The Government of England (Vol. I) doc

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.. TABLE OF CONTENTS VOLUME I P

Government of England (Vol I), by A Lawrence

Lowell

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Title: The Government of England (Vol I)

Author: A Lawrence Lowell

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Language: English

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Transcriber's Notes: Words in italics in the original are surrounded by underscores Words in bold are

surrounded by =equal signs= Variations in spelling and hyphenation remain as in the original Ellipses matchthe original A complete list of typographical corrections follows the text

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, generalprosperity and contentment of the people, and by the extent of its influence on the institutions and politicalthought of other lands, the English government has been one of the most remarkable the world has everknown An attempt, therefore, to study it at any salient epoch cannot be valueless; and the present is a salientepoch, for the nation has now enjoyed something very near to manhood suffrage in the boroughs for fortyyears, and throughout the country more than twenty years, a period long enough for democracy to produce itsprimary 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 organismconstantly 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 whichmaintain its equilibrium

In preparing a study of this kind one feels the need of limiting its scope, by reducing the denominator asArthur 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 ofthese men with pitfalls, but they do not affect seriously the general principles of the government, and noattempt is made to describe them here Even the institutions of Scotland and Ireland, interesting as they are inthemselves, have been referred to only so far as they relate to the national government or throw light upon itsworking.

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 frommen connected with the machinery of public life A student must, therefore, rely largely upon conversationswhich he can use but cannot cite as authorities, and the soundness of his conclusions must be measured less byhis references in footnotes than by the judgment of the small portion of the public that knows at first-hand thethings whereof he speaks The precise effect of the various forces at work must be a matter of opinion onwhich 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 andinformation, 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 orclaim 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 givinghim 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, whoseunwearied assistance, counsel and encouragement have been a constant help throughout the preparation of thiswork, and who has read the whole of the proof sheets except the chapters that deal with the Empire Thesefriends have made the writing of the book possible, and saved the author from many blunders It is needless tosay that none of them are in any way responsible for any opinions in these pages; and in fact the writer hastried 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 severaldifferent 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 hisinvestigations 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 thesehaving 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 16

CHAPTER II

THE CROWN AND THE CABINET 27

CHAPTER III

THE CABINET AND THE MINISTERS 53

CHAPTER IV

THE EXECUTIVE DEPARTMENTS 81

CHAPTER V

THE TREASURY 115

CHAPTER VI

MISCELLANEOUS OFFICES 131

CHAPTER VII

THE PERMANENT CIVIL SERVICE 145

CHAPTER VIII

THE MINISTERS AND THE CIVIL SERVICE 173

CHAPTER IX

THE HOUSE OF COMMONS CONSTITUENCIES AND VOTERS 195

CHAPTER X

THE HOUSE OF COMMONS ELECTORAL PROCEDURE 219

CHAPTER XI

THE HOUSE OF COMMONS DISQUALIFICATIONS, PRIVILEGE, SESSIONS 239

CHAPTER XII

PROCEDURE IN THE HOUSE OF COMMONS THE HOUSE, ITS RULES AND OFFICERS 248

CHAPTER XIII

PROCEDURE IN THE HOUSE OF COMMONS COMMITTEES AND PUBLIC BILLS 264

CHAPTER XIV

PROCEDURE IN THE HOUSE OF COMMONS MONEY BILLS AND ACCOUNTS 279

CHAPTER XV

PROCEDURE IN THE HOUSE OF COMMONS CLOSURE 292

CHAPTER XVI

PROCEDURE IN THE HOUSE OF COMMONS SITTINGS AND ORDER OF BUSINESS 302

CHAPTER XVII

THE CABINET'S CONTROL OF THE COMMONS 309

CHAPTER XVIII

THE COMMONS' CONTROL OF THE CABINET 327

CHAPTER XIX

THE FORM AND CONTENTS OF STATUTES 356

CHAPTER XX

PRIVATE BILL LEGISLATION 367

CHAPTER XXI

THE HOUSE OF LORDS 394

CHAPTER XXII

THE CABINET AND THE HOUSE OF LORDS 405

CHAPTER XXIII

THE CABINET AND THE COUNTRY 423

PART II. THE PARTY SYSTEM

CHAPTER XXIV

PARTY AND THE PARLIAMENTARY SYSTEM 435

CHAPTER XXV

PARTY ORGANISATION IN PARLIAMENT 448

CHAPTER XXVI

NON-PARTY ORGANISATIONS OUTSIDE OF PARLIAMENT 458

CHAPTER XXVII

LOCAL PARTY ORGANISATIONS 466

CHAPTER XXVIII

ACTION OF LOCAL ORGANISATIONS 491

CHAPTER XXIX

THE RISE AND FALL OF THE CAUCUS THE LIBERALS 501

CHAPTER 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

[Sidenote: 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 hismind the word "constitution" meant a perfectly definite thing to which nothing in England conformed Anexamination of modern governments shows, however, that the thing is by no means so definite as he hadsupposed

[Sidenote: A Document Embodying the Chief Institutions.]

The term "constitution" is usually applied to an attempt to embody in a single authoritative document, or asmall group of documents, the fundamental political institutions of a state But such an attempt is rarely, ifever, completely successful; and even if the constitution when framed covers all the main principles on whichthe 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, forexample, 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 LouisPhilippe; and it is noteworthy that this same principle, on which the whole political system of the Englishself-governing colonies is based, appears neither in the British North American Act nor in the AustralianFederation Act The first of those statutes, following the English tradition, speaks of the Privy Council forCanada,[1:2] but never of the cabinet or the ministers; while the Australian Act, going a step farther, refers tothe Queen's Ministers of State,[1:3] but ignores their responsibility to the parliament.[2:1] Again, in theUnited States, the provision that the electoral college shall choose the President has become so modified inpractice that the electors must vote for the candidate nominated by the party to which they owe their ownelection 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 isconcerned, the constitution of England differs from those of other countries rather in degree than in kind Itdiffers in the fact that the documents, being many statutes, are very numerous, and the part played by custom

is unusually large

[Sidenote: Not Changeable by Ordinary Legislation.]

[Sidenote: 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; andalterable 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 tobelong to the British Constitution quite as much as to some others The peculiar process of amendment, on theother hand, the separation of the so-called constituent and law-making powers, upon which Mr Bryce baseshis division of constitutions into rigid and flexible,[2:2] has had a long history and been much discussed; butalthough 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 ofthe French Charter of 1830.[3:2] The last Spanish constitution omits all provision for amendment, but onemay assume that if it lasts long enough to require amendment the changes will be made by ordinary legislativeprocess

From countries which can change their fundamental constitution by the ordinary process of legislation wepass 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 forthe 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 aninterval of twenty-one days, would not essentially change the nature of the constitution, and yet in theory itwould make that constitution flexible instead of rigid As it is, the fundamental laws are quite as much underthe control of the legislature in Prussia as they are in England.[3:3] This is almost equally true of France; foralthough the changes in her constitution are made by the National Assembly, composed of the two chamberssitting together, yet the Assembly can meet only after the two chambers have passed a concurrent resolution tothat 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 virtuallyunder the unrestricted control of the legislature

[Sidenote: The Distinction has Lost Practical Importance.]

The separation of constituent and law-making powers has been rendered of much less practical importance insome countries not only by making the process of amending the constitution more simple, but also by makingthe 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 wasintroduced in 1874, this distinction largely disappeared, and at the present day the differences between themethods of passing constitutional amendments and ordinary laws are comparatively slight In the case ofordinary laws a popular vote is taken only on the petition of thirty thousand citizens or eight cantons, and thepopular majority is decisive; whereas constitutional amendments must be submitted to the people whether apetition is presented or not, and for their ratification a majority vote in more than half the cantons as well as amajority 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 thelegislature, or that a general election shall take place before the amendment is finally adopted, or both Nowthe 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 thatissue, Parliament has received from the nation a mandate to make the change Such a doctrine does not affectthe 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 flexibleconstitutions, has also been somewhat effaced by extending the requirement of a special procedure to theenactment of certain classes of ordinary law Thus in the German Empire the only peculiar formality foramendments to the constitution is found in the provision that they are defeated by fourteen adverse votes inthe Bundesrath.[5:1] This gives Prussia with her seventeen votes a veto upon them, but she has also a veto inthe Bundesrath upon any measures affecting the army, the navy, customs-duties or excises.[5:2]

[Sidenote: Growing Variety in Written Constitutions.]