results are commonly right. The fact being that all abstract propositions in politics are at best approximations, and an attempt to reason from them usually magnifies the inaccuracy. But in England the institutions being empirical have resulted from experience, although men have often tried to explain them afterwards by a somewhat artificial and incongruous process of reasoning. In this sense French political principles may be said to be the more logical, the English government not the theories about it — the more scientific. It is more important, therefore, to describe the organs of the English government and their relations to one another than to consider the traditional principles that have been supposed to underlie the system. But the very nature of the English government renders it peculiarly difficult to portray. /As the laws that regulate its structure are overlaid by customs which moderate very greatly their operation without affecting their meaning or their validity, it is necessary to describe separately the legal and customary aspects of the constitution. It is almost unavoidable to pass in review first the legal organisation of each institution, and then its actual functions. Such a process is sometimes tedious, especially for a person already familiar with the subject, but an attempt has been made in the following pages to separate as far as possible the dry legal details from a discussion of the working forces, so that the former may be skipped by the judicious reader.

The Title to the Crown.

PART I. CENTRAL GOVERNMENT

CHAPTER I

THE CROWN

POLITICAL liberty and romance in English history are both bound up with the shifting fortunes of the throne. The strong hand of the Norman and Angevin kings welded the whole country into a nation, and on that foundation were built the solid structures of a national Common Law, a national Parliament, and a long series of national statutes. When in the fulness of time the Crown had accomplished its work of unification, it came into conflict with Parliament, and after a series of convulsions, in which one king lost his head and another his throne, political evolution resumed its normal course. The House of Commons gradually drew the royal authority under its control. But it did so without seriously curtailing the legal powers of the Crown, and thus the King legally enjoys most of the attributes that belonged to his predecessors, although the exercise of his functions has passed into other hands. If the personal authority of the monarch has become a shadow of its former massiveness, the government is still conducted in his name, and largely by means of the legal rights attached to his office. With a study of the Crown, therefore, a description of English government most fittingly begins.

Ever since 1688, when James II., fleeing in fear of his life, "withdrew himself out of the kingdom, and thereby abdicated," the title to the Crown has been based entirely upon parliamentary enactment. At the present day it rests upon the Act of Settlement of 1700,' which provided that, in default of heirs of William and of Anne, the Crown should pass to the Electress Sophia, and the heirs of her

1 12-13 Will. III., c. 2.

body, being Protestants. Sophia was the granddaughter of James I., through her mother, wife of the Elector Palatine; and while not his nearest heir, was the nearest who was a Protestant.

Succession.

The rules of descent are in the main the same as those The Rules of for the inheritance of land at Common Law.' That is, the title passes to the eldest son; or, if he is not living, through him to his issue, male or female, as if he had himself died upon the throne. If the first son has died without issue, then to, or through, the eldest son who is living, or has issue living; and in default of any sons living, or leaving issue, then to, or through, the eldest daughter. The rule is, however, subject to the qualification that any one who is, or becomes, a Catholic is excluded from, and forfeits, the right to the Crown, which then passes to the next heir. In order to insure a test that will make this last provision effective, the sovereign is obliged to take an oath, abjuring the Catholic religion, in words which have proved offensive to members of that faith. After the accession of Edward VII., therefore, but before his coronation, an effort was made to modify the form of the oath, and a bill was introduced into the House of Lords for that purpose; but it was not then found possible to arrange a phrase satisfactory to all parties, and the bill was dropped.

of the

Sovereign.

In other monarchies permanent provision has been made Incapacity by law for the possible incapacity of the monarch, whether by reason of infancy or insanity. But this has never been done in England. Each case has been dealt with as it arose, and usually after it has arisen, so that, in default of any person competent to give the royal assent to bills, Parliament has been driven into the legal absurdity of first passing a regency bill to confer such a power upon a regent, and then directing the Chancellor to affix the Great Seal to a commission for giving assent to that bill. Until recent times it was also thought necessary to appoint officers, Lords Justices.

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

C

The Powers

of the Crown.

The

Prerogative.

or others, to exercise the royal powers when the sovereign went out of the kingdom; but with the rapidity of modern travel and communication this has become unnecessary, and it has not been done since the accession of Queen Victoria.

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.

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 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

1

1 "Law of the Constitution," 355.

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 circumscribed by any document is more indefinite, and capable of expanding or contracting with the progress of the suns.

All legislative power is vested in the King in Parliament; Legislative that is, in the King acting in concert with the two Houses. Power. Legally, every act requires the royal assent, 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,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 Coke, "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." 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

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. 'Coke's Reports, XII., 76.