CHAPTER III.

(1) This was the famous motion made by Sir Robert Peel against the Ministry of Lord Melbourne, and carried by a majority of one, June 4, 1841. See May’s Constitutional History, i. 158. Irving’s Annals of our Times, 86.

(2) This of course leaves to the Ministry the power of appealing to the country by a dissolution of Parliament; but, if the new Parliament also declares against them, it is plain that they have nothing to do but to resign office. In the case of 1841 Lord Melbourne dissolved Parliament, and, on the meeting of the new Parliament, an amendment to the address was carried by a majority of ninety-one, August 28, 1841. The Ministry therefore resigned.

(3) This is well set forth by Sir John Fortescue, De Laudibus Legum Angliæ, cap. 36: “Neque Rex ibidem, per se aut ministros suos, tallegia, subsidia, aut quævis onera alia, imponit legiis suis, aut leges eorum mutat, vel novas condit, sine concessione vel assensu totius regni sui in parliamento suo expresso.”

(4) How very recent the establishment of these principles is will be seen by anyone who studies the history of the reign of George the Third in the work of Sir T. E. May. Mr. Pitt, as is well known, kept office in defiance of repeated votes of the House of Commons, and at last, by a dissolution at a well-chosen moment, showed that the country was on his side. Such conduct would not be deemed constitutional now, but the wide difference between the constitution of the House of Commons then and now should be borne in mind.

(5) Though the command of the Sovereign would be no excuse for any illegal act, and though the advisers of any illegal act are themselves responsible for it, yet there would seem to be no way provided for punishing an illegal act done by the Sovereign in his own person. The Sovereign may therefore be said to be personally irresponsible.

(6) See Macaulay, iv. 435. It should not be forgotten that writers like Blackstone and De Lolme say nothing about the Cabinet. Serjeant Stephen supplies the omission, ii. 447.

(7) The lowly outward position of the really ruling assembly comes out in some degree at the opening of every session of Parliament. But it is far more marked in the grotesque, and probably antiquated, ceremonies of a Conference of the two Houses. This comes out most curiously of all in the Conference between the two Houses of the Convention in 1688. See Macaulay, ii. 660.

(8) See Note 56, Chapter ii.

(9) See Macaulay, iv. 437.

(10) “Ministers” or “Ministry” were the words always used at the time of the Reform Bill in 1831-1832. It would be curious to trace at what time the present mode of speech came into vogue, either in parliamentary debates or in common speech.

Another still later change marks a step toward the recognition of the Cabinet. It has long been held that a Secretary of State must always accompany the Sovereign everywhere. It is now beginning to be held that any member of the Cabinet will do as well as a Secretary of State. But if any member of the Cabinet, why not any Privy Councillor?

(11) In February 1854 Mr. Cayley moved for a “Select Committee to consider the duties of the Member leading the Government business in this House, and the expediency of attaching office and salary thereto.” The motion was withdrawn, after being opposed by Sir Charles Wood (now Viscount Halifax), Mr. Walpole, and Lord John Russell (now Earl Russell). Sir Charles Wood described the post of Leader of the House as “an office that does not exist, and the duties of which cannot be defined.” Mr. Walpole spoke of it as a “position totally unknown to the constitution of the country.” Yet I presume that everybody practically knew that Lord John Russell was Leader of the House, though nobody could give a legal definition of his position. A discussion then followed between Mr. Walpole and Lord John Russell on the nature of ministerial responsibility. Mr. Walpole said that “members were apt to talk gravely of ministerial responsibility; but responsibility there is none, except by virtue of the office that a Minister holds, or possibly by the fact of his being a Privy Councillor. A Minister is responsible for the acts done by him; a Privy Councillor for advice given by him in that capacity. Until the reign of Charles the Second, Privy Councillors always signed the advice they gave; and to this day the Cabinet is not a body recognised by law. As a Privy Councillor, a person is under little or no responsibility for the acts advised by him, on account of the difficulty of proof.” Lord John Russell “asked the House to pause before it gave assent to the constitutional doctrines laid down by Mr. Walpole. He unduly restricted the responsibility of Ministers.” ... “I hold,” continued Lord John, “that it is not really for the business the Minister transacts in performing the particular duties of his office, but it is for any advice which he has given, and which he may be proved, before a Committee of this House, or at the bar of the House of Lords, to have given, that he is responsible, and for which he suffers the penalties that may ensue from impeachment.”

It is plain that both Mr. Walpole and Lord Russell were here speaking of real legal responsibility, such responsibility as might be enforced by impeachment or other legal process, not of the vaguer kind of responsibility which is commonly meant when we speak of Ministers being “responsible to the House of Commons.” This last is enforced, not by legal process, but by such motions as that of Sir Robert Peel in 1841, or that of the Marquess of Hartington in June 1859.

I have made my extracts from the Spectator newspaper of February 11, 1854.

(12) We read (Anglia Sacra, i. 335) of Æthelric, Bishop of the South-Saxons at the time of the Conquest, as “vir antiquissimus et legum terræ sapientissimus.” So Adelelm, the first Norman Abbot of Abingdon, found much benefit from the legal knowledge of certain of his English monks (Chronicon Monasterii de Abingdon, ii. 2), “quibus tanta secularium facundia et præteritorum memoria eventorum inerat, ut cæteri circumquaque facile eorum sententiam ratam fuisse, quam edicerent, approbarent.” The writer adds, “Sed et alii plures de Anglis causidici per id tempus in abbatia ista habebantur quorum collationi nemo sapiens refragabatur.” But knowledge of the law was not an exclusively clerical accomplishment; for among the grounds for the election of King Harold himself, we find (de Inventione Sanctæ Crucis Walthamensis, p. 25, Stubbs) that one was “quia non erat eo prudentior in terra, armis strenuus magis, legum terræ sagacior.” See Norman Conquest, ii. 538, iv. 366, 478.

(13) On the growth of the lawyers’ theory of the royal prerogative, and its utter lack of historical standing-ground, I must refer once for all to Allen’s Inquiry into the Rise and Growth of the Royal Prerogative in England.

(14) See Norman Conquest, ii. 330.

(15) The history of this memorable revolution will be found in Lingard, iii. 392-405, and the legal points are brought out by Hallam, Middle Ages, ii. 214. He remarks that “In this revolution of 1399 there was as remarkable an attention shown to the formalities of the constitution, allowance made for the men and the times, as in that of 1688;” and, speaking of the device by which the same Parliament was brought together again, he adds, “In this contrivance, more than in all the rest, we may trace the hand of lawyers.” The official version entered on the rolls of Parliament by command of Henry will be found in Walsingham, ii. 234-238. Some care seems to be used to avoid using the name of Parliament in the account of the actual proceedings. It is said just before, “Rex perductus est Londonias, conservandus in Turri usque ad Parliamentum proximo celebrandum.” And the writs are said to have been sent “ad personas regni qui de jure debeant interesse Parliamento.” But when they have come together (“quibus convenientibus”) care seems to be taken to give the Assembly no particular name, till, in the Act of Richard’s deposition, the actors are described as “pares et proceres regni Angliæ spirituales et temporales, et ejus regni communitates, omnes status ejusdem regni repræsentantes;” and in the Act of Henry’s election they are described as “domini tam spirituales quam temporales, et omnes regni status.” In the Act of deposition Richard’s resignation of the Crown is recorded, as well as his particular crimes and his general unfitness to wear it, all which are classed together as reasons for his deposition. The actual formula of deposition runs thus:—“propter præmissa, et eorum prætextu, ab omni dignitate et honore regiis, _si quid dignitatis et honoris hujusmodi in eo remanserit_, merito deponendum pronunciamus, decernimus, et declaramus; et etiam simili cautela deponimus.” They then declare the throne to be vacant (“ut constabat de præmissis, et eorum occasione, regnum Angliæ, cum pertinentiis suis, vacare”). Henry then makes his challenge, setting forth that strange mixture of titles which is commented on in most narratives of the event, and the Estates, without saying which of Henry’s arguments they accept, grant the kingdom to him (“concesserunt unanimiter ut Dux præfatus super eos regnaret”). A more distinct case of deposition and election can hardly be found; only in the words which I have put in italics there seems a sort of anxiety to complete, by the act of deposition, any possible defect in Richard’s doubtless unwilling abdication.

The French narrative by a partisan of Richard (Lystoire de la Traison et Mort du Roy Richart Dengleterre, p. 68) gives, in some respects, a different account. The Assembly is called a Parliament, and the Duke of Lancaster is made to seat himself on the throne at once. Then Sir Thomas Percy “cria ‘Veez Henry de Lencastre Roy Dengleterre.’ Adonc crierent tous les seigneurs prelaz et _le commun de Londres_, Ouy Ouy nous voulons que Henry duc de Lencastre soit nostre Roy et nul autre.” For “le commun de Londres” there are other readings, “le commun,” “le commun Dangleterre et de Londres,” and “tout le commun et conseil de Londres.”

(16) It should be remembered that Charles the First was not deposed, but was executed being King. He was called King both in the indictment at his trial and in the warrant of his beheading.

(17) Monk raised this point in 1660. See Lingard, viii. 607.

(18) Lingard (viii. 612) remarks that at this particular moment “there was no court to influence, no interference of the military to control the elections.” The Convention may therefore be supposed to have been more freely elected than most Parliaments.

(19) The Long Parliament had dissolved itself, and had decreed the election of its successor. By the Act 13 Charles II. (Revised Statutes, i. 733) the Long Parliament is “declared and adjudged to be fully dissolved and determined;” but it is not said when it was dissolved and determined. See also Lingard, ix. 5; Hallam’s Constitutional History,