . 

how  appointed,  153. 
Justiciar  : 

his  duties,  10,  144. 

disuse  of  office,  174,  246. 


Keeper  of  the  Great  Seal,  155. 
King  :  see  Crown,  Prerogative  : 
early  notions  respecting,  3,  4. 
his     legal     irresponsibility,    its 

effect,  5,  41,  45,  46. 
his  command   cannot  excuse   a 

wrong,  41,  46. 
protected  by  Statute  of  Treasons, 

243- 
provision     for     incapacity      of, 

345-50. 

control  over  family,  257. 
practical  influence  of,  49. 
King  Consort,  256,  257. 


278 


INDEX 


King's  Counsel  :  sec  Counsel. 
King's  Peace  :  see  Peace. 

L. 

Ladies  of  Household,  125. 
Lancaster,  Duchy  of : 

its  Chancellor,  119,  206,  210. 

—  Courts,  206. 
Land  Commissioners,  202. 
Lansdowne,  Lord,  112. 
Law  Officers  : 

of  United  Kingdom,  55,  207. 
Leader  of  the  House,  77,  120,  135. 

177,  182,  208,  209. 
Legislation  : 

duty  of  ministers  as  to,  134. 
Letters  Patent  : 

under  Great  Seal,  50,  52, 176, 187. 
190,  22  r,  247,  248. 

uses  of,  52,  53. 

how  granted,  55  n. 

how  revocable,  223. 

of  Secretary  of  State,  159,  168  n. 

form  of,  259. 
Licence,  Royal : 

to  elect  a  bishop,  53. 
Local  Government  Act,  201. 
Local  Government  Board  : 

creation  of,  201. 

President  of,  201,  210. 

Secretary  to,  201. 

duties  of,  149,  201. 
Lord  Advocate  : 

for  Scotland,  170,  207. 
Lord  Lieutenant  : 

of  Ireland  :  sec  Ireland. 

of  county,  his  duties  as  to  Com- 
mission of  Peace,  153. 

form  of  warrant  on  appointment 

of,  264. 
Lords,  House  of: 

its  part  in   proclaiming   a   new 
Sovereign,  235. 

a  Council  of  the  Crown,  62,  136. 
Lords  Justices  : 

for  the  Kingdom,  58,  246. 
Lords  of  the  Counci',  94,  99,  147, 

149. 
Loughborough,  Lord  : 

his  attendance  at  Cabinet,  105, 

118. 
Lunacy  : 

Chancellor's  jurisdiction  in,  152. 

M. 

Macaulay,  Lord,  132,  233. 
McKenna,  Mr.,  na  n. 
Magna  Charta,  it,  14. 
Mansfield,  Lord  : 

as  a  Cabinet  Minister,  103,  104. 
Marlborough,  Duke  of,  30,  37,  100 
Marriages,  Royal,  255. 


Mary  I : 

used  a  stamp  for  sign  manual, 

58,  59- 
Mary  II : 

offer  to  her  of  the  throne,  232. 
her  powers  in  absence  of  King, 

256- 
Master  of  the  Ordnance  : 

a  member  of  the  Cabinet,  85,  86. 

94>  "9- 
Masler  of  Posts  : 

office  of,  187. 
Melbourne,  Lord  : 

his  treatment   by   William   IV, 

38,  39. 
on  disclosures  of  Cabinet  secrets, 

in. 
his  relations  with  his  colleagues, 

i2i.  124,  127. 

his  ministry  and  legislation,  132. 
Merchant  shipping : 

and  Board  of  Trade,  198,  199. 
Mercy,  prerogative  of : 

used  on  advice  of  ministers,  44. 
Ministers  of  the  Grown  : 
appointment  of  by  Commune  Con- 
cilium, 1 6,  20. 
in  Parliament,  20,  22. 
how  controlled   by   Parliament, 

35-8- 

their  control  of  policy,  39-43. 
relations  of,   to   Crown,   48,   49, 

128-30. 
their   responsibility   for    policy, 

41,  42. 
—  and  for  acts  of  administration, 

44-59- 

cannot  plead  royal  orders,  46. 

mode  of  appointment,  47,  168. 
221. 

proposed  exclusion  from  Com- 
mons, 91. 

closer  relations  with  Parliament, 

75,  77- 

presence  in  the  Commons,  75. 
responsibility,  collective,  107-9. 
relations  with  Prime   Minister, 

1 19-27. 

with  one  another,  126,  127. 
causes  of  retirement,  132,  133. 
Minutes  : 

Cabinet,  102,  no. 
Treasury,  178. 

Misprision  of  Treason,  243  n. 
Molesworth,  Sir  William  : 

took  notes  of  what  passed  in  the 
Cabinet,  in. 

N. 

Nationality : 

how  acquired  and  lost,  339,  240. 


INDEX 


279 


Naturalization,  338,  239,  240,  241. 
Navy  Board,  190. 
Newcastle,  Duke  of,  lor,  102,  131. 
Norman  Kings  : 

their  administration,  8-12. 

their  title,  226. 

their  exchequer,  173. 
Normanby,  Lord,  85,  86.  126. 
Normandy,  Duke  of : 

an  absolute  monarch,  8  /-. 
North,  Lord,  38. 
North,  Roger,  his  Life  of  Guilford. 

83- 
Nottingham,  Lord  Chancellor,  93. 

O. 

Oath: 

at  Coronation,  227,  233. 
form  of,  236. 
for  security   of  Scotch  Church, 

335- 
of  Privy  Councillor,  99,  no. 

form  of,  138,  139. 
of  office,  254. 

of  allegiance,  form  of,  268. 
official  form  of,  268. 
—  by  whom  taken,  269. 
judicial  form  of,  270. 
Office  : 

executive  and  regulative,  144. 
how  conferred,  47,  53,  221. 
tenure  of,  at  pleasure  or  during 

good  behaviour,  220,  221,  222. 
removal     from,    on    address    of 

Parliament,  322. 
a   disqualification  for  a  seat    in 

Commons,  35. 
subject  to  re-election,  253. 
Order  : 

royal,  for  expenditure  on  supply 

services,  51,  267. 
Order  in  Council  : 
a  mode  of  expressing  royal  plea- 
sure, 50. 
an   authority   for   use   of    Great 

Seal,  56,  57,  58. 
forms  of,  50. 
uses  of,  98,  147-9. 
a  mode  of  conferring  office,  221. 
for     non-disclosure    of    matters 

treated  in  Council,   no. 
for  distribution   of  business    in 

War  Office,  149. 
for    assignment    of    powers    in 

Africa,  149. 
Oxford,  Provisions  of,  16. 

P. 

Palmers  ton,  Lord  : 

his  relations  with  Lord  J.  Rus- 
sell, 121, 126. 


Palme rston,  Lord  : 
consults   his  Cabinet  as   to  ap- 
pointments, 124. 
his  dismissal  in  1851,43,  126,  129. 
censured  by  William  IV,  129. 
royal  memorandum  addressed  tu, 

129. 
and  Chancellorship  of  Exchequer, 

179- 
Pardon  : 

not  pleadable  to  impeachment, 
34,  42,  46,  ga. 

—  nor  to  civil  wrong,  46. 
form  of,  51,  268. 

Parliament  : 

defines  prerogative,  16-19. 
controls    choice     of     ministers, 

36-9- 
prorogation  and  dissolution  of, 

44,  47- 

confers  title  to  throne,  228-32. 

treason  to  intimidate,  244. 

in  appointment  of  Regent.  247. 
249. 

on  Demise  of  Crown,  251. 

office-holders  removable  on  ad- 
dress of,  222. 

Irish,  249. 

Long,  74. 

Model,  19. 
Parliamentary  : 

counsel,  186. 

secretaries,  209,  210. 

—  to  Treasury,  182. 

—  to  Admiralty,  191. 

-  to  Board  of  Trade,  195. 

—  to  Local  Government  Board, 
201. 

—  to  Board  of  Education,  204, 
209. 

Partition  Treaty,  42,  84.  89. 
Party  : 

Government   by,  36,  37,  38,   39, 

90,  97,  "a>  '33-5- 
Patent :  see  Letters  Patent. 

for  inventions,  197. 
Paymaster-General,  186,  191. 
Peace,  the  King's : 

ceased  with  his  life,  145,  227. 

proclaimed    by   new   King,   227, 
228. 

commission  of,  140,  153. 
Peel,  Sir  Robert : 

views  as  to  ministerial  responsi- 
bility, 44. 

and  George  IV.  44. 

and  William  IV,  44,  no. 
Peer  : 

form  of  summons,  57,  136. 

a  councillor  of  the  Crown,  137. 

homage  of,  at  coronation,  237. 


280 


INDEX 


Pelham,  Henry,  101.  104,  116,  177. 
Petition  of  Bight  : 

formerly  preferred  in  Chancery, 

152- 

Petty  Bag  Office,  223. 
Philip  of  Spain  : 

as  King  Consort,  255. 
Pitt,  William : 

Earl  of  Chatham,  38,  102,  157, 

177. 
Pitt,  "William  : 

as  to  Regency,  249. 

and  position  of  Prime  Minister, 
117. 

and  George  III,  126,  130. 
Poor  Law  Board,  201. 
Portland,  Earl  of,  85,  89. 
Portland,  Duke  of,  177. 
Post  Office  : 

as  a  department  of  government, 

187-90. 
Prerogative,  Royal : 

definition  of,  a,  16. 

sources  of,  3. 

strength  of,  under  Edward  I,  17. 

—  Henry  VIII,  27. 

in  relation  to  Parliament,  12,  13, 

1 6. 
how  far  extended  by  Henry  VIII, 

27. 

and  Bill  of  Rights,  33. 
and  choice  of  ministers,  35-8. 
and  choice  of  policy,  39-47. 
in  administration,  44-54. 
of  mercy,  44,  93. 
Prime  Minister  : 
definition  of,  97,  112,  113. 
title  when  first  used,  114. 
chief  ministers  of    Charles    II, 

"3- 

—  of  William  III,  and   Anne, 
113,  114. 

—  of  George  II,  115. 

a  term  of  reproach,  1 16. 

need  of  not  recognized,  117. 

his  colleagues,  119. 

mode  of  appointment,  120. 

his  powers  and  duties  in  respect 
of  them,  121,  122,  123,  124. 

usually  first   Lord  of  Treasury, 
120,  176. 

precedence  of,  127,  262. 

variety  of  his  duties,  120,  136. 

controls  size  of  Cabinets,  210. 
Prince  Consort,  43,  44,  257. 
Privy  Council :  see  Council. 

President  of,  75,  148,  204,  210. 

Clerk  of,  99,  148,  181. 

Committee  of,  for  Education,  203, 
204,  216. 

Vice-president  of,  203. 


Privy  Council : 

Judicial  Committee  of : 

—  hears  appeals  as  to  Endowed 
Schools,  216. 

Irish,  172. 

Privy  Councillor,  137-40. 
Privy  Seal  :  see  Seal. 
Privy  Seal,  Lord,  156,  157. 

a  minister  to  be  nominated  in 
Parliament,  20. 

in  Courts  of  Requests  and  Star- 
chamber,  68-71. 

his  place  in  the  Lords,  75. 

usually  a  Cabinet  office,  156,  210. 

but  not  necessarily,  103,  104. 
Procedure : 

effect  of  rules,  135. 
Proclamation  : 

under  Henry  VIII,  25. 

power  to  issue,  29. 

mode  of  making,  52,  57. 

its  uses,  50,  147. 

form  of,  66. 
Protector  of  the  Realm  : 

office  of,  246,  247,  248. 

Q 

Queen  :  see  Victoria. 

dowager,  255. 

regnant,  255. 

consort,  255. 
Quo  Warranto  : 

proceedings  in  nature  of,  223. 

R. 

Railways  : 

controlled  by  the  Board  of  Trade, 

197. 
Recognition,  The : 

at  coronation,  236,  237. 
Recognitors,  Jury  of,  14. 
Reform  Bill  (1832),  38,  129,  132, 

134- 
Regency : 

cases  of,  246,  247,  248. 

Council  of,  15,  22,  74. 

Regency  bill,  247. 
Remonstrance  : 

the  Grand,  75,  76,  80. 
Requests,  Court  of,  69/70. 

Masters  of,  70. 
Responsibility  of  Ministers  : 

individual,  87-91. 

collective,  92,  106-9. 
Richard  II : 

his  minority,  20,  64. 

his  refusal  to  name  his  ministers 
to  Commons,  20. 

his  Councils,  22,  247. 

his  deposition,  228,  250. 


INDEX 


281 


Richmond,  Duke  of,  109 
Riot  Act  : 

its    effect    on    law    of    treason, 

244. 

Rochester,  Earl  of  : 
on  ministerial  responsibility,  42, 

44,  95- 

Rockingham.  Marquis  of  : 
his  party,  38. 
his  ministries,  103,  105,  107,  1  18, 

125. 
Borne,  Church  of  : 

communion  with,  a  disqualifica- 

tion for  Crown,  232,  233. 
and  for  Chancellorship,  155 
Bosebery,  Lord,  39. 
Bussell,  Lord  John,  39,  44,   121, 
124,  127. 


S. 


Salisbury,  Marquis  of: 
Prime  Minister  and  Foreign  Sec- 

retary, 120,  177. 
his  cabinets,  123,  127,  133,  210. 
Saxon  : 
king,   6-8,    16  ;    administration, 

10. 

Scire  Facias  : 
writ  of,  223. 
Scotland  : 

Union  with,  170,  239,  251. 
succession  to  throne  of,  233. 
security  of  Church  in,  235. 
Treasury  of,  176. 
Secretary  for,  170,  209. 
Great  Seal  of,  170. 
Seal  : 

Great  :  see  Letters  Patent. 
of  United  Kingdom,  154. 
authority  for  using,  28,  56,  57. 
uses  of,  50,  51,  52,  53,  55,  155. 
number  of,  55  n. 
pardon  under,  42. 
Chancellor  responsible  for,  55, 

r54- 

treason  to  counterfeit,  243. 

of  Scotland,  1  70. 

of  Ireland,  155. 
Privy  : 

writs  issued  under,  20. 

a  warrant    for  use    of   Great 
Seal,  55,  '56- 

for  issue  of  public  money,  156. 

disuse  of,  56  n.,  156. 
Secretarial  :  see  Signet. 

Statute    concerning,     28,     55, 

*59- 

three  in  number,  168. 
office  conferred  by  receipt  of, 

47,  168,  213. 


Seal,  Secretarial  : 

their  respective   uses,   51,  52, 

168-70. 

of  Duchy  of  Lancaster,  206. 
of  Exchequer,  174. 
Secretary : 
an    officer    of    the    Household, 

159,  1 60. 

becomes     Principal      Secretary 

159. 

and  Secretary  of  Estate,  161. 
his  duties,  159,  161,  162. 
his    place     in     Parliament,    75 

1 60. 

and  in  Privy  Council,  159. 
his  precedence,  75,  160. 
growth  of  his  powers,  163. 
Northern  and  Southern,  164. 
Home  and  Foreign,  165,  166. 
for  War,  Colonies,  and  India,  166, 

167. 

mode  of  appointment,  168,  221. 
of  State  :  the  King's  clerk,  158. 
for  Scotland  :  see  Scotland, 
to  Lord  Lieutenant :  see  Ireland, 
to  the  Treasury,  182,  183. 
Financial,    to    Admiralty,    192, 

193,  209. 

—  to  War  Office,  209. 
Under  Secretaries,  209. 
Parliamentary,  195,  201,  202. 

Settlement,  Act  of,  89,  90.  91,  92, 

93- . 
as  to  judges'  tenure,  33. 

—  office  and  the  House  of  Com- 
mons, 35,  90,  91. 

duties  of  Council,  90,  92. 
plea  of  pardon,  42,  92,  93. 
Seymour,  Sir  E.,  84,  86. 
Shelburne,  Lord,  103,  117,  132. 
Sheriff  : 

mode  of  appointment,  147,  181. 
in  collection  of  revenue,  169  n. 
Shrewsbury,  Duke  of : 
Secretary  of  State,  85,  86,  163. 
Lord  Chamberlain,  144. 
constituted    Lord    Treasurer    at 

death  of  Anne,  96. 
his  notes  of  Cabinet   meetings, 

86,  1 10. 
Sign  manual  : 

documents    under,    a    mode   of 
expressing  royal   will,   50,  51, 
52,  S3. 
when  it  has  been  dispensed  with, 

58,  59- 

Warrant  under : 
as  an  executive  act,  50,  261. 
as  authority  for  affixing  the  Great 

Seal,  51,  56,  263,  264. 
by  whom  countersigned,  57. 


282 


INDEX 


Sign  Manual : 
when     preceded     by    Order     in 

Council,  57. 
to  give  power  to  make  and  ratify 

treaties,  53. 

commissions  under,  52,  265,  266. 
instructions  under,   to  Colonial 

Governors,  54. 
order  under,  for  issue  of  public 

money,  51,  267. 
—  for  a  free  pardon,  268. 
conferring  precedence  on  Prime 

Minister,  262. 
Signet  : 

its  former  use,  55  n. 
its  present  use,  52,  56  n,  169. 
ordinance  and  statute  as  to  its 

use,  159. 

office,  abolished  1851,  169. 
Somers,  Lord,  41,  42, 87, 89, 90, 1 13. 
Sophia  of  Hanover  : 
and  the  settlement  of  the  throne. 

232,  233,  234. 

Southampton,  Earl  of,  81. 
Standard : 

kept  at  Board  of  Trade,  197. 
Standing  Army  :  see  Army. 
Star-chamber  : 
its  powers  under  Tudors,  26  ;  and 

Stuarts,  28,  29. 
its  origin,   71  ;    its  jurisdiction, 

72  ;  its  abolition,  74. 
Steward,  Lord  High,  142,  143. 

of  Household,  143. 
Stormont,  Lord : 

Secretary  of  State,  165. 
Subpoena : 

writ  of,  21. 
Suuderland  : 

introduced  party  govern  men  1,36. 
his  views  about  Cabinets,  41,  42, 

86,  87,  94. 

his  retirement,  113,  114. 
held  office  of  Chamberlain,  113, 

114,  144. 
Swift: 

first  uses  the  term  Prime  Minis- 
ter, 114. 

T. 

Tait,  Archbishop  : 

correspondence  with  Queen  Vic- 
toria   on    Irish    Disestablish- 
ment, 49  n. 
Temple,  Lord,  108. 
Temple,  Sir  William,  82,  92. 
Test  Act,  33. 
Thurlow,  Lord  Chancellor : 

his  dismissal,  126. 
Title : 

to  Crown,  325-34. 


Trade,  Board  of : 
history  of,  194. 
duties  of,  149,  195-9. 
President  of,  195,  209,  210. 
Secretary  to,  195. 
Transubstantiation  : 

declaration  against,  233,  235. 
Treason  : 
how  connected  with  allegiance, 

242. 

meaning  of,  242-5. 
constructive,  243,  244. 
treason  felony,  244. 
misprision  of,  242  n, 
Treasurer  : 

his  duties,  n,  174. 

a  minister  to  be   nominated   in 

Parliament,  20. 
his  place  in  the  Lords,  75. 
becomes  Lord  Treasurer,  175. 
his    office    in    commission,    175, 

176. 

judicial  duties  taken  away,  181. 
Treasurer  of  Household,  143. 
Treasurer  of  the  Navy,  190. 
Treasury  : 

Lords  Commissioners  of,  51,  176, 

177,  178,  182,  183. 
—  countersign    royal    order    for 

issue  of  money,  51. 
history  of,  174-6. 
its  transaction  of  business,  1 78. 
its  duties,  how  changed,  179,  180. 
Secretaries  to,  182,  183. 
permanent  staff  of,  183,  184. 
how  concerned   with   harbours, 

198. 

its  control,  nature  of,  180,  184. 
Departments     connected     with, 

185,  186,  202. 
First  Lord  of : 

usually  Prime  Minister,  176-8. 
his  subordinates  in  Parliament, 

182,  183,  208. 

forms  relating  to,  259,  267. 
Treaty  : 

how  made  and   ratified,  53,  54, 

57- 

form   of  warrant   on  ratification 
of,  263. 

U. 
Union  : 

with  Ireland,  171. 
United  Kingdom  : 

Great  Seal  of,  155. 
Utrecht : 
Treaty  of,  94. 

V. 

Vernon,   Mr.    Secretary,    42,    89. 
114. 


INDEX 


283 


Viceroy  of  India  : 

how  appointed,  52,  221. 
Victoria : 

her  loyalty  to  ministers,  39. 
her  attention  to  foreign  affairs, 

43,  44,  lar,  126,  129. 
her  attitude  in  Disestablishment 

of  Irish  Church,  129. 
her  marriage  with  Prince  Albert 
of   Saxe-Coburg    and    Got  ha. 
256. 

Victualling  Board  : 
for  Navy,  190. 

W. 

"Wales,  Prince  of : 

created  by  letters  patent,  257. 
Walpole,  Sir  Robert  : 

his  management  of  Parliament^. 

his  cabinets,  ioon.,  roi. 

his  position  as  Prime  Minister, 
114,  115. 

sources  of  his  power,  115,  116. 

his  defeat  in  the  Commons,  132. 

offices  held  by,  176. 
•War: 

Secretary  at,  166,  167. 

Secretary  of  State  for,  119,  166, 

167. 
War  Office  : 

growth  of,  145. 

distribution  of  duties  in,  149. 
Warrant :  see  Sign  manual. 

of  Speaker,  57. 

forms  of,  261-4. 

Wellington,    Duke    of,    109,    no, 
128. 


Whitehall : 

Court  of  Requests  at,  69,  70. 

Treasury  at,  175. 
Wilkes,  John,  106,  1 10. 
William  I : 

his  policy  in  administration.  8,9. 

his  title,  8,  226. 
William  III  : 

constitutional  legislation  of  his 

reign*  33- 
his  ministries,  36. 
his  presence  at  Cabinets,  140. 
declined  to  be  a  King  Consort, 

256. 
assumption  of  responsibility,  42, 

84,  89. 
used  a  stamp   for  sign   manual. 

58,  59- 
provision   for  his  absence,  246, 

256. 

his  inner  Cabinet,  85,  86. 
William  IV  : 
and   his  ministers,   38,  39,    no, 

in.  128. 

Witan,  6,  7,  9,  235. 
Works,  Board  o',  199.  200. 
Writ  : 

nature  of,  52. 

of  subpoena,  21. 

under  Great  Seal,  50. 

of  dedimus,  57. 

for  bye-election,  57  ;  for  general 

election,  52. 
of  summons  to  peer,  52,  57.  136, 

137. 

of  Quo  Warranto,  223. 
of  Scire  Facias,  223. 


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15 


CLARENDON  PRESS  BOOKS 


Political  Science  and  Economy 

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