1902 Encyclopedia > England > Government and Laws.

(Part 15)


Part 15. Government and Laws.

As England stands alone in the greatness of her wealth, the extent of her commerce, and the vastness of her manufactures, so also does she hold a unique place among nations as regards her government. Under the form of an hereditary monarchy, with restricted powers, the nation is actually governed by two Houses of parliament, whose laws, when assented to by the sovereign, form the statutes of the realm. It has been already remarked in the article CONSTITUTION AND CONSTITUTIONAL LAW that, in respect of her government, "England differs conspicuously from most other counties. Her constitution is to a large extent unwritten, using the word in much the same sense as when we speak of unwritten law. Its rules can be found in no written document, but depend, as so much of English law does, on precedent modified by a constant process of interpretation." One of the most thoughtful of modern political writers, the late Mr Walter Bagehot, sketched, in perhaps fewer words than any other, the nature of this unwritten and constantly modified constitution in its most recent aspect. "The efficient secret of the English constitution," he says, "may be described as the close union, the nearly complete fusion, of the executive and legislative powers. According to the traditional theory, as it exits in all the books, the goodness of our constitution consists in the entire separation of the legislative and executive authorities; but in truth its merit consist in their singular approximation. The connecting link is the Cabinet. By that new word we mean a committee of the legislature has many committee of the legislature has many committees, but this is its greatest. It uses for this, its main committee, the men in whom it has most confidence. It does not, it is true, choose them directly; but it is nearly omnipotent in choosing them indirectly." It is a striking illustration of the fact of the constitution of England being "unwritten" that the Cabinet, though universally and undisputedly admitted to represent the Government of the written law and the legislature. The names of the persons who compare the Cabinet fort he time being are ever official announced, for are there even any official records of its meetings, or of the resolutions which may have been come to at them by the members. Strangest of all, the depending for its existence of a majority of supporters in it, has never yet been formally recognized by any Act of Parliament.

Although the assumption of the executive by a committee of the legislature is comparatively modern date, forming as Lord Macaulay says, "the great English revolution of the 17th century," the supreme authority of parliament is of ancient date, forming a part of the common law of the realm. "The power and jurisdiction of parliament," Sir Edward Coke laid down the rule, "is so transcendent and absolute that it cannot be confined, either for causes or persons, within any bounds." With equally emphasis, Sir William Blackstone added that to a parliament "that absolute despotic power, which must on all governments reside somewhere, is entrusted by the constitution of these kingdoms." In constitutional fiction, parliament consist of three "estates of the realm," namely, first, the Lord’s Spiritual, secondly, the Lord’s Temporal, and thirdly, the Commons; but the more modern form of division is that into two Houses, described as the Upper and Lower, or that of the Lord’s and the Commons. (See PARLIAMENT.) Strictly speaking, a member of the Upper House is a parliamentary representative equally with one of the Lower House, but in ordinary language, representing, as often it does, great facts, the title of "member of parliament" is only given to members of the House of Commons.

The Upper House, or House of Lords, consists of a varying number of members as regards the representation of England, but fixed with respect to Scotland and Ireland. In the official "Roll of the Lords Spiritual and Temporal," issued at the commencement of the parliamentary session of 1878, the number of members of the Upper House was returned at exactly 500, the list comprising 5 members of the royal family, 2 archbishops, 21 dukes, 19 marquesses, 113 earls, 24 viscounts, 24 bishops, 248 barons, 16 Scottish representative peers, and 28 representative peers of Ireland. All the peers of England, as well as those whose patent of peerage is for the United Kingdom, have seats and votes in the House of Lords, but the peers of Scotland and Ireland are represented only by delegates, those for Scotland being elected for every new parliament and those for Ireland for life.

The Government, through the sovereign, has an unrestricted power for creating new peerages, which at times has been largely used for political purposes. During the reign of Queen Victoria, up to the end of 1877, there were created 151 new peerages under various administrations. The 151 peers so created form at present more than one-third of the House of Lords, deducting from its roll the spiritual and representative members. Nearly three-fourths of the existing peerages have been created since the accession of the House of Hanover.

The actual functions of the House of Lords, as a branch of the legislature, are not very revising faculty over all bills passed by the commons, except those relating to the public revenue and expenditure. As a rule, a very small number of peers take part in the work of a session, and the extremely limited attendance is signified by the rule that three members are sufficient to form a quorum in the Upper House, while there must be 40 in the Lower House. One of the reasons of non-attendance of the members of the House of Lords in former times was their special privilege of voting by proxy, which has now, however, fallen into disuse. Most of the sittings of the Upper House are not only very short, but irregular, the custom being to adjourn "during pleasure," which means that the lord chancellor, or the deputy speaker, may, in the exercise of his discretion, two other peers being present, take his seat on the woolsack, and order business to proceed at any hour during the day. Besides its legislative functions, the House is invested with high judicial powers, forming the supreme court of appeal in the realm.

If nominally inferior to the upper House, the Lower House of legislature, or House of Commons, stands above it in actual power and authority. It is a power constantly on the increase, and tending to absorb all others, having proved the most auspicious for Government.

"Whatever may have been the circumstances," says Dr Hearn, of Melbourne, in which led to the gradual formation of parliamentary government, the cause of its continuance is clear. In practical politics, as in every other art, the great test of excellence is success. But in at ever other art, the great test of excellence is success. But in at least British communities, the success of parliamentary government does not admit of doubt. As Edward I. found the supplies voted by the representatives of his burgesses more profitable than the tollages at which he assessed their constituents, so experience has shown to later sovereigns the great advantage to their government of our modern system. Where in former times the only remedy for misgovernment, real or supposed, was a change of dynasty, the evil is now corrected at no greater cost than that of a ministerial crisis. Where in former times serious evils were endured because the remedy was worse than the disease, even trivial inconveniences now excite universal, complaints, and meet with speedy remedy."

Although politically omnipotent, the House of Commons cannot prolong its own existence beyond seven years. The average duration of parliaments in the present century has been three years and eighth months, a term almost exactly coinciding with the average duration of Cabinets within the period. The following table grows the dates at which the parliaments of the United Kingdom—dating from the union of Great Britain with Ireland, which took effect on the 1st of January 1800—met and were dissolved:—


The shortest-lived House and Commons was the third of the United Kingdom, which existed only for four months and fifteen days, while the longest was the seventh, which sat six years one month and nine days, thus reaching nearly the extreme limit of age set to parliament by the constitution of the realm.

The constitution of the House of Commons, as framed by the Reform Bills of 1832 and 1867-68, is that of a body of 658 members, elected by nearly universal suffrage, but in very unequal electoral divisions. Under the English Reform Act of 1867, extended, with slight changes, to Scotland and Ireland in 1868, the franchise was given to all householders in boroughs and occupiers of lands or houses rated at no less than £12 in countries, thus admitting to the right of electing members of parliament the majority of the adult male population, with the sole exception of the class of agricultural labourers. The elections, under an Act passed in 1872, take place by secret vote and ballot. It appears from an annual return made by order of the House of Commons that, at the end of June 1877, the total number of its constituents in England and Wales amounted to 2,3777, 761, while in Scotland at the same date the number was 302,313, and in Ireland 231,265. The number of members returned, respectively, for the countries, boroughs, and universities of each of the three divisions of the United Kingdom, with the number of electors on the register, was as follows at the end of June 1877 :—


It is stated in a recent parliamentary return that, if the allotment of members of parliament to each of the three divisions of the United Kingdom were regulated solely by population, on the bases of the last census, England and Wales, should have 493, Scotland 60, and Ireland 97 representatives ; while if the allotment were made according to contributions to the public revenue, England and Wales should have 514, Scotland 798, and Ireland 57 members.

It has become the most important functions of the House of Commons is modern times to appoint the Government for the time being, and, more immediately, those leading members of the Government, headed by the prime minister, known as the Cabinet. Far reaching as is the legislative authority of the elected representatives of the nation, it naturally must stand in the background of this higher power of choosing the rulers of the country, since the latter, besides guiding the executive, likewise are the more immediate framers of all the laws that are passed. "The legislature," says Mr Bagehot, in his already quoted work, "chosen, in name, to make laws, in fact finds its principal business in making and in keeping an executive." It has come to be tacitly understood that the leading statesman of the political partly possessing a majority in the House of Commons must fill the place of prime minister, officially styled first lord of the treasury, while the other chief men of the party have a claim to become members of the Cabinet.

"The leading minister selected," says Mr Bagehot, "has to choose his associates, but he only chooses among a charmed circle. The position of most men in parliament forbids their being invited to the Cabinet ; the position of a few men ensures their being invited. Between the compulsory list whom he must take, and the impossible list whom he cannot take,. a prime minister’s independent choice in the formation of a cabinet is not very large ; it extends rather to the division of cabinet than to the choice of cabinet ministers. Parliament and the nation have pretty well settled who shall have the first place ; but they have not discriminated with the same accuracy which men shall have which place. The highest patronage of a prime minister is, of course , a considerable power, though it is exercised under close and imperative restrictions, and it is far less than it seems to be when stated in theory, or looked at from a distance. The Cabinet, in a word, is a board of control chosen by the legislature, out of persons whom it trusts and knows, to rule the nation."

There is no fixed number of members fro the cabinet, anymore than of regular meetings of the members admitted to it. In recent years the number of members varied from eleven to sixteen, the former, the lowest ever attained, being in 1876, under the premiership of Mr Disraeli, just previous to his elevation to the peerage under the title of earl of Beaconsfield. All cabinets yet formed included the following nine members of the administration:—the prime minister, the lord chancellor, the lord president of the council, the chancellor of the exchequer, and the secretaries of state presiding over the departments of foreign affairs, war, India, the colonies and home affairs. To these nine members there are usually added various others, most frequently the first lord of the Admiralty, the postmaster-general, the chief secretary for Ireland, and the president of the Board of Trade. (see also the article CABINET.)

The Cabinet does not constitute more than about one-fourth part of the executive, or what is generally called the Government. With every change of administration, necessitated by the expressed will of the House of Commons, from forty to fifty political heads of department have to quit their places, to make room for men belonging to the party which can claim a parliamentary majority. Besides the departments already mentioned, whose heads are generally, or sometimes, included in the cabinet, there are others of great importance, such as the Committee of Council on Education, the Local Government Board, the Office of Works and Public Buildings, and the various departments for the collection of the national revenue, considered to form part of the Government, or , more correctly, the administration. The chief officers of all these branches of the administration change with the Cabinet, with the exception of the heads of the departments of the customs, excise, stamps, and taxes, who hold permanent appointments. Subject to political changes likewise are the great law officer of the crown, the lord chancellor, attorney-general, solicitor-general, and judge-advocate-general of England, the lord-advocate and solicitor-general of Scotland, and the lord chancellor, attorney-general, and solicitor-general for Ireland. These, as all the other members of the political administration, hold office "durante bene placito," instead of, as the administrators of the law, or judges, "quamdiu bene se gesserint."

In closest contact with the constitution and government of England, and similar to them in nearly every respect are its laws and their administration. Unlike most other countries, England has no code of laws; nor would codification be easily possible, seeing that the principles which govern the national jurisprudence are, like those which lie at the basis of the constitution, as much "unwritten," as "written." Broadly, the whole body of laws may be divided into two classes, namely, first, those springing from immemorial usage, sanctified by juridical decisions, and, secondly, those springing from parliamentary enactments. The former, in their nature, take far deeper root in the national life than in the latter. This is expressed by the fact that there were law exponents, or judges, long before there were law-makers, or legislators. The most ancient of England courts, that of King’s or Queen’s Bench—in its correct legal title, "the Court of the King before the King himself," coram ipso rege—was far older than parliament itself, for it can be traced back clearly, both in character and the essence of its jurisdiction, to the reign of King Alfred. Not much less ancient than "the Court of the King before the King" was the Court of Chancery, which acted for ages as the fountain of justice, the officina justitioe, forming the origin of the courts of common law. The independence of the Courts of King’s Bench and of Chancery was destroyed by the Judicature Act of 1871, exactly 1000 years after the accession of Alfred.

The Judicature Act of 1871, amended and enlarged in 1873, and in operation form the 1st of November 1875, made very important alternations in the administration of justice in England. By its provisions, aiming centrally at a fusion of the judicature for the better distribution of judicial force, there was formed a single court, called the "High Court,’ divided into five departments, called respectively the Queen’s Bench, the Chancery, the Common Pleas, the Exchequer, and the Probate Divorce, and Admiralty divisions. It is in these divisions that is vested the administration of the law, while the "High Court," or, more fully, the "High Court of Justice," as such, can scarcely be said to have any existence. It is, as one of the judges described it soon after the passing of the Judicature Act, an end rationis,—that is, it exists only in theory, or in contemplation of law.

At the head of the judicial administration of the kingdom, as at present constituted, stands the Lord High Chancellor of Great Britain, a political officer changing with the Cabinet, presiding over the supreme Court of Judicature, and forming part also of the judicial committee of the Privy Council, sitting as a court of appeal. There are annually about 100 cases heard and determined before the judicial committee of the Privy Council, and seldom less than 300 cases "remaining for hearing" ort in arrears, the number tending to increase. All the judges of the divisions of the High Court form part of the judicial committee of the Privy Council, which has besides four special paid judges. President of the first of the five divisions of the High Court of Justice, the Queen’s Bench, is the lord chief justice of England, under whom are four "puisne justices," while the second division, the Chancery, is presided over by the Master of the Rolls, who has at his side three vice-chancellors administering law in the vice-chancellor’s courts. Within the Chancery division are the great seal patent office, and office of the commissioners of patents for inventions, the designs registry, and the trade marks registry. In the third of the divisions of the High Court, the Common Pleas, the president has the title of lord chief justice, and in the fourth, the Exchequer, that of lord chief baron, the former having under him four "puisne justices," and the latter four "puisne barons." Finally, in the fifth division, that of Probate, Divorce, and Admiralty cases, there is one president and one judge, with an admiralty advocate, queen’s proctor, and an admiralty proctor. (See also COURT, vol. vi. p. 516)

Besides the great courts of law, which, like the foregoing, have jurisdiction all over the kingdom, there are a number of courts exercising local jurisdiction within counties, boroughs, and other defined districts. Foremost among the courts of local jurisdiction are those of assize. The great inconvenience of resort by suitors from distant parts to the seat of the central courts of law led, from a very early period, to the appointment of justices "in eyre," or itinerant judges, authorized to hear civil and criminal causes within a prescribed circuit.

These circuits of assize, altered at various times, are at present seven in number, denominated respectively the South-Eastern or Home, the Midland, the Northern, the Oxford, the Western, the North Wales and Chester, and the South Wales circuits. The South-Eastern or Home circuits embraces the counties of Herts, Essex, Hunts, Cambridge, Suffolk, Norfolk, Kent, Sussex, and Surrey, the assizes being held at Hertford, Chelmsford, Huntingdon, Cambridge, Ipswich, Bury St Edmunds, Norwich, Maidstone, Lewes, and Kingston; the Midland, the counties of Bedford, Bucks, Derby, Leicester, Lincoln, Notts, Northampton, Rutland, and Warwick, with assizes at Bedford, Aylesbury, Derby, Leicester, Lincoln, Nottingham, Northampton, Oakham, and Warwick; the Northern, the counties of Cumberland, Westmoreland, Lancashire, Durham, Northumberland, and York, the assizes being held at Carlisle, Appleby, Lancaster, Manchester, Liverpool, Durham, Nescastle, York, and Leeds; the Oxford circuits, the counties of Berks, Oxford, Worcester, Stafford, Shrophire, Hereford, Monmouth, and Gloucester, the assizes being held at Reading, Oxford, Worcester, Stafford, Shrewsbury, Hereford, Monmouth, and Gloucester; and the Western circuits, the counties of Hants, Wilts, Dorset, Devon, Cornwall, and Somerset, with assizes at Winchester, Devizes, Dorchester, Exeter, Bodmin, and Taunton. The North Wales and Chester circuits extends over Montgomery, Merioneth, Carnarvon, Anglesey, Denbigh, Flint, and Cheshire, assizes being held at Welshpool, Dolgelly, Carnarvon, Beaumaris, Ruthin, Mold, and Chester; the South Wales Circuits embraces Pembroke, Cardigan, Carmarthen, Glamorgan, Brecon, and Radnor, with assizes at Haverfordwest, cardigan, Carmarthen, Swansea, Brecon, and Presteign. In every circuit there are at least two assiz held every year, mostly in spring and summer; but in the more populous circuits there are also winter assizes. The appointments of the judges for the various assizes are made out in the Chancery division of the High Court of Justice, the custom being to let the selection take place by mutual agreement among the members of the judicial bench.

Among the other local courts of jurisdiction deserving notice are the Central Criminal Court of London, the Middlesex Sessions, and the Surrey Sessions. The Central Criminal Court, sitting at the Old Bailey, tries, as indicated by a judge, taking place once every month throughout the year. Different in organization from the Central Court are the two metropolitan law courts, going by the names of the Middlesex Sessions and the Surrey Sessions. These courts, instituted, not only for the trial of prisoners, but for various administrative purposes, such as the licensing of public-houses, and the inspection of weights and measures, are composed of county justices, or, as they are commonly called, magistrates, presided over by a chairman and assistant judge. Similar in constitution to the Middlesex and Surrey Sessions are the general and quarter sessions of other counties. They are held in the first week after March 31, June 24, October 11, and December 28, it being left to the decision of the county justices composing them to fix the exact dated when they are to commence, with liberty to make such changes as shall not interfere with the holding of the assizes. The county justices, assembled in general and quarter sessions, have jurisdiction in civil and criminal actions, except, as regards the latter, cases of treason, perjury, and other heavy crimes.

By the Municipal Corporation Act of 5 and 6 William IV. Cap. 76, cities and boroughs in England and Wales may have a system of magisterial judicature similar to that of counties. The ordinary duties of county justices, out of sessions, are performed for most cities and boroughs by their mayors or other magistrates. By the same Act, courts of quarter sessions may also be granted to cities and boroughs. The sole judges of such courts are recorders, empowered to take cognizance of offences in the same manmer as courts of quarter sessions in counties, but with a jurisdiction to levy county rates and to grant licenses, or to exercise any of the other powers vested in town councils. The recorder, who must be a barrister of not less than five years’ standing, has to hold his court quarterly, or, if necessary, more frequently; and should there be an unusually large number of cases to be tired, he may, with the sanction of the town council, form a second court, under the presidency of an "assistant barrister," approved of by the Secretary of State for the Home Department.
It was long the opinion of writers on jurisprudence, foreign and English, as well as of the public in general, that one of the most manifest advantages of English law was in its general adoption of trial by jury. In recent times, however, a growing tendency has been manifested to trust, at least in civil cases, more to the administration of the law by judges than by juries. This tendency is strikingly shown in the most important juridical statutes passed lately, the Judicature Acts already referred to. There can be no doubt that on this subject the legislature expresses but public opinion, and that what is ordered by parliament in respect to changes in the administration of the English law is done by the will of the nation. (F. MA.)

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