Nothing is more natural than to put the exercise of different kinds of power in the hands of different organs of government; and in every government there is a certain amount of such distribution, just as there is of necessity a certain amount of distribution on a geographical basis. One reason for a functional distribution is practical convenience. The tasks of government are so numerous and onerous that they must be divided among many hands. A second consideration is the security of the public interests. No single governmental organ or group of organs, it is urged, should be endowed with so much power that it can become tyrannical; powers must be distributed among various agencies, which can be set to watch and check each other.

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There are two ways in which this functional distribution may be accomplished. It may be ordained in the constitution under which a government operates, and therefore be beyond the control of the government itself. Or it may be left to be determined by the government, on such lines as it deems desirable. In the one case we have a government of a separation of powers"; in the other, a government of a "union of powers." This distinction is, however, of legal rather than practical importance. There will always be some separation; and it is a curious fact that the state in which separation is perhaps carried farthest, i.e., England, is almost the only one of importance which is organized legally on the principle of a union of powers. The cardinal feature of the English political system is the unlimited authority of Parliament. This body is free to keep in, or to take into, its own hands the exercise of any and all powers that it chooses and to distribute the remaining ones how and where it likes. All powers, accordingly, are, legally, united in it. Practically, however, it reserves to itself only the legislative function. It has never shown any inclination to take over executive functions, much less to busy itself with administration. The judiciary is notably independent. And while it is true that the same group of men, the cabinet ministers, act as the leaders in legislation, preside over the administrative services, and have custody of the executive powers of the crown - so that there may be said to be a personal union of powers these dignitaries are always careful to keep their activities and relationships in the three capacities essentially distinct. This combination of functions in the same hands makes for harmony and expeditiousness without destroying the advantages that arise from a clear perception and application of the principle of

organic separation; therein, indeed, lies the great strength of the English system of government.

The United States, on the other hand, affords an example of a state whose government is legally a government of "separation of powers," yet practically is less fully organized according to that principle than is the English. The framers of the federal constitution, acting in the light of their own experience, and deeply affected by the ideas set forth in John Locke's Two Treatises of Government, Montesquieu's Spirit of Laws, and other political writings which were widely read in the eighteenth century, evolved a governmental system whose basic principle is the separation of executive, legislative, and judicial powers. Provisions for such separation were incorporated in the constitution itself; so that, unlike the situation in England, the separation is not a matter for the determination of the government. The authors of the new organic law had no intention, however, to put any branch of the government in a position of such independence that it could usurp authority or disturb the equilibrium. Hence they interposed a series of checks and balances which caused the executive branch to become partly legislative in function and the legislative branch partly executive in function; while they made no direct provision for an administrative branch at all. The curious consequence is that, although legally a government of separate powers, the government of the United States in reality operates rather less in accordance with that principle than does the government of England.

CHAPTER V

THE CROWN

HAVING observed the main aspects of the English constitution - its antiquity, its diversity of origins, its flexibility, and its elusiveness- we come now to consider the actual governmental system that operates under it. We may best begin with the great institutions that stand at the head and hold the system together, namely, kingship, the ministry, and the cabinet. Parliament, which in the final analysis is the most important part of the system, will be duly considered in later chapters.

Contrasts of Theory and Fact. The government of the United Kingdom is in ultimate theory an absolute monarchy, in form a limited, constitutional monarchy, and in actual character a democratic republic. At its head stands the sovereign, who is at the same time the supreme executive, the source of all law, the fountain of justice and of honor, the "supreme governor" of the Church, the commander-in-chief of the army and navy, the conservator of the peace, parens patriae and guardian of the helpless and the needy. In law, all land is held, directly or indirectly, of him. Parliament exists only by his will. Those who sit in it are summoned by his writ, and the privilege of voting for a member of the lower chamber is only a franchise, not a right independent of his grant. The sovereign never dies; there is only a demise of the crown, i.e., a transfer of regal authority from one person to another, and the state is never without a recognized head.

These assertions express with substantial accuracy the ultimate, historic theory of the place of the crown in the governmental system; for many centuries they were fully and literally true. Nowadays they have little or no practical bearing. The king is the supreme executive only in name; he has very little to do with the composition of Parliament, and nothing to do except in form with its sessions and proceedings; he occupies the throne only by national sufferance expressed through parliamentary enactment; he has no control over the army and very little over the Church; he makes no laws, levies no taxes, hears no cases, and renders no decisions. The crown is vastly important,

and its powers are extensive and steadily increasing; but the sovereign has receded into the background. How crown and sovereign, which once were identical, became separated, what the present difference between them is, and what place each fills in the governmental system will be taken up after we shall have described the more external aspects of the position which the monarch occupies.

1

Title and Succession to the Throne. Since the Revolution of 1688-89 tenure of the English throne has been based exclusively upon the will of the nation as expressed in parliamentary enactment. The statute under which the succession is regulated to-day is the Act of Settlement, dating from 1701. It provided that, in default of heirs of William III and of Anne, the crown and all prerogatives thereto appertaining should be, remain, and continue to the most excellent Princess Sophia, and the heirs of her body, being Protestants." Sophia, a granddaughter of James I, was the widow of a German prince, the Elector of Hanover; and although in 1701 she was not first in the natural order of succession, she was first among the surviving heirs who were Protestants. It was in accordance with this piece of legislation that, upon the death of Anne in 1714, the throne fell to George I, son of the German Electress. The present sovereign, George V, is the eighth of the Hanoverian dynasty. It would, of course, be entirely within the power of Parliament to repeal the Act of Settlement and to bestow the crown elsewhere; indeed, Parliament could, if it wished, abolish kingship altogether. Under the established rules of descent the sovereign's eldest son, who bears the title Prince of Wales,3 succeeds when a vacancy arises. If he be not alive, the in

1 The text of the Act of Settlement is printed in Stubbs, Select Charters, 528531, and Adams and Stephens, Select Documents, 475-479. As safeguards against dangers which might conceivably arise from the accession of a foreign-born sovereign the act stipulated (1) that no person who should thereafter come into possession of the crown should go outside the dominions of England, Scotland, or Ireland without consent of Parliament, and (2) that in the event that the crown should devolve upon any person not a native of England the nation should not be obliged to engage in any war for the defense of any dominions or territories not belonging to the crown of England, without consent of Parliament.

2 After the outbreak of the Great War in 1914 the designation "Hanoverian dynasty" was formally discarded and the name "Windsor dynasty" was adopted in its stead. For a century and a quarter the sovereign of Great Britain was also the ruler of Hanover. At the accession of Queen Victoria in 1837, however, the union ended, because the law of Hanover forbade a woman to ascend the throne of that country. A. W. Ward, Great Britain and Hanover; Some Aspects of the Personal Union (Oxford, 1899).

This title was created by Edward I in 1301. It carries no governmental authority.

heritance passes to his issue, male or female. If there be none, the succession devolves upon the late sovereign's second son, or upon his issue.

No Catholic may inherit, nor any one marrying a Catholic; and the act of 1701 prescribed that the sovereign should in all cases "join in communion with the Church of England as by law established." If after his accession the sovereign should join in communion with the Church of Rome, profess the Catholic religion, or marry a Catholic, his subjects would be absolved from their allegiance. It is required, furthermore, that the sovereign shall take at his coronation an oath abjuring the tenets of Catholicism. Until 1910 the phraseology of this oath, formulated in days when ecclesiastical animosities were still fervid,' was offensive not only to Catholics but to temperateminded men of all faiths. An act of Parliament, passed in anticipation of the coronation of George V, made it, however, less objectionable. The new sovereign is now required merely to declare "that he is a faithful Protestant and that he will, according to the true intent of the enactments which secure the Protestant succession to the throne of the Realm, uphold and maintain the said enactments to the best of his power according to law."

The age of majority of the sovereign is eighteen. The constitutions of most monarchical states make provision for a regency in case of the sovereign's minority or incapacity. English practice, on the contrary, has been to provide for such contingencies when they arise. A regency can be created and a regent designated only by Parliament. Parliamentary enactments, however, become operative only upon receiving the assent of the crown, and it has sometimes happened that the sovereign for whom it was necessary to appoint a regent was incapable of performing any governmental act. In such a situation there has usually been resort to some legal fiction to save appearances. A Regency Act of 1811 defines the limits of the regent's powers and sets up safeguards for the interests of both the sovereign and the nation.2

1 The words to be employed were originally prescribed in the Act for Establishing the Coronation Oath, passed in the first year of William and Mary. For the text see Robertson, Statutes, Cases, and Documents, 65-68. See A. Bailey, The Succession to the English Crown (London 1879).

2 For the text of the Regency Act, as passed in view of the incapacitation of George III, see Robertson, Statutes, Cases, and Documents, 171-182. There is an excellent survey of the general subject in May and Holland, Constitutional History of England, I, Chap. iii.