CHAPTER III

CONSTITUTIONAL DEVELOPMENT SINCE THE SEVENTEENTH

CENTURY

Elements of Stability and of Change. In its larger features, the framework of the English governmental system was substantially complete by the close of the seventeenth century. The limited monarchy, the ministry, the two houses of Parliament, and the courts of law then presented the same general appearance that they bear to-day. The fundamental principles, furthermore, upon which the government is nowadays operated were securely established. Laws could be made only by "the king in Parliament "; taxes could be levied only in the same manner; the liberty of the individual was protected by a score of specific and oft-renewed guarantees. In point of fact, however, the English constitution of 1689 was very far from being the English constitution of 1920. The overturn by which the last Stuart was driven from the throne not only marked the culmination of the revolution begun in 1640; it formed the beginning of a new era of change in which the governmental system was expanded, carried in new directions, and continuously readapted to fresh and changing conditions. At no time from William III to George V was there a deliberate overhauling of the political machinery as a whole. The American plan of holding specially chosen conventions to revise a constitution, or even to make a new one, is quite unknown to English practice. The changes were made gradually, cautiously, sometimes hardly consciously; and, save in occasional parliamentary enactments and judicial decisions, they rarely found expression in formal documents. Nevertheless, it is hardly too much to say that of the rules and practices which make up the working constitution of the United Kingdom to-day, almost all owe their form and character to developments of the past two hundred years. Much of the present machinery is also relatively new; indeed, whereas the great contribution of the seventeenth century was principles, that of the eighteenth and nineteenth centuries, as of the fourteenth and fifteenth, was institutions.

Before speaking of the characteristics of the constitution as a whole it will be well, therefore, to follow up the historical survey contained in the preceding chapter with an account of a few of the most important of these developments between 1689 and 1900. Equally weighty changes of more recent date will be described in succeeding chapters devoted to the governmental system as it now is.

The Diminished Power of the Sovereign. First may be mentioned the working out of those practical relationships between the king on the one hand and the ministers and Parliament on the other which enabled the two houses, acting through the ministers, to exercise complete and continuous control over the affairs of the nation. The Revolution of 1688, as has been shown, took from the sovereign once for all several prerogatives which had been in dispute. William III, however, was no figurehead, and the monarch was far from having been reduced to impotence. Understanding perfectly the conditions upon which he had been received in England, William none the less did not attempt to conceal his innate love of power. He claimed prerogatives which his Whig supporters were loath to acknowledge, and he habitually exercised in person, and with telling effect, the functions of sovereign, premier, foreign minister, and military autocrat. His successor, Anne, although far from aggressive, was not less attached to the interests of strong monarchy. It was only upon the accession of the Hanoverian dynasty, in 1714, that the bulk of those powers of government which the sovereign had hitherto retained slipped finally and completely into the grasp of the ministers and of Parliament. George I (1714-27) and George II (1727-60) were not the nonentities they have been painted, but, being alien alike to English speech, customs, and political institutions, they were not in a position to defend the prerogatives which they had inherited. Under George III (1760-1820) there was a distinct revival of the monarchical idea. The king, if obstinate and below the average intellectually, was honest, courageous, and ambitious. He gloried in the name of Englishman, and, above all, he was determined to recover for the sovereign some measure of the prestige and authority that his predecessors had lost. For a score of years the influence which he personally exerted upon government and politics exceeded anything that had been known since the days of William III. In 1780 the House of Commons gave expression to its appre1 On the constitution as it stood at the death of William III, see Maitland, Constitutional History of England, 281-329.

hension by adopting a series of resolutions, of which the first asserted unequivocally that "the influence of the crown has increased, is increasing, and ought to be diminished."

After the retirement of Lord North in 1782, however, the power of the sovereign fell off rapidly, and during the later portion of the reign, clouded by the king's insanity, all that had been gained for royalty was again lost. Under the Regency (1810-20) and during the reign of the reactionary and scandalsmirched George IV (1820-30) the popularity, if not the power, of the king reached its nadir. In the days of the genial William IV (1830-37) popularity was regained, but not power. The long reign of the virtuous Victoria (1837-1901) thoroughly rehabilitated the monarchy in the respect and affections of the British people; and the position thus recovered suffered no impairment at the hands of Edward VII and George V. As will be pointed out in another place, the influence which the. sovereign may wield, and during the past three quarters of a century has wielded, in the actual conduct of public affairs is by no means unimportant. But, as will also be emphasized, that influence is only the shadow of the authority which the king once even as late as the opening of the eighteenth century possessed. It is largely personal rather than legal; it is more frequently asserted within the domain of foreign relations than within that of domestic affairs; and as against the will of the nation expressed through Parliament it is powerless.1

Ascendancy of the House of Commons. A second transformation wrought in the working constitution since 1689 is the shifting of the center of gravity in Parliament from the House of Lords to the House of Commons, together with a notable democratization of the representative chamber. In the days of William and Anne the House of Lords was distinctly more dignified and influential than the House of Commons. During the period covered by the ministry of Robert Walpole (172142), however, the Commons rose rapidly to preponderance. One cause was the Septennial Act of 1716, which extended the life of a parliament from three years to seven, thus increasing the continuity and attractiveness of membership in the Commons. Another was the growing importance of the power of the purse

1 On the monarchical revival under George III, see D. A. Winstanley, Personal and Party Government; a Chapter in the Political History of the Early Years of the Reign of George III, 1760-1766 (Cambridge, 1910). An excellent appraisal of the status of the crown throughout the period 1760-1860 is presented in T. E. May, Constitutional History of England since the Accession of George III, edited and continued by F. Holland (London, 1912), I, Chaps. i-ii.

as wielded by the Commons. A third was the fact that Walpole, throughout his extended ministry, sat steadily as a member of the lower chamber and made it the scene of his remarkable activities.

The establishment of the supremacy of the Commons as then constructed did not, however, mean the triumph of popular government. It was but a step toward that end. The House of Commons in the eighteenth century was composed of members elected in the counties and boroughs under a severely restricted franchise, or appointed outright by closed corporations or by individual magnates, and it remained for Parliament during the nineteenth century, by a series of memorable statutes, to extend the franchise successively to groups of people hitherto politically powerless, to reapportion parliamentary seats so that political influence might be distributed with some fairness among the voters, and to regulate the conditions under which campaigns should be carried on, elections conducted, and other operations of popular government undertaken. Of principal importance among the pieces of legislation by which these things were accomplished are the Reform Act of 1832, the Representation of the People Act of 1867, the Ballot Act of 1872, the Corrupt and Illegal Practices Act of 1883, the Representation of the People Act of 1884, and the Redistribution of Seats Act of 1885. The nature of these measures, and of their notable successor, the Representation of the People Act of 1918, will be explained presently.1

Rise of the Cabinet. The period under review is farther important because it produced the most remarkable feature of the English constitutional system of to-day, namely, the cabinet; and not merely the cabinet as an institution, but the cabinet system of government. The creation of the cabinet was a gradual process, and both the process and the product are unknown to the letter of English law. It is customary to regard as the immediate forerunner of the cabinet the so-called " cabal " of Charles II, i.e., the shifting group of persons whom that sovereign selected from the Privy Council and took advice from informally, in lieu of the Council as a whole, just as the Privy Council itself had been detached from the Great Council of Norman-Angevin times. In point of fact, the practice of referring important questions to a specially chosen group, or inner circle, of the large and unwieldy Council antedated Charles II; both the practice and the name " cabinet council" existed under 1 See Chap. VIII. See, however, p. 103.

2

Charles I.1 Not, however, until after 1660 were the conditions right for the cabinet to acquire a definite place in the machinery of government; not until after that date would it have been possible for the cabinet system to become the central fact and chief glory of the constitution.

Development under Charles II did not go far. On the theory that the "great number of the Council made it unfit for the secrecy and dispatch that are necessary in many great affairs," the king drew round himself a half-dozen ministers who had his confidence and who also were influential with Parliament. To these he referred the great questions that came up, and to them he looked to procure from Parliament the legislation that he desired. These ministers, the Earl of Clarendon (who for a time belonged to the group) tells us, "had everyday conference with some select persons of the House of Commons, who had always served the king, and upon that account had great interest in that assembly, and in regard of the experience they had and of their good parts were hearkened to with reverence. And with those they consulted in what method to proceed in disposing the house, sometimes to propose, sometimes to consent to, what should be most necessary to the public; and by them to assign parts to other men, whom they found disposed and willing to concur in what was to be desired: and all this without any noise, or bringing many together to design, which ever was and ever will be ingrateful to Parliaments, and, however it may succeed for a little time, will in the end be attended by prejudice."

Herein may be discerned the germ of the later cabinet system: a single, small group of the king's principal ministers, now giving collective advice to the sovereign, now introducing and urging forward legislation that the "Government" desired. However, the system itself did not yet exist. The king chose his ministers with no necessary consideration of the political complexion or the wishes of Parliament; practically, if no longer theoretically, these ministers were responsible, not to Parliament or the nation, but to the king himself. Far from recognizing in the little ministerial group an institution that might be utilized to bring the king under still farther restraint, the leaders of liberal thought attacked it as being an agency of intrigue in the sovereign's interest; and the name cabinet" (arising from the king's habit of receiving the members in a small private room, or cabinet, in the palace) first came into use as a term of reproach.

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1E. I. Carlyle, "Committees of Council under the Early Stuarts," in Eng. Hist. Rev., Oct., 1916.