Arbitrium. It is wholly repugnant to the spirit of the English Constitution for any great act of state to be performed by the unaided ingenuity of King or Minister. All such acts are expected to be performed in accordance with the advice of, or at least after consultation with, councillors who are recognised as the constitutionally appropriate advisers for the matter in hand.1 In legislation this is plain. So too in the judicial function. Parliament and the Jury spring from the same root, and the idée mère in both is the elimination of any personal or arbitrary element by a fair sampling of Public Opinion. In trials the adjudication on matters of fact is exercised by ordinary every-day Public Opinion, while matters of law are finally decided by a consultative body which consists of the sages of the law. But the executive function, and especially the conduct of Foreign Affairs, may appear at first sight to constitute an exception to the otherwise consultative nature of the English Constitution. The books lay down that the King has the prerogative of making war and peace. 2 Some would say this doctrine was true, to be sure, of a past phase of the Constitution, but is no longer of anything but antiquarian interest. But if we accept the historic conception of a constitution, the doctrine in question will hardly thus be satisfactorily disposed of. If we are conscious that at the present day as a matter of fact the Queen does not decide questions of war and peace, it is important for us to know how this result has been arrived at. Has it been by a series of successful encroachments on what was once the province of Arbitrium? Or had Arbitrium. never really any province here at all, and has there been no other change than a change in the organs through which Public Opinion has at different times acted in executive matters ? If we look a little below the surface, the exception to the 1 With reference to the phrase "The Spirit of the Constitution," it may be remarked, that according to one view the Constitution" is nothing but a compendious expression for the mode in which government is in fact, for the time being, carried on. Opposed to this is the transcendental conception, which makes the constitution consist in a set of maxims of the highest dignity and authority, which bind the sovereign, and cannot be abrogated without bringing the constitution to an end. Different from either of these is the historical view of a constitution, which traces a real connection between forms which the constitution assumes at different epochs, and refers them all to general principles, expressive of the traditions and ingrained habits and beliefs of the nation. It is from this, the historical point of view, that we may speak of the "Spirit of the Constitution." (Compare Mr. Sheldon Amos, Fifty Years of the English Constitution, 1830-1880, pp. 6-13.) 2 Blackstone, i. p. 257 (cf. 252-3). otherwise consultative character of the Constitution, which the existence of the Royal Prerogative seemed to afford, turns out to be an apparent exception only. There has always been some recognised consultative body intrusted with the function of advising the King on administrative matters, and matters of war or peace; and if the King acted independently of it he acted unconstitutionally. Thus the King's Prerogative is by no means the same thing as the Monarch's Arbitrium. 2 The distinction between "Arbitrium" and "Prerogative corresponds pretty much to the distinction drawn by Allen 1 between the real and the ideal king, and by Kinglake between the personal and the genuine "State" sovereign. The action of the real king, or it may be of a minister affecting to act for him encroaching to himself the royal power" in the phrase of our ancestors 3-is Arbitrium. Prerogative denotes matters belonging to the constitutional executive as distinguished from those which must be regulated by act of Parliament. The real king is the man who fills the office for the time being; the ideal king is that man regarded as the personification of the wisdom and collective determination of his councillors. Sovereignty is vested in him something as the legal estate in trust property might be vested in a trustee, to be used in accordance with the discretion of appointed guardians, and not at his own discretion. The distinction is well brought out by an old writer whom Allen quotes, and who comments on the doctrine that the king cannot be a minor, thus: There is no infancy in the crown, though in the person; because the wisdom of the crown is not intended to rest in one person, but in the counsels of many, who are equally wise, whether the person of the king be old or young.—Royal. Prerog. p. 31. It may be convenient to use the phrases "The Crown" and "The Monarch" to denote the powers of the ideal and the real king respectively. Again, the word "Throne" seems appropriate when we desire to speak of royalty as an institution, and the word "Court" for the personal influence of the monarch together with that of persons surrounding him, other than his constitutional advisers. 1 Allen on The Royal Prerogative. 2 Invasion of the Crimea, vol. vii. p. 18 (Cab. Ed.). 3 Sec Articles of Impeachment of the Earl of Suffolk and others in 1388. Parliamentary History, vol. i. p. 178-9. May it not fairly be said of the various epochs of our constitution, that the consultative body in its ideal operation has been fitted to form, express, and represent such Public Opinion as could exist, for the time being? The Privy Council, in its ideal operation at all events, was a representative body, in the sense that it comprised the notable men who would bring to the discussion of the matter in hand whatever was to be said from every point of view. In a comparatively simple state of society, a monarch would have little difficulty in knowing whom to summon to his council if he were honestly desirous to take the course to which the best deliberate opinion of his people would point.1 The transition from the Privy Council to a system of Cabinet Government in which the Ministry holds office during the pleasure of the House of Commons, makes the House of Commons itself the consultative body for the large and broad issues of policy, while a consultative function is left to the members of the Cabinet on matters on which the House cannot be consulted beforehand, and which are not determined by the general principles on which the Cabinet have already agreed. Thus the transition from the Privy Council to the Cabinet in one of its aspects marks the accession to the consultative body of a great body of popular opinion, which had been unrecognised before; and in this aspect it resembles the reforms by which the House of Commons itself has from time to time been rendered representative of new strata of opinion as these have risen into importance. § 4. The Sovereignty of Public Opinion in the English Constitution, generally assumed in the theory of Cabinet Government. At the time when Mr. Disraeli's ministry succeeded Mr. Gladstone's, in 1874, the sovereignty of Public Opinion had long been taken for granted. Mr. Bagehot, in a book which was recognised as the classic authority on the modern form of Cabinet 1 The constitutional king, gathering the best public opinion after this fashion, has his analogue in the "Clerk of the Meeting" under the practice of the Society of Friends. In that body, questions about which there is a difference of opinion are not decided by counting of heads, but the clerk "gathers the sense of the meeting." After hearing those who express an opinion of their own accord, it may be that the clerk will request the opinion of others whose words will carry weight. He then, without any division being taken, declares the sense of the meeting. This is a method which pre-supposes the most perfect good faith and singleness of purpose on the part of all concerned. If opinions are to be weighed, instead of counted, the scales must be held true. Government as developed in the English Constitution, and which, as he tells us, applies to the Palmerstonian era,1 affirmed it in unmistakable terms. The ultimate authority in the English Constitution is a newlyelected House of Commons. No matter whether the question upon which it decides be administrative or legislative; no matter whether it concerns high matters of the essential constitution or small matters of daily detail; no matter whether it be a question of making a war or continuing a war; no matter whether it be the imposing of a tax, or the issuing of a paper currency; no matter whether it be a question relating to India, or Ireland, or London, a new House of Commons can despotically and finally resolve . when sure of the popular assent and when freshly elected, it is absolute-it can rule as it likes, and decide as it likes. Eng. Const. pp. 227, 228. Mill had said much the same thing at about the same time.2 Moreover such doctrines as these were by no means confined to the philosophers-they had become the common-places of plain men. To return for a moment to the perfection of Cabinet Government, as described by Bagehot; he speaks expressly of what may be called the organic connection existing between the Cabinet and the House of Commons, a connection which makes both of these bodies organs of the very same Public Opinion. He pointed out that The efficient secret of the English Constitution may be And he showed how from this fusion resulted the sovereignty of Public Opinion, acting through its constitutional organ, the House of Commons. So also his view seems to imply the necessity of a similar organic connection between the House of Commons and the constituencies as the normal and healthy condition of the Constitution. He speaks of a House of Commons "when sure of the popular assent and when freshly elected." In this way he avoids. the question on which some writers have exercised themselves, 3 1 Introduction to 2nd Edition, page 6. See Mill's Representative Government (People's Edition), p. 11. 3 Compare Sir G. C. Lewis's Use and Abuse of Political Terms, p. 101; and Austin's Province of Jurisprudence, vol. i. p. 253. the question whether sovereignty resides in the electors or in the elected body. In Bagehot's view they both form parts of one organic whole. If either the Cabinet and the House, or the House and the constituencies, have lost touch, why then it is time that the means which the Constitution provides for re-establishing it, should be brought into play. When the system of Cabinet Government is working healthily, however much of detail may be left to the individual minister, every decision is within the broad lines laid down by a Consultative body, and ultimately harmonises with the drift of Public Opinion. The connection which binds the executive to Parliament, and through it to the constituencies, is one which is founded on an ascertained general agreement of view, rather than upon an imperative mandate. Hence the provisions for the interchange of sentiment, not only between ministers and the House, but also between the House and the constituencies, are of very great moment. Sir Erskine May has pointed out the immense importance of the system of Parliamentary reporting: What a revolution has it accomplished! . . . Living and acting in public, Parliament under a free representation has become as sensitive to political opinion as a barometer to atmospheric pressure.-Const. Hist. Eng. vol. ii. p. 53. Parliamentary reporting informs opinion out of doors of the attitude of the House; and what is called "Agitation" is a method which out-of-door opinion takes to inform the House of its own attitude. In this light, agitation is the correlative of Parliamentary reporting; and within due limits it may be regarded as a normal incident of the healthy development of English Cabinet Government. Some of its processes are necessary to keep up the organic connection between Parliament and the constituencies, just as debate in Parliament is necessary to keep up the organic connection between the Cabinet and the House. But the constitutional organ may be sluggish in responding; perhaps it may refuse to act altogether; and then the efforts to stimulate it will increase in violence until agitation becomes nothing short of an attempt of Public Opinion to find another organisation for itself whereby it may somehow become effective. The phenomena described by the word "Agitation" are well known. People come together in large numbers to listen to |