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Title: The Government of England (Vol. I)
Author: A. Lawrence Lowell
Release Date: November 28, 2010 [EBook #34471]
Language: English
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THE
GOVERNMENT OF ENGLAND
VOLUME I
THE MACMILLAN COMPANY
NEW YORK · BOSTON · CHICAGO
ATLANTA · SAN FRANCISCO
MACMILLAN & CO., Limited
LONDON · BOMBAY · CALCUTTA
MELBOURNE
THE MACMILLAN CO. OF CANADA, Ltd.
TORONTO
THE
GOVERNMENT OF ENGLAND
BY
A. LAWRENCE LOWELL
PROFESSOR OF THE SCIENCE OF GOVERNMENT
IN HARVARD UNIVERSITY
VOLUME I
New York
THE MACMILLAN COMPANY
1908
All rights reserved
Copyright, 1908,
By A. LAWRENCE LOWELL.
Set up and electrotyped. Published May, 1908. Reprinted June, 1908.
Norwood Press
J. S. Cushing Co.—Berwick & Smith Co.
Norwood, Mass., U.S.A.
PREFACE
Measured by the standards of duration, absence of violent commotions, maintenance of law and order, general prosperity and contentment of the people, and by the extent of its influence on the institutions and political thought of other lands, the English government has been one of the most remarkable the world has ever known. An attempt, therefore, to study it at any salient epoch cannot be valueless; and the present is a salient epoch, for the nation has now enjoyed something very near to manhood suffrage in the boroughs for forty years, and throughout the country more than twenty years, a period long enough for democracy to produce its primary if not its ultimate effects. Moreover, England has one of the most interesting of popular governments, because it has had a free development, little hampered by rigid constitutional devices. It is an organism constantly adapting itself to its environment, and hence in full harmony with national conditions. An endeavour has been made in these volumes to portray the present form of that organism and the forces which maintain its equilibrium.
In preparing a study of this kind one feels the need of limiting its scope, by reducing the denominator as Arthur Helps remarked. Hence the work covers only the English government as it stands to-day; and further, only those institutions, national and local, that have a general bearing. The British Constitution is full of exceptions, of local customs and special acts with which town clerks must be familiar. They fill the path of these men with pitfalls, but they do not affect seriously the general principles of the government, and no attempt is made to describe them here. Even the institutions of Scotland and Ireland, interesting as they are in themselves, have been referred to only so far as they relate to the national government or throw light upon its working.
Even so limited, the subject is not without difficulties. The forces to be studied do not lie upon the surface, and some of them are not described in any document or found in any treatise. They can be learned only from men connected with the machinery of public life. A student must, therefore, rely largely upon conversations which he can use but cannot cite as authorities, and the soundness of his conclusions must be measured less by his references in footnotes than by the judgment of the small portion of the public that knows at first-hand the things whereof he speaks. The precise effect of the various forces at work must be a matter of opinion on which well-informed people may differ, and the writer has drawn the picture as it appeared to him.
To undertake a study of this kind would be impossible without manifold assistance from others; and the writer is glad of this chance to express his sense of obligation to the many persons who have given him help and information, men in public life belonging to different parties, permanent officials, national and local, officers of political associations, jurists, publicists and many others. It is pleasant for him to recall the constant courtesy with which he was treated, not infrequently, in the case of local officers, without any introduction or claim of any kind. Among many men to whom he owes much he desires to acknowledge his debt to Rt. Hon. Joseph Chamberlain, Lord Fitzmaurice, Rt. Hon. John Morley, the late Sir William Harcourt, Lord Reay, Mr. Frederic Harrison, Sir William James Farrer, Sir Alexander Hargreaves Brown, Sir Frederick Pollock, Sir C. P. Lucas, Sir Horace Plunkett, Mr. Sidney Webb, Mr. Graham Wallas, Dr. William Cunningham, Mr. Francis W. Hirst, the late Capt. R. W. E. Middleton, Mr. A. E. Southall of the National Union of Conservative Associations and Mr. Charles Geake of the Liberal Publication Department.
His thanks are especially due to Professor A. V. Dicey, Sir Courtenay Ilbert, Professor H. Morse Stephens, now of the University of California, and Professor W. B. Munro of Harvard University, who, besides giving him information, have kindly read a part of the manuscript or proof sheets and made many valuable suggestions. Above all he feels the deepest gratitude to Rt. Hon. James Bryce, now happily British ambassador to the United States, the master and guide of all students of modern political systems, whose unwearied assistance, counsel and encouragement have been a constant help throughout the preparation of this work, and who has read the whole of the proof sheets except the chapters that deal with the Empire. These friends have made the writing of the book possible, and saved the author from many blunders. It is needless to say that none of them are in any way responsible for any opinions in these pages; and in fact the writer has tried not to express, and so far as possible not to form, opinions on matters of current party politics.
The writer is indebted also to a number of his students at Harvard, who have made researches in several different subjects. While some of the more important of these contributions have been referred to in the notes, it has been impossible to do this in all cases. Finally he desires to acknowledge the help he has received in his investigations from three assistants: Mr. Emerson David Fite, now of Yale University, Mr. Robert Lee Hale, now of the Harvard Law School, and Mr. Thomas N. Hoover of the Harvard Graduate School, the last of these having also verified the citations and prepared the index.
April, 1908.
TABLE OF CONTENTS
VOLUME I
PAGE
Introductory Note on the Constitution
1
PART I.—THE CENTRAL GOVERNMENT
CHAPTER I
The Crown
16CHAPTER II
The Crown and the Cabinet
27CHAPTER III
The Cabinet and the Ministers
53CHAPTER IV
The Executive Departments
81CHAPTER V
The Treasury
115CHAPTER VI
Miscellaneous Offices
131CHAPTER VII
The Permanent Civil Service
145CHAPTER VIII
The Ministers and the Civil Service
173CHAPTER IX
The House of Commons—Constituencies and Voters
195CHAPTER X
The House of Commons—Electoral Procedure
219CHAPTER XI
The House of Commons—Disqualifications, Privilege, Sessions
239CHAPTER XII
Procedure in the House of Commons—The House, its Rules and Officers
248CHAPTER XIII
Procedure in the House of Commons—Committees and Public Bills
264CHAPTER XIV
Procedure in the House of Commons—Money Bills and Accounts
279CHAPTER XV
Procedure in the House of Commons—Closure
292CHAPTER XVI
Procedure in the House of Commons—Sittings and Order of Business
302CHAPTER XVII
The Cabinet's Control of the Commons
309CHAPTER XVIII
The Commons' Control of the Cabinet
327CHAPTER XIX
The Form and Contents of Statutes
356CHAPTER XX
Private Bill Legislation
367CHAPTER XXI
The House of Lords
394CHAPTER XXII
The Cabinet and the House of Lords
405CHAPTER XXIII
The Cabinet and the Country
423
PART II.—THE PARTY SYSTEM
CHAPTER XXIV
Party and the Parliamentary System
435CHAPTER XXV
Party Organisation in Parliament
448CHAPTER XXVI
Non-party Organisations outside of Parliament
458CHAPTER XXVII
Local Party Organisations
466CHAPTER XXVIII
Action of Local Organisations
491CHAPTER XXIX
The Rise and Fall of the Caucus—The Liberals
501CHAPTER XXX
The Rise and Fall of the Caucus—The Conservatives
535
VOLUME II
CHAPTER XXXI
Ancillary Party Organisations
1
CHAPTER XXXII
The Functions of Party Organisations
18
CHAPTER XXXIII
The Labour Party
24
CHAPTER XXXIV
Candidates and Elections
46
CHAPTER XXX
The Strength of Party Ties
71
CHAPTER XXXV
Political Oscillations
101
CHAPTER XXXVII
The Existing Parties
113
PART III.—LOCAL GOVERNMENT
CHAPTER XXXVIII
Areas of Local Government
129
CHAPTER XXXIX
Boroughs—The Town Council
144
CHAPTER XL
Boroughs—The Permanent Officials
171
CHAPTER XLI
Boroughs—Powers and Resources
181
CHAPTER XLII
London
202
CHAPTER XLIII
The London County Council
215
CHAPTER XLIV
Municipal Trading
233
CHAPTER XLV
Other Local Authorities
268
CHAPTER XLVI
Central Control
284
PART IV.—EDUCATION
CHAPTER XLVII
Public Elementary Education
295
CHAPTER XLVIII
Secondary Education
324
CHAPTER XLIX
The Universities
343
CHAPTER L
Education in Scotland
354
PART V.—THE CHURCH
CHAPTER LI
Organisation of the Church
362
CHAPTER LII
Revenues of the Church
374
CHAPTER LIII
The Free Church Federation
380
PART VI.—THE EMPIRE
CHAPTER LIV
Component Parts of the Empire
386
CHAPTER LV
The Self-governing Colonies
392
CHAPTER LVI
The Crown Colonies
408
CHAPTER LVII
India and the Protectorates
420
CHAPTER LVIII
Imperial Federation
430
PART VII.—THE COURTS OF LAW
CHAPTER LIX
History of the Courts
439
CHAPTER LX
The Existing Courts
451
CHAPTER LXI
The English Conception of Law
471
CHAPTER LXII
Effects of the Conception of Law
489
PART VIII.—REFLECTIONS
CHAPTER LXIII
Aristocracy and Democracy
505
CHAPTER LXIV
Public, Private and Local Interests
514
CHAPTER LXV
The Growth of Paternalism
520
CHAPTER LXVI
Party and Class Legislation
531
CHAPTER LXVII
Conclusion
539
INDEX
541
INTRODUCTORY NOTE ON THE CONSTITUTION
Different Meanings of the word Constitution.
De Tocqueville declared that the English Constitution did not really exist,[1:1] and he said so because in his mind the word "constitution" meant a perfectly definite thing to which nothing in England conformed. An examination of modern governments shows, however, that the thing is by no means so definite as he had supposed.
A Document Embodying the Chief Institutions.
The term "constitution" is usually applied to an attempt to embody in a single authoritative document, or a small group of documents, the fundamental political institutions of a state. But such an attempt is rarely, if ever, completely successful; and even if the constitution when framed covers all the main principles on which the government is based, it often happens that they become modified in practice, or that other principles arise, so that the constitution no longer corresponds fully with the actual government of the country. In France, for example, the principle that the cabinet can stay in office only so long as it retains the confidence of the popular chamber, the principle, in short, of a ministry responsible in the parliamentary sense, was not mentioned in the charters of 1814 or 1830, and yet it was certainly firmly established in the reign of Louis Philippe; and it is noteworthy that this same principle, on which the whole political system of the English self-governing colonies is based, appears neither in the British North American Act nor in the Australian Federation Act. The first of those statutes, following the English tradition, speaks of the Privy Council for Canada,[1:2] but never of the cabinet or the ministers; while the Australian Act, going a step farther, refers to the Queen's Ministers of State,[1:3] but ignores their responsibility to the parliament.[2:1] Again, in the United States, the provision that the electoral college shall choose the President has become so modified in practice that the electors must vote for the candidate nominated by the party to which they owe their own election. In choosing the President they have become, by the force of custom, as much a mere piece of mechanism as the Crown in England when giving its assent to acts passed by the two Houses of Parliament. Their freedom of choice is as obsolete as the royal veto. So far, therefore, as this meaning of the term is concerned, the constitution of England differs from those of other countries rather in degree than in kind. It differs in the fact that the documents, being many statutes, are very numerous, and the part played by custom is unusually large.
Not Changeable by Ordinary Legislation.
Rigid and Flexible Constitutions.
De Tocqueville had more particularly in mind another meaning which is commonly attached to the term "constitution." It is that of an instrument of special sanctity, distinct in character from all other laws; and alterable only by a peculiar process, differing to a greater or less extent from the ordinary forms of legislation. The special sanctity is, of course, a matter of sentiment incapable of exact definition, and it may be said to belong to the British Constitution quite as much as to some others. The peculiar process of amendment, on the other hand,—the separation of the so-called constituent and law-making powers,—upon which Mr. Bryce bases his division of constitutions into rigid and flexible,[2:2] has had a long history and been much discussed; but although the contrast between the two types is highly important, the creation of intermediate forms has made it less exact as a basis of classification. The later constitutions, and the more recent practice, have tended to obscure the distinction. A separation between the constituent and law-making powers does not, in fact, always exist in written constitutions. The Italian Statuto, for instance, which contains no provision for amendment, can be, and in fact has been, altered by the ordinary process of legislation;[3:1] and the same thing was true of the French Charter of 1830.[3:2] The last Spanish constitution omits all provision for amendment, but one may assume that if it lasts long enough to require amendment the changes will be made by ordinary legislative process.
From countries which can change their fundamental constitution by the ordinary process of legislation we pass by almost imperceptible degrees to those where the constitutional and law-making powers are in substantially different hands. Thus the procedure for changing the constitution in Prussia differs from that for the enactment of laws only by the requirement of two readings at an interval of twenty-one days. Here there is a difference legally perceptible between the methods of changing the constitution and other laws; but it may be remarked that a provision in the constitution to the effect that all laws should require two readings at an interval of twenty-one days, would not essentially change the nature of the constitution, and yet in theory it would make that constitution flexible instead of rigid. As it is, the fundamental laws are quite as much under the control of the legislature in Prussia as they are in England.[3:3] This is almost equally true of France; for although the changes in her constitution are made by the National Assembly, composed of the two chambers sitting together, yet the Assembly can meet only after the two chambers have passed a concurrent resolution to that effect; and in fact the chambers are in the habit of determining beforehand by separate votes the amendments which shall be submitted to the Assembly. So that in France, also, the constitution is virtually under the unrestricted control of the legislature.
The Distinction has Lost Practical Importance.
The separation of constituent and law-making powers has been rendered of much less practical importance in some countries not only by making the process of amending the constitution more simple, but also by making the enactment of laws more complex. In Switzerland, for example, changes in the Constitution of 1848 required a popular vote, while changes in the laws did not; but after the referendum on ordinary laws was introduced in 1874, this distinction largely disappeared, and at the present day the differences between the methods of passing constitutional amendments and ordinary laws are comparatively slight. In the case of ordinary laws a popular vote is taken only on the petition of thirty thousand citizens or eight cantons, and the popular majority is decisive; whereas constitutional amendments must be submitted to the people whether a petition is presented or not, and for their ratification a majority vote in more than half the cantons as well as a majority in the Confederation as a whole is required.[4:1]
In those European countries where the difference in the procedure for changing constitutional and other laws is the most marked, the special formalities for the former consist in requiring more than a majority vote in the legislature, or that a general election shall take place before the amendment is finally adopted, or both. Now the last of those conditions is practically not unknown in England. There is a growing feeling that no fundamental or far-reaching change ought to be made unless, as a result of a general election fought on that issue, Parliament has received from the nation a mandate to make the change. Such a doctrine does not affect the law, but it does affect that body of customs which is a not less vital part of the British Constitution.
The classical distinction between constituent and law-making powers, and hence between rigid and flexible constitutions, has also been somewhat effaced by extending the requirement of a special procedure to the enactment of certain classes of ordinary law. Thus in the German Empire the only peculiar formality for amendments to the constitution is found in the provision that they are defeated by fourteen adverse votes in the Bundesrath.[5:1] This gives Prussia with her seventeen votes a veto upon them, but she has also a veto in the Bundesrath upon any measures affecting the army, the navy, customs-duties or excises.[5:2]
Growing Variety in Written Constitutions.
In the middle of the last century written constitutions in Europe were framed for the most part upon the same model and were much alike, so that a written constitution usually implied a definite type of limited monarchy, where the same class of matters were removed from the direct control of the legislature and placed, in theory at least, under special protection. But now written constitutions all over the world have come to differ a great deal, some of them being simpler, and others more comprehensive than of old. The constitutional laws of France, for example, provide only for the bare organisation of the public authorities, and can be amended virtually at will by the legislature; while the constitutions of Switzerland, Germany and the United States go into great detail, and that of the United States can be amended only with the greatest difficulty. The result is that the French constitution, although written and technically rigid, bears from the point of view of rigidity a far closer resemblance to the constitution of England than to that of the United States.
It would seem, therefore, that the distinction between constitutions which are flexible and those which are rigid, while valuable, has ceased to mark a contrast between widely separated groups; and that it might be well to regard the distinction as one of degree rather than of kind. From this aspect it may be said that of late years constitutions have tended on the whole to become more flexible; and at the same time there has been a tendency toward greater variations in flexibility, the constitutions of England and of Hungary standing at one end of the scale, and that of the United States at the other.
A Constitution as a Supreme Law.
Meaning of Law where the Common Law Prevails.
If the term "constitution" does not necessarily imply that the so-called constituent and law-making powers are in different hands, still less does it imply the existence of a law of superior obligation which controls legally the acts of the legislature. Before discussing that question, one must understand clearly what is meant by a law. In England, and in the countries that have inherited the Anglo-Norman system of jurisprudence, a law may be defined as a rule that will be enforced by the courts. This results from the fact that officers of the government, like private persons, are subject to judicial process, and liable to have the legality of their actions examined and determined by the ordinary tribunals. Hence a rule recognised as law by the courts will be enforced against both officials and private citizens; and a rule which they do not recognise cannot be enforced at all, for they will entertain suits and prosecutions against officials who try to apply it, and will afford protection to individuals who resist them.[6:1] Assuming this definition of law, the famous decision of Chief Justice Marshall[6:2] that an Act of Congress inconsistent with the Constitution of the United States must be treated as invalid was a logical necessity. The Constitution was certainly intended to be a law, and as such it could be enforced by the courts. But if that law came into conflict with another law, an Act of Congress for example, the court must consider, as in any other case of conflict of laws, which law was of superior authority; and there could be no doubt that the Constitution was the superior of the two. The same principle is applied in the British colonies, when colonial acts come into collision with the Acts of Parliament establishing the colonial government;[7:1] and it has been incorporated into the constitutions of the Spanish American republics.
Where the Civil Law Prevails.
But, except for those Latin countries which have copied it from the United States, the doctrine is almost entirely confined to the places where the Common Law prevails,[7:2] for elsewhere the same definition of law does not obtain. In accordance with the French interpretation of the theory of the separation of powers, it is the general rule on the continent of Europe that the ordinary courts administer only private law between private citizens, and that questions affecting the rights and duties of public officials are withdrawn from their jurisdiction. Such questions are now usually, though not universally, submitted to special tribunals known as administrative courts. The rules administered by these tribunals are laws, but they form a distinct and separate branch of the law from that applied by the ordinary courts. On the continent, therefore, a constitution may or may not be properly regarded as a law, but even if it be so regarded it is not of necessity enforced by any court. On the contrary, if an ordinary court is not suffered to pass upon the legality of the actions of a policeman, it would be hardly rational that it should pass upon the validity of an act of the national legislature; and it would be even more irrational to intrust any such power to the administrative courts which are under the influence of the executive branch of the government.[8:1]
Legal Restraints on Power of Legislature are Rare.
The conception of a constitution as a law of superior obligation, which imposes legal restraints upon the action of the legislature, is really confined to a very few countries, chiefly to America and the English self-governing colonies.[8:2] In Europe it has no proper place, for whether a constitution in continental states be or be not regarded as a supreme law, no body of men has, as a rule, been intrusted with legal authority to enforce its provisions as against the legislature; and in England there is no law superior in obligation to an Act of Parliament. There can, indeed, be no doubt that the Acts of Union with Scotland and Ireland were intended to be, in part at least, forever binding, but as they created no authority with power either to enforce or to amend the Acts, the united Parliament assumed that, like its predecessors, it possessed unlimited sovereignty; and it has, in fact, altered material provisions in each of those statutes.[8:3]
Sources of the English Constitution.
The English Constitution—speaking, of course, of its form, not its content—differs, therefore, from those of most other European nations more widely in method of expression than in essential nature and legal effect. They have been created usually as a result of a movement to change fundamentally the political institutions of the country, and the new plan has naturally been embodied in a document; but since the Restoration England has never revised her frame of government as a whole, and hence has felt no need of codifying it. The national political institutions are to be found in statutes,[9:1] in customs which are enforced and developed by the courts and form a part of the Common Law, and in customs strictly so called which have no legal validity whatever and cannot be enforced at law. These last are very appropriately called by Professor Dicey the conventions of the constitution. The two chief peculiarities of the English Constitution are: first, that no laws are ear-marked as constitutional,—all laws can be changed by Parliament, and hence it is futile to attempt to draw a sharp line between those laws which do and those which do not form a part of the constitution;—second, the large part played by customary rules, which are carefully followed, but which are entirely devoid of legal sanction. Customs or conventions of this kind exist, and in the nature of things must to some extent exist, under all governments. In the United States where they might, perhaps, be least expected, they have, as already observed, transformed the presidential electors into a mere machine for registering the popular vote in the several states, and this is only the most striking of the instances that might be cited.[9:2] England is peculiar, not because it has such conventions, but because they are more abundant and all-pervasive than elsewhere. The most familiar of them is, of course, the rule that the King must act on the advice of his ministers, while they must resign or dissolve Parliament when they lose the confidence of the majority in the House of Commons.
It is impossible, however, to make a precise list of the conventions of the constitution, for they are constantly changing by a natural process of growth and decay; and while some of them are universally accepted, others are in a state of uncertainty. Hence one hears from time to time a member of the Opposition assert that some action of the government is unconstitutional, meaning that it is an unusual breach of a principle which in his opinion ought to be recognised as inviolable. It was said, for example, that the Parliament of 1900, having been elected on the issue of the South African war, was not justified in enacting measures of great importance on other subjects, but that a fresh mandate from the nation ought to be obtained by another general election. As claims of this kind are in dispute, those customs alone can safely be said to be a part of the constitution which are generally assumed to be outside the range of current political controversy.
The Relation of Law and Custom.
The relation between law and custom in the English government is characteristic. From the very fact that the law consists of those rules which are enforced by the courts, it follows that the law,—including, of course, both the statutes and the Common Law,—is perfectly distinct from the conventions of the constitution; is quite independent of them, and is rigidly enforced. The conventions do not abrogate or obliterate legal rights and privileges, but merely determine how they shall be exercised. The legal forms are scrupulously observed, and are as requisite for the validity of an act as if custom had not affected their use.[10:1] The power of the Crown, for example, to refuse its consent to bills passed by the two Houses of Parliament is obsolete, yet the right remains legally unimpaired. The royal assent is given to such bills with as much solemnity as if it were still discretionary, and without that formality a statute would have no validity whatever. Public law in countries where it is administered not by the ordinary courts, but solely by the executive, or with the aid of special tribunals composed of administrative officials, must of necessity contain a discretionary element, and that element is always affected by political conventions. Hence there is a likelihood that the line between law and convention will become blurred, but this is not so in England. There the law and the conventions of the constitution are each developing by processes peculiar to themselves, but the line between them remains permanently clear. The conventions are superimposed upon the law, and modify political relations without in the least affecting legal ones. In fact Freeman declared that the growth of the unwritten conventions of the constitution began after the supremacy of the law had been firmly established by the revolution of 1688, and that they could not have been evolved if that condition had not existed.[11:1]
The Sanction of Custom.
The question why the conventions of the constitution are so scrupulously followed, when they have no legal force, is not a simple one. Impeachment as a means of compelling the observance of traditions has, of course, long been obsolete. Professor Dicey maintains that the ultimate sanction of these conventions lies in the fact that any ministry or official violating them would be speedily brought into conflict with the law of the land as enforced by the courts.[11:2] He takes as illustrations the omission to summon Parliament every year, and the retention of office by a ministry against the will of the Commons without dissolving; and he shows in each case how the ministry would be brought into conflict with the law by the failure to enact the annual army bill or to pass the appropriations. He proves that in such cases the wheels of government would be stopped by the regular operation of the law; and that the House of Commons can readily bring about this result if it pleases.[12:1] There is, however, another question, and that is why the House is determined to exert its power so as to maintain the conventions of the constitution as they stand to-day. It has long possessed the necessary authority, but the conventions were evolved slowly. The House of Representatives in Washington has the same power to stop appropriations, but it does not try to use it to force a responsible ministry upon the President; a result which has, on the other hand, been brought about in France almost as conclusively as in England, and that without the sanction arising from the risk of conflict between the government and the courts. Any parliament could use its authority if it chose to keep the ministry in office indefinitely, as well as to make it responsible. It could pass a permanent army act, grant the tea and income taxes for a term of years, charge all ordinary expenses upon the Consolidated Fund, and so make the existing ministry well-nigh independent of future parliaments.
The question seems to resolve itself into two parts: first, why a custom once established is so tenaciously followed in England; and, second, why the conventions have assumed their present form. In regard to the first it may be suggested that while the consequences mentioned by Professor Dicey form, no doubt, the ultimate sanction of the most important conventions of the constitution, they are not the usual, or in fact the real, motive for obedience; just as the dread of criminal punishment is not the general motive for ordinary morality. The risk of imprisonment never occurs, indeed, to people of high character, and in the same way the ultimate sanctions of the law are not usually present in the minds of men in English public life. In the main the conventions are observed because they are a code of honour. They are, as it were, the rules of the game, and the single class in the community which has hitherto had the conduct of English public life almost entirely in its own hands is the very class that is peculiarly sensitive to obligation of this kind. Moreover, the very fact that one class rules, by the sufferance of the whole nation, as trustees for the public, makes that class exceedingly careful not to violate the understandings on which the trust is held.
The key to the question why the conventions have assumed their present form is to be found mainly in Professor Dicey's remark[13:1] that all of them exist for the sake of securing obedience to the deliberately expressed will of the House of Commons, and ultimately to the will of the nation. Their effect has been to bring the prerogatives of the Crown more and more completely under the control of the cabinet, and the cabinet itself under the control of the House of Commons; to restrain the opposition of the Lords to any policy on which the Commons backed by the nation are determined; and, finally, through the power of dissolution to make the House of Commons itself reflect as nearly as may be the views of the electorate. In England there is, in fact, only one conclusive means of expressing the popular will—that of an election to the House of Commons; and in ordinary cases there is only one body that has power to interpret that expression, the cabinet placed in office by the House so elected.
The Effects of Custom.
Professor Dicey has also pointed out a singular result of the conventions. If the growing power of the House of Commons, instead of being used to impose customary restraints on the exercise of authority by the Crown and the House of Lords, had been exerted to limit that authority by law, the Crown and the House of Lords would have been far more free to exercise at their discretion the powers still left in their hands; and hence the House of Commons could not have obtained its present omnipotence. By leaving the prerogative substantially untouched by law, and requiring that it should be wielded by ministers responsible to them, the Commons have drawn into their own control all the powers of the sovereign that time has not rendered entirely obsolete.
The great part played by custom has had another effect upon English public life. It has tended to develop a conservative temperament. If laws are changed the new ones may have the same authority as the old; but if customs are changed rapidly they lose their force altogether. Stability is necessary for the very life of custom. The conventions of the constitution could not exist without respect for precedent, and where the institutions and liberties of a country depend not upon a written code, but upon custom, there is a natural tendency to magnify the importance of tradition and precedent in themselves. In England, therefore, there is a peculiar veneration for custom, and a disposition to make as little change in it as is compatible with changing times. The result is a constant tinkering, rather than remodelling, of outworn institutions,—a spirit which is strongly marked throughout the whole of English public life.
English System not Logical but Scientific.
Critics and apologists both assert that the English political system is not logical; and the statement is true in the sense that the system was not excogitated by an a priori method. But on the other hand the very fact that it has grown up by a continual series of adaptations to existing needs has made it on the whole more consistent with itself, has brought each part more into harmony with the rest, than is the case in any other government. In this it is like a living organism. There are, no doubt, many small anomalies and survivals that mar the unity for the purpose of description; but these, like survivals of structure in animals, like the splint bones in the leg of a horse for example, do not interfere seriously with the action of the whole. It may be said that in politics the Frenchman has tended in the past to draw logical conclusions from correct premises, and that his results have often been wrong, while the Englishman draws illogical conclusions from incorrect premises, and his results are commonly right. The fact being that all abstract propositions in politics are at best approximations, and an attempt to reason from them usually magnifies the inaccuracy. But in England the institutions being empirical have resulted from experience, although men have often tried to explain them afterwards by a somewhat artificial and incongruous process of reasoning. In this sense French political principles may be said to be the more logical, the English government—not the theories about it—the more scientific. It is more important, therefore, to describe the organs of the English government and their relations to one another than to consider the traditional principles that have been supposed to underlie the system. But the very nature of the English government renders it peculiarly difficult to portray. As the laws that regulate its structure are overlaid by customs which moderate very greatly their operation without affecting their meaning or their validity, it is necessary to describe separately the legal and customary aspects of the constitution. It is almost unavoidable to pass in review first the legal organisation of each institution, and then its actual functions. Such a process is sometimes tedious, especially for a person already familiar with the subject, but an attempt has been made in the following pages to separate as far as possible the dry legal details from a discussion of the working forces, so that the former may be skipped by the judicious reader.
FOOTNOTES:
[1:1] La Démocratie en Amérique, I., Ch. vi.
[1:2] 30-31 Vic., c. 3, § 11.
[1:3] 63-64 Vic., c. 12, Const., §§ 64-65.
[2:1] The provisions about the responsibility of the ministers are almost identical in the constitutions of Belgium (Arts. 63, 64, 65, 88, 89, 90) and Prussia (Arts. 44, 45, 60, 61); but in Belgium the cabinet is politically responsible to the chamber, while in Prussia it is not.
[2:2] "Studies in History and Jurisprudence," Essay III.
[3:1] Cf. Brusa, Italien, in Marquardsen's Handbuch des Oeffentlichen Rechts, 12-16, 181-82.
[3:2] Professor Dicey points out ("Law of the Constitution," 5 Ed., 116 and Note 2) that De Tocqueville considered the Charter unalterable by reason of this omission, but that it was, in fact, changed like an ordinary law.
[3:3] For the purpose of the argument it is unimportant that Prussia is not a sovereign state, and for sixteen years it did exist as an independent sovereign state under its present constitution.
[4:1] Constitutional amendments can also be proposed by popular initiative, and ordinary laws cannot.
[5:1] Const., Art. 78.
[5:2] Ibid., Art. 5.
[6:1] By far the best exposition of this matter is to be found in Professor Dicey's "Law of the Constitution." It is discussed more fully in Chapter xl., infra.
[6:2] Marbury vs. Madison, 1 Cranch, 137.
[7:1] The Australian Federation Act (§ 74) refers particularly to the decision of such questions, limiting the right to bring them on appeal before the Judicial Committee of the Privy Council.
[7:2] There are a few exceptions. Provisions giving such a power to the courts are to be found in the constitutions of the little Swiss cantons of Uri (Art. 51) and Unterwalden nid dem Wald (Art. 43). The Swiss national constitution, on the other hand (Art. 113), directs the Federal Tribunal to apply every law enacted by the national legislature. Some discussion has taken place on the question in Germany. (See Brinton Coxe, "Judicial Power and Unconstitutional Legislation," Ch. ix., and the writer's "Governments and Parties in Continental Europe," I., 282-84.) Curiously enough, a struggle over this question occurred in the Transvaal not long before the South African War (Bryce's "Studies in History and Jurisprudence," 378; Kruger's "Memoirs," 254-57). In his next inaugural address President Kruger quoted Scripture to prove that the principle of holding statutes unconstitutional had been invented by the devil. (Kruger, 354-55.)
[8:1] Esmein (Elements de droit constitutionel, 425-28) describes the various proposals made at different times in France for annulling unconstitutional laws. One of these, Sieyes's jurie constitutionaire, bears a curious resemblance to an institution for a somewhat analogous purpose in Athens: Goodwin, "Demosthenes on the Crown," Essay II., 316-27.
[8:2] It must be observed, also, that the English colonies are not legally independent or sovereign states, and hence their parliaments are legally subordinate legislatures. We may note in this connection that the Swiss Federal Tribunal can hold unconstitutional laws of the cantons which violate the constitution either of the confederation or of the canton.
[8:3] Professor Dicey argued that the first Home Rule Bill if enacted might have restricted the legal sovereignty of Parliament. "England's Case against Home Rule," 238, et seq. This result was denied by the other side. Bryce, "Studies in Hist. and Jur.," 176, note.
[9:1] Boutmy in his Etudes de droit constitutionel (1 Ed., 9) adds treaties or quasi-treaties (the Acts of Union), and solemn agreements such as the Bill of Rights. But all these are in legal effect simply statutes.
[9:2] Bryce, American Commonwealth, Ch. xxxiv.
[10:1] The habit of collecting new or increased duties or excises as soon as the resolution to impose them passes the House of Commons is an apparent exception to this principle, for the taxes are not legally payable until laid by Act of Parliament. The object of the custom is to prevent a large loss of revenue by importations made after it is known that the duty will be levied and before it goes into effect. The act when passed contains, of course, a clause authorising and thereby making legal the collection from the date of the resolution, and if it fails to pass the tax is refunded.
[11:1] "Growth of the English Constitution," 107, 112-13, 119.
[11:2] "Law of the Constitution," Ch. xv.
[12:1] All this is true only of conventions that give effect to the will of the majority of the House of Commons, not of those that secure fair play to the minority, which are in fact not less important.
[13:1] "Law of the Constitution," 360, 384.
PART I.—CENTRAL GOVERNMENT
CHAPTER I
THE CROWN
Political liberty and romance in English history are both bound up with the shifting fortunes of the throne. The strong hand of the Norman and Angevin kings welded the whole country into a nation, and on that foundation were built the solid structures of a national Common Law, a national Parliament, and a long series of national statutes. When in the fulness of time the Crown had accomplished its work of unification, it came into conflict with Parliament, and after a series of convulsions, in which one king lost his head and another his throne, political evolution resumed its normal course. The House of Commons gradually drew the royal authority under its control. But it did so without seriously curtailing the legal powers of the Crown, and thus the King legally enjoys most of the attributes that belonged to his predecessors, although the exercise of his functions has passed into other hands. If the personal authority of the monarch has become a shadow of its former massiveness, the government is still conducted in his name, and largely by means of the legal rights attached to his office. With a study of the Crown, therefore, a description of English government most fittingly begins.
The Title to the Crown.
Ever since 1688, when James II., fleeing in fear of his life, "withdrew himself out of the kingdom, and thereby abdicated," the title to the Crown has been based entirely upon parliamentary enactment. At the present day it rests upon the Act of Settlement of 1700,[16:1] which provided that, in default of heirs of William and of Anne, the Crown should pass to the Electress Sophia, and the heirs of her body, being Protestants. Sophia was the granddaughter of James I., through her mother, wife of the Elector Palatine; and while not his nearest heir, was the nearest who was a Protestant.
The Rules of Succession.
The rules of descent are in the main the same as those for the inheritance of land at Common Law.[17:1] That is, the title passes to the eldest son; or, if he is not living, through him to his issue, male or female, as if he had himself died upon the throne. If the first son has died without issue, then to, or through, the eldest son who is living, or has issue living; and in default of any sons living, or leaving issue, then to, or through, the eldest daughter. The rule is, however, subject to the qualification that any one who is, or becomes, a Catholic is excluded from, and forfeits, the right to the Crown, which then passes to the next heir. In order to insure a test that will make this last provision effective, the sovereign is obliged to take an oath, abjuring the Catholic religion, in words which have proved offensive to members of that faith. After the accession of Edward VII., therefore, but before his coronation, an effort was made to modify the form of the oath, and a bill was introduced into the House of Lords for that purpose; but it was not then found possible to arrange a phrase satisfactory to all parties, and the bill was dropped.
Incapacity of the Sovereign.
In other monarchies permanent provision has been made by law for the possible incapacity of the monarch, whether by reason of infancy or insanity. But this has never been done in England. Each case has been dealt with as it arose, and usually after it has arisen, so that, in default of any person competent to give the royal assent to bills, Parliament has been driven into the legal absurdity of first passing a regency bill to confer such a power upon a regent, and then directing the Chancellor to affix the Great Seal to a commission for giving assent to that bill. Until recent times it was also thought necessary to appoint officers, Lords Justices or others, to exercise the royal powers when the sovereign went out of the kingdom; but with the rapidity of modern travel and communication this has become unnecessary, and it has not been done since the accession of Queen Victoria.
The Powers of the Crown.
The authority of the English monarch may be considered from different points of view, which must be taken up in succession; the first question being what power is legally vested in the Crown; the second how much of that power can practically be exercised at all; the third how far the power of the Crown actually is, or may be, used in accordance with the personal wishes of the King, and how far its exercise is really directed by his ministers; the fourth, how far their action is in turn controlled by Parliament. The first two questions, which form the subject of this chapter, cannot always be treated separately, for it is sometimes impossible to be sure whether a power that cannot practically be exercised is or is not legally vested in the Crown. An attempt to make use of any doubtful power would probably be resisted, and the legality of the act could be discussed in Parliament or determined by the law courts; but it is very rare at the present day that any such attempt is made. There are powers that have been disputed, or fallen into disuse, and that no government would ever think of reviving; and thus the question of law never having been settled, the legal right of the Crown to make use of them must remain uncertain.
The Prerogative.
The authority of the Crown may be traced to two different sources. One of them is statutory, and comprises the various powers conferred upon the Crown by Acts of Parliament. The other source gives rise to what is more properly called the prerogative. This has been described by Professor Dicey[18:1] as the original discretionary authority left at any moment in the hands of the King; in other words, what remains of the ancient customary or Common Law powers inherent in the Crown. The distinction is one not always perfectly easy to draw, for many parts of the prerogative have been regulated and modified by statute, and in such cases it is not always clear whether the authority now exercised is derived from statute or from the prerogative. Nevertheless the distinction is often important, because where the powers have been conferred by Parliament the Crown acts by virtue of a delegated authority which lies wholly within the four corners of the statute, and exists only so far as it is expressly contained therein; while the prerogative not being circumscribed by any document is more indefinite, and capable of expanding or contracting with the progress of the suns.
Legislative Power.
All legislative power is vested in the King in Parliament; that is, in the King acting in concert with the two Houses. Legally, every act requires the royal assent, and, indeed, the Houses can transact business only during the pleasure of the Crown, which summons and prorogues them, and can at any moment dissolve the House of Commons. But it is important to note that by itself, and apart from Parliament, the Crown has to-day, within the United Kingdom,[19:1] no inherent legislative power whatever. This was not always true, for legislation has at times been enacted by the Crown alone in the form of ordinances or proclamations; but the practice may be said to have received its death-blow from the famous opinion of Lord Coke, "that the King by his proclamation cannot create any offence which was not an offence before, for then he may alter the law of the land."[19:2] The English Crown has, therefore, no inherent power to make ordinances for completing the laws, such as is possessed by the chief magistrate in France and other continental states. This does not mean that it cannot make regulations for the conduct of affairs by its own servants, by Orders in Council, for example, establishing regulations for the management of the Army, or prescribing examinations for entrance to the civil service. These are merely rules such as any private employer might make in his own business, and differ entirely in their nature from ordinances which have the force of law, and are binding quite apart from any contract of employment.
Power to make ordinances which have the force of law and are binding on the whole community is, however, frequently given to the Crown[20:1] by statute, notably in matters affecting public health, education, etc., and the practice is constantly becoming more and more extensive, until at present the rules made in pursuance of such powers—known as "statutory orders"—are published every year in a volume similar in form to that containing the statutes. Some of these orders must be submitted to Parliament, but go into effect unless within a certain time an address to the contrary is passed by one of the Houses, while others take effect at once, or after a fixed period, and are laid upon the tables of the Houses in order to give formal notice of their adoption. A fuller description of these orders must, however, be postponed to the chapters that deal with Parliament. It is only necessary here to point out that in making such orders the Crown acts by virtue of a purely delegated authority, and stands in the same position as a town council. The orders are a species of subordinate legislation, and can be enacted only in strict conformity with the statutes by which the power is granted; and being delegated, not inherent in the Crown, a power of this kind does not fall within the prerogative in its narrower and more appropriate sense.
Executive Power.
The Crown is at the head of the executive branch of the central government, and carries out the laws, so far as their execution requires the intervention of any national public authority. In fact all national executive power, whether regulated by statute, or forming strictly a part of the prerogative, is exercised in the name of the Crown, and by its authority, except when directly conferred by statute upon some officer of the Crown, and in this case, as we shall see, it is exercised by that officer as a servant of the Crown, and under its direction and control. Legally some of the executive powers are indeed vested in the Crown in Council—that is, in the King acting with his Privy Council—but as the Council has no independent authority, and consists, for practical purposes, of the principal ministers appointed by the Crown, even these powers may be said to reside in the Crown alone.
Appointments to Office.
All national public officers, except some of the officials of the Houses of Parliament, and a few hereditary dignitaries whose duties are purely ceremonial,[21:1] are appointed directly by the Crown or by the high state officials whom it has itself appointed; and the Crown has also the right to remove them, barring a small number whose tenure is during good behaviour. Of these last by far the most important are the judges, the members of the Council of India, and the Controller and Auditor General, no one of whom has any direct part in the executive government of the kingdom.[21:2] Now the right to appoint and remove involves the power to control; and, therefore, it may be said in general that the whole executive machinery of the central government of England is under the direction of the Crown.
Other Powers under the Prerogative.
The Crown furthermore authorises under the sign manual the expenditure of public money in accordance with the appropriations made by Parliament, and then expends the money. It can grant charters of incorporation, with powers not inconsistent with the law of the land, so far as the right to do so has not been limited by statute; but in consequence of the various reform acts, municipal corporation acts, and local government acts, no charter conferring political power can now be created except in pursuance of statute, while even commercial companies usually require privileges which can be given only by the same authority.[22:1] The Crown grants all pardons, creates all peers, and confers all titles and honours. As head of the Established Church of England it summons Convocation with a license to transact business specified in advance. It virtually appoints the archbishops, bishops and most of the deans and canons, and has in its gift many rectorships and other livings.[22:2] As head of the Army and Navy it raises and controls the armed forces of the nation, and makes regulations for their government, subject, of course, to the statutes and to the passage of the Annual Army Act. It represents the empire in all external relations, and in all dealings with foreign powers. It has power to declare war, make peace, and conclude treaties, save that, without the sanction of Parliament, a treaty cannot impose a charge upon the people, or change the law of the land, and it is doubtful how far without that sanction private rights can be sacrificed or territory ceded.[22:3]
Executive Powers under Statutes.
Just as Parliament has often conferred legislative authority upon the Crown, so it has conferred executive power in addition to that possessed by virtue of the prerogative. I do not refer here to the cases where a statute creates new public duties to be performed directly by the Crown and confers upon it the authority needed for the purpose. Such powers, although statutory, are exercised in the same way as those derived from the prerogative. I refer to statutes that regulate the duties or privileges of local and other bodies, and give to the Crown, not a direct authority to carry out the law, but a power of supervision and control. Statutes of this kind have become very common during the last half century in relation to such matters as local government, public health, pauperism, housing of the working-classes, education, tramways, electric lighting and a host of other things. Even without an express grant of authority, supervisory powers have often been conferred upon the Crown by means of appropriations for local purposes which can be applied by the government at its discretion, and hence in accordance with such regulations as it chooses to prescribe. This has been true, for example, of the subsidies in aid of the local police, and of education. By such methods the local authorities, and especially the smaller ones, have been brought under the tutelage of the Crown to an extent quite unknown in the past.
Wide Extent of the Powers of the Crown.
All told, the executive authority of the Crown is, in the eye of the law, very wide, far wider than that of the chief magistrate in many countries, and well-nigh as extensive as that now possessed by the monarch in any government not an absolute despotism; and although the Crown has no inherent legislative power except in conjunction with Parliament, it has been given by statute very large powers of subordinate legislation. "It would very much surprise people," as Bagehot remarked in his incisive way, "if they were only told how many things the Queen could do without consulting Parliament . . . Not to mention other things, she could disband the army (by law she cannot engage more than a certain number of men, but she is not obliged to engage any men); she could dismiss all the officers, from the General Commanding-in-Chief downwards; she could dismiss all the sailors too; she could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She could make every citizen in the United Kingdom, male or female, a peer; she could make every parish in the United Kingdom a 'university'; she could dismiss most of the civil servants; she could pardon all offenders. In a word, the Queen could by prerogative upset all the action of civil government within the government."[24:1] We might add that the Crown could appoint bishops, and in many places clergymen, whose doctrines were repulsive to their flocks; could cause every dog to be muzzled, every pauper to eat leeks, every child in the public elementary schools to study Welsh; and could make all local improvements, such as tramways and electric light, well-nigh impossible.
Powers that have been Lost.
Great as the prerogative is to-day, it was, in some directions, even more extensive in the past, and men are in the habit of repeating the phrases derived from that past after they have lost their meaning. This is done by writers who are not under the slightest misapprehension in regard to the actual legal authority of the Crown. It is the habit, for example, to speak of the Crown as the fountain of justice, and even an author so learned and accurate as Todd repeats Blackstone's statement that "By the fountain of justice, the law does not mean the author or original, but only the distributor. Justice is not derived from the king, as from his free gift, but he is the steward of the public, to dispense it to whom it is due. He is not the spring, but the reservoir, from whence right and equity are conducted by a thousand channels to every individual."[24:2] Now apart from public prosecution by the state, which is less common in England than elsewhere, and the use of the King's name in judicial process, the only legal connection of the Crown with the distribution of justice to-day lies in the appointment of the judges; and to call it on that account the reservoir of justice is merely fanciful. There was a time when the Crown was really the fountain or reservoir of justice, when it might fairly have been said to administer justice by deputy. It created the Common Law courts, and after the growth of civilisation had produced more refined and complex ideas of justice it received petitions for the redress of wrongs not recognised before, and established new courts to deal with them. Stubbs has compared the process to that of the sun throwing off a series of nebulous envelopes, which rolled up into compact bodies, but left the old nucleus of light to assert its vitality, unimpaired by successive emanations.[25:1] In this way the courts of equity arose to give relief in cases where there was no remedy by the strict rules of the Common Law, while the Star Chamber performed an analogous function in criminal matters. This last tribunal came to be used as a political engine under the Stuarts, and was abolished by statute[25:2] early in the struggle with Charles I. With the fall of the Stuarts the power of the Crown to create new courts came to an end altogether. In 1689 the Bill of Rights declared the "Court of Commissioners for Ecclesiastical Causes, and all other Commissions and Courts of a like Nature," illegal, and since that time an Act of Parliament has been necessary to create any new court of justice in England.
The Crown has been deprived in the same way of other powers once possessed or claimed under the prerogative. The Bill of Rights, for example, declared illegal the suspending or dispensing with laws, and the maintenance of a standing army in time of peace without the consent of Parliament. Some powers have, from long disuse, become obsolete and have been lost; such as the right to confer on boroughs the privilege of electing members to the House of Commons;[25:3] and the power to create life peers with votes in the House of Lords.[25:4] Other powers again, although legally unimpaired, have become obsolete in practice, and can no longer be exerted. The illustration commonly given of this is the right of the Crown to withhold its assent to a bill passed by Parliament,—popularly called, or miscalled, the veto. The right has not been exercised since the days of Queen Anne; but it may not be gone so completely beyond revival as is generally supposed. It could, of course, be used only on the advice of the ministry of the day, and under ordinary circumstances a ministry willing to withhold the royal assent to a bill would be bound to treat the passage of that bill by the House of Commons as a ground for resignation or dissolution. One can imagine, however, a case where after a bill has passed the Commons the ministry should resign, and the House of Lords should insist on passing the bill in spite of the opposition of the new cabinet. It would be rash to assert that in such a case the royal assent would not be withheld. Something of the kind very nearly occurred in 1858, when the ministry threatened to advise the Queen to withhold her assent to a private bill unless the Lords gave permission to the Board of Works to appear before the private bill committee and oppose the plans.[26:1]
Powers of the Crown exercised by Ministers.
Since the accession of the House of Hanover the new powers conferred upon the Crown by statute have probably more than made up for the loss to the prerogative of powers which have either been restricted by the same process or become obsolete by disuse. By far the greater part of the prerogative, as it existed at that time, has remained legally vested in the Crown, and can be exercised to-day; but it is no longer used in accordance with the personal wishes of the sovereign. By a gradual process his authority has come more and more under the control of his ministers, until it is now almost entirely in the hands of the cabinet, which is responsible to Parliament, and through Parliament to the nation. The cabinet is to-day the mainspring of the whole political system, and the clearest method of explaining the relations of the different branches of the government to each other is to describe in succession their relations with the cabinet.
FOOTNOTES:
[16:1] 12-13 Will. III., c. 2.
[17:1] Except, of course, that the eldest of several sisters succeeds instead of all having equal rights as co-parceners.
[18:1] "Law of the Constitution," 355.
[19:1] The statement is made with this limitation because the Crown has always had inherent authority to legislate directly for Crown colonies acquired by conquest; but if the Crown once grants a representative legislature to such a colony without reserving its own legislative authority, it surrenders that authority over the colony forever. See Jenkyns, "British Rule and Jurisdiction Beyond the Seas," 4-6, 95; Campbell vs. Hall, Cowp., 204.
[19:2] Coke's Reports, XII., 76.
[20:1] Or more strictly to the Crown in Council.
[21:1] Such as the hereditary Earl Marshal and Grand Falconer.
[21:2] On the power of removal from an office held during good behaviour, and on the effect of the provision that the three classes of officers mentioned above may be removed upon the address of both Houses of Parliament, see Anson, "Law and Custom of the Constitution," II., 213-15. The references to Anson are to the 3 Ed. of Vol. I. (1897); the 2 Ed. of Vol. II. (1896).
[22:1] Todd, "Parl. Govt. in England," 2 Ed. (1887), Ch. xiv.
[22:2] See the later chapter on The Church.
[22:3] Cf. Anson, "Law and Custom," II., 297-99; Dicey, "Law of the Constitution," 393. Heligoland was ceded to Germany by treaty in 1890, subject to the assent of Parliament, which was given by 53-54 Vic., c. 32.
[24:1] "English Constitution," 2 Ed. (Amer.), Introd., 31.
[24:2] Todd, "Parl. Govt. in England," I., 570.
[25:1] "Const. Hist. of England," 4 Ed., I., 647.
[25:2] 16 Car. I., c. 10.
[25:3] It may be maintained that the right, if not already lost by disuse, was by implication, though not expressly, taken away by the Reform Acts of 1832, 1867 and 1885, which created new boroughs and disfranchised old ones.
[25:4] See the debate in the Lords on the Wensleydale case. Hans., 3 Ser., CXL., passim.
[26:1] The Victoria Station and Pimlico Railway Bill, Hans., 3 Ser., CLI., 586-89, 691-93, 797-98. See Todd, II., 392.
CHAPTER II
THE CROWN AND THE CABINET
It is not within the province of this book to trace the process whereby the King became irresponsible both at law and before the nation, while the responsibility for his acts became transferred to his ministers. The story has been told by others far better than the writer could tell it, and the object here is only to note the results of that process in the existing constitution.
The King can do no Wrong at Law;
The doctrine that "the King can do no wrong" had its beginnings as far back as the infancy of Henry III., and by degrees it grew until it became a cardinal principle of the constitution. Legally it means that he cannot be adjudged guilty of wrong-doing, and hence that no proceedings can be brought against him. He cannot be prosecuted criminally, or, without his own consent, sued civilly in tort or in contract in any court in the land.[27:1] But clearly if the government is to be one of law, if public officers like private citizens are to be subject to the courts, if the people are to be protected from arbitrary power, the servant who acts on behalf of the Crown must be held responsible for illegal conduct from the consequences of which the King himself is free. Hence the principle arose that the King's command is no excuse for a wrongful act, and this is a firmly established maxim of the Common Law in both civil and criminal proceedings.[27:2] To prevent royal violations of the law, however, it is not enough to hold liable a servant who executes unlawful orders, if the master still has power to commit offences directly. A further step must be taken by restraining the Crown from acting without the mediation of a servant who can be made accountable, and for this reason Edward I. was informed that he could not make an arrest in person.[28:1] But, as the kings and queens are not likely to be tempted into personal assaults and trespasses, the principle that they can act only through agents has had little importance from the point of view of their liability at law, although it is a matter of vital consequence in relation to their political responsibility.
or in Politics.
The doctrine that the King can do no wrong applies not only to legal offences, but also to political errors. The principle developed slowly, as a part of the long movement that has brought the royal authority under the control of public opinion; not that the process was altogether conscious, or the steps deliberately planned, but taking constitutional history as a whole, we can see that it tended to a result, and in speaking of this it is natural to use terms implying an intent which the actors did not really possess. To keep the Crown from actual violations of law was not always easy, but it was far more difficult to prevent it from using its undoubted prerogatives to carry out an unpopular policy. Parliament could do something in a fitful and intermittent way by refusing supplies or insisting upon the redress of particular grievances, but that alone was not enough to secure harmony between the Crown and the other political forces of the day. There could, in the nature of things, be no appropriate penalty for royal misgovernment. In the Middle Ages, indeed, a bad king or a weak king might lose his throne or even his life; but in more settled times such things could not take place without a violent convulsion of the whole realm,—a truth only too well illustrated by the events of the seventeenth century. An orderly government cannot be founded on the basis of personal rule tempered by revolution. Either the royal power must be exercised at the personal will of the monarch, or else other persons who can be made accountable must take part in his acts of state.
A Minister Responsible for Each of his Acts.
As early as the fourteenth and fifteenth centuries the King's Council had begun to encumber the affixing of the various seals with a series of formalities which involved the intervention of one or more royal officers. The process continued until custom or statute required that almost every public act which the Crown was in the habit of performing directly—except the appointment and removal of the great officers of state themselves—must either be done in the Privy Council, or by means of an instrument authenticated by seals or countersignatures affixed by one or more officers of state.[29:1] The object of these formalities was to protect the Crown from improvident grants, and to secure the influence of the Council over the administration,[29:2] rather than to create any responsibility to Parliament or the public; and yet it was easy to maintain, when the time was ripe, that the officer who sealed or signed assumed thereby responsibility for the act. Then if a wrong was committed some one could be held to account; for misconduct some one could be punished; for acts that were unpopular, or a policy that was odious, some one beneath the throne could be assailed; and if a strong expression of resentment did not deter the offender, Parliament had as a last resort the weapons of impeachment and bill of attainder. These weapons were a stage in the process of evolution, a stepping-stone in the progress of parliamentary control, but they were far too rough to produce a true accord between the Crown and Parliament; and when the political experiments of William and of Anne, fostered by the timely accident of two unkingly foreigners upon the throne, evolved at last the system of a responsible ministry in its present form, even impeachment became obsolete, or rather it lingered only as a means of retribution for personal malfeasance in office.
Nature of Modern Responsibility.
The rules requiring seals or signatures to be affixed to royal acts, though somewhat simplified, remain in force to-day, but they have ceased to be the real source of responsibility. The effort to fasten upon a particular person the actual responsibility for each public act of the Crown by compelling some officer to put his approval of it on record, has been superseded by the general principle that the responsibility must always be imputed to a minister. Though ignorant of the matter at the time it occurred, he becomes answerable if he retains his post after it comes to his knowledge; and even though not in office when the act was done, yet if he is appointed in consequence of it, he assumes with the office the responsibility for the act. This happened to Sir Robert Peel in 1834. Believing, as every one at that time did believe, that the King had arbitrarily dismissed Lord Melbourne's cabinet, he said, "I should by my acceptance of the office of First Minister become technically, if not morally, responsible for the dissolution of the preceding government, although I had not the remotest concern in it."[30:1] The rule is so universal in its operation "that there is not a moment in the King's life, from his accession to his demise, during which there is not some one responsible to Parliament for his public conduct."[30:2] A minister is now politically responsible for everything that occurs in his department, whether countersignature or seal is affixed by him or not; and all the ministers are jointly responsible for every highly important political act. A minister whose policy is condemned by Parliament is no longer punished, he resigns; and if the affair involves more than his personal conduct or competence, if it is of such moment that it ought to have engaged the attention of the cabinet, his colleagues resign with him. Thus punitive responsibility has been replaced by political responsibility, and separate has been enlarged to joint responsibility.
The King must Follow the Advice of Ministers;
The ministers, being responsible to Parliament for all the acts of the Crown, are obliged to refrain from things that they cannot justify, and to insist upon actions which they regard as necessary. In short, the cabinet must carry out its own policy; and to that policy the Crown must submit. The King may, of course, be able to persuade his ministers to abandon a policy of which he does not approve, and of his opportunities for doing so we shall have more to say later; but if he cannot persuade them, and, backed by a majority in Parliament, they insist upon their views, he must yield. It is commonly said that he must give his ministers his confidence, but it would be more accurate to say that he must follow their advice. With the progress of the parliamentary system this custom has grown more and more settled, the ministers assuming greater control, and the Crown yielding more readily, not necessarily from any dread of the consequences, but from the force of habit.
or Find Others who will Accept Responsibility.
According to the older theory of parliamentary government, it was merely necessary that the King should have ministers who would accept responsibility for his acts; and, therefore, he might disregard their advice if he could find others who were willing to adopt his policy, and assume responsibility for it. Such an alternative is a very remote possibility in England to-day. It could only be brought about in one of two ways.
In the first place it might be brought about by the dismissal of the cabinet. William IV. was long supposed to have dismissed arbitrarily Lord Melbourne's cabinet in 1834, and for many years his action in so doing was freely criticised; but on the publication of the Melbourne Papers[32:1] it appeared that the Prime Minister himself, meeting with great difficulty in carrying on the government, virtually suggested the dismissal to the King; and thus the incident was rather in the nature of a resignation than a dismissal. The right to dismiss a ministry, although unquestionably within the legal prerogative of the Crown, seems to be regarded as one of those powers which the close responsibility of the cabinet to the House of Commons has practically made obsolete. As in the case of some other powers, however, it is hardly safe to predict that it will never be used again, for circumstances might arise in which it was evident that the ministry and the House of Commons no longer represented the opinion of the country. Before Mr. Gladstone's last administration few people would have hesitated to say that the House of Lords would never again venture to reject a bill on which a House of Commons, fresh from a general election, was thoroughly in earnest, when the subject of the bill had been one of the chief issues in that election. Yet the Lords rejected the last Home Rule Bill of 1893, without losing popularity by so doing; and in 1906 it destroyed the Education Bill. It is conceivable that under similar conditions the Crown might, by dismissing a ministry, force a dissolution, and appeal to the electorate. Such an event, though highly improbable, cannot be said to be impossible.
The dismissal of a ministry must, of course, be carefully distinguished from the dismissal of an individual minister. This would be done, as in the case of Lord Palmerston,—the last of the kind that has occurred,—at the request of the Premier, and therefore not contrary to, but in accordance with, the advice of the person chiefly responsible for the acts of the Crown.
The other way in which a change of ministry could be brought about by the Crown would be by a refusal to consent to some act which the ministry deemed essential to their remaining in office. Some cases of the exercise of such a right by the representative of the Crown have taken place in the self-governing colonies, but they are not such as are likely to occur in England. A request, for example, by the ministry to be allowed to dissolve a colonial legislature has on several occasions been refused by the governor, usually on the ground that a general election had recently been held, or that there was no important issue pending between the parties which the people could properly be called upon to decide.[33:1] In England, on the other hand, such a request by a ministry has never been refused since William Pitt in 1784 invented the principle that a government faced by a hostile majority in the House of Commons may appeal to the electorate instead of resigning; nor is it probable that it will be refused, because the rules of political fair play are so thoroughly understood among English statesmen that the power is not likely to be misused for party purposes.
An interesting discussion on the right of a colonial governor to reject the advice of his ministers was raised in the case of Governor Darling of Victoria in 1865. The story has been often told. It grew out of a quarrel between the Assembly and the Legislative Council, which were both elective, but happened to be on opposite sides in politics. The Assembly, wishing to enact a protective tariff, to which a majority of the Council was known to be opposed, tacked it to the annual appropriation bill; and the Council, unable to amend such a bill, rejected it altogether. Thereupon the Governor, yielding to the pressure of his ministers, sanctioned the levy of the new duties, the issue of a loan, and the payment of official salaries, without the authority of any act regularly passed by both branches of the legislature. For permitting, on the advice of his ministers, such a violation of law, Governor Darling was rebuked, and finally dismissed by the Secretary of State for the Colonies.[34:1] It is needless to say that no such situation has ever arisen, or is likely to arise, in England.
Selection of a New Premier.
There is one matter in which the Crown cannot really be bound by the advice of ministers, and that is in the selection of a Premier. It would be obviously improper, not to say absurd, that the King in the selection of a new Prime Minister should be obliged to follow the opinion of the old one who has just resigned in consequence of a change of party in the House of Commons. That Mr. Balfour, for example, should have had the right to dictate whether Sir Henry Campbell-Bannerman or Lord Rosebery should be his successor would have been grotesque. There is usually one recognised leader of the Opposition, and when that is the case the Crown must intrust the formation of the new ministry to him. This was illustrated in 1880. Mr. Gladstone had, some years before, retired from the leadership of the Liberals in Parliament, and the Queen, after their success at the general election, sent for Lord Hartington, then leading them in the House of Commons; but she found that Mr. Gladstone, who had really led the party in the country to victory, was the only possible head of a Liberal government.[34:2]
If the party that has obtained a majority in Parliament has no recognised leader, the Crown may intrust the formation of a ministry to any one of its chief men who is willing to undertake the task; or if, as is sometimes the case, the parties have become more or less disintegrated, so that only a coalition ministry can be formed, the Crown can send for the head of any one of the various groups. Not to speak of earlier days, when the King had more freedom than at present in the formation of his cabinets, it happened several times in the reign of Queen Victoria that the question who should be Prime Minister was determined by her personal choice. In 1852, for example, Lord Aberdeen's coalition cabinet was formed by her desire.[35:1] In 1859 she selected Lord Palmerston rather than Lord John Russell;[35:2] and in 1868 and 1894, when in each case the existing cabinet lost its head, she selected the minister who was to succeed, designating in the first case Mr. Disraeli, and in the last Lord Rosebery.[35:3] Such opportunities, however, are likely to be less common in future, for it is altogether probable that a party will prefer to choose its own leader rather than to leave the selection to the Crown.
Selection of Other Ministers.
The choice of the other members of the cabinet is a very different matter; for although former sovereigns insisted on having a decisive voice in the composition of the ministry, it may be said that with Peel's appointment to office in 1834 the principle was definitely established that the Prime Minister chooses his colleagues, and is responsible for their selection.[35:4] The royal authority in this matter gave a last dying flicker in the bed-chamber question of 1839, where Peel's clumsiness and the Queen's impetuosity gave rise to a misunderstanding. Peel wished to replace some of the ladies attendant on the Queen, who were exclusively Whigs, by Conservatives; and the Queen, getting the impression that he intended to replace them all, refused.[35:5] When Peel came into office two years later part of the Whig ladies retired and were replaced; and it has since been settled that the Mistress of the Robes, like the Gentlemen of the Household, shall change with the administration, but that the other ladies shall remain. The Mistress of the Robes, however, must always be a duchess, and during the last years of the Queen's life it happened that there was no duchess who was a Liberal.
At the present day all persons whose offices are considered political are appointed in accordance with the advice of the Prime Minister. This does not mean that the sovereign may not urge his own views, perhaps with success, and on one occasion, at least, the Queen secured, it is said, a place in the cabinet for a former minister whom the incoming Premier had either forgotten or meant to leave out. It does mean, however, that if the minister insists upon his advice it must be accepted. More than once, for example, the Queen tried in vain to exclude from the Foreign Office Lord Palmerston, who was a constant grief of mind to her. As Mr. Morley puts it in the chapter, in his "Life of Walpole," which is understood to express Mr. Gladstone's views upon the cabinet, "Constitutional respect for the Crown would inspire a natural regard for the personal wishes of the sovereign in recommendations to office, but royal predilections or prejudices will undoubtedly be less and less able to stand against the Prime Minister's strong view of the requirements of the public service."[36:1]
For what Acts Ministers are Responsible.
The responsibilities of the ministers may be classified as technical and complete. Thus for acts which happen before they come into office, and which they could not possibly have advised, they assume what may be called a technical, or perhaps a nominal, responsibility. A premier is technically responsible for his own selection; but as responsibility of that kind means merely the obligation to resign on an adverse vote of the House of Commons, and as he would be obliged to do this in any event, he assumes no additional responsibility by reason of his own selection; and the same thing may be said of all acts which happen before the ministers come into power, and which they do not by accepting office effectually sanction or condone. They become responsible, for example, for the condition of the public departments of which they take charge; and yet it may be for the very purpose of changing that condition that they were put in office. In other words, there is a difference between those things for which they are technically responsible but not to blame, and those things which have been done by their advice, and for the consequence of which they may be said to be morally or completely responsible. The distinction is unimportant from the point of view of the conventions of the constitution, but its practical consequences are considerable as regards the position of the cabinet before Parliament and the public. Now the ministers are completely responsible for all political acts done by the Crown during their tenure of office, even those which appear to be most directly the work of the sovereign himself. All communications with the representatives of foreign powers, for example, pass through their hands. The creation of peers, the granting of honours, are now unquestionably subject to their advice; and although when King Edward's list of coronation honours was announced in 1901, The Times declared that the names were the personal choice of the monarch, it took pains to add that the constitutional responsibility must, of course, rest with the ministers.[37:1]
In short, the ministers direct the action of the Crown in all matters relating to the government. The King's speech on the opening of Parliament is, of course, written by them; and they prepare any answers to addresses that may have a political character. All official letters and reports to the King, and all communications from him, must pass through the hands of one of their number. A letter addressed to the sovereign as such by a subject, or other private person, passes through the office of the Home Secretary; and even peers, who have a constitutional right to approach him, must make an appointment for the interview through the same office. This does not mean that the Crown may not consult any one it pleases. That question came up in relation to Prince Albert, whom the ministers at first held at arm's length, and whose presence at their interviews with the Queen they refused for a couple of years to permit, while he, on the other hand, called himself the Queen's "confidential adviser" and "permanent minister."[38:1] Confidential adviser he certainly was, but minister he certainly was not, because in the nature of things he could not be responsible for her acts. Mr. Gladstone in his "Gleanings of Past Years"[38:2] seems to have defined the true position of the Queen and Prince Consort when he said that she has a right to take secret counsel with any one, subject only to the condition that it does not disturb her relation with her ministers. She cannot, as a rule, consult the Opposition, because they are directly opposed to the ministry; but she can consult any one else, provided it does not affect the responsibility of her ministers; that is, provided that in the end she follows their advice.
Public and Private Acts of the Crown.
The ministers are responsible for the public, not the private, acts of the Crown; but it is sometimes hard to distinguish between the two. Queen Victoria, for example, had relatives on many of the thrones of Europe to whom it was absurd that she should not write private letters; while other crowned heads were constantly writing letters to her on public business which they did not intend the ministers to see. The rule was, therefore, adopted that all her correspondence with foreign sovereigns, not her relatives, should pass through the ministers' hands,—an arrangement which, though a necessary result of English responsible government, was galling to the Queen, who was often made to express in her own handwriting opinions quite different from those which she really held.[38:3] In domestic matters, also, it is hard to draw the line between what is public and what is private. The Queen's marriage, which was felt at the time to have a greater political importance than it would have to-day, was arranged by herself, without consultation with her ministers, and merely announced to them. On the other hand, when the Princess Louise was betrothed to the Marquis of Lorne, Mr. Gladstone stated in the House of Commons that the marriage with a subject had not been decided upon without the advice of the ministers of the Crown.[39:1] The risk of a strong infusion of British blood in the veins of some future occupant of the throne is, it seems, a political matter, for which the cabinet must hold itself responsible. But this is not true of purely social affairs. One of the chief functions of the Crown is that connected with its duties as the head of the social life of the capital. These duties the Queen virtually abandoned for many years after her husband's death; but although there were loud complaints on the part of the public, the question was not regarded as a political one for which the ministers could be called to account.
The King's Name not Brought into Public Controversy.
Since the King can do no wrong, he can do neither right nor wrong. He must not be praised or blamed for political acts; nor must his ministers make public the fact that any decision on a matter of state was actually made by him.[39:2] His name must not be brought into political controversy in any way, or his personal wishes referred to in argument, either within or without Parliament.[39:3] This principle was not fully recognized until after the accession of Queen Victoria. At the first election of her reign the Tories complained, apparently with reason, that the Whigs used her and her name as party weapons,[40:1] and three years later we find Wellington referring to the Queen as the head of the party opposed to the Conservatives.[40:2] Almost the only public acts that can be done by the Crown before the public eye are ceremonies, public functions, speeches which have no political character and deeds of kindness that are above criticism. When the Queen, for example, made her last visit to Ireland, the public were allowed to understand that it was her own suggestion, and the same thing was true of her order allowing Irish soldiers to wear the shamrock, it being assumed that such acts could not have a political bearing, and would excite no hostile comment.
Actual Influence of the Sovereign.
According to the earlier theory of the constitution the ministers were the counsellors of the King. It was for them to advise and for him to decide. Now the parts are almost reversed. The King is consulted, but the ministers decide. It is commonly said that, with the sovereign, influence has been substituted for power; or as Bagehot puts it in his own emphatic way, the Crown has "three rights—the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others."[40:3] But after the advice and warning have been given the final decision must remain with the ministers. It is for them to determine whether their opinion is of such importance that they feel obliged to insist upon it in spite of the objections of the King, and if they do he must yield. Bagehot goes on to describe how effective the right to advise may become in the hands of a sage and experienced monarch, but he admits how small the chance must be that the occupant of the throne will possess the qualities needed for making a good use of the right, and adds that the attempt of the ordinary monarch to exercise it would probably do more harm than good.
He is Consulted after a Decision is Reached.
Historians have often observed that the absence of the sovereign from cabinet meetings, since the accession of the House of Hanover, has been a great factor in the growth of cabinet government. His absence had, indeed, three distinct effects. It helped to free the individual members of the cabinet from royal pressure; it made it easier for them to act as a unit in their relations with the monarch; and it tended to remove him from the discussion of public policy until it had been formulated. This last point is highly important, and has a bearing upon the influence of the King to-day, because it is before the ministers have formed an opinion that his advice and warning are most effective. It is while some of them are reluctant and others are hesitating that the weight of his views has the best chance of turning the scale. After the matter has been threshed out and an agreement reached the decision is far less likely to be reversed, or even seriously modified, by his personal preferences.
Now the sovereign is not usually consulted about matters of domestic legislation and policy until the opinion of the cabinet has taken shape. For although he is informed in general terms of what is done at cabinet meetings, and sometimes discusses with a minister the proposed measures relating to his department, yet a matter is commonly talked over and agreed upon by the ministers before it is submitted to him for approval. In this way "the sovereign is brought into contact only with the net results of previous inquiry and deliberation,"[41:1] and the views of the cabinet are "laid before" him "and before Parliament, as if they were the views of one man."[41:2] Queen Victoria tried, indeed, to insist upon the right of "commenting on all proposals before they are matured;"[41:3] but apparently without much success. This was not equally true, however, of all departments of the government. On the contrary, after a long struggle with Lord Palmerston, in which she suffered many exasperating rebuffs, the autocratic foreign minister by his impulsiveness and lack of perfect candour gave her at last an advantage. She succeeded in establishing, by the memorandum of August, 1850, the rule that she must be kept informed of foreign correspondence and despatches before they were sent, so that foreign matters should be intact and not already compromised when they were brought to her attention. Mr. Gladstone has criticised the principles laid down at that time because they meant that the comments of the Premier on despatches were to be made, not privately to the foreign minister, but after the draft had been submitted to the Queen.[42:1] In other words, he complained that the Queen was consulted before the tenor of the despatch had been finally settled between the Premier and the foreign minister. His criticism seems, therefore, to be levelled at the practice of consulting the Crown before the policy has been agreed upon by those who are responsible for it,[42:2] in this case the Prime Minister and the Foreign Secretary, for despatches are not ordinarily brought before the full cabinet for consideration.
The opportunity for an exertion of royal influence is much less in those matters which are settled in cabinet meeting than in others. In the former case the sovereign is not usually consulted until the question has been thoroughly discussed, and the cabinet has reached a decision which is the more difficult to change because it is often the result of a compromise, and has, therefore, something of the binding force of an agreement; whereas, in questions which are not brought directly before the cabinet, the Crown when consulted has to overcome only the opinion, and perhaps the hasty opinion, of one or two ministers. This is true in such matters as the less important foreign relations, ecclesiastical and other patronage, and the ordinary executive work of the various departments. But herein another difference must be observed. The executive action of the government in domestic affairs is usually brought under very close scrutiny by Parliament, and is subjected to a galling fire there. Hence the minister, with the volley of questions levelled at the Treasury Bench ever before his mind, finds it more difficult in these affairs to yield his opinion to that of the monarch than he does in the case of foreign negotiations, and of ecclesiastical, judicial and military patronage, which are not habitually discussed in Parliament.[43:1] It would seem, therefore, that under ordinary circumstances the personal influence of the King in political matters is not likely to be very effectively asserted outside of foreign affairs, church patronage, and some other appointments to office.
Personal Influence of Queen Victoria.
Although one can perceive the general limitations upon the personal influence of the monarch imposed by the conditions under which it is exercised, one can never know how vigorously it is being used at the moment; and, indeed, it is difficult to estimate its actual effect during any comparatively recent period. There is no use in going back beyond the reign of Queen Victoria, to times when the parliamentary system was so imperfectly developed that ministers sometimes gave individual and contrary advice to the King;[43:2] and since the Queen came to the throne very little has been published which throws light upon the subject. From the various memoirs and letters of her ministers almost everything has been eliminated that bears upon the actual influence she exerted. Nevertheless certain facts appear. There can be no doubt that the personal opinions of the monarch were deemed of greater importance at the time of the Queen's accession than they are to-day. Of late years, indeed, many popular writers have tended to neglect the royal influence altogether. With the love of broad generalisation, which is at once valuable and perilous in political philosophy, publicists have been in the habit of speaking of the Queen as a figurehead; but statesmen who have seen the inner life of the cabinet know that the metaphor is inexact. Mr. Gladstone is reported to have said that every treatise on the English government which he had read failed to estimate her actual influence at its true value; and in his "Gleanings of Past Years"[44:1] he remarks, "there is not a doubt that the aggregate of direct influence normally exercised by the sovereign upon the counsels and proceedings of her ministers is considerable in amount, tends to permanence and solidity of action, and confers much benefit on the country." Perhaps at a later period he might have stated this less strongly; and although no final judgment can yet be formed, one may venture an estimate of the Queen's influence in the different branches of the government.
In Domestic Policy.
The effect of the Queen's personal preferences in the selection of the Prime Minister and his colleagues has already been discussed, and it may be added that on two or three occasions a cabinet, instead of resigning on a defeat in the Commons, dissolved Parliament in deference to her wishes;[44:2] but except for this it is hard to find definite traces of her influence upon the general domestic policy of the country. Yet in some departments, at least, of the public service she took a very lively interest. At times she was prodigal of suggestions and advice, which bore, as far as one can see, no positive fruit. She held her opinions strongly, expressed them boldly, and was frank in her criticism of measures, but did not succeed apparently in persuading her ministers to abandon or even to modify them. On more than one occasion she used her personal influence over the peers to prevent a disagreement between the Houses, but this was never done to give effect to her own personal views, and in the case of the Irish Church Disestablishment Bill it was done to secure the passage of a government measure with which she was not herself in sympathy.[45:1] In short her personal influence in domestic affairs, either in the form of initiating policy, or of effecting changes in that of her ministers, seems to have been very slight. To this statement, however, a couple of exceptions must be made, which relate to the Army and the Church. The Queen, who regarded the Army as peculiarly dependent upon the sovereign, procured the appointment of a royal duke as Commander-in-Chief, and for a time she resisted successfully all attempts to change the vague relation of that office to the Crown,[45:2] although in the end it was made completely subordinate to the minister responsible to Parliament.[45:3] In the matter of ecclesiastical appointments her opinions were expressed with still greater effect, bishops and deans having in several cases been selected by her, sometimes in preference to candidates proposed by the Prime Minister.
In Foreign Affairs.
But it was in foreign affairs that the Queen's efforts were most untiring, and on the whole most successful, in spite of many disappointments. For years she was opposed to Lord Palmerston's aggressive attitude, and while she never effected a radical change of policy, she appears at times to have softened it to some extent.[45:4] Throughout her reign she insisted upon the right to criticise despatches, and not infrequently she caused changes to be made in them; sometimes, as in the European crisis of 1859-1861, by appealing from the Foreign Secretary and the Prime Minister to the cabinet as a whole.[46:1] The most famous case is that of the Trent Affair in 1861, where the changes made in a despatch, in accordance with the suggestions of the Prince Consort a few days before his death, avoided a danger of serious trouble with the United States. In foreign affairs, therefore, it is safe to conclude that while the Queen never initiated a policy, her influence had on several important occasions a perceptible effect in modifying the policy of her ministers.
Changes during the Queen's Reign.
In the closing chapter of his biography of the Queen, Mr. Lee says that her "personal influence was far greater at the end of her life than at her accession to the throne. Nevertheless it was a vague intangible element in the political sphere, and was far removed from the solid remnants of personal power which had adhered to the sceptre of her predecessors."[46:2] No doubt her long experience, and the veneration due to her age and unblemished character, caused her opinions to be treated with growing respect; but there can be no doubt, also, that the political influence of the sovereign faded slowly to a narrower and fainter ray during her reign. One sees this in Peel's remark at her accession, that the personal character of a constitutional monarch counteracts the levity of ministers and the blasts of democratic passions.[46:3] One sees it in the great importance attached at that time to the persons surrounding the Queen, to the Ladies of the Bedchamber, to the question of her private secretary, and to the position of the Prince Consort. The Queen herself seems to have held views about her own position that were drawn from the past rather than the present.[46:4] At least this is the impression one forms, and it is fortified both by her defence of her seclusion in 1864, on the ground that she had higher duties to discharge which she could not neglect without injury to the public service; and by her complaint that some of her ministers did not allow her time enough to consider and decide public questions, when in reality the decision was not made by her at all. The Crown has been compared to a wheel turning inside the engine of state with great rapidity, but producing little effect because unconnected with the rest of the machinery. This is, no doubt, an exaggeration; but the actual influence of Queen Victoria upon the course of political events was small as compared with the great industry and activity she displayed. What the influence of the sovereign will be in the future cannot be foretold with precision. It must depend largely upon the insight, the tact, the skill, the industry and the popularity of the monarch himself; and as regards any one department, upon his interest in that department. The monarch is not likely to be inured to a life of strenuous work, and yet in addition to the political routine, which is by no means small, his duties, social and ceremonial, are great. Moreover, with the highest qualifications for the throne, his opportunities must be very limited, for there is certainly no reason to expect any growth in irresponsible political authority.
Utility of the Monarchy; as a Political Force.
Bagehot's views upon the utility of the monarchy have become classic. Recognising the small chance that an hereditary sovereign would possess the qualities necessary to exert any great influence for good upon political questions, he did not deem the Crown of great value as a part of the machinery of the state; and he explained at some length how a parliamentary system of government could be made to work perfectly well in a republic, although up to that time such an experiment had never been tried. But he thought the Crown of the highest importance in England as the dignified part of the government. Writing shortly before the Reform Bill of 1867, he dreaded the extension of democracy in Great Britain, for he had a low opinion of the political capacity of the English masses. He felt that the good government of the country depended upon their remaining in a deferential attitude towards the classes fitted by nature to rule the state, and he regarded the Crown as one of the strongest elements in keeping up that deferential attitude. According to his conception of English polity the lower classes believed that the government was conducted by the Queen, whom they revered, while the cabinet, unseen and unknown by the ignorant multitude, was thereby enabled to carry on a system which would be in danger of collapsing if the public thoroughly understood its real nature. Whatever may have been the case when Bagehot wrote, this state of things is certainly not true to-day. The English masses have more political intelligence than he supposed, or more political education than when he wrote. A traveller in England does not meet to-day people who think that the country is governed by the King, nor does he find any ignorance about the cabinet, or any illusions about the part played by the chief leaders in Parliament. The English workingman is now bombarded from the platform, in the newspapers and in political leaflets, with electioneering appeals which do not refer to the King, but discuss unceasingly the party leaders and their doings. The political action of the Crown is, in fact, less present to men's minds than it was half a century ago. Mr. Lee tells us that he was impressed by the outspoken criticism of the Queen's actions in the early and middle years of her reign.[48:1] To-day the social and ceremonial functions of the Crown attract quite as much interest as ever; but as a political organ it has receded into the background, and occupies less public attention than it did formerly. The stranger can hardly fail to note how rarely he hears the name of the sovereign mentioned in connection with political matters; and when he does hear it the reference is only too apt to be made by way of complaint. If the foreign policy is unpopular, if there is delay in the formation of a cabinet, one may hear utterly unfounded rumours attributing the blame to the King. Even if a committee of inquiry is thought not to have probed some matter to the bottom, it is perhaps whispered that persons in favour at court are involved. Fortunately such reports are uncommon. In general the growth of the doctrine of royal irresponsibility has removed the Crown farther and farther out of the public sight, while the spread of democracy has made the masses more and more familiar with the actual forces in public life. One may dismiss, therefore, the idea that the Crown has any perceptible effect to-day in securing the loyalty of the English people, or their obedience to the government.
On the other hand, the government of England is inconceivable without the parliamentary system, and no one has yet devised a method of working that system without a central figure, powerless, no doubt, but beyond the reach of party strife. European countries that had no kings have felt constrained to adopt monarchs who might hold a sceptre which they could not wield; and one nation, disliking kings, has been forced to set up a president with most of the attributes of royalty except the title. If the English Crown is no longer the motive power of the ship of state, it is the spar on which the sail is bent, and as such it is not only a useful but an essential part of the vessel.
As a Social and Moral Force.
The social and ceremonial duties of the Crown are now its most conspicuous, if not its most important, functions. There can be no question that the influence of the Queen and her court was a powerful element in the movement that raised the moral tone of society during the first half of the last century. But such an influence must vary with the personal character of the monarch. It may be exerted for good or for evil; and it may not be so strong in the future as it has been in the past.
As a Pageant.
In its relation to the masses royalty may be considered in another aspect. Within a generation there has been a great growth of interest in ceremony and dress. Antiquated customs and costumes have been revived, and matters of this kind are regarded by many people as of prime importance. A kindred result of the same social force has been a marked increase in what Bagehot called the spirit of deference, and what those who dislike it call snobbishness—a tendency by no means confined to the British Isles. All this has exalted the regard for titles and offices, and enhanced the attractiveness of those who bear them. In prestige the titled classes have profited thereby, and although their position is less and less dependent upon court favour, the royal family has also profited directly. The presence of some one of its members is sought at ceremonies of all kinds, whether it be the opening of a new building, the inauguration of a charity, or an anniversary celebration at a university. The attendance of the King on such occasions insures an extended report in all the newspapers of the country, and is, therefore, a most effective form of advertisement.
As a Symbol.
A century or more ago people who had learned nothing from the history of Greece or Rome, and above all of Venice, were wont to assert that the sentiment of loyalty requires a person for its object. No one would make such a statement now. No one pretends that the English would be less patriotic under a republic; and yet with the strengthening conception of the British Empire, the importance of the Crown as the symbol of imperial unity has been more keenly felt. To most countries the visible symbol of the state is the flag; but curiously enough there is no British national flag. Different banners are used for different purposes; the King himself uses the Royal Standard; ships of war carry at the peak the White Ensign; naval reserve vessels fly the Blue Ensign, and merchantmen the Red Ensign; while the troops march, and Parliament meets, under the Union Jack; and all of these are freely displayed on occasions of public rejoicing. There is a tendency at the moment to speak of the Union Jack as the national flag, but a recent occurrence will illustrate how far this is from being justified. A British subject residing at Panama had been in the habit of flying the Red Ensign, until one day he hoisted in its place the Union Jack. Now, according to the regulations the Jack is displayed from the consulates, and the British consul requested his patriotic fellow-citizen not to use it on his private house. The question was finally referred to the British Foreign Office, which in deference to a law of Panama forbidding all private display of alien flags, supported the position of the consul, but refrained from expressing any opinion on the right of an English citizen to hoist the Union Jack in foreign parts.[51:1] Each of the self-governing colonies has, moreover, its own flag, which consists of the Union Jack with some distinctive emblem upon it. One of the first acts of the new Commonwealth of Australia was to adopt a separate flag of this kind. The government held a competition in designs, and some thirty thousand were presented. From these one was selected which showed at the same time the connection with the empire and the self-dependence of the commonwealth. It is the Union Jack with a southern cross and a six-pointed star at one end,—a design that seems to have been more shocking to heraldic than to imperialist sensibilities.
The Crown is thus the only visible symbol of the union of the empire, and this has undoubtedly had no inconsiderable effect upon the reverence felt for the throne.
Popularity of the Monarchy.
Whatever the utility of the Crown may be at the present time, there is no doubt of its universal popularity. A generation ago, when the Queen, by her seclusion after the death of Prince Albert, neglected the social functions of the court, a number of people began to have serious doubts on the subject. This was while republican ideals of the earlier type still prevailed, and before men had learned that a republic is essentially a form of government, and not necessarily either better or worse than other forms. The small republican group in England thought the monarchy useless and expensive; but people have now learned that republics are not economical, and that the real cost of maintaining the throne is relatively small.[52:1] So that while the benefits derived from the Crown may not be estimated more highly, or admitted more universally than they were at that time, the objections to the monarchy have almost entirely disappeared, and there is no republican sentiment left to-day either in Parliament or the country.
FOOTNOTES:
[27:1] If a person has a claim against the Crown for breach of contract, or because his property is in its possession, he may bring a Petition of Right, and the Crown on the advice of the Home Secretary will order the petition indorsed "Let right be done," when the case proceeds like an ordinary suit.
[27:2] Anson, II., 4, 5, 42, 43, 278, 279, 476-80. But a servant of the Crown is not liable on its contracts, for he has made no contract personally, and he cannot be compelled to carry out the contracts of the Crown. Gidley vs. Lord Palmerston, 3 B. & B., 284. The rule that the sovereign cannot be sued has been held to prevent a possessory action against a person wrongfully in the possession of land as agent of the Crown: Doe. d. Legh. vs. Roe., 8 M. & W., 579. It would seem that in such a case the courts might have held that as the King could do no wrong, the wrongful act, and consequently the possession, was not his; in other words, that the agency could not be set up as a defence to the wrongful act. Compare United States vs. Lee, 106 U.S., 196, where land had been illegally seized by the government of the United States.
[28:1] Coke, Inst. (4 Ed.), II, 186-87. "Hussey Chief Justice reported, that Sir John Markham said to King E. I. that the King could not arrest any man for suspicion of Treason, or Felony, as any of his Subjects might, because if the King did wrong, the party could not have his Action."
[29:1] Anson, II., 27, 42-54. Dicey, "The Privy Council," 34 et seq.
[29:2] Dicey, Ibid., 40-42.
[30:1] Mahon and Cardwell, "Memoirs by Sir Robert Peel," II., 31.
[30:2] Todd, "Parl. Govt. in England," 2 Ed., I., 266.
[32:1] Pp. 220-26.
[33:1] A description of these cases may be found in Todd, "Parl. Govt. in the British Colonies," 525-73.
[34:1] Todd, "Parl. Govt. in the British Colonies," 105 et seq.
[34:2] Cf. Morley, "Life of Gladstone," Book II., Ch. vii.
[35:1] Sidney Lee, "Life of Queen Victoria," 1 Ed., 232-33.
[35:2] Ashley's "Life of Lord Palmerston," II., 154-57. Lee, "Life of Queen Victoria," 296.
[35:3] Lee, Ibid., 511.
[35:4] Todd, "Parl. Govt. in England," 2 Ed., I., 323 et seq.
[35:5] Parker, "Sir Robert Peel," II., 391 et seq., and Lee, "Life of Queen Victoria," 97-103.
[36:1] Morley, "Walpole," 158.
[37:1] The Times, June 26, 1902.
[38:1] Martin, "Life of the Prince Consort," 4 Ed., I., 74.
[38:2] I., 73.
[38:3] Lee, "Life of Queen Victoria," 1 Ed., 211-13.
[39:1] Todd, "Parl. Govt. in England," 2 Ed., I., 266, note y. Hans., 3 Ser. CCIV., 173, 370.
[39:2] Disraeli's opponents were right for criticising him for letting it be known that it was the Queen who had decided whether to accept his resignation or to dissolve in 1868: Hans., 3 Ser. CXCI., 1705, 1724, 1742, 1788, 1794, 1800, 1806, 1811. There was no objection to allowing her to decide if he pleased,—that is, he might accept her opinion as his own,—but he ought to have assumed in public the sole responsibility for the decision.
[39:3] In 1876 Mr. Lowe in a public speech expressed his belief that the Queen had urged previous ministers in vain to procure for her the title of Empress of India. The matter was brought to the attention of the House of Commons, and he was forced to make an apology, which was somewhat abject, the Queen through the Prime Minister having denied the truth of his statement: Hans., 3 Ser. CCXXVIII., 2023 et seq.; and CCXXIX., 52-53.
An apparent, though not a real, exception may be found in the rule which requires that before a bill affecting the prerogative can be introduced into Parliament, notice of the King's assent thereto must be given. If the bill affects only the private property of the Crown it is not a political matter. If it affects the public powers of the Crown, then the assent is given on the responsibility of the ministers.
[40:1] Lee, "Life of Queen Victoria," 74-75.
[40:2] Parker, "Sir Robert Peel," II., 415 et seq.
[40:3] English Const., 1 Ed., 103.
[41:1] Gladstone, "Gleanings of Past Years," I., 85.
[41:2] Morley, "Life of Walpole," 155.
[41:3] This was in 1880. Lee, "Life of Queen Victoria," 451.
[42:1] "Gleanings of Past Years," I., 86, 87.
[42:2] For the same reason the President of the Board of Control objected in 1842, when Lord Ellenborough, the Governor General of India, took upon himself to write directly to the Queen, a proceeding which would undoubtedly not be permitted to-day. Parker, "Life of Sir Robert Peel," II., 591.
In 1885 Lord Randolph Churchill tendered his resignation as Secretary of State for India, because the Prime Minister, without consulting him, had transmitted to the Viceroy a suggestion by the Queen that one of her sons should be appointed to the command of the forces in Bombay. The appointment was not made, and Lord Randolph withdrew his resignation. Winston Churchill, "Life of Lord Randolph Churchill," I., 503-13.
[43:1] Cf. Dicey, "Law of the Constitution," 5 Ed., 392.
[43:2] Cf. Parker, "Life of Sir Robert Peel," I., 334.
[44:1] I., 42.
[44:2] Lee, "Life of Queen Victoria," 133, 295, 387, and see page 39, note 2, supra.
[45:1] Morley, "Life of Gladstone," II., 267 et seq. Davidson and Benham, "Life of Archbishop Tait," 2 Ed., II., 20-27, 35-36, 40-42.
[45:2] Lee, "Life of Queen Victoria," 266, 302.
[45:3] 33-34 Vic., c. 17. Order in Council, June 4, 1870.
[45:4] Cf. Lee, "Life of Queen Victoria," 299, 336, 349.
[46:1] Morley, "Life of Walpole," 159. But see Morley, "Life of Gladstone," I., 415.
[46:2] Pp. 544-45.
[46:3] "Croker Papers," II., 317. A couple of years earlier Peel had dreaded the advent of a ministry that might appear to be dictated to the King by the House of Commons, and continue in office independently of his will and control. Parker, "Sir Robert Peel," II., 302. No statesman would repeat either of these remarks to-day.
[46:4] In Prince Albert's letter to his daughter, the Crown Princess of Prussia, on the advantages of a responsible ministry, he speaks of the power of the monarch to settle the principles on which political action is to be based, in terms not applicable in England. Martin, "Life of the Prince Consort," IV., 218.
[48:1] "Life of Victoria," Pref., vii-viii.
[51:1] The Times, Sept. 17, 1903.
[52:1] Hans., 4 Ser. XCIV., 1500. The Civil List of Edward VII. was fixed at his accession at £543,000, to which must be added about £60,000 of revenues from the Duchy of Lancaster, and also the revenues from the Duchy of Cornwall which go to the heir apparent as Duke of Cornwall. Rep. Com. on Civil List, Com. Papers, 1901, V., 607.
CHAPTER III
THE CABINET AND THE MINISTERS
Absence of Fixed Traditions.
A German professor in a lecture on anatomy is reported to have said to his class, "Gentlemen, we now come to the spleen. About the functions of the spleen, gentlemen, we know nothing. So much for the spleen." It is with such feelings that one enters upon the task of writing a chapter upon the cabinet; although that body has become more and more, decade by decade, the motive power of all political action. The fact is that the cabinet from its very nature can hardly have fixed traditions. In the first place, it has no legal status as an organ of government, but is an informal body, unknown to the law, whose business is to bring about a coöperation among the different forces of the state without interfering with their legal independence. Its action must, therefore, be of an informal character. Then it meets in secret, and no records of its proceedings are kept, which would in itself make very difficult the establishment and preservation of a tradition. This could, indeed, happen only in case of a certain permanence among the members who could learn and transmit its practice. But a new cabinet contains under ordinary circumstances none of the members of its predecessor. A Conservative minister knows nothing of the procedure under Liberal administrations; and we find even a man of the experience of Sir Robert Peel asking Sir James Graham about the practice of a Liberal cabinet, of which that statesman—who at this time changed his party every decade—had formerly been a member.[53:1] No doubt the mode of transacting business varies a good deal from one cabinet to another, depending to a great extent upon the personal qualities of the members. Still, the real nature of the work to be done, and hence the method of doing it, have changed during the last half century less in the case of the cabinet than of any of the other political organs of the state, and one can observe certain general characteristics that may be noted.
Nature of the Cabinet.
The conventions of the constitution have limited and regulated the exercise of all legal powers by the regular organs of the state in such a way as to vest the main authority of the central government—the driving and the steering force—in the hands of a body entirely unknown to the law. The members of the cabinet are now always the holders of public offices created by law; but their possession of those offices by no means determines their activity as members of the cabinet. They have, indeed, two functions. Individually, as officials, they do the executive work of the state and administer its departments; collectively they direct the general policy of the government, and this they do irrespective of their individual authority as officials. Their several administrative duties, and their collective functions are quite distinct; and may, in the case of a particular person, have little or no connection. The Lord Privy Seal, for example, has no administrative duties whatever; and it is conceivable that the work of other members might not come before the cabinet during the whole life of the ministry.
Functions of the Cabinet.
The essential function of the cabinet is to coördinate and guide the political action of the different branches of the government, and thus create a consistent policy. Bagehot called it a hyphen that joins, a buckle that fastens, the executive and legislative together; and in another place he speaks of it as a committee of Parliament chosen to rule the nation. More strictly, it is a committee of the party that has a majority in the House of Commons. The minority are not represented upon it; and in this it differs from every other parliamentary committee. The distinction is so obvious to us to-day, we are so accustomed to government by party wherever popular institutions prevail, that we are apt to forget the importance of the fact. Party government as a system has developed comparatively recently; but it has now become almost universal. The only exception among democratic countries (that is, the only case where the executive body habitually contains members of opposing parties) is in Switzerland. Still the system is carried to a greater extent in some countries than in others; and the amount of power concentrated in the hands of a single party leader, or a body of party leaders, varies very much. The President of the United States, for example, is the representative of a party; but he rules the nation only in part. The legislature is neither in theory or in practice under his control; and this is so far true that even when Congress is of the same party as himself, neither he nor any committee of the party so controls both executive and legislative that any one body can be said to rule the nation. But where the parliamentary system prevails, the cabinet, virtually combining in its own hands, as it does, the legislative and executive authorities, may fairly be said to rule the nation; although the degree in which this is true must depend upon the extent of its real control over the legislature. Now, although the legal power of the executive government is in some respects less in England than in most continental countries, the actual control of the cabinet over the legislature is greater than anywhere else.
The cabinet is selected by the party, not directly, but indirectly, yet for that very reason represents it the better. Direct election is apt to mean strife within the party, resulting in a choice that represents the views of one section as opposed to those of another, or else in a compromise on colourless persons; while the existing indirect selection results practically in taking the men, and all the men, who have forced themselves into the front rank of the party and acquired influence in Parliament. The minority of the House of Commons is not represented in the cabinet; but the whole of the majority is now habitually represented, all the more prominent leaders from every section of the party being admitted. In its essence, therefore, the cabinet is an informal but permanent caucus of the parliamentary chiefs of the party in power—and it must be remembered that the chiefs of the party are all in Parliament. Its object is to secure the cohesion without which the party cannot retain a majority in the House of Commons and remain in power. The machinery is one of wheels within wheels; the outside ring consisting of the party that has a majority in the House of Commons; the next ring being the ministry, which contains the men who are most active within that party; and the smallest of all being the cabinet, containing the real leaders or chiefs. By this means is secured that unity of party action which depends upon placing the directing power in the hands of a body small enough to agree, and influential enough to control. There have, of course, been times when the majority was not sufficiently homogeneous to unite in a cabinet; when a ministry of one party has depended for its majority upon the support of a detached group holding the balance of power. The Peelites in 1850, the Liberal Unionists in 1886, and the Irish Nationalists in 1892 formed groups of this kind; but such a condition of things is in its nature temporary and transitional, and usually gives place to a coalition ministry, followed by party amalgamation.
Formation of the Cabinet.
The statesman sent for by the Crown and intrusted with the formation of a ministry becomes himself the Prime Minister, and selects his colleagues. It may be added, also, that he has virtually power to dismiss a minister; that is, subject to his responsibility to the cabinet as a whole and to Parliament, he can request the Crown to dismiss a colleague—a request which the Crown cannot practically refuse.[56:1] In the selection of the cabinet his choice is, however, decidedly limited both as to persons and offices. In the first place, all the men still in active public life who served in the last cabinet of the party have a claim, a very strong claim, to sit in the new cabinet, and hence it is unusual to discard a man who is willing to return to office.[57:1] This in itself fills a goodly number of the cabinet positions. Then all the prominent leaders in Parliament, and especially in the House of Commons, must be included. In fact, as Mr. Bagehot puts it, the Prime Minister's independent choice extends rather to the division of the cabinet offices than to the choice of cabinet ministers. Still, he has some latitude in regard to the men whom he will admit; especially the younger men, who are appointed to offices in the ministry but not in the cabinet, and this may be a matter of great moment. One cannot tell, for example, how different the history of Parliament in the middle of the century might have been had Peel decided to invite Disraeli to join his ministry in 1841.[57:2] Although the Prime Minister has by no means a free hand in the selection of his colleagues, the task is often extremely difficult and vexatious. It is like that of constructing a figure out of blocks which are too numerous for the purpose, and which are not of shapes to fit perfectly together; for with the selection of the members of the cabinet the difficulties are by no means over. The distribution of the offices among them may raise additional problems. One man will take only a particular office, while others may object to serving if he occupies that post. Where parties are a good deal broken up, or are evenly divided, obstacles like these have sometimes prevented the formation of a cabinet altogether; and there is always some disappointment and consequent discontent on the part of men who thought themselves sufficiently prominent to be admitted to the ministry, and whose chagrin may drive them into an independent attitude.
There are, indeed, two ways in which an ambitious young member of the House of Commons can render his services indispensable to the Prime Minister. He must, of course, first get the ear of the House, and make himself a power there. Then he may vote regularly with the party whips, support the leaders of his party on all occasions, and speak in their favour whenever he can be of use to them. In that case he is likely to be regarded as a promising young man of sound principles who can be relied upon by his chiefs. Or, he may follow the opposite course of the candid friend, criticising and even attacking the leader of his party, showing the weak points in his arguments, and the errors in his policy. In that case, if the young man has achieved so important a position that he cannot be disregarded, he stands a good chance of being given an office as a dangerous critic who must be conciliated and attached firmly to the government. The first of these methods is slower but safer. The second has sometimes been tried with startling success, notably in the case of Lord Randolph Churchill; but it has also been tried too obviously, and without the necessary social or parliamentary influence; and when it does not succeed it is likely to leave its victim hopelessly stranded below the gangway.
Increase in Size.
The number of members in the cabinet has varied very much at different times,[58:1] and of late years it has shown a marked tendency to increase. William Pitt had only six colleagues. A generation ago the cabinets contained from a dozen to sixteen members; but they have now run up to eighteen or twenty. There are several reasons for the change. In the first place, as the sphere of the state activity extends and the government grows more paternal, the range of affairs that come within the action of the cabinet is greater; and hence from time to time there is need of admitting a representative of some fresh department to its consultations. Then, on the political side, the development of the parliamentary system has made it necessary for the cabinet to have an ever stronger and stronger hold upon the House of Commons; and, therefore, the different shades of feeling in the party that has a majority in that House must be more and more fully represented in the cabinet. This alone would tend to increase the number of its members; but far more important still is the fact that a seat in the cabinet has become the ambition of all the prominent men in Parliament. Consequently the desire to be included is very great, and the disappointment correspondingly acute. For these various reasons there is a constant pressure to increase the size of the cabinet. The result is not without its evils. A score of men cannot discuss and agree on a policy with the same readiness as a dozen. There is more danger of delay when action must be taken. There is a greater probability of long discussions that are inconclusive or result in a weak compromise. There is, in short, all the lack of administrative efficiency which a larger body always presents; unless, indeed, that body is virtually guided and controlled by a small number of its own members. That some recent cabinets have been actually so controlled there can be little doubt; and this must become more and more the case as the cabinet grows larger, if it is to retain its great suppleness and strength. One sometimes hears of an interior junto, or cabinet within the cabinet, that really determines the policy. This is undoubtedly an exaggeration; a giving of formal shape to informal conferences among leaders on special questions, which have always taken place; but it appears not improbable that if the growth in the size of the cabinet continues, some such interior nucleus may develop which will bear to the cabinet something of the relation that the cabinet now bears to the ministry.
Offices in the Cabinet.
Certain offices always bring their holders into the cabinet. These are the positions of First Lord of the Treasury (a post almost invariably held either by the Prime Minister himself, or by the leader of the House of Commons if the Prime Minister is a peer and takes some other office); Lord Chancellor (a great political as well as judicial office); the great English executive offices, those of the Chancellor of the Exchequer, the five Secretaries of State, and the First Lord of the Admiralty; and a couple of dignified positions without active administrative duties, those of President of the Council and the Lord Privy Seal. Certain other officers have been of late years always in the cabinet; such are the Presidents of the Board of Trade, the Local Government Board, and the Board of Education, and the Chief Secretary for Ireland,—except when his nominal superior, the Lord Lieutenant for Ireland, is himself a member. On the other hand, the Secretary for Scotland and the Chancellor of the Duchy of Lancaster are usually in the cabinet; while the President of the Board of Agriculture and the Postmaster-General are often there; the First Commissioner of Works and the Lord Chancellor for Ireland occasionally so. The tendency at the present day is certainly in the direction of including the head of every considerable branch of the administration.
The counsel of a statesman who was incapacitated for the performance of steady administrative work, or unwilling to undertake it, was occasionally secured in former times by giving him a seat in the cabinet without any office under the Crown. He then became what is known on the continent as a minister without portfolio. The last case of this kind in England was that of Lord John Russell in 1854-1856; but the same object is practically attained to-day by means of the office of Lord Privy Seal,[60:1] which involves no real administrative duties, and those of President of the Council,[60:2] and Chancellor of the Duchy of Lancaster, where the duties are very light.
The Ministers must have Seats in Parliament.
As the continental practice whereby ministers are allowed to address the legislature, whether they have seats in it or not, is unknown in England, every member of the cabinet, and indeed of the ministry, must have a seat in one or other House of Parliament;[61:1] the last exception being that of Mr. Gladstone, who held the office of Secretary of State for the Colonies during the last few months of Sir Robert Peel's administration in 1846, although he had failed of reëlection to the House of Commons.[61:2] The reason commonly given for such a limitation in the selection of ministers is that otherwise they could not be made responsible to Parliament, where they must be present in order to answer questions, and give information relating to their departments. From the standpoint of Parliament this is perfectly true, but the converse is also true. The head of a department sits in the House of Commons quite as much in order to control the House, as in order that the House may control him. In his chapter on "Changes of Ministry," Bagehot has shown how defenceless against attack any department is sure to be without a spokesman in Parliament, and he cites as a forcible illustration the fate of the first Poor Law Commission.[61:3] All this applies, of course, only to the House of Commons, for although the presence of ministers in the House of Lords is a convenience in debate, and an appropriate recognition of the legal equality of the two chambers, there is no responsibility to be secured thereby, and it is not the essential means of controlling the action of the peers.
The Cabinet System and Administrative Efficiency.
The men who win places in the ministry have usually, although by no means invariably, made their mark in debate. It is a strange assumption that a good talker must be a good administrator, and that a strong government can be formed by parcelling out the offices among the leading debaters in the legislative body. At first sight it appears as irrational as the other corollary of the parliamentary system, that the public service is promoted by dismissing an excellent foreign minister, because the House of Commons does not like an unpopular clause in an education bill. Any one with a sense of humour can point out the incongruities in any human organisation, whether it works in practice well or ill. But there is, in fact, reason to expect that a leading debater will make a good head of a department. Influence is rarely acquired over a body so permanent as the House of Commons by mere showy eloquence. Real weight there must be based upon a knowledge of men, and a power to master facts and grasp the essential points in a situation. It must be based, in other words, upon the qualities most essential to a good head of a department in a government where, as in England, the technical knowledge, the traditions, and the orderly conduct of affairs, are secured by a corps of highly efficient permanent officials. No doubt all leading debaters do not make good administrators. Sometimes a minister is negligent or ineffective, and occasionally he is rash. There are men, also, who have outlived their usefulness, or who were once thought very promising, and have not fulfilled their promise, but who cannot be discarded and must be given a post of more or less importance. The system works, however, on the whole very well, and supplies to the government offices a few extraordinary, and many fairly efficient, chiefs, although it puts some departments under the control of poor administrators.
The power of creating peers would make it possible to select for the head of a department a tried administrator altogether outside of the parliamentary field. Something like this was attempted in the recent case of Lord Milner, who was offered, on Mr. Chamberlain's resignation, the post of Secretary of State for the Colonies. Lord Milner was, indeed, a peer at the time the place was tendered to him, but he had attended in the House of Lords only to take his seat. He had never spoken or voted there, and in fact had had no parliamentary career, his nearest approach to St. Stephens having consisted in standing on one occasion as a candidate for the House of Commons without success.
Formerly a statesman regularly began his official life as a parliamentary under-secretary; and he did not become the head of a department, or win a seat in the cabinet, until he had in this way served his apprenticeship in public administration—a practice which furnished both a guarantee of experience and a test of executive capacity. Of late years there have been a number of exceptions to this rule. Mr. Chamberlain, Lord Randolph Churchill, Mr. Morley and Mr. Birrell, for example, were admitted to the cabinet, and put at the head of great departments without any previous training in the service of the government. As a rule, however, the old system is likely to prevail, because it is difficult for a man to make his mark in Parliament unless he begins his work there very young; and the exceptions occur only in cases of men of great ability.
The Need of Unity in the Cabinet.
In the earlier part of the century, before the party system had developed as fully as it has to-day, complete unity in the cabinet was much less necessary than it is now. At that time it was not uncommon to have matters, sometimes very important ones, treated as open questions in the cabinet, and a good deal of discussion has taken place upon the advantages and the evils of such a practice.[63:1] Members of the cabinet occasionally spoke and voted against government measures, although a difference carried to that length was always rare. One even finds colleagues in the ministry standing as opposing candidates at an election.[63:2] Such occurrences would be impossible to-day, because, as will appear more fully when we come to treat of the political parties, parliamentary government in its present highly developed form requires a very strong cohesion among the members of the majority in the House of Commons, and, therefore, absolute harmony, or the appearance of harmony, among their leaders. It is necessary to present a united front to the Opposition, but if the trumpet give an uncertain sound, who shall prepare himself for the battle? Any one watching the course of events during the early summer of 1903 must have observed how rapidly the process of disintegration went on in the Conservative party while it was known that the ministers were at odds over the tariff. Party cohesion, both in the House and in the cabinet, is, indeed, an essential feature of the parliamentary system; but since men, however united on general principles, do not by nature think alike in all things, differences of opinion must constantly arise within the cabinet itself.[64:1] Sometimes they are pushed so far that they can be settled only by a division or vote, but this is exceptional, for the object of the members is, if possible, to agree, not to obtain a majority of voices and override the rest.[64:2] The work of every cabinet must, therefore, involve a series of compromises and concessions, the more so because the members represent the varying shades of opinion comprised in the party in power. A minister who belongs to one wing of the party may, in fact, be more nearly in accord with a member of the front Opposition Bench than with some colleague who stands at the other political pole of opinion, and yet he will stay in the cabinet unless the measures proposed are such that he feels conscientiously obliged to resign. So long as he remains in the government he will attempt to agree with his colleagues, but when he has finally left them his personal opinions will take full course, and he may go off at a tangent. In this way the behaviour of an ex-minister towards his former colleagues, which is sometimes attributed to rancour, may very well be due to a natural expansion of opinions which were held in check while he clung to the cabinet.
Need of Secrecy.
Men engaged in a common cause who come together for the purpose of reaching an agreement usually succeed, provided their differences of opinion are not made public. But without secrecy harmony of views is well-nigh unattainable; for if the contradictory opinions held by members of the cabinet were once made public it would be impossible afterwards to make the concessions necessary to a compromise, without the loss of public reputation for consistency and force of character. Moreover a knowledge of the initial divergence of views among the ministers would vastly increase the difficulty of rallying the whole party in support of the policy finally adopted, and would offer vulnerable points to the attacks of the Opposition. Secrecy is, therefore, an essential part of the parliamentary system, and hence it is the habit, while making public the fact that a meeting of the cabinet has taken place, and the names of the members present, to give no statement of the business transacted. Not only is no official notice of the proceedings published, but it is no less important that they should not be in any way divulged. In fact, by a well-recognised custom, it is highly improper to refer in Parliament, or elsewhere, to what has been said or done at meetings of the cabinet, although reticence must at times place certain members in a very uncomfortable position.[65:1] Occasionally it becomes well-nigh intolerable. This is true where a cabinet breaks up owing to dissensions over an issue that excites keen public interest, and in such cases the story of what happened may be told in a way that would be thought inexcusable under other circumstances.[66:1]
When we consider the great public interest that attaches to the decisions of the cabinet, and the great value that premature information would have for journalists and speculators, it is astonishing how little cabinet secrets have leaked out. In curious contrast with this are the reports of select committees of Parliament, the contents of which are often known before the report is made,[66:2] probably in most cases not from any deliberate disclosure, but as a result of the piecing together of small bits of information, no one of which alone would seem to be a betrayal of confidence. The reason this does not happen in the case of cabinets is no doubt to be sought in the complete reliance of the members upon one another, and their disbelief in the statements of any one who pretends to have obtained information from a colleague. The best proof of the real silence of ministers is found in the fact that although on two or three occasions the press has been remarkably shrewd in guessing at probable decisions, members of the cabinet have seldom been guilty of talking indiscreetly. The one or two instances where it is alleged to have occurred have, indeed, acquired the sort of notoriety of exceptions that prove the rule.[66:3]
At one time, it seems, before the reign of Queen Victoria, minutes of cabinet meetings were kept, showing the opinions held, with the reasons given therefor, and these were transmitted to the King.[67:1] Even as late as 1855 regular cabinet dinners took place, marked by the possible convenience that no reports of the topics of discussion were sent to the sovereign, as in the case of more formal meetings.[67:2] At the present day he receives only a general statement of the matters discussed, with formal minutes of decisions that require his approval; and it would be considered improper to inform him of the conflicting opinions held by the different ministers.[67:3] In fact no records of the cabinet are kept. This results in occasional differences of recollection on the question whether a definite conclusion was reached on certain matters or not; but possible difficulties of that kind are probably of far less consequence than the facility in compromising differences of opinion and reaching a harmonious conclusion that comes from the entire informality of the proceedings. So little formal, indeed, are the meetings that a person not a member of the cabinet is occasionally brought in for consultation. This occurred in 1848, for example, when the Duke of Wellington attended a Liberal cabinet to give advice upon measures to be taken in view of the danger of the Chartist riots.
Times of Meeting.
It is an old practice, and obviously a necessary one, to hold one or more meetings of the cabinet in the autumn to consider the measures to be presented to Parliament during the coming session; to arrange, as it were, the government's parliamentary programme. Other meetings are held from time to time whenever necessary; sometimes as often as once a week during the session; occasionally even more frequently when urgent and difficult matters are to be decided. After the session of Parliament comes to an end in August, the ministers usually take their vacation in travel, sport, or public speaking; and cabinet meetings are suspended unless political questions of a pressing nature arise.
In the rare cases where the cabinet is obliged to settle its policy by the crude method of a division or vote, the voices of its members count alike; but questions are usually decided by preponderance of opinion, not by votes; and the weight of the opinions of the ministers is naturally very unequal. Such a difference must be particularly marked in the large cabinets of the present day; and some of the members must be perfectly well aware that they are expected to follow rather than to lead. The relative influence of the different ministers over their colleagues, both at the cabinet meetings and elsewhere, depends, of course, primarily upon their personal qualities; although the post occupied is, in some cases, not without importance. This is particularly true in the case of the Prime Minister.
The Prime Minister.
Until 1906 the Prime Minister, like the cabinet itself, was unknown to the law,[68:1] but the position has long been one of large though somewhat ill-defined authority. It has grown with the growth of the cabinet itself; and, indeed, the administrations of the great Prime Ministers, such as Walpole, Pitt and Peel, are landmarks in the evolution of the system.[68:2] We have, fortunately, from two of the chief Prime Ministers in the latter half of the nineteenth century, descriptions both of the cabinet and the premiership, which are authoritative;[68:3] and although they do not add a great deal to what is popularly known, they enable us to state it with greater confidence.
At the meetings of the cabinet the Prime Minister as chairman is no doubt merely primus inter pares. His opinion carries peculiar weight with his colleagues mainly by the force it derives from his character, ability, experience and reputation; but apart from cabinet meetings he has an authority that is real, though not always the same or easy to define.
In the first place the Prime Minister has a considerable patronage at his disposal. Subject to the limitations imposed by political exigencies, he virtually appoints all the members of the ministry. The ecclesiastical offices also, from the bishoprics to the larger livings in the gift of the Crown, are bestowed on his recommendation; and so as a rule are peerages and other honours; and he has a general presumptive right to nominate to any new office that is established under the Crown.[69:1]
His Supervision.
He is both an official channel of communication and an informal mediator. The duties of the Prime Minister, if one may use the expression, surround the cabinet. He stands in a sense between it and all the other forces in the state with which it may come into contact, and he even stands between it and its own members. Matters of exceptional importance ought to be brought to his attention before they are discussed in the cabinet; and any differences that may arise between any two ministers, or the departments over which they preside, should be submitted to him for decision, subject, of course, to a possible appeal to the cabinet. He is supposed to exercise a general supervision over all the departments. Nothing of moment that relates to the general policy of the government, or that may affect seriously the efficiency of the service, ought to be transacted without his advice. He has a right to expect, for example, to be consulted about the filling of the highest posts in the permanent civil service.[69:2] All this is true of every branch of the government, but the foreign relations of the country are subject to his oversight in a peculiar degree, for he is supposed to see all the important despatches before they are sent, and be kept constantly informed by the Foreign Secretary of the state of relations with other powers.
The extent to which a Prime Minister actually supervises and controls the several departments must, of course, vary in different cabinets. One cannot read the memoirs of Sir Robert Peel without seeing how closely he watched, and how much he guided, every department of the government.[70:1] A score of years later we find Lord Palmerston lamenting that when able men fill every post it is impossible for the Prime Minister to exercise the same decisive influence on public policy;[70:2] and recently Lord Rosebery has told us that owing to the widening of the activity of the government no Premier could, at the present day, exert the control that Peel had over the various branches of the public service.[70:3] It is certain that a Prime Minister cannot maintain such a control if his time is taken up by the conduct of a special department; and this, combined with some natural recklessness in speech, accounts for the strange ignorance that Lord Salisbury displayed at times about the details of administration, as in the case when he excused the lack of military preparation for the South African War on the ground that the Boers had misled the British War Office by smuggling guns into the country in locomotives and munitions of war in pianos.[70:4] It has been usual, therefore, for the Prime Minister to take the office of First Lord of the Treasury, which involves very little administrative work, and leaves its occupant free for his more general duties.[70:5]
He Represents the Cabinet.
The Prime Minister stands between the Crown and the cabinet; for although the King may, and sometimes does, communicate with a minister about the affairs relating to his own department, it is the Premier who acts as the connecting link with the cabinet as a whole, and communicates to him their collective opinion. To such an extent is he the representative of the cabinet in its relations to the Crown that whereas the resignation of any other minister creates only a vacancy, the resignation of a Premier dissolves the cabinet altogether; and even when his successor is selected from among his former colleagues, and not another change is made, yet the loss of the Premier involves technically the formation of a new cabinet.
Unless the Prime Minister is a peer he represents the cabinet as a whole in the House of Commons, making there any statements of a general nature, such as relate, for example, to the amount of time the government will need for its measures, or to the question of what bills it will proceed with, and how far the lack of time will compel it to abandon the rest. The other ministers usually speak only about matters in which they are directly concerned. They defend the appropriations, explain the measures, and answer the questions relating to their own departments; but they do not ordinarily take any active part in the discussion of other subjects, unless a debate lasts for two or three days, when one or more of them may be needed. They are, indeed, often so busy in their own rooms at the House that it is not uncommon, when a government measure of second-rate importance is in progress, to see the Treasury Bench entirely deserted except for the minister in charge of the bill. But the Prime Minister must keep a careful watch on the progress of all government measures; and he is expected to speak not only on all general questions, but on all the most important government bills. He can do this, of course, only in the House of which he happens to be a member; and the strength of his all-pervading influence upon the government depends to no slight extent upon the question whether he sits in the Lords or the Commons.
As the House of Commons is the place where the great battles of the parties are fought, a Prime Minister who is a peer is in something of the position of a commander-in-chief who is not present with the forces in the field. He must send his directions from afar, and trust a lieutenant to carry them out. In such a case the leader of the House of Commons stands in something of the position of a deputy premier. He is, of necessity, constantly consulted by his colleagues in the House, and he can, if so disposed, draw into his own hands a part of the authority belonging to the head of the cabinet. As Mr. Gladstone remarked, "The overweight, again, of the House of Commons is apt, other things being equal, to bring its Leader inconveniently near in power to a Prime Minister who is a peer. He can play off the House of Commons against his chief; and instances might be cited, though they are happily most rare, when he has served him very ugly tricks."[72:1] It is certainly true that the Prime Ministers who have most dominated their cabinets, and have had their administrations most fully under their control, have all been in the Commons. It may be added that a high authority has declared that "no administrations are so successful as those where the distance in parliamentary authority, party influence, and popular position, between the Prime Minister and his colleagues in the cabinet, is wide, recognised and decisive."[72:2]
Relation of the Ministers to One Another.
Not only does the Prime Minister stand above and apart from his colleagues, but they do not all stand upon one plane. The influence of a minister depends upon his personal force, but it may be affected by the office that he holds, and perhaps by his nearness to the Prime Minister himself; for although there is no formal interior junta, or cabinet within the cabinet, yet the Premier is apt to take counsel informally with other leading ministers, and if he is a masterful man those who can command or win his confidence have the better chance of shaping the policy of the government while it is still formless and malleable. The cabinet, moreover, does not always act as a whole. It sometimes appoints committees to consider special subjects, and indeed it has an old and well-established practice of appointing committees to prepare important government bills.[73:1]
Joint and Several Responsibility.
It is commonly said that the ministers are severally responsible to Parliament for the conduct of their own departments, and jointly responsible for the general policy of the government. Like many other maxims of the British Constitution, this has the advantage of being sufficiently vague to be capable of different interpretations at different times. With the growth of the parliamentary system, and the more clearly marked opposition between the parties, the joint responsibility has in fact become greater and the several responsibility less. The last instances where a single minister resigned on an adverse vote of the House of Commons were those of Mr. Lowe, who retired from the vice-presidency of the Committee on Education in 1864 in consequence of a vote charging him with improper mutilation of the reports of inspectors, and Lord Chancellor Westbury, who resigned in 1866 on account of a vote censuring his grant of a pension to a registrar in bankruptcy charged with misconduct.[73:2] If at the present day the cause of complaint were a personal error on the part of the minister, he would probably be brought to resign voluntarily before there was a chance of his resignation being forced by a hostile vote in the House; and if the question were one of policy, the government would, save in very exceptional cases, assume the responsibility for that policy, treating a hostile vote as showing a want of confidence in itself. The majority in the House of Commons, on the other hand, while it may question, criticise and blame a minister in debate, is reluctant to permit a vote of censure upon him which is liable to involve the fall of the ministry.[74:1]
Each minister is responsible to the cabinet for the conduct of his department. He is constantly meeting with problems which may involve criticism in Parliament, and where a mistake might entail serious consequences for the whole government. In such cases he must decide how far he can assume to settle the question in accordance with his own opinion, and what matters he ought to bring before the cabinet. He must not, on the one hand, take up its time in discussing trivialities, and he must not, on the other, commit his colleagues to a course of action which really involves general policy. If in doubt he can, of course, consult the Prime Minister; but in spite of this privilege annoying blunders must inevitably occur.
A minister naturally has charge in the cabinet of the business relating to his own department, but how far he takes an active part in other things will depend upon the interest that he feels in them. Lord Palmerston, for example, when Secretary for Foreign Affairs, took, as his letters show, little interest in anything else; but when he became Home Secretary he took not only an active but a leading part in directing the foreign relations of the country. This he was fully entitled to do, because the cabinet is both an assemblage of ministers at the head of the separate branches of the administration, and a council of state which must form a collective judgment upon the questions submitted to it. A minister is, therefore, justified in pressing his views on any subject, whether connected with his own department or not; and on no other basis could collective responsibility be maintained. The practice is particularly marked in the case of foreign affairs, which usually form a large part of the business at the meetings.
The Treasury and Other Departments.
It is not only on questions of general policy, brought before the cabinet, that differences of opinion between ministers may arise, for there are many matters of current administration that affect more than one department. In such cases the ministers concerned confer together, and if they cannot agree their differences must be submitted to the Prime Minister, and ultimately to the cabinet. There is, indeed, one department which is continually brought into contact—one might almost say conflict—with all the others; that is the Treasury. Any vigorous branch of the public service always sees excellent reasons for increasing its expenditure, and proposes to do so without much regard for the needs of the other branches; while the Chancellor of the Exchequer, who is obliged to find the money, must strive to restrict the aggregate outlay. If he did not, the expenditure of the government would certainly be extravagant. As a preliminary step to the preparation of the budget the Treasury issues in the autumn a circular to the other departments asking for estimates of their expenses during the coming fiscal year. These are made up in the first instance by the permanent officials, and then laid before the parliamentary head of the department, who revises and perhaps reduces them. When they reach the Treasury they are scrutinised by the permanent officials there, and if anything is not clear, an explanation is sought from the department concerned. The estimates are then submitted by the Treasury officials to their parliamentary chiefs, and if there is an objection to any item it is the duty of the Financial Secretary of the Treasury to confer with the head of the department whose estimates are in question.[75:1] If the parliamentary head of the department does not agree with the Financial Secretary he may go to the Chancellor of the Exchequer, and if they cannot settle the matter they must appeal to the Prime Minister and as a last resort to the cabinet. Being placed in such a relation to his colleagues, it is not unnatural that the Chancellor of the Exchequer should often differ with them. As Gladstone notes in his diary in 1865, "Estimates always settled at the dagger's point."[76:1] Like other differences in the cabinet, these occasionally come to light, especially when they have been so sharp as to cause the Chancellor's resignation. Lord Randolph Churchill resigned in 1886 because the cabinet insisted upon appropriations for the Army which he opposed; and Sir Michael Hicks-Beach has told us recently that had it not been for the fact that his protests against the growth of expenditure were received with indifference he might not have quitted the office.[76:2] One cause, moreover, of the final resignation of Mr. Gladstone—who although not then Chancellor of the Exchequer, always looked upon matters from the Treasury standpoint—was a difference of opinion between him and his colleagues on the question of the cost of national defence.[76:3]
Whatever the policy of the cabinet at any moment may be, the scale of expenditure is ultimately determined by the feeling in the House of Commons, and this in turn depends upon the state of public opinion. Except for a few short periods of extravagance, the seventy years that followed the close of the Napoleonic wars were marked by a decided tendency in favour of economy. People felt the pressure of taxation, worried little about the condition of the Army or the Navy, and had no strong desire to increase the expenses of the government in any direction. Latterly the tendency has been reversed. The country has felt rich; there have been a series of alarms about national defence, and at the same time the general growth of paternalism has brought in a desire for improvement and expenditure in many ways.
The Cabinet and the Ministry.
The ministry is composed, as has already been pointed out, of an inner part that formulates the policy of the government, and an outer part that follows the lines laid down; the inner part, or cabinet, containing the more prominent party leaders, who are also holders of the principal offices of state, while the outer part consists of the heads of the less important departments, the parliamentary under-secretaries, the whips and the officers of the royal household. All of these persons are strictly in the ministry, and resign with the cabinet; but the officers of the household have, as such, no political functions, and do not concern us here. The heads of departments without seats in the cabinet have become, with the increase in size of that body, very few. By far the greater part of the ministers outside of the cabinet are the parliamentary under-secretaries, who have two distinct sets of duties, one administrative and the other parliamentary. Their administrative duties vary very largely, mainly in accordance with personal considerations. Some of them are really active in their departments, doing work which might fall upon the parliamentary chief, or upon the permanent under-secretary, while others have little or no administrative business; but in any case the real object of their existence is to be found on the parliamentary side. Whatever duties, parliamentary or administrative, may be assigned to an under-secretary, he is strictly subordinate to his chief, who retains both the authority and the responsibility for the decision of all questions that arise in the department;[77:1] although an active under-secretary in the Commons may sometimes attract more public notice than his real chief in the Lords.
It is commonly said that as a minister can speak only in the House of which he is a member, there must be two parliamentary representatives for every department, one in each House. This, however, is not strictly true. Going back, for example, over the period of a generation, we find that the Foreign, Colonial and Indian Offices have practically always been represented in both Houses.[78:1] The other great departments have, of course, always been represented in the Commons;[78:2] but the War Office and the Admiralty have not always been represented in the Lords. The Board of Trade has often, and the Local Government Board and Home Office have usually, had no spokesman of their own there;[78:3] while all the parliamentary officers of the Treasury invariably sit in the Commons. The system of under-secretaries, therefore, is by no means always used in order to give a representative to the department in both Houses. It not infrequently happens that both, or in the case of the War Office and the Admiralty all three, representatives sit in the House of Commons. An under-secretary, even when he sits with his chief in the Commons, is, however, a convenience for those departments which have a great deal of business to attend to, and many questions to answer. Moreover, the large number of under-secretaryships has the advantage already noticed of including within the ministry a considerable number of lesser party lights who have not achieved sufficient prominence to be included in the cabinet, and yet whose interest in the fortunes of the ministry it is wise to secure.
The Cabinet and the Privy Council.
One of the great changes in administrative machinery that has taken place in the civilised world within the last two hundred years is the substitution of an informal cabinet composed of the heads of departments, for a formal governing council of members who had themselves no direct administrative duties. The form of the old council has survived in England under the name of the Privy Council, but its functions have become a shadow. The Privy Council never meets as a whole now except for ceremonial purposes. Its action is, indeed, still legally necessary for the performance of many acts of state, such as the adoption of Orders in Council, and the like; but this is a formal matter, requiring the presence of only three persons, who follow the directions of a minister, for all cabinet ministers are members of the Privy Council. The Council does real work to-day only through its committees. Of these the most notable is the Judicial Committee, which sits as a court of appeal in ecclesiastical and colonial cases, and will be more fully described in a later chapter. Other committees, such as those on trade and on education, have at times rendered great service to the state, but the more important administrative committees have now been transformed into regular departments of the government. It is by no means certain, however, that the Privy Council may not, through its committees, become in the future an organ by means of which important political functions, especially in connection with the growth of the empire, will be evolved. At present it is mainly an honorary body. Its members are appointed for life, and bear the title of Right Honourable; and, indeed, of late years membership in the Council has been conferred as a sort of decoration for services in politics, literature, science, war, or administration.
Future of the Cabinet.
Mr. Gladstone was of opinion that the cabinet had "found its final shape, attributes, functions, and permanent ordering,"[79:1] and so far as its relation to Parliament alone is concerned, this may very well be true; but Parliament is gradually ceasing to be the one final arbiter in public life. The cabinet is daily coming into closer contact with the nation, and what modifications that may entail we cannot foresee. It may be observed, however, that while the members of the cabinet present a united front, and say the same thing in Parliament, they do not always say the same thing to the country. The ministers agree on a policy before announcing it in Parliament, but they are not always in the habit of taking counsel together about the speeches that they make upon the platform. Mr. Chamberlain's sudden declaration of a policy of preferential tariffs in his speech at Birmingham in 1903 is only an extreme example of what sometimes occurs. Absolute unanimity may not, indeed, prove to be so necessary to the ministers in order to maintain their authority before the people as it is to hold their position in the House of Commons.[80:1] But no serious changes in the structure of the cabinet are probable so long as parliamentary government continues in its present form; and it is too early to speculate on the changes that may occur if the parliamentary system itself becomes modified under the pressure of political parties acting in a democratic country.
FOOTNOTES:
[53:1] Parker, "Sir Robert Peel," III., 496.
[56:1] This is the opinion of two of the most prominent Prime Ministers of the century. Ashley, "Life of Palmerston," II., 330; Morley, "Life of Walpole," 159; the latter representing, as has already been pointed out, the views of Mr. Gladstone.
[57:1] For an example of the difficulties that arise on this score, cf. Morley, "Life of Gladstone," II., 628-29. Lord Rosebery, who, after being Prime Minister in 1895, was left out of the next Liberal cabinet in 1905, had taken himself out of the field by saying that he could not serve in a ministry whose chief held the views on Home Rule that Sir Henry Campbell-Bannerman had expressed.
[57:2] Cf. Parker, "Sir Robert Peel," II., 486-89; III., 347-48.
[58:1] Todd, "Parl. Govt. in England," 2 Ed., II., 189-90.
[60:1] If the post of Lord Privy Seal is not needed for this purpose, it is given, without salary, to the holder of some other office.
[60:2] The President of the Council had in the past a somewhat undefined authority in connection with the Committee of the Council on Education, but this committee has now been replaced by a Board.
[61:1] The Law Officers present occasional exceptions.
[61:2] As in the case of Mr. Birrell in the present ministry, a man who is not in Parliament may, of course, be included in a new cabinet in the expectation that he will win a seat at the impending dissolution.
[61:3] Eng. Const., 1 Ed., 228-30.
[63:1] Cf. Todd, "Parl. Govt. in England," II., 405, note w.
[63:2] This happened, for example, in 1825, when Palmerston, Goulburn and Copley (all three in the ministry) were three out of the six candidates for the two seats for Cambridge University. Bulwer, "Life of Palmerston," I., 153 et seq.
[64:1] One cannot read Mr. Morley's "Life of Gladstone" without being struck by the frequency of such differences. One feels that in his twenty-five years of life in the cabinet Gladstone must have expended almost as much effort in making his views prevail with his colleagues as in forcing them through Parliament.
[64:2] In Gladstone's cabinet of 1880-1885 the practice of counting votes was complained of, as an innovation. Morley, "Life of Gladstone," III., 5.
[65:1] This obligation has been said to rest upon the cabinet minister's oath of secrecy as a privy councillor (Todd, 2 Ed., II., 83-84, 240). But this would seem to be another case of confusion between the law and the conventions of the constitution. Although the permission of the sovereign must be obtained before proceedings in the cabinet can be made public (cf. Hans., 3 Ser. CCCIV., 1182, 1186, 1189), yet in fact the duty of secrecy is not merely a legal obligation towards the sovereign which he can waive under the advice, for example, of a ministry of the other party. It is a moral duty towards one's colleagues, which ceases when by lapse of time, or otherwise, the reason for it has been removed; and the secrets must be kept from other privy councillors, the leaders of the Opposition for example, as well as from the rest of the world. Sometimes sharp discussions have occurred on the limits of the permission given to reveal what has taken place at cabinet meetings. This occurred after Mr. Chamberlain's resignation in 1886. Churchill, "Life of Lord Randolph Churchill," II., 85-86.
[66:1] E.g. Hans. (1886), 3 Ser. CCCIV., 1181 et seq., 1811 et seq., and (1904), 4 Ser. CXXIX., 878, 880; CXXX., 349 et seq.; CXXXI., 403 et seq., 709 et seq.
[66:2] E.g. Rep. Com. on Civil List, Com. Papers, 1901, V., 607.
[66:3] There is some interesting gossip about instances of this kind in MacDonagh, "Book of Parliament," 337-49.
[67:1] Parker, "Sir Robert Peel," III., 496-99.
[67:2] Morley, "Life of Walpole," 151. Cabinet dinners have occasionally taken place of late years, but it is safe to say that they have not been held with that object.
[67:3] Mr. Gladstone "was emphatic and decided in his opinion that if the Premier mentioned to the Queen any of his colleagues who had opposed him in the cabinet, he was guilty of great baseness and perfidy." Morley, "Life of Gladstone," II., 575. But this seems to have applied only to giving their names. Ibid., III., 132.
[68:1] In 1906 the position was recognized by being accorded a place in the order of precedence. Cf. Hans., 4 Ser. CLVI., 742.
[68:2] Walpole repudiated the title of First or Prime Minister, although he was, in fact, the first man to occupy such a position.
[68:3] See Ashley, "Life of Palmerston," II., 329-30; Gladstone, "Gleanings of Past Years," I., 242. See also the description in Morley, "Life of Walpole," 150-65, which, as already pointed out, represents Mr. Gladstone's views.
[69:1] Morley, "Life of Gladstone," II., 383.
[69:2] Morley, "Life of Walpole," 159-60.
[70:1] "Sir Robert Peel, from his Private Correspondence"; cf. Parker, "Sir Robert Peel"; Morley, "Life of Gladstone," I., 248, 298.
[70:2] Ashley, "Life of Palmerston," II., 257; cf. Morley, "Life of Gladstone," II., 35.
[70:3] In his review of Parker's "Sir Robert Peel," in the first number of the Anglo-Saxon Review.
[70:4] Hans., 4 Ser. LXXVIII., 27.
[70:5] At the end of his first ministry, and at the beginning of his second, Mr. Gladstone held the office of Chancellor of the Exchequer. With this exception, and with that of Lord Salisbury, no Prime Minister has been at the head of a department since 1835.
[72:1] "Gleanings of Past Years," I., 242.
[72:2] Morley, "Life of Walpole," 164-65. This would hardly be stated in such broad terms to-day.
[73:1] During the late war in South Africa, there was a special Cabinet Committee on National Defence, which was afterwards enlarged and made permanent, as explained in the following chapter.
[73:2] See a collection of instances in Todd, "Parl. Govt. in England," 2 Ed., II., 471 et seq., and I., 444-49, 668-87. The vote in 1887 to adjourn in order to draw attention to the conduct of the police in the case of Miss Cass might very well have been regarded as a censure upon the Home Secretary, Mr. Matthews; but he did not think it necessary to resign. Hans., 3 Ser. CCCXVI., 1796-1830.
[74:1] The vote to reduce the salary of the Secretary of State for War in 1895 was anomalous. It was a trick which will be explained in a later chapter.
[75:1] Com. on Nat. Expenditure, Com. Papers, 1902, VII., 15, App. 1 and 3.
[76:1] Morley, "Life of Gladstone," II., 140.
[76:2] Hans., 4 Ser. CXXIII., 348-49.
[76:3] Morley, "Life of Gladstone," III., 506-09.
[77:1] It may be noted that the Chief Secretary of the Lord Lieutenant of Ireland is not a parliamentary under-secretary, but the real head of the Irish Office, unless the Viceroy is in the cabinet; also that until the creation of the recent Board of Education the relations between the President and Vice-President of the Committee of Council on Education were not clearly defined.
[78:1] In the Liberal cabinet of 1905, however, both representatives of India are in the Commons.
[78:2] The Board of Works and the Post-Office have at times been represented in the Commons by the Treasury.
[78:3] Some member of the government is always ready to answer questions for them, and if need be to defend a department not directly represented.
[79:1] Morley, "Life of Walpole," 165.
[80:1] The Duke of Argyle found fault with this practice as early as the cabinet of 1880-1885. Morley, "Life of Gladstone," III., 4. Mr. Gladstone thought that liberty of speech should be used by a cabinet minister "sparingly, reluctantly, and with much modesty and reserve" (Ibid., 113), although his own incautious remark about the American Civil War had at an earlier time caused the cabinet of which he was a member no little embarrassment. Ibid., II., 75-86.
CHAPTER IV
THE EXECUTIVE DEPARTMENTS
The departments of state are very different from one another, both in historical origin and in legal organisation; and they have gone through transformations of all kinds, until the nomenclature has in some cases almost ceased to bear any relation to the facts. The title of an officer often gives no clear idea of his functions. The most striking case is that of the Treasury, whose regular chief, from the time of Henry VIII. to the death of Anne, was the Lord High Treasurer. Since 1714 the office has always been in commission; that is, its duties have been intrusted to a board composed of a number of Lords of the Treasury. But while the board is still regularly constituted by Letters Patent whenever a new ministry is formed, and still retains its legal authority, all political power has, in fact, passed from its hands. The board never meets, most of its members have little or no connection with the Treasury, and its functions are really performed by the Chancellor of the Exchequer, who is not now a chancellor, and does not control the work of what is more properly called the Exchequer. Thus, by a strange process of evolution the powers of the Lord High Treasurer have, by law, become vested in a board; and by a still later custom they are actually wielded by quite a different officer, whose title indicates neither his succession to the Treasurer nor the nature of his present duties.
Although in origin and legal organisation the departments of state are very unlike, yet the growth of custom, and the exigencies of parliamentary life, have, for practical purposes, forced almost all of them into something very near one common type. Whatever the legal form of the authority at their head, the actual control is now in nearly every case in the hands of a single responsible minister, usually assisted by one or more parliamentary subordinates, and supported by a corps of permanent non-political officials, who carry on the work of the office.
Origin of the Departments.
The Former Great Offices.
The historical origin of most of the departments may be traced to one of three sources: the great offices of an earlier time; the secretariat of state; and the more recent boards and commissions. Many of the former offices of state survive as honorary posts, or with duties connected solely with the royal household.[82:1] The only ones that are still in touch with public administration are those of the Lord High Chancellor, who has retained the greater part of his ancient authority; of the Lord High Treasurer, the transformations of whose office have already been mentioned; and of the Lord High Admiral, whose powers have also gone into commission, and are vested in the Admiralty Board.
The Secretariat of State.
The secretariat is an old institution, although the standing of its members has varied much at different times. There are now five secretaries of state, but their position is peculiar in this, that they all share, from a legal point of view, the same office; and except so far as statutes have conferred special authority upon one or another, each of them can perform the duties of all the rest. During the greater part of the eighteenth century there were two secretaries, one for the northern and the other for the southern department, the former having charge of the relations with the northern powers, the latter of those with the southern powers together with home and colonial affairs. A series of changes made at the end of the century resulted in an increase of the number of secretaries to three, and a redistribution of their work, so that one had charge of foreign relations, another of home affairs, and the third of war and the colonies. The Crimean War brought about in 1854 the separation of the colonial and war departments, with the creation of a fourth secretary of state; and, finally, the mutiny in India, and the consequent transfer of the direct government of that country to the Crown, caused the appointment of a fifth secretary of state to take charge of Indian affairs.
The Recent Boards and Commissions.
Sham Boards.
The third great source of public departments has been the creation in comparatively recent times of a number of administrative boards or commissions, whose duties (except in the case of the Board of Works) are not primarily executive; that is, they are not concerned mainly with direct administration, but rather with the supervision and control of local authorities and of bodies exercising functions of a public or a quasi-public nature. There are now five boards of this kind, the Board of Trade, the Local Government Board, the Board of Works, the Board of Agriculture, and the Board of Education. Some of them, the first and last named, for example, have developed from committees of the Privy Council; while others have grown out of administrative commissions which were not originally regarded as political, and had no representatives of their own in Parliament. Except in the case of the Board of Trade,[83:1] both their organisation and their functions now rest upon statutes,[83:2] and in general character they are all very much alike. Each of them consists of a president,[83:3] of the five secretaries of state, and of other high dignitaries, such as the Lord President of the Privy Council, the First Lord of the Treasury, or the Chancellor of the Exchequer, and sometimes, in the case of the older boards, even of the Archbishop of Canterbury and the Speaker of the House of Commons. But the board never meets; the president alone constitutes a quorum, and he conducts the business of the department, with the assistance, in the case of the Board of Trade, of the Local Government Board and the Board of Education, of a secretary who is not himself a member of the board, but is, like the president, capable of sitting in the House of Commons, and occupies, in short, the position of a parliamentary under-secretary. In practice, therefore, these boards are legal phantoms that provide imaginary colleagues for a single responsible minister; and, indeed, the only department in the English government conducted by a board that really meets for the transaction of business is the Admiralty.[84:1]
A satirical observer has remarked that the English Constitution is a bundle of shams; and this is inevitable where law fails to keep pace with custom—where the legal organisation has ceased to express the real working of the system. But it is difficult to penetrate the motive for deliberately constructing a sham; and yet that was done in the creation of the Board of Agriculture in 1889, and the Board of Education ten years later. In the last case the measure was criticised upon this ground;[84:2] and Sir John Gorst in reply said that, as there were other boards, the general desire of the House was thought to be in favour of a Board of Education, and that, although these boards did not often meet, they were potential.[84:3] He denied that the Committee of Council on Education had never met, and referred to an occasion, about twenty years earlier, when it had been called together, and actually transacted business.[84:4] A better statement of the reason, or rather the absence of any reason, for the creation of a sham board, was made with characteristic frankness by the Duke of Devonshire, who said, "as far as I remember, the point was mooted when the bill was first prepared, but I quite admit that I am unable, at the present moment, to recollect the reasons which weighed in favour of a board rather than a secretariat. It has the advantage, at all events, of numerous precedents, and it is perfectly well understood that there will be no board at all."[85:1]
In giving in this chapter a sketch of the executive departments nothing will be said of those offices to which no substantial administrative duties, or none outside of the royal household, are attached. There are about a dozen such posts, which are regarded as so far political that their holders retire upon a change of ministry; but they are omitted here, because the object is to describe not the offices of state, but the different branches of the public service and the distribution of business among them. Most of the departments require for our purpose only a few words, to point out the general nature of their duties and anything unusual in their structure or method of working. The functions of some others, such as the Colonial Office, the Local Government Board and the Board of Education, can be passed over rapidly, because they will be treated more fully in the chapters devoted to the subjects under their control; while the Army, the Navy and the Treasury are described at greater length on account of the peculiarities in their organisation, and the fact that their work is not dealt with in any other part of the book.
The Foreign Office.
The Foreign Office has at its head a secretary of state, who, like the chief of every normal department, is supported by a parliamentary under-secretary and also by a permanent staff consisting of an under-secretary, several assistant under-secretaries—in this instance three—besides clerks and other permanent officials. For convenience of administration there are in the Foreign Office a number of departments, the business being distributed among them partly on a geographical basis, and partly according to the nature of the subject.[86:1] The office has, of course, charge of foreign relations, controlling for that purpose the diplomatic representatives and the consuls. The only odd thing about its duties is the fact that in addition to the ordinary functions of a foreign office it governs certain dependencies of the Crown. The expansion of European influence over the less favoured portions of the globe has produced among other new things the "protectorate," which involves, by a political fiction, an international as well as a philanthropic relation between the ruler and the ruled. The result is that protectorates not closely connected with existing colonies are administered by the Foreign Office. This has been true of a number of protectorates in Africa, and notably of Egypt, which is still nominally ruled by the Khedive under the suzerainty of the Turkish Sultan, but is practically governed by a British agent.
Position of the Foreign Secretary.
The conduct of the relations with foreign powers requires from its very nature a peculiar method of procedure. Much of the work of the Foreign Office consists, no doubt, in examining and pushing the private legal claims of British subjects, and to some extent work of that kind has a routine character. But apart from this there is comparatively little of the detailed administration—so common in other departments—which, involving merely the application of settled principles to particular cases, can be conducted by subordinates without consulting the political chief. Much of the correspondence with foreign powers may entail serious consequences, and hence must ordinarily be laid before the Secretary of State. The permanent officials play, therefore, a smaller part in the management of affairs than in most branches of the public service, a matter that will be discussed more fully in a subsequent chapter.[87:1] Moreover, the representatives at foreign courts are kept, by means of the telegraph, under more constant instructions than formerly, and it has become the habit in all countries to retain diplomatic negotiations very closely in the hands of the home government. Even the functions of foreign envoys as the eyes and ears of the state have declined in importance; and it has been observed that as gatherers of political information they have been largely superseded by the correspondents of the press.
All this has the effect of concentrating the direction of foreign relations in the hands of the Secretary of State. At the same time he is singularly free from immediate parliamentary control. Diplomatic correspondence is ordinarily confidential, and it is usually a sufficient answer to any question in Parliament, touching foreign relations, to say that the information sought cannot be given without detriment to the public service. It follows that the presence of the minister in the House of Commons is less necessary than in the case of other departments; while his arduous duties make it hard for him to find the time required for attendance at the long sittings. These facts, coupled with the strange provision of law which permits only four of the five secretaries of state to sit there, resulted in placing peers at the head of the Foreign Office continuously from 1868 to 1905, the under-secretary alone representing the department in the popular chamber. But if the Secretary of State for Foreign Affairs is less under the direct control of Parliament than other ministers, he is more under the control of his colleagues. We have already seen that every important despatch ought to be submitted, before it is sent off, both to the Prime Minister and to the sovereign; and, as a rule, the telegrams, together with correspondence of peculiar interest, are also circulated among all the members of the cabinet.[88:1] In fact there is probably no department where the executive action of the minister is so constantly brought to the notice of his colleagues.
The Colonial Office.
Ever since England began to extend her dominion beyond the seas her foreign relations have been complicated by her distant possessions, and it is therefore natural to pass from the offices of the Secretary of State for Foreign Affairs on one side of the doorway in Downing Street to those of the Secretary of State for the Colonies on the other. But it is needless to speak of the Colonial Office at length here, because the government of the dependencies will form the subject of later chapters. The Secretary of State for the Colonies is assisted by his parliamentary and permanent under-secretaries, and by a staff of subordinate officials. There are in this office four permanent assistant under-secretaries; one of whom has charge of questions of law, and also at present of business connected with Canada, Australasia and a number of islands; another of South Africa; a third of the East and West Indies, emigration, prisons and hospitals, with a mass of miscellaneous matters; and the fourth of East and West Africa.[88:2] But the division of the colonies among these officers is not fixed, and varies to some extent with their personal experience. There are, in close connection with the office, agents for each of the dependencies, those for the self-governing colonies being real representatives appointed by the colonial governments, while the three who act on behalf of the crown colonies are selected by the Colonial Office itself.
It may be observed that the Colonial Office has by no means charge of all the outlying dependencies of the British Crown. Besides the protectorates governed by the Foreign Office, there are a number of smaller places under the care of other departments. The Isle of Man and the Channel Islands, for example, are under the Home Secretary; some small islets are used only for lighthouses by the Board of Trade; while by an official fiction the Island of Ascension is considered a vessel of war, and as such is commanded by the Admiralty. But larger by far than any of these, more populous than all the other parts of the British Empire put together, is India. It is not classed among the colonies, for that term is confined to the places under the Colonial Office, and does not extend to a country ruled by a distinct administrative system of its own.
The India Office.
The Secretary of State for India has the usual parliamentary and permanent staff; but he has in addition a Council of India, composed of not less than ten or more than fifteen members, appointed for a term of ten years. In order to insure a familiarity with Indian conditions, it is provided that nine of the members must have lived in India within ten years of their appointment.[89:1] The Council is a consultative body. It has no power of initiative, but except for matters requiring secrecy or urgency (such as war and peace, or the relations of India with foreign powers or with the native states), all questions must be brought before it for consideration. The Secretary of State is not, however, bound by its decision, save in a few cases, of which the most important are the expenditure of the Indian revenues, and the issue of Indian loans.[89:2]
Legally, the government of India is directed by the Secretary of State and his Council. Even the laws made in India can be disallowed by the Crown on their advice; but in spite of the ease of communication furnished by the telegraph, the internal affairs of the country are still in the main managed by the authorities in India, happily without much interference from England. Parliament, moreover, exercises little control over Indian administration. Some matters—the use of the Indian revenues, for example, to pay for expeditions beyond the frontier—require its consent; and in other cases notice of action taken must be laid before it within a certain time. But the ordinary opportunities for bringing pressure to bear do not exist, because the salary of the Secretary of State for India, being paid out of the Indian revenues, does not furnish an occasion for a debate in Parliament; and although the Indian budget is regularly submitted, it does not need to be approved. On one of the last days of the session, when the work of the year is almost done, and the members are weary of attending, this budget, which is merely a financial statement, is introduced, and in order to give an opportunity for debate a formal motion is made that the Indian accounts show such and such totals of receipts and expenses. A discussion follows on the part of members who deem themselves qualified to express opinions on the government of India, and then the vote is passed. An illustration of the small authority of Parliament in Indian matters may be found in the fact that in 1891 (April 10) the House of Commons carried against the ministers a motion condemning the opium revenue; and in 1893 (June 2) a resolution that the examinations for the Indian Civil Service ought to be held in India, as well as in England, was carried in the same way; yet, on each occasion, the government after studying the subject came to the conclusion that the opinion of the House had been wrong, and did not carry it into effect. Such a condition of things is highly fortunate, for there is probably no body of men less fitted to rule a people than a representative assembly elected in another land by a different race.
If the vast colonial empire has complicated foreign relations it has also caused England to become the greatest of maritime powers, with an enormous navy to protect her dependencies, her merchant ships, and not least important, the routes of her food supply. The effective organisation of a naval force is, therefore, of more importance in her case than in that of any other nation.
The Admiralty.
It has already been observed that the Admiralty is the only department of state conducted by a board that really meets for the transaction of business, yet even in this case the statement may convey a false impression of the character of the body. The board as created by Letters Patent under the Great Seal consists of a First Lord, four Naval Lords and a Civil Lord; but by a series of Orders in Council, and by the practice of the department, the parliamentary and permanent secretaries also sit as members of the board.[91:1] The First Lord, the Civil Lord and the parliamentary secretary are capable of sitting in the House of Commons, and are, in fact, always members of one or other House of Parliament. The permanent secretary is, as his name implies, a permanent official, and hence excluded from the House of Commons altogether. The Naval Lords, on the other hand, although eligible to Parliament,[91:2] are very rarely members,[91:3] and yet they are not permanent officials. They occupy the anomalous position of non-political officials, who nevertheless retire upon the fall of the ministry. This does not mean that they belong necessarily to the party in power, or that they may not be reappointed under the commission issued when a new ministry comes into office. In order to preserve a continuity of administration, and a knowledge of the work, the new patent usually includes one, and sometimes more, of the Naval Lords who served under the preceding cabinet, and commonly another who held the place under some earlier ministry of the party that has taken office.
Position of the First Lord.
According to the language of the patent all of the members of the Board of Admiralty are equal in authority; but in fact the First Lord, who is always in the cabinet, is held by Parliament responsible for the conduct of the department, and as the other members of the board can be changed if necessary on his recommendation, they must adopt the course which he can justify in Parliament. With the evolution of the cabinet system, therefore, the power of the First Lord has increased until he has become practically a minister of marine assisted by an advisory council. The relation was sanctioned, not created, by Orders in Council of Jan. 14, 1869, and March 19, 1872, which declared the First Lord responsible for all business of the Admiralty,[92:1] and thus "the department now possesses more the character of a council with a supreme responsible head than that of an administrative board."[92:2]
The Other Lords.
The Civil Lord and the financial or parliamentary secretary are subordinate ministers, who occupy substantially the position of parliamentary under-secretaries. They are civilians, as is the permanent secretary also; while the four Naval Lords are naval officers, usually of high rank, who bring an expert knowledge to bear upon the administration of the department. But the members of the board, like the cabinet ministers, have individual as well as collective duties. By the Orders in Council of March 19, 1872, and March 10, 1882, and the regulations made in pursuance thereof, the work of the office is distributed among the members of the board, each of whom is at the head of a branch of the service, and responsible for it to the First Lord. By virtue of this arrangement the First Lord retains in his own hands the general direction of political questions, and the appointment of flag officers and the commanders of ships. The First Naval Lord, who is also the principal adviser of his chief, has charge of strategical questions, the distribution of the fleet, discipline, and the selection of the higher officers not commanding ships. The Second Naval Lord has charge of the recruiting and education of officers and men, and the selection of the lower officers. The Third Naval Lord, who is the "Controller," attends to the dockyards, and to construction, repairs and ordnance; while the Junior Naval Lord has charge of the transport and medical service, and the victualling and coaling of the fleet. The Civil Lord attends to the civil establishments, and the contracts relating to stores and to land. The parliamentary secretary is responsible for finance; and the permanent secretary for the personnel in the Admiralty Office, for routine papers and correspondence and for the continuity of business on the advent of a new board.[93:1]
Thus the actual administration of the Navy devolves upon the members of the board charged with the superintendence of the different branches of the service, while the full board meets frequently for the consideration of such questions as the First Lord wishes to refer to it.[93:2] There have been at times complaints about the working of the board, and the existing organisation is the result of gradual adaptations,[93:3] but at the present day the system appears to be highly satisfactory, and in fact it is constantly held up as a model to the less fortunate chiefs of the Army.
The War Office.
Effect of the Crimean War.
The organisation of the War Office has undergone far more changes than that of the Admiralty, and has been the subject of a great deal more criticism both in and out of Parliament.[93:4] Like other countries with a popular form of government, England has found it hard to reconcile military command and civil control. In the War Office, as in the Admiralty, there has been a tendency to transfer supreme power gradually to the hands of the parliamentary chief; but owing to a number of causes—one of which was the tenacity with which the Queen clung to the idea of a peculiar personal connection between the Crown and the Army—the process of change in the War Office has been slow and halting. Up to the time of the Crimean War the Army was controlled by several different authorities, whose relations to one another were not very clearly defined, and who were subordinate to no single administrative head. This naturally produced friction and lack of efficiency, which was forcibly brought to public attention by the sufferings of the troops during the war. The result was the creation of a distinct Secretary of State for War, and the concentration in his hands of most of the business relating to the Army; but the change was made without a thorough reorganisation of the War Office, and without defining the relative authority of the Secretary of State and the Commander-in-Chief.[94:1] This last office was held at that time by the Queen's cousin, the Duke of Cambridge; and the fact that he was a royal duke, coupled with the Queen's feelings about the Army, threw an obstacle in the way of bringing the office fully under the control of the Secretary. In 1870, however, the Queen was prevailed upon to issue an Order in Council providing that the Commander-in-Chief should be completely subordinate to the Secretary of State.[95:1] Unfortunately, this order by no means settled either the organisation of the War Office, or the relation between the Secretary and the Commander-in-Chief.
Lord Hartington's Commission.
A number of commissions have examined the subject, one of the most important of late years being Lord Hartington's Commission, which reported in 1890.[95:2] At that time[95:3] the Adjutant General, who was charged with the general supervision of the military department, was the first staff officer of the Commander-in-Chief, and as such was responsible to him for the efficiency of the forces; while the other principal military officers—the Quartermaster General, Military Secretary, Director of Artillery, Inspector of Fortifications, and Director of Military Intelligence—were also immediately responsible not to the Secretary of State, but to the Commander-in-Chief, and approached the latter through the Adjutant General. Thus, while all the officers in the department were nominally subordinate to the Secretary of State, practically between him and them stood the Commander-in-Chief, who had the privilege of approaching the Crown directly and without the intervention of the Secretary. The commission thought that such a system failed to make the heads of the different branches of the service effectively responsible to the Secretary, or to provide any satisfactory system for giving him expert advice. They recommended, therefore, the virtual abolition of the office of Commander-in-Chief, and a division of the duties among a number of officers, who should be individually responsible for their administrative work to the Secretary, and should collectively advise him as a War Office Council. They recommended, in short, a system not unlike that of the Admiralty.
The Changes of 1895.
As a preliminary to bringing about a change of this kind Sir Henry Campbell-Bannerman, the Liberal Secretary of State for War, procured the resignation of the Duke of Cambridge in 1895, and Lord Wolseley was appointed Commander-in-Chief for five years. The Secretary then announced a plan in accordance with the main principles suggested by the Hartington Commission. But just at that time the Liberal administration fell,[96:1] and Lord Lansdowne, the new Secretary of State, made a change in the plan, which left more power in the hands of the Commander-in-Chief. The policy thus adopted was embodied in an Order in Council of Nov. 21, 1895, followed by a memorandum setting out in greater detail the duties of the heads of the different branches of the service thereunder.[96:2] According to the new system the Commander-in-Chief exercised the general command, issued army orders, inspected troops, took charge of the distribution of the Army, and prepared strategical plans, having under him for that purpose the Director of Military Intelligence. He was also to have the general supervision of all the military departments, and to be the principal military adviser of the Secretary of State, all important questions going to him before submission to the Secretary. The Adjutant General was to have charge of the discipline and training of officers and men, and the patterns of their uniforms,—a matter which seems to involve as many changes in fashion as a dressmaking establishment. The Quartermaster General had charge of food, forage, transports and remounts. The Inspector of Fortifications constructed and maintained forts, barracks, etc., and supervised the engineer corps. The Inspector General of Ordnance looked after the supply of warlike stores and equipments, and each of these officers advised the Secretary of State on questions connected with his department. The Financial Secretary had charge of all questions of expenditure, and of the audit of accounts. Until 1899 he was also at the head of the manufacturing departments, but by an order of that year they were transferred to the Inspector General of Ordnance, whose title was changed to Director. By the memorandum which followed the order a War Office Council was created, consisting of the heads of the military departments, the under-secretaries of state, and the Financial Secretary, together with any other officers who might be summoned; its function being to discuss subjects referred to it by the Secretary of State. An Army Board, composed of the heads of the principal military departments, was also established, which was to report upon promotions to the higher grades in the Army, upon estimates, and upon other questions submitted to it by the Secretary of State.
Their Results.
The two great changes made at this time were the modification in the powers of the Commander-in-Chief, and the creation of consultative boards in the War Office. Neither of them can be said to have attained the object aimed at. The attempt to create advisory councils of that kind has been tried more than once, but after working usefully for a time they have ceased to meet regularly and have fallen into disuse. This appears to have been the case with the War Office Council and Army Board created in 1895 and reorganized in 1899 and 1900.[97:1]
The position of Commander-in-Chief under the Order in Council of 1895 has been the subject of severe criticism. At the expiration of his term of five years, Lord Wolseley recorded in a memorandum his opinion that the attempt to give the Commander-in-Chief a supervision over the departments of the War Office, and yet make their heads responsible to the Secretary of State, involved a contradiction, and had resulted in depriving the Commander-in-Chief of all effective control, and in making his office a high-sounding title with no real responsibility. He insisted that no army could be efficient unless the command, discipline and training of the troops were in the hands of one man, and that man a soldier; and he urged that the Commander-in-Chief should either be made the real head of the forces, or that the office should be abolished, and the Secretary of State for War should be himself a military man.[98:1] The only direct result that the memorandum had on the organisation of the War Office was the reëstablishmemt of the control of the Commander-in-Chief over the department of the Adjutant General by an Order in Council on Nov. 4, 1901.[98:2] But a statement by Lord Wolseley of his views, in a speech in the House of Lords in March, 1901, led to an unseemly altercation with Lord Lansdowne, the late Secretary of State for War, in which each sought to cast upon the other the blame for the lack of preparation for the war in South Africa.[98:3] The occurrence would appear to show that the relations between the military and civil authorities at the War Office are not yet upon a well-recognised or satisfactory basis; and it shows also that this relation is very different from that which ordinarily prevails between ministers and their expert officials. For reasons that will be explained in a later chapter, such a dispute in any other department would be well-nigh inconceivable. From a political point of view the Army and Navy officers are, in fact, in an exceptional situation. They are not subject to the general rule which excludes from the House of Commons all office-holders who are not ministers.[98:4] And just as military officers are allowed to play a part in politics forbidden to other public servants, so those among them who hold high administrative posts stand in a position peculiar to themselves, a position which in the case of the Admiralty is definite and satisfactory, although anomalous, but in the case of the Army is not altogether definite or satisfactory.
Effect of the South African War.
The efficiency of the War Office was put to a rude test by the South African War, and some branches of the service did not stand the test very well. The results recalled, although in different respects, the experiences of the Crimean War. The commission on the war found that, both as regards plans and stores, there had been a grave lack of preparation which was not wholly due to the suddenness of the emergency.[99:1] There was not merely a deficiency in warlike stores, such as guns[99:2] and ammunition for them,[99:3] cavalry-swords[99:4] and clothing;[99:5] but some of the stores were unfit for use. Such clothing, for example, as there was on hand six months before the war broke out was all red and blue cloth, quite unsuitable for the campaign; and even after the manufacture of khaki suits had begun, changes were ordered first in the material and then in the pattern.[99:6] More than one third of the small arms ammunition on hand was found to be unserviceable and was discarded;[99:7] and all the reserve rifles were wrongly sighted, so that at a distance of five hundred yards they shot eighteen inches to the right—an occurrence the more extraordinary because the government had been manufacturing those weapons for some years, and never discovered the defect until after the war broke out.[99:8]
It would be a mistake to suppose that all the shortcomings in the South African War arose from defects in the War Office. Some of them were of a kind certain to occur where a military organisation is suddenly expanded beyond its normal size. Still, the errors already described certainly showed a lack of efficiency, and they have led to a remodelling of the office. In November, 1903, another commission was appointed for this purpose, and its principal recommendations[100:1] were put into effect in the course of the following year.[100:2]
The Changes of 1904.
According to this last system, for which the Admiralty served as a pattern, an Army Council has been formed, consisting of the Secretary of State for War, the parliamentary under-secretary, the Financial Secretary to the War Office, and of four military members. The post of Commander-in-Chief having been abolished, and that of Chief of Staff created instead, the four military members of the council are the Chief of Staff, the Adjutant General, the Quartermaster General, and the Master General of Ordnance. By the terms of the Order in Council the military members are responsible to the Secretary of State for so much of the business relating to the organisation, disposition, personnel, armament and maintenance of the Army as he assigns to them or each of them, while the Financial Secretary is responsible for finance, and the parliamentary under-secretary for the other matters that are not strictly military. The permanent under-secretary acts as secretary of the council, which has also under its orders a new officer, the Inspector General of the Forces, charged with the duty of reporting to it upon the results of its policy, and of inspecting and reporting upon the training and efficiency of the troops, and the condition of the equipment and fortifications. But the Army Council has in the last resort only advisory powers, for the Secretary of State is expressly declared responsible to the Crown and to Parliament for all its business.
Lack of Initiative among Officers.
An army, and especially a standing army, is liable during a long period of peace to fall into habits that impair its efficiency in war. One of the chief criticisms made after the South African War related to the lack of initiative, and of capacity to assume responsibility, on the part of the officers both in the War Office and in the field.[100:3] Now, this is precisely the defect that one would expect to find under the circumstances. With the traditions of strict discipline ingrained in military men, there is a natural tendency in time of peace to regulate everything with precision, leaving to subordinate officers little independence of action. And in fact the Committee on War Office Organisation in 1901 reported that the Army was administered by means of a vast system of minute regulations, which tended on the one hand to suppress individuality and initiative, while on the other their interpretation led to protracted references, and to absorbing the time of high officials by matters of routine.[101:1] The evidence presented to the Committee on the war in South Africa pointed to the same evil, for it showed that the deficiencies of the officers arose from their being too much controlled and supervised during their training.[101:2]
Their Training.
The excessive tendency to routine, and the consequent lack of initiative, might be counteracted in some measure by a keen intellectual interest in the profession on the part of the younger officers; but the military education they receive is hardly of a character to stimulate such an interest. As a rule the candidates for commissions, after leaving the great public schools, such as Eton, Harrow and Rugby, where the sons of the upper classes are educated, obtain admission to the military academies by means of competitive examinations based upon the curriculum of those schools. The ordinary time then spent in studying at Woolwich, where the engineer and artillery officers are taught, is two years; that at Sandhurst, the school for the infantry and cavalry, was eighteen months before the South African War, and later only a year. Periods of this length are obviously too short to give a thorough training, or even a strong interest, in military science; and, in fact, the object is rather to produce a good subaltern than a highly educated officer.[102:1] If a man is ambitious for promotion he is expected to pursue his studies by himself, or to attend the staff college, later in life. Now, with the modern application of science to warfare, a military officer has become a member of a learned profession. But in England the preliminary teaching is insufficient for this purpose; and what is more, the conditions of the service are very unlike those of learned professions, and hardly such as to stimulate intellectual activity. Moreover, the private contributions to the mess, and the other expenses of an officer, are often so great that it is difficult for a man without private means to follow the Army as a career. In short, after the abolition of the purchase of commissions in 1871, the Army ceased to be a caste without becoming a profession.[102:2]
Advantages of the Navy.
The fact that the Navy escapes some of the difficulties that beset the Army is not due altogether to better organisation. The Navy has in many ways great natural advantages as compared with the Army. Most civilians feel that after a short experience they could lead a regiment, but few landsmen have the hardihood to believe that they could ever command a ship. The Navy is a mystery which ordinary men do not pretend to understand, and with which they do not attempt to interfere; and this is a security for expert management. Again the Navy is less exposed to the dangers of peace. Warships are constantly in service. If they do not fight, at least they go to sea; and hence the Navy is far less likely than the Army to suffer from the demoralising influence of minute and antiquated regulations.
The Training of Naval Officers.
This has an effect also upon the training of naval officers. Under the old plan which is now being superseded, the theoretical education given them was by no means high. The cadets destined for executive naval officers entered "The Britannia" at the age of about fifteen, and spent there a little less than a year and a half. They then had a service of about three years at sea, where besides learning the practical side of their profession, they were expected to study elementary mathematics, mechanics, physics, navigation, surveying, etc. Then followed a couple of months at Greenwich preparing for the final examination in those subjects; and, lastly, before receiving their commissions as sub-lieutenants, five or six months at Portsmouth studying pilotage, gunnery, and torpedo practice. Thus the average age for obtaining the commission was not far from twenty years. The theoretical study pursued was certainly not of an advanced character. In mathematics, for example, it did not include the calculus, or even conic sections. In fact, according to the syllabus as revised in 1899, one of the optional subjects which men who desired to go farther than the rest might pursue, if they desired, was projectiles, "treated so as not to require a knowledge of conic sections."[103:1]
The principal changes made by the new plan, which began to go into effect in 1903, were, first, making the executive, engineer and marine, officers more nearly into a single corps, and therefore giving them a common training until they reach the grade of sub-lieutenant; and, second, reducing the age for entering "The Britannia" to between twelve and thirteen. This last change enables the cadets to remain at the school four years, and will, it is hoped, insure a sounder education. They are then to get a training at sea for three years, followed by three months at Greenwich and six at Portsmouth. At that point they are to receive their commissions as sub-lieutenants, and those who join the executive branch of the service will go to sea again, while the engineer and marine officers attend their respective colleges for some time longer.[104:1] Whatever good effects the new plan may have in other directions, it can hardly increase materially the scientific education of the cadet.
But if the education in the theory of naval science has not been carried far, the junior naval officer has much greater opportunities for learning the practice of his profession than the officer in the army. In fact, if not a master of naval science he becomes an excellent seaman, and this, in the opinion of many officers, is much the more important of the two.
The Defence Committee.
One of the chief criticisms of Lord Hartington's Commission on the administration of the naval and military departments, bore upon the lack of combined plans of operation for the defence of the empire. They suggested the formation of a naval and military council, to be presided over by the Prime Minister, and to consist of the parliamentary heads of the two services, and their principal professional advisers.[104:2] In partial fulfilment of this recommendation a committee of the cabinet was formed, consisting of the Prime Minister, the parliamentary heads of the Army and the Navy, the First Lord of the Treasury, with the addition, if need be, of the Colonial Secretary. The committee was intended to deal with questions unsettled between the two departments, matters in which a joint policy was advisable, and questions relating to the relative importance of expenditures; and it differed from other committees in that minutes were to be kept of its proceedings, and formally recorded by the departments. The committee seems, however, not to have fulfilled the intentions of the Hartington Commission, for it has been openly stated in Parliament that it never met;[105:1] and even the Secretary of State for War admitted that it acted mainly with regard to estimates, and to questions within the War Office and the Admiralty, while, in his opinion, it ought to act on larger questions of policy. A new Defence Committee was, therefore, created in 1903, to consist, besides members of the cabinet, of the most influential experts of the two services, and when necessary of representatives of the Indian and Colonial Offices. The committee is intended to deal not only with estimates, but with larger questions of military policy.[105:2] But whether this result will be permanently attained, or whether the committee will meet with the usual fate, and find itself absorbed by details of administration and of expenditure, is yet to be seen.
The departments of state that remain to be considered in this chapter need not detain us long. They are all concerned with the internal government of the kingdom, and so far as their work is of general interest it will be touched upon again.
The Home Office.
The Home Office is a kind of residuary legatee. It is intrusted with all the work of the secretariat that has not been especially assigned to the remaining secretaries of state, or to the other administrative departments. Its duties are, therefore, of a somewhat miscellaneous character. As the heir to the residue of the secretariat, the Home Secretary is the principal channel of communication between the King and his subjects, and countersigns the greater number of the King's acts. He receives addresses and petitions addressed to the sovereign, and presents them if he thinks best. Among others he receives petitions of right—that is, claims to be allowed to sue the Crown—and consults the Attorney General about the answer to be given. Outlying places, such as the Channel Islands and the Isle of Man, which are not from an administrative point of view a part of the United Kingdom and yet are not colonies, fall under his jurisdiction. He has charge of questions of naturalisation and extradition. But more important still, the central control over the police, not having been transferred to the Local Government Board, remains in his hands, and this gives him wide powers of supervision. The metropolitan police of London is, indeed, administered directly by the national government under his immediate control;[106:1] and although the police elsewhere is not under his orders, yet the fact that the central government pays one half of the cost on condition his regulations are observed, enables him to prescribe the organisation, equipment and discipline of the local police all over England. Moreover, all by-laws of counties and boroughs, except those relating to nuisances, must be submitted to him for approval, and may on his advice be disallowed by the Crown.[106:2] As a part of his authority in matters of police he manages the prisons, both the national prisons for convicts and the county and borough gaols. He is responsible for the appointment and removal of recorders and stipendiary magistrates. He appoints the Director of Public Prosecutions, and makes regulations about costs in criminal proceedings. By virtue of special statutes he sees to the enforcement of the acts relating to factories, mines, burial-grounds, inebriates, anatomy, vivisection, explosives, and other kindred matters.
He is assisted by a parliamentary under-secretary, and by a large staff of permanent officials, beginning with a permanent under-secretary, and including a prison commissioner, a metropolitan police commission, and a host of inspectors for factories, mines, police, and so forth.
It will be observed that although primarily responsible for public order, the Home Secretary is by no means a minister of the interior in the continental sense, for apart from the police he has very little to do with local government. The supervision of matters of that kind, although in part scattered among different departments, is mainly concentrated in the hands of the Local Government Board. The Home Secretary has, on the other hand, some of the functions of a minister of justice; and this will be referred to again when we come to speak of the Law Officers of the Crown.
The Board of Works.
The Board of Works is not regarded as a department of great political importance, and for this reason it presents one of the two or three cases where the minister has no parliamentary under-secretary. For a score of years the public lands and buildings were under the care of a body called the Commissioners of Woods and Forests; but in order to keep the revenue from land separate from the expenditure upon buildings, and so bring the latter more completely under the control of Parliament, the duties were divided in 1852. The Commissioners of Woods, Forests and Land Revenues were made a permanent non-political body under the Treasury, while the Board of Works was established to take charge of the construction and maintenance of parks, palaces and other buildings. At that time many of the public buildings were, in fact, committed to the care of the departments that occupied them; but by a series of statutes these have now been transferred almost wholly to the Board of Works. Now, although the amount of money that passes through its hands is very large, the board is by no means entirely free, for without the sanction of the Treasury it can undertake no work not directly ordered by Parliament, and it can make no contracts for the erection of large public buildings without submitting them to the same authority,[107:1] which also appoints the ordinary permanent staff of the office.[107:2]
The Board of Trade.
The Board of Trade occupies, on the contrary, a position of great and growing importance. It has had a long and chequered history, and although in the course of its career it has lost duties enough to keep an active department busy, these have been more than replaced under that modern tendency toward state regulation of industry which is constantly adding to its burdens. It deals not only with trade, but with many of the chief agencies of trade, and especially with transportation. As in the case of the three other boards to be described hereafter, the Board of Trade is engaged not in direct administration, but in supervising and regulating the action of private bodies and local authorities, and in keeping a watch upon the enforcement of the law. Speaking broadly, its powers have grown by the process of making it responsible for the application of a great many statutes.
Its functions may be classified roughly under the heads of collecting information, registration, inspection, and authorising acts or undertakings of a public nature; although any such classification is sadly confused by the fact that duties of more than one kind have been conferred upon the board in regard to the same subject-matter, and even by the same statute. To the first of these classes belong its functions in collecting and publishing statistics relating to domestic and foreign trade, and giving advice on commercial matters to other departments of the government. To that class belong also its functions as a labour bureau in preparing statistics about labour, wages and other matters touching the interests of workingmen. In this connection it has power also to act as a board of conciliation in labour disputes, and to name arbitrators or conciliators. Under the head of registration may be mentioned its duties in maintaining the standards of weights and measures; registering joint-stock companies; examining and recording patents and trade-marks; and keeping a register of ships and seamen. Under the head of inspection come its functions in ascertaining that merchant vessels are in a seaworthy condition, and properly laden, officered, manned and equipped; with the power to detain unseaworthy craft. Under the same head may be classed its control over harbours, its duty to see to the enforcement of the laws relating to railways[109:1] and to inquire into the causes of railway accidents and disasters at sea. As an example of the final class of powers may be cited the fact that the by-laws of a railway company require for their validity the approval of the board; but a far more important instance is to be found in its control over the building of new lines of railway, over new undertakings for the supply of water, gas and electric light, and over the construction of tramways and light railways, the last being a recent invention legally very different, but physically indistinguishable, from tramways. This control is exercised by means of provisional orders, prepared by the board after an investigation and a hearing of all the persons interested, and then confirmed by Parliament.[109:2] The petitioner is not, indeed, compelled to resort to a provisional order, but may avoid the direct control of the Board of Trade by means of a private bill in Parliament. But a provisional order is far less expensive; and even when the procedure is by private bill the board endeavours to exert its influence by scrutinising the bill, and bringing to the notice of the officers of the House any departures from the general policy of legislation.[109:3] The result is that the board has an effective, although by no means an absolute, control over these matters.
The subject of bankruptcy has also been placed in the hands of the Board of Trade, and except for legal questions which come before the courts, it has the entire charge of the cases, maintaining for that purpose a staff of inspectors, examiners and official receivers.
The nearest approach to actual administrative work intrusted to the board is in the case of lighthouses, buoys and beacons, which are maintained by Trinity House, an ancient corporation composed of self-elected brethren but financially under the control of the Board of Trade.
The Local Government Board.
Until the era of the Reform Bill local affairs in England were managed in the main by justices of the peace and town councillors, whose powers were derived from a host of statutes covering many subjects in great detail. These officers were kept rigorously within the limits of their authority because the legality of their acts could be tested in the courts of law; but they were almost entirely free from administrative control. The first wide breach in the system was made by the Poor Law Amendment Act of 1834, which aimed at a reform in the method of giving poor relief, and set up for the purpose a commission to supervise the local bodies. The new commissioners, being vigorous and efficient, aroused hostility, and as they were not permitted to sit in Parliament, they found it hard to defend their policy. In fact the experience they went through is used by Bagehot as an illustration of the impotence of an executive department without a representative in the House of Commons.[110:1] In 1847 the body was reorganised under the title of the Poor Law Board, with a responsible minister at its head, and thenceforth received from time to time additions to its duties. Various functions relating to public health and local government had in the meanwhile been intrusted to the Home Secretary and the Privy Council; and, finally, in 1871 the greater part of them were transferred to the Poor Law Board, which was given the name of Local Government Board.
Legislation of this kind has entirely transformed the nature of English local government. Partly by bringing the exercise of existing powers under the supervision of the central government, partly by subjecting to systematic control the new powers called into life by the wants of the time, the old system of local self-government—limited by law, but independent of any administrative superior—has been replaced by a system where the local bodies, and especially those outside of the great towns, are to a considerable extent under the tutelage of the state. The subjection is not the same as that which prevails in other European countries, and it is not so great, but it is in some respects more nearly akin to the continental system than to that of England in the eighteenth century.
Except for such matters as police, education, and the supply of transportation, light and water, the control over the local authorities is almost entirely vested in the Local Government Board; but as the subject of local government, and therefore the powers of the board, will be considered at some length in another part of this book, we do not need to enumerate its functions here. We need only point out that it has the unusual number of five assistant under-secretaries, and a large staff of clerks, auditors and inspectors. But although the amount of head work to be done, and therefore the number of permanent officials of high grade, is large, yet from a political point of view the department is not regarded as of the first class.
The Board of Agriculture.
The creation in 1889 of a new department of state to attend to the matters that have been transferred from various commissions to the Board of Agriculture hardly seems to have been necessary; and, indeed, the board is not important enough to require a parliamentary under-secretary. It has inherited the duty of shaking the dry bones of ancient tenures by dealing with such subjects as the commutation of tithes, the enfranchisement of copyhold, the enclosure of commons, allotments to labourers, and the improvement of land by limited owners. The control of fisheries, the promotion of agriculture and the prevention of contagious diseases among animals are also placed under its care, and it has been given power, or rather authority, to muzzle dogs and destroy the Colorado beetle.
The Board of Education.
The Board of Education is the youngest of all the boards, but in reality it is only a committee of the Privy Council reorganised with some additional powers. The most remarkable thing about the act creating it—apart from the erection of a sham board—is the extent of the authority delegated to the executive. Instead of prescribing minutely the organisation and functions of the department of education, the act empowered the government, in its discretion, to set up such a consultative committee as it saw fit, and to transfer to the board any educational duties of the Charity Commissioners or the Board of Agriculture that it thought best.[112:1] Both of these powers have been exercised by Orders in Council of Aug. 7, 1900, and the Consultative Committee has been made to consist of representatives selected by the universities and by other bodies interested in education. But the subject of public education will be treated in subsequent chapters, and it is enough here to note that by means of elaborate regulations, commonly known as the Education Code, the board prescribes the instruction to be given in all schools aided by public money;[112:2] that it inspects endowed or private secondary schools at their request;[112:3] and that it has charge of the museums at South Kensington and Bethnal Green, and of the Geological Museum and Survey.
The Post Office.
From the point of view of the national government the Post Office has two functions. It is a great administrative department which conducts a huge business, with a minister at its head; and it is a source of income, its gross receipts forming about one seventh of the total revenues of the United Kingdom, its disbursements only about one tenth of the total expenditure. For that reason it is under a financial control by the Treasury so strict as to leave very little chance for independent action, and this renders the position of Postmaster General far less important than it would otherwise be. The office has been regarded as political since 1837; but until 1866 the holder could not sit in the House of Commons, and since that time he has occasionally been a peer, the Post Office in such a case being usually represented in the Commons by the Financial Secretary of the Treasury. The duties of the Postmaster General are minutely prescribed by statute, and while he has power to make regulations for the management of the postal service, it is not easy to make substantial changes or improvements without affecting the receipts or the expenses, and when that is done he comes at once under the control of the Treasury. The rates of postage, for example, and the compensation for carrying the mails, when not fixed by Act of Parliament, are subject to the approval of the Treasury; and so are the purchase or sale of land, and any lease of the right to carry on a telegraph or telephone business. The same approval is also required for his regulations touching money-orders, post office savings-banks, and the telegraph, although in these cases the revenue would not appear to be necessarily involved. In short, as Sir William Anson puts it,[113:1] "The Postmaster General is no more than the acting manager of a great business, with little discretionary power except in the exercise of the very considerable patronage of his office."[113:2]
The business of the department is certainly enormous, the number of persons employed being little short of two hundred thousand. In addition to the usual work of transmitting letters, books, parcels and money-orders, the Post Office in England maintains savings-banks, with deposits of about £150,000,000; and it has been given exclusive control of the telegraph by provisions which have been held to include the telephone also. But while the administration of the telegraph has been retained by the government in its own hands, the right to conduct the telephone business was granted, by means of temporary licenses, to private companies, and to some extent to local authorities also; and the government has only recently decided to take over the management as soon as the licenses expire.
FOOTNOTES:
[82:1] Such are the offices of the Lord Steward and the Lord Chamberlain, the latter having in his charge also the censorship of plays and theatrical performances.
[83:1] The name of the Board of Trade is now statutory (25-26 Vic., c. 69, § 2; 52-53 Vic., c. 63, § 12, cl. 8). Its composition, however, is fixed not by statute but by Order in Council at the beginning of each reign, save that an act of 1867 (30-31 Vic., c. 72) abolished the office of Vice-President, and provided instead that one of the secretaries to the board might sit in Parliament.
[83:2] For the organisation of the Board of Works, see 14-15 Vic., c. 42; 37-38 Vic., c. 84; for the Local Government Board, 34-35 Vic., c. 70; Board of Agriculture, 52-53 Vic., c. 30; Board of Education, 62-63 Vic., c. 33.
[83:3] In the case of the Board of Works he is styled First Commissioner.
[84:1] The Council of India, described hereafter, has some of the characteristics of a board.
[84:2] Hans., 4 Ser. LXVIII., 678-9; LXX., 338, 351; LXXIII., 632, 666.
[84:3] Ibid., LXXIII., 676.
[84:4] In the course of the debate Lord Norton declared (Hans., 4 Ser. LXVIII., 676) that he had served on two different boards, and could remember only one instance where a board had been called together or consulted in any way.
[85:1] Hans., 4 Ser. LXX., 353. There may have been good reasons for not creating a sixth secretary of state, and among them the fact that a secretary of state receives a salary of £5000, while the president of the board receives £2000. But, as Mr. Bryce pointed out (Hans., 4 Ser. LXXIII., 632), a secretary might have been appointed who, like the Secretary for Scotland, should not be a secretary of state. The salary of the Secretary for Scotland is, in fact, £2000.
[86:1] Until a few years ago the departments were: (1) the Eastern (Eastern Europe and Central Asia); (2) Western (Western Europe, Northwest Africa and the Pacific Islands); (3) American and Asiatic (which includes China, Japan and Siam); (4) Consular (including East and West Africa); (5) Commercial; (6) The Chief Clerk's (which has charge of financial business); (7) The Library (with the papers of the office); (8) The Treaty Department. (Fourth Rep. of the Comn. on Civil Establishments, Com. Papers, 1890, XXVII., 1.) Within a few years four new departments have been created: an African, an African Protectorates, a Far Eastern and a Parliamentary. (See the Foreign Office List.)
[87:1] Ch. viii. The permanent under-secretary at the head of the staff holds, however, an important place.
[88:1] See Hammond, "The Adventures of a Paper in the Foreign Office." Rep. of Sel. Com. on Trade, Com. Papers, 1864, VII., 279, Q. 1384.
[88:2] Colonial Office List, 1907, XIII.
[89:1] Three of the members may, however, be appointed for life, and any other member may be reappointed for five years. Ilbert, "Government of India," 112.
[89:2] Ibid., 152-55.
[91:1] Report of Comrs. on Admn. of Naval and Mil. Depts., Com. Papers, 1890, XIX., 1, pp. viii-ix.
[91:2] 2-3 Will. IV., c. 40, § 1.
[91:3] Lord Charles Beresford was a Naval Lord and a member of the House of Commons from 1886 to 1888.
[92:1] Rep. of Comrs. on Admn. of Naval and Mil. Depts., Com. Papers, 1890, XIX., 1, p. viii.
[92:2] Ibid., p. x.
[93:1] Return on the Distribution of Business between the Members of the Admiralty Board, Com. Papers, 1890, XLIV., 605.
[93:2] Rep. of Comrs. on Admn. of Naval and Mil. Depts., Com. Papers, 1890, XIX., 1, p. ix.
[93:3] Todd, II., 767 et seq.
[93:4] The military forces consist of the regular army (with the reserves, that is, the men who have served their time but are liable to be recalled in case of war); and of the militia, yeomanry and volunteers. The militia are a little more like regular troops than the volunteers. They are formally enlisted and their period of training is longer. None of the auxiliary forces can be ordered out of the United Kingdom; but while the volunteers are intended solely to support the regular army in defending the country in case of invasion, the militia have always offered their services in time of war, and have often been used for garrison duty both at home and abroad, and even for field service abroad. The yeomanry are a body of cavalry forming part of the militia. A royal commission on the militia and volunteers reported in 1904 that both of these forces were unfit to take the field against a regular army; that the period of training ought to be increased in each case; and that a home defence army, capable of protecting the United Kingdom in the absence of the greater part of the regular army could be raised only by universal compulsory military service. (Com. Papers, 1904, XXX., 175, pp. 6, 9, 11, 15-16.) This last suggestion was received with general disfavour.
[94:1] For the History of the War Office up to this time, see Clode, "Military Forces of the Crown."
[95:1] Order in Council, June 4, 1870, Com. Papers, XLII., 683.
[95:2] Com. Papers, 1890, XIX., 1.
[95:3] By virtue of Orders in Council of Dec. 29, 1887, and Feb. 21, 1888. Ibid., App. viii.
[96:1] On account of a vote at the close of the same debate in which this change was announced.
[96:2] Com. Papers, 1896, LI., 483.
[97:1] Rep. of Com. on War Office Organisation, Com. Papers, 1901, XL., 179, p. 21; Rep. of Com. on the War in South Africa, Com. Papers, 1904, XL., 1, pp. 138-42.
[98:1] Com. Papers, 1901, XXXIX., 243.
[98:2] Ibid., 1902, LVIII., 717.
[98:3] Hans., 4 Ser. XC., 327 et seq.; XCI., 6 et seq.
[98:4] 6 Anne, c. 7, § 28. (In the Rev. Sts. it is c. 41, § 27.)
[99:1] Rep. in Com. Papers, 1904, XL., 1, pp. 28, 30.
[99:2] Ibid., p. 89.
[99:3] Ibid., p. 87.
[99:4] Ibid., p. 94.
[99:5] Ibid., pp. 94-96.
[99:6] Ibid., pp. 94-95.
[99:7] Ibid., pp. 86-87.
[99:8] Ibid., pp. 93-94.
[100:1] Com. Papers, 1904, VIII., 101.
[100:2] Cf. Orders in Council of Aug. 10, 1904, Com. Papers, 1905, XLVI., 291, 295, 299.
[100:3] Rep. of Com. on War in South Africa, Com. Papers, 1904, XL., 1, pp. 52-56.
[101:1] Rep. of Com. on War Office Organisation, Com. Papers, 1901, XL., 179, p. 2.
[101:2] Rep. of Com. on War in South Africa, Com. Papers, 1904, XL., 1, pp. 52-56.
[102:1] The recent Committee on Military Education evidently approved of that object. Com. Papers, 1902, X., 193, p. 24.
[102:2] The Committee on Military Education were impressed by the widespread dissatisfaction with the education of army officers, and in Sandhurst, especially, much was found to criticise. The education of the junior officers after leaving the military academies was reported to be in a most unsatisfactory state. They were said to be lamentably wanting in military knowledge, and in the desire to study the science and master the art of their profession; while the examinations for promotion encouraged "the customs of idleness with a brief period of cram." Com. Papers, 1902, X., 193. There may well be some exaggeration in the criticism of the moment, due to a natural revulsion from the military self-complacency that preceded the war.
[103:1] Rep. of Com. on Training and Examination of Junior Naval Officers, Com. Papers, 1901, XLII., 621, p. 15.
[104:1] Memorandum, Com. Papers, 1902, LXI., 675. Since this was written another change has been made dividing naval officers into a sea-faring and fighting branch and an engineer branch.
[104:2] Com. Papers, 1890, XIX., 1, pp. vi-viii.
[105:1] Lord Charles Beresford, Hans., 4 Ser. CXII., 1146, 1147.
[105:2] Rep. of Com. on War in South Africa, Com. Papers, 1904, XL., 1, pp. 135-36. Hans., 4 Ser. CXVIII., 291.
[106:1] The "City" of London is an oasis with its own police force.
[106:2] Glen on Public Health, 12 Ed., 443, 1169, 1341.
[107:1] Rep. Com. on Nat. Expend., Com. Papers, 1902, VII., 15, Q. 1425.
[107:2] 14-15 Vic., c. 42, §§ 16, 17.
[109:1] In 1873 the settlement of railway controversies was transferred to a judicial body, the Railway and Canal Commission.
[109:2] In the case of light railways the orders are made by the Light Railway Commission and confirmed by the Board of Trade, the members of the Commission being appointed by the President of the Board. 59-60 Vic., c. 48; 1 Edw. VII., c. 36.
[109:3] Rep. of Com. on Municipal Trading, Com. Papers, 1900, VII., 183.
[110:1] "English Const.," 1 Ed., 228-30.
[112:1] 62-63 Vic., c. 33, §§ 1-4.
[112:2] This does not, of course, apply to special establishments, like the naval and military schools, which are managed by other departments.
[112:3] Throughout this chapter statements relating to local government must be understood not to apply to Scotland or Ireland; but in this case Wales, with Monmouthshire, is also excluded because, by the Welsh Intermediate Education Act of 1889, a special board chosen by the local authorities inspects the secondary schools there.
[113:1] "Law and Custom of the Constitution," II., 184.
[113:2] It may be observed that for many years after 1868 the Postmaster General was rarely in the cabinet, and hence he has not acquired the authority possessed by a regular cabinet minister. He has, however, now been in the cabinet continuously since 1892.
CHAPTER V
THE TREASURY
The most important of all the departments, and the one that exhibits in the highest degree the merits of the English government, is the Treasury. It is the central department of the administration, which keeps in touch with all the others, and maintains a constant financial control over them. But before considering how that is done it may be well to explain the process by which money flows in and out of the national purse. The part played by Parliament in the imposition of taxes, and the authorisation of expenditure by means of appropriations, will be described in chapter XIV, and we are concerned here only with the machinery for collecting those taxes, and giving effect to the appropriations.[115:1]
The Consolidated Fund and the Bank of England.
Until the Commonwealth, taxes were, as a rule, granted to the King, who used the proceeds to carry on the government as he saw fit; but under Charles II. Parliament began to appropriate parts of the revenue for specific purposes, and after the revolution of 1688 this developed into a comprehensive system, so that the whole revenue was appropriated, to be used only for the objects, and in the sums, designated by Parliament.[115:2] It was the custom, however, to appropriate for specific objects the proceeds of particular taxes, a practice that made the public accounts needlessly complex. In 1787 William Pitt, following earlier partial experiments, simplified matters by creating a single Consolidated Fund into which all revenues from every source were turned, and from which all payments were made.[116:1] The Consolidated Fund is deposited in the Bank of England and the Bank of Ireland, which have a right to use it like any other deposit, and perform, in fact, for the government much the same service that an ordinary bank does for a merchant. This method of dealing with the national finances continued substantially intact until a few years ago,[116:2] when it was complicated by two innovations, one of which allows a department to use incidental revenues, under the name of "appropriations in aid," to defray expenses, and the other sets aside certain parts of the national income to supplement local taxation, in each case without passing through the Consolidated Fund.[116:3] The second of these exceptions is due to the great increase of local expenditure, and the narrow range of local taxation, which have caused a demand for national subventions, and have resulted in setting apart for the purpose the proceeds of specific sources of revenue. In this way the income from the local taxation licenses, and a portion of the income from the death duties and the duties on spirits and beer, are now collected by the central government and paid directly into the Local Taxation Account.[116:4] But saving these cases, all the national receipts are paid into, and all the disbursements are made from, the Consolidated Fund.
Method of Getting Money into the Consolidated Fund.
The Sources of Revenue.
The financial procedure of the Treasury is now regulated by the Exchequer and Audit Departments Act of 1866,[117:1] and the Public Accounts and Charges Act of 1891.[117:2] By these acts the gross revenue—after making the deductions already mentioned—is paid into the "account of His Majesty's Exchequer," at the Banks of England and Ireland, to be used as a single fund. The three chief collectors of revenue are the Commissioners of Customs, the Commissioners of Inland Revenue and the Post Office. With the growth of the principles of free trade the customs duties became confined to coffee, chicory, cocoa, dried fruit, tea, tobacco, wine, and a number of articles, such as spirits, on which duties are laid to countervail the excise upon similar articles produced at home. To these were added at the time of the South African War an export duty on coal, and import duties on sugar and grain, the last being again dropped in 1903, while the coal duty was repealed in 1906. Under normal fiscal conditions in times of peace, the customs duties yield about one fifth of the total revenue, the receipts being mainly from tobacco, tea and spirits. The gross receipts from the Post Office (including the telegraphs) form about one seventh of the revenue, but this is really misleading, because three quarters of those receipts are paid out again for the expenses of the department. All but a very small fraction of the remaining receipts come through the Commissioners of Inland Revenue, and their sources of income are of a miscellaneous character. The largest item is the excise, mainly on beer and spirits, which yields more than a quarter of the total national revenue.[117:3] The next largest is the income tax, which varies very much from time to time, and has produced during the last score of years from one seventh to one quarter of the total revenue. Then there are the death duties, a progressive tax on property passing at death, which yield one tenth of the revenue. The ancient land-tax, and the inhabited-house duty produce comparatively small sums; and, finally, there are the stamp duties on all kinds of transactions, articles and licenses which yield all together about one twelfth of the revenue. Some of the license fees collected under the head of excise are so small as to appear rather vexatious than productive, such as one guinea for the display of armorial bearings not used upon a carriage, fifteen shillings for a license to have a manservant, or keep a carriage with less than four wheels, and fourpence a day for the privilege of occasionally selling tobacco.[118:1]
Permanent and Annual Taxes.
Neither the expenditure nor the proceeds of taxes being absolutely constant, it is necessary, in order to maintain a close balance between them, to adjust the sources of revenue to some extent from year to year, and this is done by means of a small number of variable charges. Most of the taxes are imposed by permanent statutes, changed only at long intervals, but the rates of assessment under the tea duty and the income tax are fixed each year in the annual Finance Act; and since 1894 certain additional duties on beer and spirits have also been laid for a year at a time.
Accuracy of the Budget.
It has been the aim of English statesmen to make the revenue and expenditure of each year balance one another as closely as possible, and their skill in doing so has been extraordinary. While the South African War was raging such a result was naturally impossible, but during the preceding twenty-five years the difference between receipts and expenditures (including payments on account of the debt) was never more than about four per cent, and in fifteen of those years it did not exceed one and a half per cent. The taxes are, indeed, of such a character that it is possible to forecast their proceeds with great accuracy. The Chancellor of the Exchequer intends to make his calculations so as to leave a margin of safety, and yet during the period under consideration the difference between the estimated and actual receipts was never more than about three and a half per cent.[119:1]
Accurate fiscal administration is very much promoted by the rule that any part of an appropriation unexpended at the end of the financial year in which it is voted shall lapse, and cannot afterwards be used unless it is granted afresh by Parliament.[119:2] The rule has been thought to lead to wastefulness by provoking improvident haste in spending the whole appropriation before March 31.[119:3] But such an evil is surely far smaller than that of allowing the appropriations to run on, with the result, well known in France, for example, that the annual accounts cannot be finally made up, and the extent of the deficit determined, until several years have passed.
Like all other excellent things devised by men, the English system of finance is not without its drawbacks. If it promotes careful administration, and rivets attention upon any increase in the budget, it also makes the revenue inelastic in emergencies. A great deal has been said in Parliament of late about broadening the basis of taxation, but that is a very difficult thing to do suddenly, without dislocating the commercial as well as the fiscal system; and while the existing taxes are elastic up to a certain point, an attempt to raise them too much would diminish rather than increase their productiveness.
Method of Getting Money out of the Consolidated Fund.
Just as there are two kinds of taxes, one permanent and the other annual, so there are two classes of expenditure, one regulated by standing laws, and the other by annual appropriations. All the ordinary expenses of the government require parliamentary sanction every year, both on the theory that the money collected from the nation ought not to be spent without the consent of its representatives, and also in order that Parliament may be able to oversee the administration and criticise it in every session. But there are certain matters that ought to be kept aloof from current politics, and ought not to be brought in question in the heat of party conflict. The principal charges that have been regarded in this light are the interest on the national debt, the Civil List or personal provision for the King, annuities for the royal family, certain pensions, and the salaries of the judges, of the Comptroller and Auditor General, of the Speaker, and of a few officers of lesser importance. These charges amount to nearly one quarter of the total expenditures; and they are called Consolidated Fund charges, because by statute they are paid directly out of the Consolidated Fund without the need of any further action by Parliament. The other expenditures are for what are known as the supply services, because the appropriations for them are voted by the House of Commons in Committee of Supply.
The administrative procedure for getting money out of the Consolidated Fund to pay the Consolidated Fund charges and the supply services is not precisely the same. In the case of the supply services a royal order for the amounts appropriated by Parliament is made under the King's sign manual, countersigned by two of the Commissioners of the Treasury. The Treasury then requires the Comptroller and Auditor General to grant credits at the Banks of England and Ireland for those amounts, and if satisfied that the authority from Parliament is complete, he makes an order on the banks granting the credits. From time to time the Treasury requests the banks to transfer to the various supply accounts, for disbursement, sums of money not exceeding the credits so granted.[121:1] The procedure in the case of Consolidated Fund charges differs from this only in the fact that a royal order is not needed, and the Comptroller and Auditor General, on the requisition of the Treasury, grants quarterly credits for the amounts prescribed by statute.[121:2] By this process a highly effective security is provided that no money shall be spent without the authority of Parliament. The Consolidated Fund is deposited in the banks of England and Ireland, which are liable if any of it is withdrawn without an order from the Comptroller and Auditor General, while that officer is given the same independence as the judges. Like them he is appointed during good behaviour, with a salary charged upon the Consolidated Fund. The security is not absolutely perfect, for there are some moneys, such as the appropriations in aid, that do not pass through the Consolidated Fund; and as no foresight can be unfailing, the government is given a limited power to meet unforeseen contingencies, and to cover expenses that have inevitably proved larger than was anticipated.[121:3] But all matters of this kind are fully reported to Parliament by the Comptroller and Auditor General.
Audit of the Accounts.
The Treasury lays before Parliament annually the Finance Accounts of the preceding year, while the Comptroller and Auditor General submits at a later date a separate report. Therein he examines the Consolidated Fund charges, and makes for the supply services more elaborate statements, called the Appropriation Accounts, in three volumes, relating to the Army, the Navy and the civil service. The accounts are rendered to him by the several departments, and after auditing them he transmits them to the House of Commons with his comments.[121:4]
The money granted by Parliament is divided into votes, of which there are in all about one hundred and forty.[122:1] In the estimates these votes are subdivided into subheads and items; but the votes would appear to be the only limitation expressly placed by Parliament upon expenditure; for the Annual Appropriation Act provides that the sums granted shall be deemed to be appropriated "for the services and purposes expressed in Schedule (B) annexed" thereto, and that schedule gives a list of the votes, but not of the subheads or items. Nevertheless, the Comptroller and Auditor General is enjoined by the Exchequer and Audit Departments Act of 1866 to ascertain whether the money expended has been applied to the purpose or purposes for which each grant was intended to provide,[122:2] and hence the reports that he submits note the excess or saving with the reasons therefor, under each subhead, and sometimes, as in the case of votes for the construction of new buildings, under each item. He adds, also, his own comments wherever it seems to him necessary to do so. All this is done, even where the saving under one subhead more than counterbalances the excess under another in the same vote. When that happens, however, no action by Parliament is required; but if the total amount of a vote has been overspent, the excess is entirely unauthorised, and must be covered by a deficiency appropriation, which Parliament grants upon the reports of the Comptroller and Auditor General and the Committee on Accounts of the House of Commons. To the last rule there is one exception. In order to facilitate the administration of the Army and Navy, the Annual Appropriation Act declares that the Treasury may authorise expenditure, not provided for, to be defrayed temporarily out of any surplus effected upon other votes in each of those departments; and the Act goes on to recite and sanction the transfers of surplus so authorised by the Treasury in the last year for which the accounts are complete.[123:1] This brings us to another important question, that of the financial control of the Treasury over the other branches of the administration.
Treasury Control over Other Departments.
Control over Estimates.
There has been a great deal of discussion about Treasury control over the receipt and expenditure of public money. In the case of the receipts it is a simple matter, for the financial control over the Post Office has already been described, and the other great revenue departments are, as will shortly be explained, virtually subordinate to the Treasury. The question of control over expenditure is far more complicated. Committees of the House of Commons have, at different times, collected evidence on the subject,[123:2] but the statements made have often been vague, and tend to confuse the control of the Treasury over the estimates, with its control over expenditure after the appropriations have been voted by Parliament. The control over the estimates has been discussed in the preceding chapter. It is only necessary here to repeat that such a control is by no means absolute, because any important question of expenditure becomes a question of policy to be decided, in case of disagreement, by the Prime Minister or the cabinet; and to point out that the departments supported by their political chiefs are usually too strong for the Treasury to resist.[123:3]
Control over Expenditure.
It might be supposed that after the appropriations had been voted the departments would be free in expending them, subject only to their responsibility to Parliament; but this is not altogether true. In the first place a statute sometimes requires that the expenses of a department shall be sanctioned by the Treasury.[124:1] Then it is not infrequently provided that the salaries shall be fixed by the Treasury, or that alterations in the establishment shall require its consent. Moreover, the salaries of certain grades of clerks are regulated by Orders in Council,[124:2] which are changed only on the advice of the Treasury. Apart, however, from statutes and Orders in Council there is a general customary principle forbidding any increase in the civil establishment of a department,—that is, any increase in the number or salary of permanent officials,—without the approval of the Treasury; and this although the appropriations would not be exceeded.[124:3]
Transfer of a Surplus.
Over certain departments the control is even more extensive, for not only do the contracts made by the Post Office require its approval, but contracts entered into by the Board of Works are also the subject of discussion between the Treasury and the First Commissioner.[124:4] In the case of the Army and Navy the fact that the Treasury can authorise a transfer of the surplus under one vote to cover a deficiency under another gives it a certain authority; and, indeed, its sanction is to some extent sought even for transfers between subheads of the same vote. This last is, of course, a matter of custom rather than of law, and practice differs in the two services. The Admiralty, which always plays the part of the good boy, comes very frequently to the Treasury for permission to make transfers between subheads before it acts; while the Army, save in exceptional cases, comes only at the end of the year for a formal approval.[125:1] The exceptional cases are, however, numerous. They sometimes extend even to separate items, and are regulated by a code of rules made by the Treasury and the department.[125:2] Every excess, for example, of a certain size in an item for a new building, the payment of any excess to a contractor, the discharge of a loss, or the insertion of a new item, require the sanction of the Treasury; and in fact the Appropriation Accounts of the Army and Navy are followed by many pages of correspondence on matters of this kind between the Treasury and the department. In the case of the civil services, where the Treasury has no authority to sanction transfers between votes, the system is less elaborate and the correspondence is not printed in full. Still there are frequent references in the accounts to Treasury letters sanctioning expenditures under subheads or items, especially in relation to such matters as salaries, the purchase of land, large excesses over estimates for construction, the abandonment of claims, and unforeseen expenditures.[125:3]
Effect of Treasury Control.
The control by the Treasury is sometimes vexatious in small matters,[126:1] but it does not seriously hamper the administration, or impair the efficiency of the service;[126:2] and while it can hardly prevent an expenditure on which a department is seriously determined,[126:3] the very need of consultation can hardly fail to act as a restraint upon extravagance.[126:4]
In addition to its control over the application of the sums voted by Parliament, and its authority to permit the use of appropriations for purposes not contemplated in the estimates, the Treasury has a limited power to open the national purse in case of necessity when no grant has been made by Parliament. For this purpose it has three sources of supply at its disposal: the Treasury Chest Fund, limited to £1,000,000, may be used to make temporary advances for carrying on the public service, to be repaid out of sums afterwards appropriated; the Civil Contingencies Fund, limited to £120,000, is available on similar terms for unforeseen contingencies and deficiencies; and, finally, any incidental receipts, not granted by Parliament as appropriations in aid, may be used as such under the authority of a Treasury minute to be laid before the Houses.[126:5]
The Organisation of the Treasury.
In the remarks on the history of the Treasury Board, at the beginning of the last chapter, it was pointed out that the board no longer meets. The Treasury minutes are still drawn up in the name of "My Lords," but this is merely the survival of a form, and all the members of the board, except the Chancellor of the Exchequer, have ceased to take part in directing the financial administration. The three junior lords have at times some small departmental duties, but their real functions are to act as assistants to the Parliamentary or Patronage Secretary, who is the chief government whip in the House of Commons. All the four whips receive salaries from the state on the theory that it is their duty to keep a House, or in other words to insure the presence of a quorum, while the supplies are being voted. But in fact they are officers, not of the state, but of the party in power, and it is their business to see that whenever a vote is taken in which the ministry is interested, their partisans are present in greater force than those of the Opposition. The relation of the First Lord to the Treasury is anomalous. He is usually the Prime Minister, and as such is supposed to keep a general supervision upon all branches of the administration, and to act as a sort of umpire between the different ministers, and, therefore, between the Treasury and the other departments. But whether he is Prime Minister or not he has a real connection with the Treasury. The functions of that office cover a much wider field than its name would imply, including subjects of a most miscellaneous character; and while the finances are entirely under the charge of the Chancellor of the Exchequer,—who is, in fact, the Minister of Finance, with the Financial Secretary of the Treasury as his parliamentary under-secretary,—the First Lord may be said, speaking very roughly, to be at the head of the outlying departments which are not concerned with financial affairs.
The Subordinate Departments.
The Treasury has been described as a superintending and controlling office that has properly no administrative functions;[127:1] and this, in a sense, is true, for even in money matters its duty as an organised department is financial direction and control, not the actual collection and disbursement of the revenue. It prepares the budget, reviewing the estimates submitted to it, and devising the means of defraying them; it supervises the collection of the revenue, and keeps watch over the expenditure. In this work the political chiefs are assisted by a body of clerks, headed by the permanent under-secretary, whose office is generally regarded as the highest in the permanent civil service. The offices that have direct charge of the collection of revenue have separate organisations with distinct staffs of permanent officials; but, except for the Post Office, they have no political chiefs of their own, and are in fact subordinate branches of the Treasury. The four great offices of this kind are the Post Office, which has already been described; and the departments of Customs, of Inland Revenue, and of Woods, Forests and Land Revenues, each of which is managed by commissioners who are members of the permanent civil service, and do not change with changes of ministry.[128:1]
The Treasury bears a similar relation to the departments that deal with purely fiscal payments, the National Debt Office, the Public Works Loan Board, and the Paymaster General's Office, through which almost all disbursements are now made. For, although the Paymaster General is a political officer, he has ceased to have any real connection with his department, and it is administered under the direction of the Treasury.[129:1]
The Outlying Departments.
Besides the departments subordinate to the Treasury, there are a number of outlying departments more or less closely connected with it which have already been referred to as having nothing to do with financial affairs; and, indeed, one may say that in theory, at least, every branch of the public service—except the Ecclesiastical and Charity Commissions[129:2]—that does not have a political chief of its own, and is not connected with some other department, is under the supervision of the Treasury and represented in Parliament thereby. But while the commissioners, or other heads of such offices, are as a rule appointed on the recommendation of the First Lord, or of the Prime Minister, the degree of control exercised over them by the Treasury varies a great deal; and in some cases its responsibility, apart from regulating the amount of expenditure, is somewhat illusory. Several institutions in this position are intended to be entirely outside the range of party controversy; and the boards of trustees of the British Museum, the National Gallery, and the National Portrait Gallery habitually contain members of Parliament who would never think of resigning their posts by reason of a change of ministry. The principal outlying departments of the Treasury directly connected with national administration, are: the Civil Service Commission, which examines the candidates for the various branches of the civil service; the Parliamentary Counsel's office, which drafts all the bills introduced by the ministers; and the stationery office, which does all the government printing.
Throughout a great part of the nineteenth century the influence of the commercial classes was strong, the government was conducted on strict business principles, and the Treasury as the representative of those principles was the keystone of the administrative arch, or to change the metaphor, the axle on which the machinery of the state revolved. For a long time, indeed, there was a marked tendency to consider the office of Chancellor of the Exchequer as the most important in the cabinet after that of the Prime Minister, to regard the person who held it as heir presumptive to the premiership, and to make him leader in the House of Commons when his chief was a peer. But with the waning desire for economy, and the growth of other interests, the Treasury has to some extent lost its predominant position. A symptom of this may be seen in the fact that during the last dozen years of Lord Salisbury's administrations, the Commons were led, not by the Chancellor of the Exchequer, but by a First Lord of the Treasury appointed for the purpose. The turning point came at the beginning of that period, when Lord Randolph Churchill in 1886 quarrelled with his colleagues over the estimates for the Army. The occurrence did not produce, but it did mark, a change in the tone of public opinion; and although the Treasury will no doubt maintain its control over the details of expenditure, one cannot feel certain that its head will regain the powerful influence upon general or financial policy exerted thirty years ago.
FOOTNOTES:
[115:1] An excellent description of the existing financial procedure may be found in Sir Courtney Ilbert's "Legislative Methods and Forms," 284-99.
[115:2] This did not apply to the hereditary revenues of the Crown until, with the exception of the revenues belonging to the Duchies of Lancaster and Cornwall, they were surrendered by George III., in return for a fixed Civil List.
[116:1] 27 Geo. III., c. 13.
[116:2] The rule had not been absolutely without exceptions, for the Mercantile Marine Fund, derived from port charges on vessels, was used to defray part of the expenses of the Board of Trade without going through the Consolidated Fund. Cf. 2d Rep. Com. on Civil Estab., Com. Papers, 1888, XXVII., 1, Qs. 18211-26. In 1898 this process was restricted to the maintenance of lighthouses, buoys and beacons. It may be observed, also, that the Act of 1891 concerning "appropriations in aid" (54-55 Vic., c. 24, § 2) declares that it merely gives statutory authority to an existing practice. Such appropriations are now regularly granted by Parliament in aid of the votes for the services in which they occur. The amount in aid of each vote is fixed, and listed in a separate column in the schedule to the Appropriation Act, only the excess above that amount being paid into the Consolidated Fund.
[116:3] Ilbert, "Legislative Methods and Forms," 294-95; Glen, "Law of Public Health," 1343, 1344.
[116:4] This innovation has been vigorously criticised as tending to confuse the national accounts. See a memorandum by Sir E. W. Hamilton, Com. Papers, 1902, VII., 15, App. 12.
[117:1] 29-30 Vic., c. 39.
[117:2] 54-55 Vic., c. 24.
[117:3] The sums paid to the Local Taxation Account not being included.
[118:1] These license fees go into the Local Taxation Account, not into the National Exchequer.
[119:1] It is noteworthy that from 1858 to 1895 the amount of money raised by taxation for national purposes was never less than £2 4s. 5d. and never more than £2 9s. 11d. per head of population. Of late years it has shown a steady tendency to increase. In 1899, the year before the war, it was £2 13s. 6d.; and in 1902 it was £3 8s. 8d., the expenditure being £4 13s. 11d. Between 1857 and 1900 the national debt was reduced by gradual payments from £837,144,597 to £628,978,783. In 1902 it had increased in consequence of the South African War to £747,911,107.
[119:2] For the history of this rule see Todd, "Parl. Govt. in England," II., 44-46.
[119:3] Rep. of the Com. on War Office Organisation, Com. Papers, 1901, XL., 179, p. 6. But see 3d Rep. Com. Pub. Accounts, Com. Papers, 1901, V., 47, p. iv.
[121:1] 29-30 Vic., c. 39, §§ 13, 15.
[121:2] Ibid., § 13.
[121:3] For the provision made for such cases, see page 126, infra.
[121:4] The Finance Accounts give only the issues to the departments from the Exchequer, not the actual expenditures. These last are contained only in the Appropriation Accounts of the Auditor General. Except for certain departments, like the Navy, where Sir James Graham began the practice of submitting them as early as 1832, the actual expenditures were not submitted as a whole to Parliament until the Act of 1866. Memorandum by Lord Welby, Com. Papers, 1902, VII., 15, App. 13. Hatschek, Englisches Staatsrecht, I., 495-502, gives an interesting description of the influence of French methods upon the English system of keeping public accounts, including the introduction of double-entry bookkeeping.
[122:1] Fifteen or sixteen relate to the Navy; as many more to the Army; something over one hundred to the various branches of the civil service, grouped into seven classes; and five to the revenue departments.
[122:2] 29-30 Vic., c. 39, § 27, and see Todd, II., 53-67.
[123:1] For the history of this matter, see Todd, II., 31-42.
[123:2] See, for a history of the question, Todd, II., 27-43, 543-45, and for recent collections of evidence the 2d and 3d Reps. of Com. on Civil Serv. Exp., Com. Papers, 1873, VII., 391, 415; 2d Rep. of Com. on Civil Estabs., Com. Papers, 1888, XXVII., 1; Rep. of Com. on War Office Organisation, Com. Papers, 1901, XL., 179; Reps. of Com. on Nat. Expenditure, Com. Papers, 1902, VII., 15; 1903, VII., 483.
[123:3] Rep. of Com. on Civil Estab., Com. Papers, 1888, XXVII., 1, Evid. of Sir R. E. Welby, Perm. Sec. of Treas., Qs. 10704-9, 10713, 10721-26, 10766.
[124:1] This was true, for example, of the Act creating the Board of Agriculture (52-53, Vic., c. 30, § 5).
[124:2] For clerks of the second division by Order in Council, March 21, 1890, §§ 3-6, Com. Papers, 1890, LVIII., 167. Positions of higher grade are regulated "by the heads of the departments to which they belong, subject to approval by the Commissioners of the Treasury;" Order in Council, Feb. 12, 1876, § 3, Com. Papers, 1888, XXVII., 1, p. 571; but no vacancies in these positions can be filled or new appointments made until the Treasury is satisfied that the number of officers in the department with salaries higher than those of the second division will not be excessive; Order in Council, Nov. 29, 1898, § 4, following Order of Feb. 12, 1876, § 4. The evidence before the Committees of 1873 and 1888 was, however, conclusive on the impotence of the Treasury in forcing reductions, whatever its actual power might be in preventing an increase of establishment.
[124:3] Cf. 3d Rep. Com. on Civil Serv. Exp., Com. Papers, 1873, VII., 415, Qs. 474, 4902-03; 2d Rep., Com. on Civil Estabs., Com. Papers, 1888, XXVII., 1, pp. xi, xii, and Qs. 10957, 14090-91, 14918-20, 18088; Rep. Com. on Nat. Exp., Com. Papers, 1902, VII., 15, Q. 1429.
[124:4] Rep. Com. on Nat. Exp., Com. Papers, 1902, VII., 15, Q. 1425.
[125:1] Rep. of Com. on War Office Org., Com. Papers, 1901, XL., 179, Qs. 3038-41. An excess on the subheads for food and forage, for example, would be met as a matter of course by a saving on fuel or rents. Ibid., p. 425.
[125:2] Memoranda on Treasury control by F. T. Marzials, Accountant General of the Army, Ibid., pp. 424-26; and by Robert Chalmers, Rep. Com. on Nat. Exp., Com. Papers, 1902, VII., 15, App. 3.
[125:3] The control of the Treasury over expenditure connected with the courts is less than it is in the case of other branches of the civil service; but the salaries of the clerks are fixed as a rule by an understanding between the judges and the Treasury. 2d Rep. Com. on Civil Serv. Exp., Com. Papers, 1873, VII., 391, pp. vi-viii.
[126:1] Rep. Com. on Civil Estabs., Com. Papers, 1888, XXVII., 1, Qs. 18076, 18088, 19150, 19165, 19171-75, 19178-82. As Lord Farrer, formerly permanent under-secretary of the Board of Trade, expressed it, "We can cheat them in big things; they may bully us in little things." Ibid., Q. 20,021.
[126:2] Rep. of Com. on War Office Org., Com. Papers, 1901, XL., 179, p. 8; Rep. of Com. on War in South Africa, Com. Papers, 1904, XL., 1, p. 143.
[126:3] Cf. Sir R. E. Welby, Rep. Com. on Civil Estabs., Com. Papers, 1888, XXVII., 1, Qs. 20382-83.
[126:4] The real sanction of the control of the Treasury lies in the support it is almost certain to receive from the Committee on Accounts of the House of Commons. In 1901, for example, in a case where the War Office, without exceeding its total vote, but before seeking the approval of the Treasury, paid to a contractor an addition of £1000 upon a contract for which no item appeared in the votes of the year, the Committee of Accounts remarked, "Your Committee deprecate in the strongest manner any diversion of Parliamentary funds without Treasury sanction." 3d Rep. Com. of Pub. Accounts, Com. Papers, 1901, V., 13, pp. iv-v.
[126:5] Public Accounts and Charges Act, 54-55 Vic., c. 24, § 2 (3).
[127:1] Todd, II., 545.
[128:1] The organisation of all these offices, and their relation to the Treasury, has been described at great length in Gneist, Das Englische Verwaltungsrecht, 3 Auf., Buch III., Kap. 4.
The office of Woods, Forests and Land Revenues collects the revenue from the Crown lands, except those belonging to the Duchies of Lancaster and Cornwall, the revenues from these last never having been surrendered to the nation, and being still enjoyed by the King and the Prince of Wales respectively. It collects also some other bits of hereditary revenue; but the total amount of its receipts is small, and the commissioners are only two in number. The Customs Establishment, which collects all duties on imports and exports, is managed by a chairman, a deputy chairman and one other commissioner; and, finally, the Inland Revenue Office, which collects the excises, and all the other national taxes, is a huge concern, and has at its head a chairman, deputy chairman and two other commissioners. This department was formed by uniting the boards of Excise, of Taxes and of Stamps; and it has been suggested that the departments of Customs and of Inland Revenue should be combined, but that has been thought inadvisable. (Cf. 3d Rep. Com. on Civil Estabs., Com. Papers, 1889, XXI., 1.)
[129:1] The Chancellor of the Exchequer is also ex officio Master of the Mint.
[129:2] The Ecclesiastical Commission manages the episcopal estates and other church property, using the revenues to pay the income of the bishops, and to promote the work of the Established Church in poor and populous places. It is not connected with any department of the government, and in fact is rather an institution belonging to the Church than a branch of the public service. The commissioners include all the bishops, several cabinet ministers, and a number of other laymen, of whom a couple sit in Parliament.
The Charity Commission, a body possessing semi-judicial powers in the regulation of charitable trusts, occupies a position more like that of an administrative department. Of the four commissioners one is unpaid, and represents the body in Parliament.
These two commissions are, therefore, in the anomalous position of having been deliberately provided with spokesmen in Parliament, who are not responsible ministers of the Crown. The British Museum, the National Gallery, and the National Portrait Gallery are in this respect in the same situation.
CHAPTER VI
MISCELLANEOUS OFFICES
The Government and the Administration of Law.
There is in England no single officer corresponding to the minister of justice, or attorney general, in other countries, some of the duties performed by them elsewhere being divided in England among a number of authorities, while others are not performed at all. The principal officers who fill this important gap are the Lord Chancellor, the Law Officers of the Crown, and the Director of Public Prosecutions.
The Lord Chancellor.
The greatest political dignitary in the British government, the one endowed by law with the most exalted and most diverse functions, the only great officer of state who has retained his ancient rights, the man who defies the doctrine of the separation of powers more than any other personage on earth, is the Lord Chancellor. Apart from his duties as a judge, as the presiding officer of the House of Lords, and as a member of the cabinet, all of which have been or will be described in other places, he has many powers of a miscellaneous character connected for the most part with the administration of the law.[131:1] He is, for example, at the head of the Crown Office in Chancery. This, as the place where the Great Seal is affixed, is legally and formally, although not politically, important. The Commissioners in Lunacy, also, report to him. The regulations relating to public prosecutions require his approval, and the control of the Land Registry Office devolves mainly upon him. Almost all the judicial patronage, moreover, is in his hands, for he is consulted about the highest posts, the selection of the puisne judges of the High Court is made on his recommendation, and he appoints and removes the county court judges and justices of the peace.[132:1]
Although the Lord Chancellor is a party leader, and is at once an active member of the legislative, the executive and the judicial branches of the government, the evils that might be supposed to result from such a combination of powers in the same hands do not in fact appear. He might, indeed, when sitting in the Judicial Committee, or in the House of Lords, be called upon to construe a statute which he had a share in enacting, but this does no great harm. The really serious matter is a confusion of the executive and judicial powers, the sitting in judgment by a political officer upon a question on which he has acted, or which may affect his future action, in an administrative capacity. But since the Chancellor never holds court alone at the present day, such a question could come before him only in the Court of Appeal, the House of Lords, or the Judicial Committee, where he sits with other judges, who have no connection with the ministry. Moreover, the Chancellor, although the legal member of the cabinet, is not its sole, nor indeed its official, legal adviser; and the government would never think of acting upon any doubtful point of law without obtaining the opinion of the Law Officers of the Crown. These gentlemen hold no judicial position; and curiously enough, while a part of the ministry, are never in the cabinet.
The Law Officers of the Crown.
The principal Law Officers of the Crown are the Attorney General, and the Solicitor General, who is his colleague and substitute.[133:1] Their opinion on questions of law may be asked by the government, and by any department, although many of the departments are provided with permanent legal counsel of their own whose advice is sufficient for all ordinary matters. The Attorney and Solicitor General conduct personally a few prosecutions of unusual importance, file criminal informations, and appear in cases where the rights of the Crown are involved, or where their intervention is necessary to protect charitable endowments. They defend in Parliament the legality of the government's action, and explain incomprehensible legal points in its measures. While they are no longer permitted to engage in private practice, their salaries and fees are so large[133:2] that these posts are among the great political prizes for lawyers who have made their mark in the warfare of the House of Commons,[133:3] prizes the greater because, in addition to the direct emoluments, they confer a presumptive claim to the very highest places on the bench that may become vacant while the party is in power.
Public Prosecutions in England.
It has been observed that the Law Officers of the Crown conduct in person only a few criminal cases of unusual importance. In other countries the prosecution of offenders is the affair of the state, and is conducted in all the courts great and small by public officers. This is true in Scotland also, where the matter is in the hands of a body of officers, known as procurators fiscal, with the Lord Advocate at their head; and even in Ireland a similar system has developed informally by the employment of crown counsel acting under the control of the Attorney General for that kingdom. But in England criminal prosecutions in the vast majority of cases are still, in theory at least, conducted by private persons.[134:1] Any one, whether a person injured or not, may prosecute the offender.[134:2] As a rule the examining magistrate, after committing the accused for trial, binds some one over to prosecute—either the complainant, the person injured, a policeman, the magistrate's own clerk, or a solicitor employed for the purpose. The case is usually conducted by the solicitor to the local magistrate, but the person bound over may employ his own counsel to take charge of it. The costs of the trial are, however, at the present day, allowed by the court, and paid out of the national treasury, under regulations made by the Home Secretary.
The Director of Public Prosecutions.
It has always been the habit for the Attorney General to conduct great state trials, cases, for example, of high treason; and it gradually came to be the practice for the legal officers attached to the different departments to prosecute in certain other cases, such as offences against the coinage. But about the middle of the last century there arose a demand for a general system of state prosecutions under the charge of a ministry of justice.[134:3] This movement culminated, or evaporated, in the Acts of 1879 and 1884,[134:4] whereby the Solicitor to the Treasury, who is the permanent legal adviser of that department, and is also charged with a number of other duties of a legal nature, has been made the Director of Public Prosecutions. The regulations governing his actions in this capacity are made by the Attorney General with the approval of the Lord Chancellor and the Home Secretary. They provide in substance[134:5] that he shall prosecute in all capital cases, in offences against the coinage, cases of fraudulent bankruptcy, cases where he is directed to do so by the Attorney General or the Home Secretary, and cases where such action appears to him necessary in the public interest. He may employ counsel to conduct both the cases that he brings, and any other criminal proceedings before the high courts where no counsel has been retained; and he may also assist a private prosecutor by authorising special expenses for evidence or counsel. It is his duty to give advice to the clerks of justices of the peace, and to police officers; and, finally, he is in all these matters subject to the control of the Attorney General.
The Director of Public Prosecutions makes to Parliament an annual report of his doings, enlivened by narratives of the most interesting cases. But in spite of his activity the vast bulk of the prosecutions are conducted as of old under private direction; for out of the many thousands of criminal cases tried every year, only from three hundred and fifty to five hundred are in his charge, and the number shows no marked tendency to increase.
Enough has been said to justify the statement that no single officer exercises any considerable part of the functions of a minister of justice. Such duties are not only divided among a number of persons, but scattered in small fragments among different departments. An illustration of this is furnished by the Return of Public Prosecutions, which is submitted to Parliament by the Home Secretary, and bears his signature on the first page; while the return itself is signed by the Director of Public Prosecutions, and dated from the Treasury. Gneist, in his work on the English administrative system, portrays the Lord Chancellor as the minister of justice for civil, and the Home Secretary for criminal, matters,[135:1] but such a generalisation is overstrained and misleading, and it is safer to assert that when the English bring confusion into any administrative department they usually succeed in confounding utterly all general principles, and making all general statements inaccurate.
The Church.
If there is no minister of justice in England, still less is there a minister of religion such as is commonly found in countries that possess established churches. The government of the Church of England will be treated in another chapter, and it is only necessary here to point out that although a strictly national institution, often deeply involved in political controversy, the Church is in many ways singularly free from the control of the executive government. It is, no doubt, regulated by laws that cannot be altered without the authority of Parliament. Its organisation, its ritual, and its articles of faith can be changed only by statute. But in administrative affairs its dependence upon the state is very much less. The King is, indeed, its supreme head; he virtually appoints the bishops and other high dignitaries, and his assent is necessary to the exercise of their limited powers by the Convocations of the two provinces.[136:1] Beyond this, however, the Crown does not interfere in the government of the Church, or the discipline of its members, which are left under the charge of its own officers. Proceedings against a clergyman for doctrinal errors or violation of the ritual can be taken only with the consent of the bishop, the government having no part in it; and although the Crown appoints a portion of the members of the Ecclesiastical Commission, which manages much of the Church property, the bishops form a large majority of the body, and the commission itself is not subordinate to any minister of state. The only control, therefore, exercised by the cabinet upon the administration of the Church is to be found in the restraint upon Convocation, and in the fact that the responsibility for the selection of high ecclesiastics rests with the Prime Minister, who, curiously enough, is not necessarily, and in the last two cabinets actually has not been, a member of the Church of England. The Prime Minister also nominates the incumbents of a number of large livings, while the Lord Chancellor presents to several hundred others that happen to lie in the gift of the Crown.[137:1] Except for these things no minister is responsible for the conduct of the Church or of its members.
The connection between Church and State in England is thus a peculiar one. In some ways the relation is very close, but it is rather legislative and judicial than administrative. The Church is minutely regulated by state laws, the judge of its principal tribunal must be confirmed by the Crown, and appeals lie to a secular court;[137:2] but it lives upon its own revenues without any grant from Parliament, and although its highest officers are appointed by the state, and sit in the upper House of Parliament, yet once appointed, they, like all the rest of the clergy, are practically free from the supervision and control of the executive government.
Scotland.
These are all the public offices in the English government that it is necessary to mention. A description of the peculiar institutions of Scotland and Ireland is not within the scope of this book, except so far as they affect the central government. Until twenty years ago the connection of the government with matters relating exclusively to Scotland was maintained chiefly through the Home Office, but the Lord Advocate was virtually the parliamentary under-secretary for Scotch business, and took entire charge of it, unless his chief was a Scotchman, and cared to assert himself. In 1885 a Secretary for Scotland was created, one might perhaps say revived, and to him were intrusted for that kingdom duties corresponding to those discharged in England by the Home Office, the Local Government Board and the Board of Education. In fact he may be said to be the general representative for Scotch purposes of all the various civil departments of state; and in particular he is at the head of the Scotch Local Government Board and the Scotch Education Department. He is not one of the secretaries of state and receives a much smaller salary than they do, but he is a member of the ministry, usually, though not invariably, with a seat in the cabinet, and he is always a member of one or the other House of Parliament.
The contrast between the relations of England to Scotland and to Ireland is striking. By the Act of Union of 1707 England and Scotland became one state, with a common Parliament and a common executive government, but political differences have not been obliterated. The Act of Union preserved the ecclesiastical and legal institutions of Scotland; and at the present day she has her own established church, which is Presbyterian; her own system of education, which is quite different from the English; and her own system of law, based upon the Civil not the Common Law, and adorned by a nomenclature so disfigured as to pass for her own. With such differences as these it has been not uncommon for Parliament, even where the same legislative principles were to be applied on both sides of the Tweed, to enact them in separate statutes, each adapted to the institutions of the country in which it is to operate. Socially, also, the fusion has not been complete. Every Scotchman is an Englishman, but an Englishman is not a Scotchman. The Scotch regard themselves as an elect race who are entitled to all the rights of Englishmen and to their own privileges besides. All English offices ought to be open to them, but Scotch posts are the natural heritage of the Scots. They take part freely in the debates on legislation affecting England alone, but in their opinion acts confined to Scotland ought to be, and in fact they are in the main, governed by the opinion of the Scotch members. Such a condition is due partly to the fact that Scotch institutions and ideas are sufficiently distinct from those of England to require separate treatment, and not different enough to excite repugnance. It is due in part also to the fact that the Scotch are both a homogeneous and a practical people, so that all classes can unite in common opinions about religion, politics and social justice. The result is that Scotland is governed by Scotchmen in accordance with Scotch ideas, while Ireland has been governed by Englishmen, and until recently, in accordance with English ideas.
Ireland.
The Act of Union with Ireland in 1801 abolished the Irish Parliament, and vested the whole legislative power for the United Kingdom in the joint Parliament at Westminster; but the executive government for Ireland was left at Dublin. It is conducted in the name of the Lord Lieutenant as the representative of the Crown.[139:1] The work is nominally done by him in his Privy Council, subject to such instructions as may be sent to him by the English government through the Home Secretary. In practice, however, matters have worked out very differently, for the administration of Ireland has been far too important to rest under the wing of the Home Office. The Lord Lieutenant is always a great nobleman, and he is expected to keep up a vice-regal state, sometimes at an expense exceeding his enormous salary of £20,000 a year; but he is not ordinarily the real head of the Irish Office. Since 1868 he has been a member of the cabinet less than eleven years, whereas his Chief Secretary has been in the cabinet during the whole of that period, except from 1882 to 1885, and for three other intervals that were very brief. Moreover, the Chief Secretary is always a member of the House of Commons, where he must defend the administration of Ireland against the attacks of the Irish members, and often of the English Opposition also. Thus it has come about that the Chief Secretary habitually plays the part of minister for Ireland, and is practically the ruler of the country. He is at the head of the Irish Local Government Board, Congested Districts Board and Department of Agriculture and Technical Instruction, and in general he is held responsible for all administration of a political character, except in the case of the revenue and the Irish Board of Works, which are under the direct control of the Treasury.[140:1] He possesses, indeed, not only the authority vested in a number of ministers in England, but also powers not conferred upon them at all. During the greater part of the time since the Union in 1801, Ireland has been subject to a long series of coercion acts, temporary in duration, but renewed at short intervals under different names.[140:2] The provisions have varied, but the object has always been to arm the Irish government with extraordinary and arbitrary powers for the suppression of disorder. Moreover, the police of Ireland, instead of being, as in England and Scotland, under the control of the local authorities, is under the direct orders of Dublin Castle. This force, the Royal Irish Constabulary, contains over twelve thousand men, a number twice as large in proportion to the population as that of the police in Great Britain.
Causes of Misgovernment.
The administration of Ireland has been the conspicuous failure of the English government. Its history for a century has been a long tale of expedients, palliations and concessions, which have never availed to secure either permanent good order or the contentment and loyalty of the inhabitants. Each step has been taken, not of foresight, but under pressure. The repressive measures have been avowedly temporary, devised to meet an emergency, not part of a permanent policy; while concessions, which if granted earlier might have had more effect, have only come when attention to the matter has been compelled by signs of widespread and grievous discontent. Catholic emancipation was virtually won by the Clare election; disestablishment of the Anglican Church was hastened by the Fenian movement; the Home Rule Bill followed the growth of the Irish parliamentary party, culminating in Parnell's hold upon the balance of power in the House of Commons; and the land laws have resulted from agrarian agitation. It has been said that the same thing is true of English reforms, that Parliament seldom gives redress until a wrong has been brought forcibly to its notice, and this is no doubt a natural if not an inevitable result of the parliamentary form of government. It is a part of the general tendency to treat symptoms rather than causes, to which we shall have occasion to refer again. But while Parliament, now that all classes are represented there, is certain to be made aware of an English grievance long before it has become intolerable, it is by no means so keenly sensitive to an Irish one. The fact is that Irish problems lie beyond the experience of the English member and his constituents. Being unable to distinguish readily a real grievance from an unreasonable demand, he does not heed it until he is obliged to; and the cabinet, with its hands already full, is not inclined to burn its fingers with matters in which the House is not deeply or generally interested. All this is merely one of many illustrations of the truth that parliamentary government can work well only so far as the nation itself is fairly homogeneous in its political aspirations.
Difficulty of the Problem.
But if the parliamentary system has proved an instrument ill-fitted for ruling Ireland, it is also true that the problem has been one of extreme difficulty. English statesmen might have repeated what Lord Durham said of Canada in his famous report: "I expected to find a contest between a government and a people. I found two nations warring in the bosom of a single state."[141:1] For centuries Ireland has remained a conquered land without a thorough fusion of the victors and the vanquished; the native stock has been subjected without being assimilated, and the difference of race has been intensified by a difference of creed. The Celt still looks upon his Saxon landlord, and upon the Orangemen in Ulster, as aliens, and upon the constabulary as the garrison of a foreign power. This has not only made the management of Ireland an exceedingly hard thing for an English government to carry on, but it also stands in the way of any other solution of the problem. To allow the Irish to govern themselves means putting the under dog on top and the upper dog underneath. The difficulty has been further increased by a deep-seated divergence in the conceptions of law and justice. Unlike Scotland, Ireland has the English system of jurisprudence. Her courts are modelled on those at Westminster, and administer the English Common Law, while most of the statutes affecting civil rights are the same. But, as men have often pointed out, there are in times of agitation two laws, and two governments, in the country; on one side the English law, administered by the English government through its officials, and on the other a hostile system resting upon very different principles, and applied by an extra-legal political organisation, but in fact more vigorously enforced than the first, and often more in harmony with the popular sense of justice.
The Land Question.
The divergence between the legal conceptions of the English and Irish is most marked in the case of land. According to the ideas of Englishmen, and of Irish landlords, the land belongs to the owner, and apart from special statutory provisions, the tenant has only a contractual right of possession, during the continuance, and subject to the terms, of his contract. But the tenants feel that, subject to somewhat indefinite duties towards the landlord in the way of rent, they have rights in the land, of which their forbears were robbed, and which they have reclaimed from the waste.[142:1] Such a difference is fundamental, and cannot be adjusted to the satisfaction of both parties. People speak of the hunger of the Irish for land, as if that were the cause of the difficulty, but the Irishman has no general land-hunger. When he has emigrated to America, instead of going, like the Swede, to the great open prairies where any industrious man can easily own a farm, he has settled, like the landless Hebrew, in the great cities. What the Irish want is Irish land, and to this they think they have a right.
Various remedies for solving the relation of landlord and tenant have been tried. First came the Act of 1860, which based that relation strictly upon contract, though restraining to some extent its enforcement by summary eviction. Ten years later the Act of 1870 proceeded upon quite a different principle, for it extended the Ulster tenant-right over the whole country, giving to the tenant a salable property in his holding. It granted, even to a tenant from year to year, a claim against his landlord for disturbance; and it conferred a right to compensation for past as well as future improvements. But these provisions did not set the questions at rest. Later followed in 1881 the judicial reduction of rents,—the fixing by public authority of fair rents as they were called. But here trouble arose on both sides. If the landlord's views were right, and the land belonged absolutely to him, it was clearly unjust to deprive him of its market value in rent, and he was entitled to feel that the government was giving away his property to smooth its own political difficulties.[143:1] On the other hand, the fair rents did not end the matter for the tenant. The English, deeply impressed with the sanctity of contract, meant the new rents to be paid as rents are paid in England; but the Irishman, living in what might almost be called a world of status, and brought up under a system of rack rent, had far less respect for contract, and regarded rents as things to be paid approximately rather than exactly. The result was more friction, and a further judicial reduction in 1887. Finally, after a series of land-purchase acts designed to promote peasant proprietorship, but too limited in scope to affect general social conditions, had been tried, a number of landlords and some of the Irish leaders held a conference in 1902, and virtually agreed that as both parties claimed rights in the land, the government should pay the landlord for it and transfer it to the tenant, an arrangement the more easy because by that time the landlords' interest had fallen greatly in value. The government undertook to carry out the plan by the Land Purchase Act of 1903, making not indeed an immediate gift, but a loan of its credit, and charging the tenant a low rent which is expected eventually to repay the advance, and leave him the owner of the land.[144:1] Since that time the purchase and distribution of estates, under the act, has been going on, but the process naturally takes time, and as might be expected, it has been far more rapid in the prosperous than in the poor parts of the country. One may hope that by this means the land question will in time be solved, but he must have a blind faith who believes that with it the Irish question will disappear.
A crude outline of the land legislation has been given simply to show the enormous difficulty of governing a country where the legal conceptions of rulers and ruled are irreconcilable, and yet that is precisely the kind of obstacle that arises at every step in the Irish problem.
FOOTNOTES:
[131:1] He has some powers that have no relation to the law, such as the appointment to a large number of Crown livings; and in this connection it may be noted that the offices of Lord Chancellor of Great Britain and Lord Lieutenant of Ireland are the only ones that cannot be held by Roman Catholics. The subject is not free from doubt. See Anson, II., 158, and the debate in 1891, Hans., 3 Ser. CCCXLIX., 1733 et seq. On that occasion the House of Commons refused to remove any disability that might exist.
[132:1] The list of justices of the peace for each county is in practice drawn up by the Lord Lieutenant, except in Lancashire, where it is made by the Chancellor of the Duchy, and that list is almost always adopted by the Lord Chancellor. No little controversy has, however, arisen of late over this subject.
[133:1] There are also a Lord Advocate and a Solicitor General for Scotland, and an Attorney General and a Solicitor General for Ireland.
[133:2] The salary of the Attorney General is £7000; that of the Solicitor General £6000; and the fees in each case amount to about £1000 more.
[133:3] The Solicitor General for Scotland, and the Attorney and Solicitor General for Ireland, although political officers who change with the ministry, are not always in Parliament.
[134:1] See the excellent chapter on prosecution in Maitland's "Justice and Police."
[134:2] The prosecution is, however, in the name of the King, and the Attorney General can put a stop to it by nolle prosequi if he considers it vexatious.
[134:3] In an article in the Fortnightly Review for March, 1873, entitled, "The Organisation of a Legal Department of Government," Mr. Bryce showed the need, and sketched the outline, for such a ministry.
[134:4] 42-43 Vic., c. 22; 47-48 Vic., c. 58.
[134:5] Com. Papers, 1886, LIII., 321.
[135:1] Englische Verwaltungsrecht, II., 1022-26.
[136:1] Without action by Parliament these extend only to the making of canons binding on the clergy.
[137:1] All Crown livings with less than £20 of yearly revenue are in the gift of the Lord Chancellor, Hans., 3 Ser. CLXIX., 1919, and so are many livings of considerable size. Hans., 3 Ser. CLXX., 131. The Chancellor of the Duchy of Lancaster nominates to Crown livings belonging to the Duchy, and the Home Secretary to those in the Channel Islands and the Isle of Man. Hans., 3 Ser. CCCXLIX., 1745-46.
[137:2] The Judicial Committee of the Privy Council.
[139:1] The provisions of the Test Act still apply to this office, so that the Lord Lieutenant must necessarily be of a faith different from that of the large majority of the people he is appointed to rule.
[140:1] Public non-technical education is directed by the Commissioners of Irish National Education, and the Board of Intermediate Education. These boards are not political, but the members, who must be partly Protestant and partly Roman Catholic, are appointed by the Lord Lieutenant, and the Chief Secretary has a certain measure of control over them.
[140:2] The last of them, the Crimes Act of 1887, is a permanent statute, but its provisions come into force only on a proclamation by the Lord Lieutenant, which is revocable at any time.
[141:1] Com. Papers, 1839, XVII., 1, p. 8.
[142:1] The fact that improvements have been generally made by the landlord in England, and by the tenant in Ireland, has much to do with this feeling.
[143:1] The case for the landlords has been very strongly stated by Mr. Lecky in his "Democracy and Liberty," I., 167-212.
[144:1] 3 Edw. VII., c. 37. The Act of 1903 was hailed with joy, but the Irish members soon complained of its administration, and on July 20, 1905, they moved successfully to reduce by £100 the appropriation for the Land Commission as an expression of dissatisfaction. Hans., Ser. CXLIX., 1409-86.
CHAPTER VII
THE PERMANENT CIVIL SERVICE
Sharp Distinction between Political and Non-Political Officials.
The history of the permanent civil service would be one of the most instructive chapters in the long story of English constitutional development, but unfortunately it has never been written. The nation has been saved from a bureaucracy, such as prevails over the greater part of Europe, on the one hand, and from the American spoils system on the other, by the sharp distinction between political and non-political officials. The former are trained in Parliament, not in administrative routine. They direct the general policy of the government, or at least they have the power to direct it, are entirely responsible for it, and go out of office with the cabinet; while the non-political officials remain at their posts without regard to party changes, are thoroughly familiar with the whole field of administration, and carry out in detail the policy adopted by the ministry of the day. The distinction has arisen gradually with the growth of the parliamentary system.
Exclusion of Non-Political Officials from Parliament.
A dread of the power of the King to control Parliament, by a distribution of offices and pensions among its members, gave rise to a provision, in the Act of Settlement of 1700, that after the accession of the House of Hanover no person holding an office or place of profit under the Crown should be capable of sitting in the House of Commons.[145:1] But before this act took effect the disadvantages of excluding entirely from the House the great officers of state was perceived. The provision was, therefore, modified so as to shut out absolutely only the holders of new offices created after Oct. 25, 1705, and of certain specified posts already existing. Members of the House of Commons appointed to other offices were to lose their seats, but be capable of reëlection.[146:1] As there were many old offices the number of placemen in Parliament continued large, and no sharp line was drawn at once between the great officers of state and their subordinates. But two processes went on which in time rendered the distinction effective. When a new office of a political nature was created it became the habit to make a special statutory provision permitting the holder to sit in the House of Commons; and, on the other hand, place bills were passed from time to time excluding from Parliament whole classes of officials of a lower grade. These acts apply, for example, to all the clerks in many of the government departments,[146:2] and together with the provision excluding the holders of all new offices created since 1705, they cover a large part of all the officials under the rank of minister.[146:3] The distinction between the offices which are and those which are not compatible with a seat in the House of Commons, is made complete by the regulations of the service itself. These cannot render void an election to the House which is not invalid by statute. They cannot make the holding of office a disqualification for Parliament, but they can make a seat in Parliament a reason for the loss of office. They can and do provide that if any civil servant intends to be a candidate he must resign his office when he first issues his address to the electors.[146:4]
If it were not for three or four ministers, such as the Irish Law Officers, who are expected to get themselves elected to Parliament if they can, but whose tenure of their positions does not depend upon their doing so, one might say that the public service is divided into political officers who must sit in Parliament, and non-political officers who must not.
Permanent Officials take no Active Part in Politics.
But are not Disfranchised
In a popular government, based upon party, the exclusion of the subordinate civil servants from the legislature is an essential condition both of their abstaining from active politics and of their permanence of tenure. But it does not by itself necessarily involve either of those results. This is clear from the example of the United States, where office-holders of all grades are excluded from Congress by the provisions of the Constitution, but by no means refrain from party warfare. The keeping out of politics, however, and the permanence of tenure must, in the long run, go together; for it is manifest that office can be held regardless of party changes only in case the holders do not take an active part in bringing those changes to pass; and if, on the other hand, they are doomed to lose their places on a defeat at the polls of the party in power, they will certainly do their utmost to avert such a defeat. In England the abstinence and the permanence have been attained, and it is noteworthy that they are both secured by the force of opinion hardening into tradition, and not by the sanction of law.[147:1] At one time, indeed, large classes of public servants were deprived of the parliamentary franchise. An Act of 1782, for example,[147:2] withdrew the right to vote from officers employed in collecting excises, customs and other duties, and from postmasters; but these disqualifications were removed in 1868.[147:3] The police, also, were, by a series of acts, deprived of the franchise in the constituencies where they held office. Except as regards Ireland, however, these statutes were, in their turn, repealed in 1887;[148:1] and the only disqualifications now attaching to public officials relate to such positions as those of returning officers at elections.[148:2]
England enfranchised her officials at the very time when she was enlarging the suffrage and the number of office-holders. In some other countries the political danger of a large class of government employees has been keenly felt. This has been particularly true of the new democracies in Australia with their armies of public servants on the state railroads; and, indeed, the pressure constantly brought to bear in the legislature in favour of this class caused Victoria in 1903 to readjust her election laws.[148:3] The employees of the government have not been disfranchised altogether, but they have been deprived of the right to vote in the regular constituencies, and have been allotted one representative in the legislative council and two in the assembly to be elected entirely by their own class. They have, therefore, their spokesmen in the legislature, but they are no longer able to influence the other members as of old.
Effect of Giving them Votes.
In England these dangers are by no means unknown; but they have not taken the form of work done by civil servants for purely party ends. From that evil the country has been almost wholly free; for although all office-holders, not directly connected with the conduct of elections, have now a legal right to vote, and are quite at liberty to do so, it is a well-settled principle that those who are non-political—that is, all who are not ministers—must not be active in party politics. They must not, for example, work in a party organisation, serve on the committee of a candidate for Parliament, canvass in his interest, or make speeches on general politics. All this is so thoroughly recognised that one rarely hears complaints of irregular conduct, or even of actions of a doubtful propriety. In this connection it is worthy of note that the revenue officers were disfranchised in 1782 at their own request. At that time the government controlled through them seventy seats in the House of Commons, and Lord North sent them notice that it would go hard with them if they did not support his party. His opponents sent them a similar warning, and the result was that in self-protection they sent up a strong petition asking for exclusion from the franchise.[149:1] The bill to reënfranchise them was carried in 1868 against the wishes of the government of the day.[149:2] But on that occasion, and in 1874, when the acts imposing penalties upon their taking an active part at elections were repealed, it was perfectly well understood that they would not be permitted to go into party politics, and that the government was entitled to make regulations on the subject.[149:3] Those regulations are still in force,[149:4] and it is only by maintaining them that the civil servants can continue to enjoy both permanence of tenure and the right to vote.
Attempts to Improve their Position.
The Dockyards.
The danger arising from the votes of public servants has been felt in a different way. While the government employees have kept clear of party politics, they have in some cases used their electoral rights to bring pressure to bear upon members of Parliament in favour of increasing their own pay and improving the conditions of their work. This has been peculiarly true of the dockyards. The members of the half dozen boroughs where the state maintains great shops for the construction and repair of warships are always urging the interests of the workmen; and they do it with so little regard to the national finances, or to the question whether they are elected as supporters or opponents of the ministry, that they have become a byword in Parliament under the name of "dockyard-members."[149:5]
Other Officials.
Unfortunately the difficulty has not been confined to the dockyards. At the time when the revenue and post-office employees were enfranchised, Disraeli dreaded their use of the franchise for the purpose of raising their salaries;[150:1] and Gladstone said he was not afraid of government influence, or of an influence in favour of one political party or another, but of class influence, "which in his opinion was the great reproach of the Reformed Parliament."[150:2] These fears have not proved groundless. As early as 1875 it was recognised that the salaries paid by the government were above the market rate;[150:3] and ever since the officials in the revenue and postal departments obtained the right to vote, pressure on behalf of their interests has been brought to bear by them upon members of Parliament, and by the latter upon the government. Complaints of this have been constant.[150:4] It has been a source of criticism that members should have attended meetings of civil servants held to demand an increase of pay,[150:5] and that they should receive whips urging their attendance at the House when questions of this sort are to come up.[150:6] Owing to the concentration of government employees in London the pressure upon the metropolitan members is particularly severe.
Recent Efforts of Postal Officials for More Pay.
For nearly a score of years a continuous effort has been made in Parliament to secure the appointment of a committee to inquire into the pay of postal and telegraph employees, and into grievances which are said to exist in the service. The government has in part yielded, in part resisted; but in trying to prevent pressure upon members of Parliament, it took at one time a step that furnished a fresh cause of complaint. The story of this movement illustrates forcibly the dangers of the situation. In 1892 the Postmaster General, Sir James Fergusson, called the attention of the House of Commons to a circular addressed by an association of telegraph clerks to candidates at the general election, asking whether if elected they would vote for a committee to inquire into the working of the service.[151:1] He then sent to the clerks an official warning that it is improper for government employees to try to extract promises from candidates with reference to their pay or duties.[151:2] Nevertheless two of the clerks, Clery and Cheesman, who had been chairman and secretary of the meeting which had voted to issue the circular, signed a statement that the notice by the Postmaster General "does not affect the policy of the Association." Immediately after the election these two men were dismissed.[151:3] That became a grievance in itself, and year after year attempts were made in Parliament to have them reinstated. Shortly after they had been dismissed Mr. Gladstone came into office; and he made a vague statement to the effect that the government intended to place no restraint upon the civil servants beyond the rule forbidding them to take an active part in political contests.[151:4] But it would seem that Fergusson's warning circular was not cancelled,[151:5] and certainly Clery and Cheesman were not taken back.
Demand for a Parliamentary Committee.
Pressure Brought to Bear.
The motions for a parliamentary committee to inquire into the conditions of the service were kept up; and in 1895 the government gave way so far as to appoint a commission, composed mainly of officials drawn from various departments, which reported in 1897 recommending some increases of pay both in the postal and in the telegraph service. These were at once adopted, and in fact further concessions were made shortly afterward, but still the agitation did not cease. The employees would be satisfied with nothing but a parliamentary committee, no doubt for the same reason that led the government to refuse it, namely the pressure to which members of Parliament were subject,[152:1] and the additional force that pressure would have if brought to a focus upon the persons selected to serve on a committee.[152:2] Year after year grievances on one side, and on the other charges of almost intolerable pressure were repeated. In 1898 the interest centred in a motion to the effect that public servants in the Post Office were deprived of their political rights. A long debate took place in which the whole history of the subject was reviewed,[152:3] and Hanbury, the Financial Secretary of the Treasury, exclaimed, "We have done away with personal and individual bribery, but there is a still worse form of bribery, and that is when a man asks a candidate to buy his vote out of the public purse."[152:4] In 1903 Mr. Austen Chamberlain stated that members had come to him, not from one side of the House alone, to seek from him, in his position as Postmaster General, protection in the discharge of their public duties against the pressure sought to be put upon them by the employees of the Post Office.[152:5] He consented, however, to appoint a commission of business men to advise him about the wages of employees; but again there was a protest against any committee of inquiry not composed of members of Parliament.[152:6] The report of the commission was followed in 1904 by a debate of the usual character.[152:7] Finally in 1906 the new Liberal ministry yielded, and a select committee was appointed.[152:8]
There are now employed in the postal and telegraph services about two hundred thousand persons, who have votes enough, when organised, to be an important factor at elections in many constituencies, and to turn the scale in some of them. If their influence is exerted only to raise wages in a service recruited by competitive examination,[153:1] the evil is not of the first magnitude; but it is not difficult to perceive that such a power might be used in directions highly detrimental to the state. There is no reason to expect the pressure to grow less, and mutterings are sometimes heard about the necessity of taking the franchise away from government employees. That would be the only effective remedy, and the time may not be far distant when it will have to be considered seriously.
As we shall have occasion to see hereafter, the pressure in behalf of individuals is comparatively small, and it is characteristic of modern English parliamentary government that political influence should be used to promote class rather than personal interests.
Permanence of Tenure of Officials.
Permanence of tenure in the English civil service, like the abstinence from partly politics, is secured by custom, not by law, for the officials with whom we are concerned here are appointed during pleasure, and can legally be dismissed at any time for any cause. Now, although the removal, for partisan motives, of officials who would be classed to-day as permanent and non-political, has not been altogether unknown in England, yet it was never a general practice. The reason that the spoils system—that is, the wholesale discharge of officials on a change of party—obtained no foothold is not to be found in any peculiarly exalted sense, inherent in the British character, that every public office is a sacred trust. That conception is of comparatively modern origin; for in the eighteenth century the abuse of patronage, and even the grosser forms of political corruption, were shamelessly practised. It is rather to be sought in quite a different sentiment, the sentiment that a man has a vested interest in the office that he holds. This feeling is constantly giving rise, both in public and private affairs, to a demand for the compensation of persons displaced or injured by a change of methods which seems strange to a foreigner.[154:1] The claim by publicans for compensation when their licenses are not renewed, a claim recognised by the Act of 1904, is based upon the same sentiment and causes the traveller to inquire how any one can, as the result of a license ostensibly temporary, have a vested right to help other people to get drunk.
The habit of discharging officials on party grounds never having become established, it was not unnatural that with the growth of the parliamentary system the line between the changing political chiefs and their permanent subordinates should be more and more clearly marked, and this process has gone on until at the present day the dismissal of the latter on political grounds is practically unheard of, either in national or local administration.
Former Party Patronage.
While the discharge of public servants on political grounds never became a settled custom in England, such vacancies as occurred in the natural course of events were freely used in former times to confer favours on political and personal friends, or to reward party services. Such a practice was regarded as obvious, and it continued unchecked until after the first Reform Act. It was particularly bad in Ireland, where Peel, who was Chief Secretary from 1812 to 1818, took great credit to himself for breaking up the habit of treating the Irish patronage as the perquisite of the leading families, and for dispensing it on public grounds, that is, using it to secure political support for the party in power.[155:1] That the patronage was used for the same purpose in England at that period may be seen in the reports and evidence laid before Parliament in 1855, 1860 and 1873 after a different system had begun to take its place.[155:2] It was no doubt an effective means of procuring political service, and Lord John Russell speaks of the Tories in 1819 as apparently invincible from long possession of government patronage, spreading over the Church, the Law, the Army, the Navy, and the colonies.[155:3] The support most needed by the ministry was that of members of the House of Commons, and they received in return places for constituents who had been, or might become, influential at elections. Thus it came about that the greater part of the appointments, especially to local offices, were made through the members of Parliament.[155:4] The system hampered the efficiency of administration, and harassed the ministers. Writing in 1829, the Duke of Wellington used words that might have been applied to other countries at a later time,—"The whole system of the patronage of the government," he wrote, "is in my opinion erroneous. Certain members claim a right to dispose of everything that falls vacant within the town or county which they represent; and this is so much a matter of right that they now claim the patronage whether they support upon every occasion, or now and then, or when not required, or entirely oppose; and in fact the only question about local patronage is whether it shall be given to the disposal of one gentleman or another."[156:1]
The Introduction of Examinations.
At last a revulsion of feeling took place. Between 1834 and 1841 pass examinations, which discarded utterly incompetent candidates, were established in some of the departments, and in several cases even competitive examinations were introduced. But the great impulse toward a new method of appointment dates from 1853, and it came from two different quarters. In that year the charter of the East India Company was renewed, and Parliament was not disposed to continue the privilege hitherto enjoyed by the directors of making appointments to Haileybury—the preparatory school for the civil service in India. A commission, with Macaulay at its head, reported in the following year that appointments to the Indian service ought to be made on the basis of an open competitive examination of a scholastic character. The plan was at once adopted, Haileybury was abandoned, and with some changes in detail, the system of examination recommended by the commission has been in operation ever since.[156:2]
Open Competition.
In 1853, also, Sir Stafford Northcote and Sir Charles Trevelyan, who were selected by Mr. Gladstone to inquire into the condition of the civil service in England, reported in favour of a system of appointment by open competitive examination. The new method met with far more opposition at home than in India, and made its way much more slowly. Foreseeing obstacles in the House of Commons, Lord Palmerston's government determined to proceed, not by legislation, but by executive order, resorting to Parliament only for the necessary appropriation. An Order in Council was accordingly made on May 21, 1855,[156:3] creating a body of three Civil Service Commissioners,[156:4] who were to examine all candidates for the junior positions in the various departments of the civil service. The reform was not at the outset very radical, for political nomination was not abolished, and the examinations—not necessarily competitive—were to be arranged in accordance with the desires of the heads of the different departments. The change could progress, therefore, only so fast as the ministers in charge of the various state offices might be convinced of its value; but from this time the new method gained favour steadily with high administrative officials, with Parliament and with the public. In 1859[157:1] it was enacted that (except for appointments made directly by the Crown, and posts where professional or other peculiar qualifications were required) no person thereafter appointed should, for the purpose of superannuation pensions, be deemed to have served in the permanent civil service of the state unless admitted with a certificate from the Civil Service Commissioners. In 1860 a parliamentary committee reported that limited competition ought to supersede mere pass examinations, and that open competition, which does away entirely with the privilege of nomination, was better than either.[157:2] The committee, however, did not think the time ripe for taking this last step, and the general principle of open competition was not established until June 4, 1870. An Order in Council of that date,[157:3] which is still the basis of the system of examinations, provides that (except for offices to which the holder is appointed directly by the Crown, situations filled by promotion, and positions requiring professional or other peculiar qualifications, where the examinations may be wholly or partly dispensed with) no person shall be employed in any department of the civil service until he has been tested by the Civil Service Commissioners, and reported by them qualified to be admitted on probation.[157:4] It provides further that the appointments named in Schedule A, annexed to the Order, must be made by open competitive examination; and this list has been extended from time to time until it covers the greater part of the positions where the work does not require peculiar qualifications, or is not of a confidential nature, or of a distinctly inferior or manual character like that of attendants, messengers, workmen, etc.[158:1]
A Test of Capacity rather than Fitness.
Since the general introduction of open competition, by the Order in Council of 1870, two tendencies have been at work which are not unconnected. The first is towards simplification, by grouping positions that have similar duties into large classes, with a single competition for each class, and thus diminishing the number of examinations for separate positions.[158:2] The second is the tendency so to examine the candidates as to test their general ability and attainments, and hence their capacity to become useful in the positions assigned to them, rather than the technical knowledge they possess.[159:1] This distinction marks an important difference between the system of civil service examinations as it exists in the United States, and the form which the system has assumed in England. For in the United States the object is almost entirely to discover the immediate fitness of the candidates for the work they are expected to do; in England the object in most cases is to measure what their ability to do the work will be after they have learned it. The difference arises partly from the fact that in America the examinations were superimposed upon a custom of rotation in office and spoils, while in England permanence of tenure was already the rule; and partly from the fact that the system is applied in America mainly to positions requiring routine or clerical work, whereas in England it affects also positions involving, directly or prospectively, a much greater amount of discretion and responsibility. Now, it is clear that if men are to be selected young for a lifelong career, especially if that career involves responsible administrative work, any acquaintance with the details of the duties to be performed, and any present fitness for the position, are of far less consequence than a thorough education, keen intelligence and capacity for development. Proceeding upon this assumption, Macaulay's commission on the Indian Civil Service laid down two principles: first, that young men admitted to that service ought to have the best general education England could give; and, second, that ambitious men should not be led to spend time in special study which would be useless if they were not successful in the competition. The commission urged, therefore, that the examinations should be closely fitted to the studies pursued in the English universities. This plan was adopted, and although at one time the age of admission, and with it the standard, was lowered, they were afterwards restored; and the same principle is now also applied to the higher grades in the home service. For the lower positions in that service, where the work is of a clerical nature, and hence less discretion and responsibility are involved, it was formerly the habit to make the examinations more of a test of immediate preparation for the duties of the office; but this, as we shall see, has recently been replaced by a system based upon Macaulay's ideas, though applied, of course, to an inferior scale of education.
The Different Grades in the Civil Service.
The permanent officials of a typical department comprise a permanent under-secretary at the head, and one or more assistant under-secretaries and chiefs of branches. These offices are treated as not subject to examination under the Order of 1870, either because they are filled by promotion, or on the ground that the positions require peculiar qualifications.[160:1] As a matter of fact such posts are by no means always filled by promotion, and persons are sometimes selected for them who are outside of the service altogether. Next in rank come the principal clerks; but they are recruited entirely by promotion from the first-class clerks, who are, therefore, the highest grade of officials entering the service by competitive examination. Below them are the men now properly called clerks of the second division, although the title of this class of civil servants has been changed so often that one finds strange variations of nomenclature in the different departments. Below these again come the assistant clerks (abstractor class), and finally the boy clerks.
Their Origin.
The sharp separation of the clerks into classes, with distinct examinations for each class, did not arise at once. The first examinations under the original order of 1855 were required only for a "junior situation in any department," and they were not the same in the different departments. They were elementary affairs,[161:1] evidently designed to sift out incompetence rather than to test superiority; for it must be observed that in only a very small proportion of these examinations was there even a limited competition.[161:2] When, however, the Order of 1870 extended the admission examinations to all positions in the service, not specially excepted or filled by promotion, and set up the principle of open competition, it became necessary to distinguish between the higher posts, involving discretionary powers and requiring a liberal education, and the lower ones where the duties are of a clerical kind; to distinguish, in other words, between the administrator and the clerk. Such a distinction was made by the commissioners in their earliest regulations under the Order of 1870,[161:3] the two classes being recruited separately by examinations of different character, the first of which was adapted to university graduates, and the second to young men from commercial life. At the outset the line was drawn somewhat at haphazard without sufficient attention to the real nature of the work to be done, and it was readjusted several times before it assumed its present form.[161:4]
Exceptional Positions.
Aside from the regular grades of clerks recruited by open competition, there are various kinds of inspectors, clerks and other special officials, appointed after open competition, limited competition, pass examination or no examination at all. In fact the departments are full of anomalies, some of them the necessary result of peculiar conditions of service, and others due apparently to no very rational cause. The reader will, no doubt, be sufficiently wearied by a description of the more common methods of examination, without going into the eccentricities of the system. It may be convenient to consider first the open competitions, and then the appointments that are made in other ways.
The First-class Clerkships.
The highest posts in the permanent civil service to which admission is obtained by competitive examination are known as the first-class clerkships. In 1895 the examinations for these positions and for the Indian Civil Service were consolidated, and in the following year those for the Eastern Cadets[162:1] were added; so that a single annual competition is now the gateway to all three careers, the successful candidates being allowed, in the order of their rank at the examination, to choose the service they will enter. In spite of the smaller pay the first men on the list have usually selected the home service, because the life is more agreeable; and so far as the vacancies make it possible they are assigned to the particular department they prefer.
The Entrance Examinations.
Although these positions are called clerkships, the work is not of a clerical, but of an administrative, and in the upper grades of a highly responsible, character. The aim of the commissioners is, therefore, to recruit young men of thorough general education for an important and lifelong administrative career. With this object the candidates are required to be between twenty-two and twenty-four years of age, and the examination, which has no direct connection with their subsequent duties, is closely fitted to the courses of study in the universities. As a matter of fact the papers in mathematics and natural science are based upon the requirements for honour degrees at Cambridge, the papers in classical and other subjects upon those at Oxford; and thus it happens that by far the larger part of the successful candidates come from one or other of these two great universities.[163:1] The range of subjects is naturally large, and a candidate is allowed to offer as many as he pleases, but by an ingenious system of marking a thorough knowledge of a few subjects is made to yield a higher aggregate of marks than a superficial acquaintance with a larger number.[163:2] The examination papers are set, and the books are read, by well-known scholars, instructors at the universities and others, who are selected for the purpose. That the papers are severe any one may convince himself by looking at them. Moreover the number of candidates, which is two or three times as large as the vacancies in all three services together, insures a rigorous competition; and the result is that the candidates who win the appointments are men of education and intellectual power. They belong to the type that forms the kernel of the professions; and many of them enter the civil service simply because they have not the means to enable them to wait long enough to achieve success in a professional career. They form an excellent corps of administrators, although the time has not come to express an opinion on the question whether they will prove the best material from which to draw the permanent under-secretaries and the other staff officers at the head of the different services. As yet few of them have attained positions of this grade, but it must be remembered that they have only recently begun to reach an age when they could be expected to do so.
Their Social Effect.
When the government was considering the introduction of competitive examinations, in 1854, fears were expressed that such a system would result in driving the aristocracy out of the civil service, and replacing it by a lower social class.[164:1] Mr. Gladstone himself did not share that belief. On the contrary, he thought the plan would give to the highly educated class a stronger hold than ever upon the higher positions in the service.[164:2] In this he proved a better prophet than his critics. By far the greater part of the successful competitors for the Class I clerkships now come, as we have seen, from Oxford and Cambridge; and the men educated at those universities are still drawn chiefly from the upper classes, from the aristocracy, the gentry, the sons of clergymen, of lawyers, of doctors, and of rich merchants who have made, or who hope to make, their way into the higher strata of society. Men of more humble extraction go, as a rule, to the provincial colleges. The Civil Service Commissioners have given in some of their annual reports the occupations of the fathers of the successful candidates at the chief open competitions; and while in the case of the joint examination for the Class I clerkships and the Indian Civil Service the list includes no peers, and does include some tradesmen, yet on the whole it consists of persons belonging to the upper and the upper middle class. Thus it has come about that competitive examinations, instead of having a levelling tendency, by throwing the service open to a crowd of quick-witted youths without breeding, has helped to strengthen the hold of the upper classes upon the government, by reserving most of the important posts for men trained in the old aristocratic seats of learning. In this connection it may be observed that the highest positions in the civil service are often held by men of noble blood, and it has sometimes happened that the permanent under-secretary has been a man of higher social position than his political chief. Sir Robert Herbert and Sir Courtenay Boyle, for example, who were recently the permanent heads of the Colonial Office and the Board of Trade, were scions of ancient families in England and Ireland; and the latter had at one time as his political chief Mr. Mundella, who had begun life as a printer's devil.[165:1]
