written code dependent for details and defini tions upon customary law; precision as an American constitution now defines the relative rights and duties of the governors and the governed. The written code contained in these four documents, like an American constitution contained in one document, did not pretend to be complete within itself, for details and definitions it depended, as an American constitution now depends, upon that strange mixture of tradition and precedent generally known as the English customary law. Down to the Revolution of 1688 the written code thus supplemented and explained by the cusno distinc- tomary law was the constitution. No distinction had yet been drawn between the constitution and the law. Any act which law and the failed to offend against some provision or principle either of tion down the written code or of the customary law could be in no sense Revolution; illegal. With that fact clearly in view it becomes easier to ex tion be constitu to the acter of kingship plain the nature of the conventional and extra-legal constitution which has grown up alongside of the written code, and which, without altering its outward form, has completely legal char changed its practical working. By the Bill of Rights the legal character of the kingship was fully recognized and reëstabas then relished with all the prerogatives inherent in the crown prior to established; the usurpations introduced by the Tudor and Stuart kings. After the Revolution settlement, as before, the king still possessed the absolute legal right to assemble, prorogue, and dissolve parliament, and to refuse his assent, as a coördinate branch. of the legislature, to any bill the two houses might enact. As the supreme executive he retained the control of foreign affairs through the sending and receiving of ambassadors, the contracting of treaties and alliances, and the making of war and peace. In the same capacity he acted at home as the general conservator of the peace, the guardian of the public health, the arbiter of commerce, and as the supreme head of the army and the fleet. As the fountain of justice he still appointed the judges, and prosecuted offenders whose crimes he alone could pardon after conviction. As the fountain of honor he could create peers, bestow titles, offices, and pensions, and erect corporations. As the head of the national church he could ap ventional preroga subject to point prelates, and prorogue, regulate, and dissolve all ecclesiastical synods and convocations, whose canons were valueless unless made by his leave and with his approval. And last and most of all he still possessed the legal right, after the Revolution as before, to appoint his own ministers and to dismiss them at his pleasure. But under the unwritten conventional constitution which has grown up alongside of the written code since that time, it is understood that the crown can neither appoint ministers of whom the house of commons does not approve, nor dismiss ministers of whom it does approve. And it is also understood that while such ministers are in office under conall the legal prerogatives of which the crown is possessed by constituvirtue of the written law shall be entirely subject to their direc- tion royal tion and control. By virtue of such understandings the king tives reigns and the ministers govern; and "the king can do no ministerial wrong," because all unwise and improper acts are those of his control; ministers, who can be promptly and sufficiently punished simply by a dismissal from office. Thus it is that the sovereign powers of the state are exercised by virtue of positive law through a political body whose existence that law does not recognize, and whose highest duties and responsibilities are neither defined in it nor punished by it. Out of that condition of things has grown the distinction, now well understood by English lawyers and statesmen, between the conventional constitution and the law, between acts which may be uncon- acts may be stitutional and yet not illegal. The cabinet ministers may, tional and individually or collectively, commit some breach of the written yet not law which may be in the strictest sense of the term an illegal act, for which they may be punished in the ordinary tribunals, or by the extraordinary process of impeachment in the high court of parliament. At the same time such ministers may commit a grossly unconstitutional act which in no sense of the term can be called illegal, and of which no cognizance can be taken in any court whatsoever. Such an offence would be committed should the ministers refuse to resign office after a vote of censure had been passed upon them in the house of commons. No court could compel them to resign, and yet no court their act would constitute the most highly penal offence that can compel could be committed against the modern constitution. The resign after best possible reason which can be given for the absence of any censure; unconstitu illegal; ministers to a vote of political method of coercion vested in house of legal method of punishment for such an act is that the house of commons holds in its own hands a political method of coercion which is at once summary and irresistible. When commons; the ministers under proper circumstances refuse to resign, the house can compel obedience by simply refusing to keep the machinery of government in motion. How far did the change actually advance during the reigns of William William disposed to continue the old system: Having now defined: first, the nature of the ministerial sysprocess of tem as it existed prior to the Revolution of 1688; second, the new character which it has assumed since that time; third, the means by which the change was gradually brought about through the readjustment of the vital parts of the constituand Anne? tional machinery under a set of tacit understandings of which the written law knows nothing, the attempt will be made to indicate, in view of the disposition to exaggerate it, just how far this process of change actually advanced during the reigns of William and Anne. Certain it is that the personal disposition of the Stadtholder king was to continue the old system of ministers without collective authority, for the reason that he considered himself more capable than any one around him not only of directing all matters relating to war, but also of conducting foreign affairs, always regarded as the personal function of the sovereign as the thinking head of the state.1 Besides, he was bitterly opposed to party government, which offered the only practical means by which ministers could be bound together as a political unit. Active and influential as the Whigs had been in securing him the crown, he was adyears as his verse to the idea of committing to them the exclusive control of the executive power; and for that reason he acted for years his own first minister, taking his colleagues in about equal 1693 did he consent to proportions from the leaders of both parties. Not until 1693 did William, under pressure arising out of the utter lack of power upon the part of his ministers to direct and control the cabinet of house of commons, agree to accept the advice of Sunderland, who induced him to abandon his position of neutrality between bitterly opposed to party govern ment; acted for own first minister; not until accept Sunderland's advice to form a Whigs alone; as 1 Though mainly occupied with military and foreign affairs, William's superior energy of character led him to meddle personally in the administration of various departments. When complaints reached him of delays in paying the troops, he would ride down to the Treasury and inquire into the cause, and wait until he saw the order issued which the public service required."— Hist. of Cabinets, Torrens, vol. i. p. 7. "William negotiated and concluded the Partition Treaty without the knowledge of the majority of his ministers."— Ibid., p. 20. party the two opposing parties, and to reconstitute the cabinet of Whigs, at that time the dominant party in parliament. So slowly was the suggestion carried out that a year elapsed before the new ministry thus formed upon a party basis was substantially complete; and not until the end of two years more was the last Tory removed from the council board. When that point was reached the Whigs, by the frequent assembling origin of of their supporters in the house of commons, originated that system of system of party organization which in its matured form has organizabeen adopted by all like bodies in the state.1 While the party vested with the control of the executive power was thus providing for its discipline as a whole, those members of it who formed the new ministry made it a rule to repel as a unit all why the attacks upon any of its members, a circumstance which led try was to their being known as the "Juncto," a term of reproach first called a employed in the time of Charles I.2 tion; new minis "Juncto." placemen nobles as the house of lords; During the year that preceded William's attempt to estab- Right of lish cabinet government in its modern form by the appointment to sit in of his advisers from the party dominant in the house of com- the houses; mons, that house passed a bill, which, if it had become law, would have rendered the entire scheme abortive by preventing a fusion between the executive and legislative powers. In the days when the great ministers of state were taken almost ex- great clusively from the nobles, who as the leaders of the nation were ministers in regarded as the hereditary councillors of the crown, nothing seemed more natural than they should sit with their brethren in the upper house and join with them in their legislative and judicial functions. But when the council through the decline in the influence of the nobles was gradually transformed from an independent body that stood as a bridle upon the royal authority into a corps of trained officials subject to the king's will and direction, its active duties passed, during the reigns of when the Henry VIII. and Elizabeth, more and more into the hands of passed to such commoners as "the Cromwells, the Sadlers, the Petres, question and the Cecils, who constitute the glory of the Tudor's rule." 3 arose as to Out of the introduction thus brought about of numerous com- to sit in the moners into the council, the question arose whether the great house; 1 Macaulay, vol. ii. pp. 453-457; Todd's Parl. Government, vol. i. pp. 232, 248, 249. 2 See above, p. 368. great offices commoners, their right lower earliest complaints great officials to sit in commons Edward and Eliza 1 officers of state and other privy councillors had the right to sit in the house of commons. Perhaps the earliest complaint against the against the practice is embodied in the statement that "in practice; Henry VII.'s time, and Henry VIII.'s, ministers of state, officers of the revenue, and other courtiers found an account in creeping, through boroughs, into the house of commons; and in a debate on placemen in parliament that took place in 1680 the statement was made that a certain act to relieve Henry VIII. of certain sums he had borrowed, though much opposed, passed "because the house was mostly the king's servants." 2 While it is impossible to determine precisely when the great officers of state and other privy councillors were first permitted permitted to sit in the lower house, it is clear that the practice was tolerated during the reigns of Edward VI., Mary, and Elizain reigns of beth; and when in 1614 the matter was made the subject of VI., Mary, debate in the house, no disposition was shown to disturb such as were then in possession of seats in that body.3 From that time down to the Revolution of 1688 it was the custom to permit those members of the house who were appointed to the great offices of state or to places of profit under the crown to retain their seats unless their employments required prolonged residence abroad, in which event new writs were sometimes issued to fill their places; and after the restoration of Charles II. the statement is expressly made that writs were issued to fill the places of such members of the house as were appointed to the bench. In 1614 it was resolved that "Mr. AttorneyGeneral Bacon [who had been appointed prior to his election] remain in the house for this parliament, but never any attorexcluding ney-general to serve in the lower house in future," a rule of exclusion that remained in force until 1670, when it was abolabolished; ished in favor of Sir H. Finch, who had been promoted from general the office of solicitor-general- the right of whose incumbent admitted; to sit had always been admitted to that of attorney-general. beth; practice continued down to Revolution, except in cases of long residence abroad; rule attorney general solicitor always 7 1 Gurdon, Hist. of Parls., vol. ii. p. issued. Commons' Journals, vol. i. p. |