ment but no min istry; statesmen of the Revolution failed to meet the the change which the revolution had made in the house of commons had made another change necessary; and that other parliamen- change had not yet taken place. There was parliamentary tary govern- government; but there was no ministry." 1 There were only ministers "distributed not unequally between the two great parties," who as political opponents "were perpetually caballing against each other, haranguing against each other, moving votes of censure on each other; and, as a natural consequence, the temper of the house of commons was wild, ungovernable, and uncertain." 2 How to remove this fatal evil arising out of the lack of power upon the part of the cabinet to act as a unit with the majority of the popular chamber, in which the real difficulty; sovereignty was vested, was the question of questions whose answer the statesmen of the Revolution left to those who came after them. In the course of time the mighty problem, incapable, no doubt, of an instantaneous and dogmatic solution, was finally worked out through the establishment of the two fundamental principles upon which the executive government of the British empire now reposes: first, that the select committee of the privy council known as the cabinet shall be comprinciples; posed only of ministers bound together by party ties for the support of a definite political programme in which they must all agree; second, that the ministers who compose this compact political unit shall hold office no longer than they can control a majority of the house of commons. The remarkable fact is, that this complete transformation in the character and functions of the cabinet, which involved a revolution in the internal mechanism of the constitution, has been brought about without any change in its outward forms, and without the enactment of any positive law whatever. As it is all-important of any posi- to clearly indicate the means by which this marvellous change was effected, the attempt will be made to unfold the subtile process actually employed in a separate paragraph. finally solved through establish ment of two funda mental change brought about, without enactment tive law, through a understand From what has now been said, the fact appears that the set of tacit modern ministerial system, through whose silent growth the ings which sovereignty of the British empire has been transferred from tion made the king to the house of commons, is the fruit of the final necessary; triumph won by parliament over the monarchy in the Revolu tion of 1688.8 The Revolution settled the principles which the Revolu 1 Macaulay, vol. ii. p. 451. 8 See above, pp. 417, 418. which the which has made the great change inevitable, and then left it to time. to press them to their ultimate conclusion, through a set of things of tacit understandings of which the positive law knows nothing, positive and of which there is no written memorial. No such body as nothing; the cabinet is known to English law; no such office as that of prime minister is recognized by any statute; there is no legal provision which requires the king to appoint ministers of whom the house of commons approves, or to dismiss ministers of whom it does not approve; the law knows nothing of the collective responsibility of ministers; it knows nothing of their duty to resign, or to appeal to the country, when they are rebuked by an adverse vote of the popular chamber. Of the the cabinet, existence of the privy council the law is aware, but of the inner no legal circle of the privy council, called the cabinet, it knows abso- existence, lutely nothing. The meetings of this inner circle are secret, and its proceedings, which are highly confidential, are not even recorded. From a strictly legal standpoint the cabinet is a mere phantom which passes between the parliament and the crown, impressing the irresistible will of the one upon the other. And yet, from a political and practical standpoint, the the maincabinet is the mainspring of the modern constitutional system. the modern So long, and only so long, as the royal authority is wielded in constituobedience to the will of the majority of the house of commons does the machinery of government continue in motion. The unwritten and conventional code of tacit understandings out of which the ministerial system has been slowly evolved, stitution as and from which it derives moral and political as distinguished distin guished from legal authority - has, within the last two centuries, grown from writup by the side of the older code of written constitutional law from which it must be sharply distinguished.1 At the end of the Revolution of 1688 the written code had reached its com- embodied pletion; at that time the Great Charter, the Petition of Right, documents; the Bill of Rights, and the Act of Settlement, when taken together, defined the prerogatives of the crown, the privileges of parliament, and the rights of the subject with about as much 1 "We now have a whole system of political morality, a whole code of precepts for the guidance of public men, which will not be found in any page of either the Statute or the Common Law, but which are in practice hardly less sacred than any principle embodied in the Great Charter or in the Petition of spring of tion; conven tional con ten code in certain 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 tween the constitu to the legal charkingship acter of established; 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 changed its practical working.1 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 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 1 "The code of our unwritten constitution has, like all other things, grown up bit by bit, and for the most part, silently and without any acknowledged author.... The beginning may be placed in the reign of William the Third, the first time when we find any thing like a ministry in the modern Freeman, Growth of the Eng. Const., p. 122. sense." 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 conventional all 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. unconstitu illegal ; ministers to 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; 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 Having now defined: first, the nature of the ministerial sysprocess of tem as it existed prior to the Revolution of 1688; second, the change actually advance during the reigns of William William disposed to continue the old system: 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 constitu and 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 disposi tion 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 as his own first minister, taking his colleagues in about equal 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 1693 did he accept Sun derland's advice to form a Whigs alone; 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. |