The Origin and Growth of the English Constitution: The after-growth of the constitution

ship of the lower house, vast increase in that of the upper; under the Tudors
about sixty temporal peers, who were generally exceeded in number by the
spiritual lords, prior to their reduction to twenty-six, through destruction of
greater monasteries; lavish creations made by the Stuarts; Act of Union added
sixteen Scotch peers; Scotch peerage perpetuated to elect them; at the end of
reign of George II. peerage numbered about one hundred and seventy-four

Increase of the peerage under George III.; policy inaugurated by the king and

expanded by Pitt; a great change for the better wrought by the addition of

new elements; twenty-eight Irish peers added in 1801; to sit for life; four spirit-

ual peers to sit by rotation; scheme to reduce Irish peerage to one hundred

members

Fusion of Scotch and Irish peerages with English; English lords resisted the

tendency in duke of Hamilton's case; precedent set aside by the judges in

1782; cases of Abercorn and Queensbury; since 1793 all Scotch peers have

been permitted to vote for representatives; Scotch peerage will soon be

absorbed; rapid advance of the process; extinction and absorption of Irish

peerage; nationalizing effect of the process

Political status of the upper house since reform bill of 1832; effect of Revolution

of 1688 upon literary theory of the constitution; fusion of the executive and

legislative powers; difficulty growing out of this new conception of sovereignty;

lower house can coerce upper through peer-creating power; ministry resigned

when crown refused to "swamp the house of lords;" lords ceased to be a

coördinate branch of the legislature; Earl Grey's statement; house of lords as

a revising and suspending chamber

Creation of life peerages successfully resisted; right not exercised for four cen-

turies with certain, exceptions; Coke's claim that the crown could create peer-

ages "for life, in tail or in fee;" patent to Baron Wensleydale, “for and during

the term of his natural life;" referred to committee of privileges; adverse

report confirmed by the lords; accepted as a settlement of the question; such

creations only made by statutory authority.

Corporate identity of upper house traceable through a thousand years; its ele-

ments constantly changing; creations during the last four reigns; only ninety-

two of the existing peerages older than the accession of George III.; peers no

longer vote by proxy, but three still constitute a quorum, any two of whom may

pass or reject a law; spirited proceedings on great occasions

5. The Cabinet, and its Relations to the Crown and the Legislature:

transfer of sovereignty to commons worked no outward change in the constitu-

tion; cabinet continued as agent of the new sovereign; does any real authority

still reside in the old? bedchamber question of 1839; Peel's demand of the

queen; her refusal to comply and its result; Peel's victory in 1841; understand-

ing that has since governed

What is due to the sovereign and prime minister from the minister of foreign

affairs; memorandum delivered to Lord Palmerston in 1850; his offer to com-

ply; his second submission; his conflict with the cabinet in 1851 by reason of

statement to French ambassador; removed from office for exceeding his

authority; premier, with consent of the crown, controls all state affairs; right

of dismissal; present practice as to drafts of despatches

549

Maintenance of royal dignity and household; parliamentary control over the

revenue since the Revolution; "civil list ", defined; principle of appropriation
settled; during the reigns of Anne and George I. expenditures exceeded appro-
priations; contingent arrangement upon accession of George II.; George III.,
for a fixed sum, surrendered all claim to hereditary revenue; William IV. sur-
rendered all independent sources of revenue for a civil list of £510,000; parlia-
ment's absolute control over civil list of present sovereign.
Royal revenue originally independent of legislative grants; of what it originally
consisted; how the distinction between king's private estate and folkland dis-
appeared; feudal theory that all land was originally held of the crown; in
Queen Anne's reign, waste of land revenues of the crown checked by statute;
limitations then imposed on royal grants; complete surrender finally made by
George III.; terra regis converted into folkland; sovereign now empowered to
deal with property like any other individual

Origin of cabinet offices and method of their distribution; in theory, sovereign

personally chooses premier, and he his colleagues; in fact, sovereign's right to

choose premier is very limited; number of cabinet settled by premier; officers
of state who usually compose the cabinet; some of the offices very ancient;
hereditary offices with diminishing duties; a few have survived, while others
have been dissolved; four officers who usually enter into all cabinets

British finances managed by a department that arose out of dissolution of the

office of lord treasurer; since the accession of George I. its duties have been

vested in a board consisting of a first and junior lords and chancellor of the

exchequer; Bank of England the depository; sources of the annual income

known as "consolidated fund;" nearly four fifths of it derived from permanent

acts; only one fifth derived from annual acts; comptroller and auditor-general;

his duty to see that revenue is paid out according to law; his report to Pub-

lic Accounts Committee; all unexpended balances surrendered to exchequer

Two secretaries appointed in reign of Henry VIII.; pass into secretaries of state;

Robert Cecil first to receive the title; a first and second secretary after the

Revolution; in 1782 office as a whole finally divided into a home and foreign

department

Out of the office of lord high admiral has grown the court of admiralty and depart-
ment for government of the navy; president of the Local Government Board;
every member of the cabinet must be a privy councillor; "cabinet" and "min-
istry" not synonymous; distribution of cabinet ministers between the houses;
prime minister must take some post recognized by law; usually that of first lord
of the treasury; sometimes that of secretary of state.

Relations of the cabinet with the legislature; its cardinal duties; necessity for

unity among its members; excepting an open question," every member bound

by every act or declaration of his colleagues; as the production of the cabinet,

speech from the throne is subject to liberties of debate; since the Revolution

there has been but one address from the throne.

559

Demand of aid and supply for fiscal year; promise of estimates; no money can
be voted except upon proper demand; how the speech from the throne is
answered; amendments to the address immediately in order; when committees
of supply and ways and means appointed; ordinary sessional estimates pre-
sented in three parts; when they should be presented; these and all other esti-
mates passed on by committee of supply; financial year ends 31st of March;

duty of the committee of ways and means; to which chancellor of exchequer

addresses financial statement called "The Budget; " origin of the "Consoli-

dated Fund;" all moneys disbursed through permanent appropriation acts, or

through an annual appropriation act that closes the financial business of the

year

560

562

No private member can propose an imperial tax, but can propose any bill for a
local purpose upon which no minister should give an opinion

When questions can be put to ministers and other members; the rule adopted in

1854; government can be asked as to its intentions; answer may be refused

upon ground of public interest; no question can be put that reflects upon crown

or sovereign; question to members outside of the cabinet; how limited . . 563

The offence known as obstruction defined; down to 1877 rules failed to provide

for closure of debate; urgency resolutions of 1881 and 1882; standing orders of

1887 now governing the subject .

564

6. Surviving Functions of the Privy Council: remains of its judicial authority

as exercised by its judicial committee; its administrative functions; powers of

crown and council have flourished and declined together; its numbers unlim-

ited; tenure of a privy councillor, 6 Anne, c. 7; qualification and duties; oath

of office

564

566

7. Great Acts of the Reformed Parliaments: how the franchise was with-
drawn from the main body of the people; self-elected vestries; self-elected
municipal councils; condition of things at Plymouth, Portsmouth, and Ipswich;
government of counties by justices appointed by the crown; system of local
self-government ceased to be either popular or adequate; its reformers called
upon to keep three things steadily in view.

Reform of the municipal system; corporations preserved as political engines; after

reform bill of 1832, borough system reorganized on a broad popular basis;

Royal Commission of 1833; Municipal Corporations Act, 1835; its leading

features; after forty-two amendments, whole subject recast and condensed into

Municipal Corporations Act, 1882

. 567

Municipal Corporations Acts not extended to the City of London; it retains its

ancient constitution and boundaries; governed by three assemblies; charter

granted by William the Norman; charter granted by John; chief legislative and

executive organ, court of common council; City of London must be distin-

guished from vast surrounding district known as the "Metropolis; " its area and

population

Growth of greater London; lack of municipal organization in outlying districts;

selfishness of the old corporation; registry of vital statistics in 1838; Metro-

politan Management Act, 1855; functions of vestries and district boards;

Metropolitan Board of Works; Sir William Harcourt's measure of 1884; Local

Government Act, 1888; London County Council and its functions; act of 1888

an imperfect one; Local Government Bill, 1894.

· 568

569

Decline of the parish; the parish as the agent of the state under the great act of

Elizabeth (1601); results of that act as they appeared in 1834; system remod-

elled by the act of 1834; the Poor Law Board; board of guardians; how the

parish as such was affected by the new statutory system; a central bureau at

London; how the civil parish was separated from the ecclesiastical; effect of

the new police system upon parish constables

• 571

Sir J. Hobhouse's Vestry Act, 1831; attempt to restore ancient popular constitu-

tion of the parish; act permissive; repealed as to the Metropolis; has failed to

check tendency of parish to become obsolete; still a unit for taxation and

electoral purposes

. . 573

Declining importance of county government; period of its greatest influence;

great assemblies of the shire gave way to the courts of assize; decline in the

judicial powers of the sheriff; ancient county court and its functions; how

decline was advanced by rise of justices of the peace; administrative work cast

on quarter sessions by statute; result of the process of centralization; present

functions of sheriff largely formal

· 573

As military head of the county, sheriff superseded by lord lieutenant; revival of
the ancient local earldom; effect of the growth of a standing army on county
militia; lord lieutenant as honorary head of county magistracy; how the chan-
cellor usually appoints justices of the peace

575

576

Coroners still elected in the ancient form; office conferred for life, subject to

removal; a coroner's limited functions

Decline of the ancient police system; liability of every man to serve as constable
practically without compensation; ancient system superseded by that of paid
policemen; Peel's act of 1829 creating Metropolitan Police Force; subject to
supreme control of the Home Secretary; acts of 1839 creating like force for
City of London, and paid county constabulary; paid constables for the towns;
act of 1856 requiring paid policemen for all England; control of Home Secre-
tary over the county force; City of London police

Quarter sessions superseded in part by county councils; Local Government Act,

1888; motive for its enactment; its great defect; Local Government Act, 1894;

its leading provisions; "the hierarchy of local authorities is complete; " enfran-

chisement of married women

· 577

Subdivision of counties for judicial and parliamentary purposes; jurisdiction of

ancient county courts limited to forty shillings; new system of county courts

organized under act of 1846; their simple procedure; trial by jury; geographi-

cal areas; all England divided, regardless of county lines, into 491 districts,

which are grouped in circuits; county cut up into divisions for electoral pur-

poses; "single seat system"

Origin of the system of national education; annual grant first applied through two

religious societies; how Education Department of privy council was consti-

tuted; Elementary Education Act of 1870; scheme embodied in it; duty of

Education Department when local authorities fail; sources of the school fund;

how the rate is levied in boroughs and parish; settlement of the religious diffi

culty; a conscience clause;" how far the system is compulsory; act of 1876

providing for School Attendance Committees; Mr. Mundella's act of 1880; act

of 1891 providing for "free education"

579

• 580

Creation of a central Board of Health under the act of 1848; how local boards

created in municipal boroughs, excepting the Metropolis; Public Health Act of

1875 the present sanitary code; functions of original Board of Health finally

vested in Local Government Board; how the boundaries of rural sanitary dis-

tricts are defined; inadequacy of parish organization to demands of modern

sanitary science

. 582

The Local Government Board; inadequacy of ancient local machinery forced
creation of new sanitary agencies; their vast and complex organization forced

583

586

588

creation of a controlling central authority; "power may be localized, but know-
ledge to be most useful must be centralized;" Poor Law Board, 1847; Local
Government Board, 1871; general scope of its powers and duties
Transfer of personal obligations of citizenship to paid officials; the case as stated
by Dr. R. Gneist; his predictions based upon an unfounded assumption; the
new building raised upon the old groundwork
Reform of the judicial system; creation of new county courts; how the curia
regis was subdivided; three courts of common law; courts of chancery, admi-
ralty, probate, and divorce; the conflict between law and equity; first effort
made in 1850 to blend the two systems in one court; Report of Judicature
Commission, 1869; Judicature Act of 1873; Supreme Court of Judicature; the
High Court of Justice; how constituted; the court of appeal; appellate juris-
diction of lords; judges composing court of appeal

When Judicature Acts of 1873 and 1875 took effect; consolidated court took

possession of its new home in 1883; its code of procedure

1591

Summary of the growth of the modern ministerial system; Revolution of 1688

shifted the centre of gravity of the state from the crown to the popular cham-

ber; the new doctrine, at first but little more than a political theory, finally

established through the widening of the electorate from which the lower house

draws its authority; a mighty transformation with but little change in outward

forms; the real change embodied in the functions of the cabinet as a committee

of the house of commons; success of George III. in retarding the growth of

the new system; during a part of his reign it existed neither in theory nor in

fact; the conception of sovereignty that then prevailed; only by contrasting