The Government of England Part 2

[Sidenote: The Powers of the Crown.]

The authority of the English monarch may be considered from different points of view, which must be taken up in succession; the first question being what power is legally vested in the Crown; the second how much of that power can practically be exercised at all; the third how far the power of the Crown actually is, or may be, used in accordance with the personal wishes of the King, and how far its exercise is really directed by his ministers; the fourth, how far their action is in turn controlled by Parliament. The first two questions, which form the subject of this chapter, cannot always be treated separately, for it is sometimes impossible to be sure whether a power that cannot practically be exercised is or is not legally vested in the Crown. An attempt to make use of any doubtful power would probably be resisted, and the legality of the act could be discussed in Parliament or determined by the law courts; but it is very rare at the present day that any such attempt is made. There are powers that have been disputed, or fallen into disuse, and that no government would ever think of reviving; and thus the question of law never having been settled, the legal right of the Crown to make use of them must remain uncertain.

[Sidenote: The Prerogative.]

The authority of the Crown may be traced to two different sources. One of them is statutory, and comprises the various powers conferred upon the Crown by Acts of Parliament. The other source gives rise to what is more properly called the prerogative. This has been described by Professor Dicey[18:1] as the original discretionary authority left at any moment in the hands of the King; in other words, what remains of the ancient customary or Common Law powers inherent in the Crown. The distinction is one not always perfectly easy to draw, for many parts of the prerogative have been regulated and modified by statute, and in such cases it is not always clear whether the authority now exercised is derived from statute or from the prerogative. Nevertheless the distinction is often important, because where the powers have been conferred by Parliament the Crown acts by virtue of a delegated authority which lies wholly within the four corners of the statute, and exists only so far as it is expressly contained therein; while the prerogative not being circ.u.mscribed by any doc.u.ment is more indefinite, and capable of expanding or contracting with the progress of the suns.

[Sidenote: Legislative Power.]

All legislative power is vested in the King in Parliament; that is, in the King acting in concert with the two Houses. Legally, every act requires the royal a.s.sent, and, indeed, the Houses can transact business only during the pleasure of the Crown, which summons and prorogues them, and can at any moment dissolve the House of Commons. But it is important to note that by itself, and apart from Parliament, the Crown has to-day, within the United Kingdom,[19:1] no inherent legislative power whatever.

This was not always true, for legislation has at times been enacted by the Crown alone in the form of ordinances or proclamations; but the practice may be said to have received its death-blow from the famous opinion of Lord c.o.ke, "that the King by his proclamation cannot create any offence which was not an offence before, for then he may alter the law of the land."[19:2] The English Crown has, therefore, no inherent power to make ordinances for completing the laws, such as is possessed by the chief magistrate in France and other continental states. This does not mean that it cannot make regulations for the conduct of affairs by its own servants, by Orders in Council, for example, establis.h.i.+ng regulations for the management of the Army, or prescribing examinations for entrance to the civil service. These are merely rules such as any private employer might make in his own business, and differ entirely in their nature from ordinances which have the force of law, and are binding quite apart from any contract of employment.

Power to make ordinances which have the force of law and are binding on the whole community is, however, frequently given to the Crown[20:1] by statute, notably in matters affecting public health, education, etc., and the practice is constantly becoming more and more extensive, until at present the rules made in pursuance of such powers--known as "statutory orders"--are published every year in a volume similar in form to that containing the statutes. Some of these orders must be submitted to Parliament, but go into effect unless within a certain time an address to the contrary is pa.s.sed by one of the Houses, while others take effect at once, or after a fixed period, and are laid upon the tables of the Houses in order to give formal notice of their adoption. A fuller description of these orders must, however, be postponed to the chapters that deal with Parliament. It is only necessary here to point out that in making such orders the Crown acts by virtue of a purely delegated authority, and stands in the same position as a town council.

The orders are a species of subordinate legislation, and can be enacted only in strict conformity with the statutes by which the power is granted; and being delegated, not inherent in the Crown, a power of this kind does not fall within the prerogative in its narrower and more appropriate sense.

[Sidenote: Executive Power.]

The Crown is at the head of the executive branch of the central government, and carries out the laws, so far as their execution requires the intervention of any national public authority. In fact all national executive power, whether regulated by statute, or forming strictly a part of the prerogative, is exercised in the name of the Crown, and by its authority, except when directly conferred by statute upon some officer of the Crown, and in this case, as we shall see, it is exercised by that officer as a servant of the Crown, and under its direction and control. Legally some of the executive powers are indeed vested in the Crown in Council--that is, in the King acting with his Privy Council--but as the Council has no independent authority, and consists, for practical purposes, of the princ.i.p.al ministers appointed by the Crown, even these powers may be said to reside in the Crown alone.

[Sidenote: Appointments to Office.]

All national public officers, except some of the officials of the Houses of Parliament, and a few hereditary dignitaries whose duties are purely ceremonial,[21:1] are appointed directly by the Crown or by the high state officials whom it has itself appointed; and the Crown has also the right to remove them, barring a small number whose tenure is during good behaviour. Of these last by far the most important are the judges, the members of the Council of India, and the Controller and Auditor General, no one of whom has any direct part in the executive government of the kingdom.[21:2] Now the right to appoint and remove involves the power to control; and, therefore, it may be said in general that the whole executive machinery of the central government of England is under the direction of the Crown.

[Sidenote: Other Powers under the Prerogative.]

The Crown furthermore authorises under the sign manual the expenditure of public money in accordance with the appropriations made by Parliament, and then expends the money. It can grant charters of incorporation, with powers not inconsistent with the law of the land, so far as the right to do so has not been limited by statute; but in consequence of the various reform acts, munic.i.p.al corporation acts, and local government acts, no charter conferring political power can now be created except in pursuance of statute, while even commercial companies usually require privileges which can be given only by the same authority.[22:1] The Crown grants all pardons, creates all peers, and confers all t.i.tles and honours. As head of the Established Church of England it summons Convocation with a license to transact business specified in advance. It virtually appoints the archbishops, bishops and most of the deans and canons, and has in its gift many rectors.h.i.+ps and other livings.[22:2] As head of the Army and Navy it raises and controls the armed forces of the nation, and makes regulations for their government, subject, of course, to the statutes and to the pa.s.sage of the Annual Army Act. It represents the empire in all external relations, and in all dealings with foreign powers. It has power to declare war, make peace, and conclude treaties, save that, without the sanction of Parliament, a treaty cannot impose a charge upon the people, or change the law of the land, and it is doubtful how far without that sanction private rights can be sacrificed or territory ceded.[22:3]

[Sidenote: Executive Powers under Statutes.]

Just as Parliament has often conferred legislative authority upon the Crown, so it has conferred executive power in addition to that possessed by virtue of the prerogative. I do not refer here to the cases where a statute creates new public duties to be performed directly by the Crown and confers upon it the authority needed for the purpose. Such powers, although statutory, are exercised in the same way as those derived from the prerogative. I refer to statutes that regulate the duties or privileges of local and other bodies, and give to the Crown, not a direct authority to carry out the law, but a power of supervision and control. Statutes of this kind have become very common during the last half century in relation to such matters as local government, public health, pauperism, housing of the working-cla.s.ses, education, tramways, electric lighting and a host of other things. Even without an express grant of authority, supervisory powers have often been conferred upon the Crown by means of appropriations for local purposes which can be applied by the government at its discretion, and hence in accordance with such regulations as it chooses to prescribe. This has been true, for example, of the subsidies in aid of the local police, and of education. By such methods the local authorities, and especially the smaller ones, have been brought under the tutelage of the Crown to an extent quite unknown in the past.

[Sidenote: Wide Extent of the Powers of the Crown.]

All told, the executive authority of the Crown is, in the eye of the law, very wide, far wider than that of the chief magistrate in many countries, and well-nigh as extensive as that now possessed by the monarch in any government not an absolute despotism; and although the Crown has no inherent legislative power except in conjunction with Parliament, it has been given by statute very large powers of subordinate legislation. "It would very much surprise people," as Bagehot remarked in his incisive way, "if they were only told how many things the Queen could do without consulting Parliament . . . Not to mention other things, she could disband the army (by law she cannot engage more than a certain number of men, but she is not obliged to engage any men); she could dismiss all the officers, from the General Commanding-in-Chief downwards; she could dismiss all the sailors too; she could sell off all our s.h.i.+ps of war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She could make every citizen in the United Kingdom, male or female, a peer; she could make every parish in the United Kingdom a 'university'; she could dismiss most of the civil servants; she could pardon all offenders. In a word, the Queen could by prerogative upset all the action of civil government within the government."[24:1] We might add that the Crown could appoint bishops, and in many places clergymen, whose doctrines were repulsive to their flocks; could cause every dog to be muzzled, every pauper to eat leeks, every child in the public elementary schools to study Welsh; and could make all local improvements, such as tramways and electric light, well-nigh impossible.

[Sidenote: Powers that have been Lost.]

Great as the prerogative is to-day, it was, in some directions, even more extensive in the past, and men are in the habit of repeating the phrases derived from that past after they have lost their meaning. This is done by writers who are not under the slightest misapprehension in regard to the actual legal authority of the Crown. It is the habit, for example, to speak of the Crown as the fountain of justice, and even an author so learned and accurate as Todd repeats Blackstone's statement that "By the fountain of justice, the law does not mean the author or original, but only the distributor. Justice is not derived from the king, as from his free gift, but he is the steward of the public, to dispense it to whom it is due. He is not the spring, but the reservoir, from whence right and equity are conducted by a thousand channels to every individual."[24:2] Now apart from public prosecution by the state, which is less common in England than elsewhere, and the use of the King's name in judicial process, the only legal connection of the Crown with the distribution of justice to-day lies in the appointment of the judges; and to call it on that account the reservoir of justice is merely fanciful. There was a time when the Crown was really the fountain or reservoir of justice, when it might fairly have been said to administer justice by deputy. It created the Common Law courts, and after the growth of civilisation had produced more refined and complex ideas of justice it received pet.i.tions for the redress of wrongs not recognised before, and established new courts to deal with them. Stubbs has compared the process to that of the sun throwing off a series of nebulous envelopes, which rolled up into compact bodies, but left the old nucleus of light to a.s.sert its vitality, unimpaired by successive emanations.[25:1] In this way the courts of equity arose to give relief in cases where there was no remedy by the strict rules of the Common Law, while the Star Chamber performed an a.n.a.logous function in criminal matters. This last tribunal came to be used as a political engine under the Stuarts, and was abolished by statute[25:2] early in the struggle with Charles I. With the fall of the Stuarts the power of the Crown to create new courts came to an end altogether. In 1689 the Bill of Rights declared the "Court of Commissioners for Ecclesiastical Causes, and all other Commissions and Courts of a like Nature," illegal, and since that time an Act of Parliament has been necessary to create any new court of justice in England.

The Crown has been deprived in the same way of other powers once possessed or claimed under the prerogative. The Bill of Rights, for example, declared illegal the suspending or dispensing with laws, and the maintenance of a standing army in time of peace without the consent of Parliament. Some powers have, from long disuse, become obsolete and have been lost; such as the right to confer on boroughs the privilege of electing members to the House of Commons;[25:3] and the power to create life peers with votes in the House of Lords.[25:4] Other powers again, although legally unimpaired, have become obsolete in practice, and can no longer be exerted. The ill.u.s.tration commonly given of this is the right of the Crown to withhold its a.s.sent to a bill pa.s.sed by Parliament,--popularly called, or miscalled, the veto. The right has not been exercised since the days of Queen Anne; but it may not be gone so completely beyond revival as is generally supposed. It could, of course, be used only on the advice of the ministry of the day, and under ordinary circ.u.mstances a ministry willing to withhold the royal a.s.sent to a bill would be bound to treat the pa.s.sage of that bill by the House of Commons as a ground for resignation or dissolution. One can imagine, however, a case where after a bill has pa.s.sed the Commons the ministry should resign, and the House of Lords should insist on pa.s.sing the bill in spite of the opposition of the new cabinet. It would be rash to a.s.sert that in such a case the royal a.s.sent would not be withheld.

Something of the kind very nearly occurred in 1858, when the ministry threatened to advise the Queen to withhold her a.s.sent to a private bill unless the Lords gave permission to the Board of Works to appear before the private bill committee and oppose the plans.[26:1]

[Sidenote: Powers of the Crown exercised by Ministers.]

Since the accession of the House of Hanover the new powers conferred upon the Crown by statute have probably more than made up for the loss to the prerogative of powers which have either been restricted by the same process or become obsolete by disuse. By far the greater part of the prerogative, as it existed at that time, has remained legally vested in the Crown, and can be exercised to-day; but it is no longer used in accordance with the personal wishes of the sovereign. By a gradual process his authority has come more and more under the control of his ministers, until it is now almost entirely in the hands of the cabinet, which is responsible to Parliament, and through Parliament to the nation. The cabinet is to-day the mainspring of the whole political system, and the clearest method of explaining the relations of the different branches of the government to each other is to describe in succession their relations with the cabinet.

FOOTNOTES:

[16:1] 12-13 Will. III., c. 2.

[17:1] Except, of course, that the eldest of several sisters succeeds instead of all having equal rights as co-parceners.

[18:1] "Law of the Const.i.tution," 355.

[19:1] The statement is made with this limitation because the Crown has always had inherent authority to legislate directly for Crown colonies acquired by conquest; but if the Crown once grants a representative legislature to such a colony without reserving its own legislative authority, it surrenders that authority over the colony forever. See Jenkyns, "British Rule and Jurisdiction Beyond the Seas," 4-6, 95; Campbell _vs._ Hall, Cowp., 204.

[19:2] c.o.ke's Reports, XII., 76.

[20:1] Or more strictly to the Crown in Council.

[21:1] Such as the hereditary Earl Marshal and Grand Falconer.

[21:2] On the power of removal from an office held during good behaviour, and on the effect of the provision that the three cla.s.ses of officers mentioned above may be removed upon the address of both Houses of Parliament, see Anson, "Law and Custom of the Const.i.tution," II., 213-15. The references to Anson are to the 3 Ed. of Vol. I. (1897); the 2 Ed. of Vol. II. (1896).

[22:1] Todd, "Parl. Govt. in England," 2 Ed. (1887), Ch. xiv.

[22:2] See the later chapter on The Church.

[22:3] _Cf._ Anson, "Law and Custom," II., 297-99; Dicey, "Law of the Const.i.tution," 393. Heligoland was ceded to Germany by treaty in 1890, subject to the a.s.sent of Parliament, which was given by 53-54 Vic., c.

32.

[24:1] "English Const.i.tution," 2 Ed. (Amer.), Introd., 31.

[24:2] Todd, "Parl. Govt. in England," I., 570.

[25:1] "Const. Hist. of England," 4 Ed., I., 647.

[25:2] 16 Car. I., c. 10.

[25:3] It may be maintained that the right, if not already lost by disuse, was by implication, though not expressly, taken away by the Reform Acts of 1832, 1867 and 1885, which created new boroughs and disfranchised old ones.

[25:4] See the debate in the Lords on the Wensleydale case. Hans., 3 Ser., CXL., _pa.s.sim_.

[26:1] The Victoria Station and Pimlico Railway Bill, Hans., 3 Ser., CLI., 586-89, 691-93, 797-98. See Todd, II., 392.

CHAPTER II

THE CROWN AND THE CABINET

It is not within the province of this book to trace the process whereby the King became irresponsible both at law and before the nation, while the responsibility for his acts became transferred to his ministers. The story has been told by others far better than the writer could tell it, and the object here is only to note the results of that process in the existing const.i.tution.

[Sidenote: The King can do no Wrong at Law;]

The doctrine that "the King can do no wrong" had its beginnings as far back as the infancy of Henry III., and by degrees it grew until it became a cardinal principle of the const.i.tution. Legally it means that he cannot be adjudged guilty of wrong-doing, and hence that no proceedings can be brought against him. He cannot be prosecuted criminally, or, without his own consent, sued civilly in tort or in contract in any court in the land.[27:1] But clearly if the government is to be one of law, if public officers like private citizens are to be subject to the courts, if the people are to be protected from arbitrary power, the servant who acts on behalf of the Crown must be held responsible for illegal conduct from the consequences of which the King himself is free. Hence the principle arose that the King's command is no excuse for a wrongful act, and this is a firmly established maxim of the Common Law in both civil and criminal proceedings.[27:2] To prevent royal violations of the law, however, it is not enough to hold liable a servant who executes unlawful orders, if the master still has power to commit offences directly. A further step must be taken by restraining the Crown from acting without the mediation of a servant who can be made accountable, and for this reason Edward I. was informed that he could not make an arrest in person.[28:1] But, as the kings and queens are not likely to be tempted into personal a.s.saults and trespa.s.ses, the principle that they can act only through agents has had little importance from the point of view of their liability at law, although it is a matter of vital consequence in relation to their political responsibility.