THE
GOVERNMENT OF ENGLAND

VOLUME I

THE MACMILLAN COMPANY
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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

INTRODUCTORY NOTE ON THE CONSTITUTION

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

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

De Tocqueville had more particularly in mind another meaning which is commonly attached to the term "constitution." It is that of an instrument of special sanctity, distinct in character from all other laws; and alterable only by a peculiar process, differing to a greater or less extent from the ordinary forms of legislation. The special sanctity is, of course, a matter of sentiment incapable of exact definition, and it may be said to belong to the British Constitution quite as much as to some others. The peculiar process of amendment, on the other hand,—the separation of the so-called constituent and law-making powers,—upon which Mr. Bryce bases his division of constitutions into rigid and flexible,[2:2] has had a long history and been much discussed; but although the contrast between the two types is highly important, the creation of intermediate forms has made it less exact as a basis of classification. The later constitutions, and the more recent practice, have tended to obscure the distinction. A separation between 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 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]

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.

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.

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]

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

The English Constitution—speaking, of course, of its form, not its content—differs, therefore, from those of most other European nations more widely in method of expression than in essential nature and legal effect. They have 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.