The Institutions of the English Government

Front matter

3, CHANCERY LANE, LONDON.

Concise Forms of Wills. — Hayes (W.) and Jarman’s (T.) Concise Forms of Wills ; with Practical Notes. TLe Sixth Edition. By T . S. Badger. Esq. Royal 12mo. {In the Press.)

Constitntion of England.— Cox (Homersham) on the Institutions of the English Government; being an Account of its Legislative, Judicial and Administrative Departir.eafs. With Authorities. 8vo. Price IL 4s. cloth. 1863

Preface

The object of the following pages is to collect from ancient and modern authorities a general account of the British Government^ of the powers and practice of its several departments, and of the constitutional principles affecting them.

Notwithstanding the multitude of books extant which relate to the British Constitution, there has not hitherto been published any practical compendious account of it compiled from authentic sources, and describing in detail the modern functions of its institutions. The works which treat of the government of this country are of two classes — special and general : the one class are confined to particular portions of the subject; the other, though they deal with it generally, consider it chiefly in its theoretical or historical aspects. Of the former class an eminent example is Blackstone’s Commentaries, which describe minutely the Judicature, and with less minuteness the Legislature, but expressly avoid description of the Administrative departments. To the latter class belong the treatise of De Lolme, and many more recent works, which survey in a general manner the history or theory of the British Go-

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PREFACE.

vernment, but give little detailed information respecting its institutions, and very few references to authorities.

The statements of the present Work are uniformly supported by references to standard sources of information so numerous and various, that they will pi’ohably serve as a guide in the investigation of almost every important constitutional question, respecting which precedents and authorities are to be found. With respect to the Legislature and Judicature, the difficulty of compiling a compendium arises, not from the paucity of materials, but from the abundance of them. Besides the stores of constitutional learning contained in unpublished records, the printed materials are so extensive, that probably no single life would suffice to exhaust them. With respect to the Administrative Government, the difficulties of investigation are of a very different nature. Writers on the Laws and Constitution of England have almost uniformly avoided any detailed account of the administrative institutions of this country, and there is actually no treatise which gives a connected account of their legal powers and relations to the other branches of Government. Until recently, also, there have been but few printed sources of information respecting the history of the administrative departments; but this want has been of late years partly supplied by tlie publication of various works containing copies or abstracts of State papers and records. The materials, therefore, from which the following account of these departments has been compiled, exist in a very scattered form. For the history of them recourse has been had to the sources of information just mentioned, and to various historical collections and memoirs, in which occasional notices of the administrative offices are found interspersed. The account

PllEEACE.

IX of their legal powers and proeedure is founded principally upon the patents of great oflSces of State, Acts of Parliament, judicial decisions, and reports of Parliamentary committees and commissions of inquiry.

In order to confine this Work within the limits of a compendium, it has been deemed advisable to exclude all researches of purely antiquarian interest, and all merely speculative politics. It would not, indeed, have been expedient to have excluded all historical and theoretical researches, for there are many important provisions of the Constitution which would be unintelligible without reference to them. But throughout this Work such researches have been carefully limited to the purpose of illustrating the use and operation of established principles and institutions of Government. Scire autem proprie est rem ratione et per causam cognoscere.

For the sake of brevity, it has been generally deemed expedient to omit statements of authorities in the text, and to confine them to the notes. This arrangement seemed the only means of combining the advantages of ah elementary treatise with those of a guide to the fuller study of the Constitution, and will account for the number of notes throughout the book. It may be added that the references, amounting to several thousands in number, have been collected diligently during many years in the intervals of the toils of a laboi’ious profession, and have all been taken directly from the authorities cited.

H. C.

London, April, 1863.

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TABLE OE CONTENTS

Chapter I. Divisions Of Government

Laws defined, 1. — Objects of Constitutional Science, 2.— Separation of Executive and Legislative power, 3. — Judicature and Administrative Government defined, 5.— Evils of combining them, 6.

CHAPTER IE

THE AUTHORITY OP PARLIAMENT.

Jurisdiction of Parliament, 8. — Its Limits, 9. — Taxation of Colonies, 9. — Delegation of Legislative power, 9. — International Rights not abrogated by Statutes, 10.

Chapter III. The Origin Of Parliaments

Saxon Assemblies, Charter of King John, 11. — Origin of the Prmciple of Representation, 12. — Parliaments of Henry III. and Edward I., 13. — Of Edwai’d II., Edward III., and Richard II., 14. — Whether Lords and Commons ever voted together, 15. — Judicial Assemblies called “ Parliaments,” 16.

Chapter IV. The Acts Of Parliament

Acts of Parliament anciently founded on Petitions, 17. — Bills in Parliament substituted for Petitions, 18. — Enacting Clauses in Public and Private Acts, and in Bills of Supply, 19. — What Acts deemed Private, 20. — Titles of Statutes, 20. — Renewal of Statutes, 21.

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Chapter V. Legislative Peerogatives Op The Ceown

Dispensing and Suspending Powers, 22. — Eoyal Proclamations, 25. — Orders in Council, 27. — Acts of Indemnity, 29. — Constitutions of Colonies, 31.

Chapter VI. The Paeliamextaey Powers Of The Crown

Tlie Summons of Parliament, 32. — Frequency and Duration of Parliaments, 34. — Triennial Act, 35. — Septennial Act, 36. — Delay of Supplies, 39. — Opening of Session, 41. — Eoyal Assent, 48. — To Regency Bill, 50. — Adjournment, Prorogation, and Dissolution of Parliament, 51. — Duration of Session, 55. — Necessity of Royal Prerogative of dissolving Parliament, 56. — Occasions of its exercise, 57.

Chapter VII. The Constitution Of The House Of Lords

The Lords Spiritual, 62. — The Lords Temporal, 64. — Peerage originally territorial, 65. — Peerages for life or in tail, 67. — Peers of Ireland and Scotland, 68. — Summons of Peers to Parliament not to be withheld, 69. — Peerage Claims, how investigated, 71. — Number of Peers, 72. — Balance of Power, 75. — Abolition of Power of Crown and House of Lords, 77. — Instances in which the Peers have resisted usurpations of tlie Crown, 77. — Instances hi which they have resisted usm’pations of the Commons, 82. — Assistants m Parliament, 91. — Speaker of the House of Lords, 92.

Chapter VIII. The Constitution Of The House Of Commons

Representation of Counties, Boroughs, and Cinque Ports, 93. — Decay and Revival of Ancient Boroughs, 95. — Number of Members of House of Commons, 96.— Parhamentary Reform, 99. — Places represented, 101. — Qualifications of Electors, 103. — Parliamentary Elections, 111. — Bribery and Corrupt Practices at Elections, 115. — Controverted Elections, 117. — Qualification of Members of Parliament, 123. — Vacation of Seats, 127. — Oaths taken by Members of Parliament, 128. — Speaker of the House of Commons, 129.

Chapter IX. Procedure In Parliament

Sittings, Debates, and Votes, 136. — Petitions, 147. — Addresses, 149. — Messages, 150. — Joint Committees, 151. — Conferences, 151. — Accounts, Papers, and Documents, 153. — Commissions of Inquiry, 155. — Com-

Table Of Contents

Xlll mitttees, 156. — Passing of Public Bills, 164. — Private Bills, 170. — Supplies, 177.- — Initiation of Money Bills, 178. — Amendment of Money Bnis, 183. — Eejection of Money Bills, 186. — Grants of Supplies, 189. —Estimates, 193. — Ways and Means, 195. — Tax and other Money Bills, 198. — Summary Jurisdiction, 203. ♦

CHAPTEE X.

THE PEIVY COUNCIL AND CABINET COUNCIL.

Book Ii.— Judicature. Chaptee I

DIVISIONS OF THE JUDICATUEE, 297.

CHAPTEE II.

OEIGIN OF COUETS OF LAW.

Autliority of Judges to interpret Law, 299. — Saxon Judicature, 301. — Norman Judicature, Aula Eegis, 302. — Common Pleas fixed by the Charter of John, 303. — Origin of three superior Covu-ts of Law, 304. — Of

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TABLE OF CONTENTS.

Assizes, 305. — Juclicatui’e of the House of Lords, 307. — Of the Court of Chancery, 308. — Of Ecclesiastical Courts, 310. — Of Justices of the Peace, 313. — The Common Law and Ciyil Law, 315. — Jurisdictions which recognize the Civil Law, 316. — Courts Martial, 320.

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CHAPTER III.

JUDICIAL OFFICES.

Functions of Judges, 324. — Autliority of precedents, 329. — Uniformity of Law promoted by appeals, 331. — Extra-judicial opinions, 332. — Publicity of judgments, 334. — Appointment of Judges, 336. — Judges removed for political causes, 338. — Tenure of offices of Judges, 341. — Responsibility of Judges, 343. — Jm-ies, various kinds of, 345. — Origin of Jui’ies, 316. — Functions of Juries and Witnesses distinct, 348. — Juries dispensed with, 349. — Constitution of Juries, 350. — Challenges, 353. — Juries formerly selected by SheriflPs, 355. — Improvements in Constitution of Juries, 357. — Verdicts, 361. — Effect of verdicts, 365. — Immunities of Juries, 368.— Counsel, 372. — Serjeants and Barristers, 372. — Office and immunities of Barristers, 375. — Moral obligations of Barristers, 376. — Independence of tlie Bar, 378. — Attorneys and Solicitors, 380. — Subordinate officers of the courts of justice, 381.

CHAPTER IV.

PEOCEDUEE IN COURTS OF JUSTICE GENERALLY.

Summons of Defendant, 388. — Trials in absence of Defendant, 389. — Pleading, 392. — Pleadings in Courts of Common Law, 393. — In Chancery and other Courts, 395. — In Criminal Com-ts, 397. — Evidence, 399. — Burden of Pi-oof, 400. — Legal presumption of Innocence, 400. — Cross-examination, 401. — Confessions and Admissions, 403. — Right of discovery in Civil Causes, 404. — Argument of Causes, 405.

CHAPTER Y.

THE SUPREME POWER OF THE LAW.

Legal immunities of the Crown, 408. — Feudal principles of allegiance, 409. — Personal responsibility of Sovereign, 413. — Private claims against the Crown, 416. — Immunities of Ambassadors, 417. — Of Peers and Members of Parliament, 419. — Of Judges, 420. — Of Governors of Colonies, 422. — Temporai’y immunities, 425. — History of State imprisonments and prosecutions, 427. — Liberty of the Subject and commitments by the Crown or its Ministers, 428. — Con-uption of Judges and Juries in the reign of Charles II. and James II., 433. — Infringements of Liberty of the Subject in the Eighteenth Century, 435. — General Warrants, 436. — Means of preventing illegal imprisonment or punishment, 438. — Indictment or action for false imprisonment, 440. — Habeas Corpus, 442. — Gaol delivery, 448. — Prerogative Mandamus, 450. — Prohi-

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XV bition to inferior Courts, 451. — Enforcement of Law against powerful offenders, 453. — By the House of Lords, Chancery, and Star Chamber, 453. — By “Appeals of Felony,” 456. — By Grand Juries, 457. — By impeachment and indictment of Peers, 459. — Constitutional effect of Pardons, 461.

CHAPTER YI.

THE JUDICATUEE OF PAELIAMENT AND THE LOEDS.

Bills of Attainder and Bills of Pains and Penalties, 465. — Attainder in absence, 466. — Procedm’e on Bills of Attainder, 467. — Method and Objects of Impeachments, 468. — Proceedings on Impeacliments, 470. — Trials of Peers indicted, 472. — Court of the Lord High Steward, 473. — Appellate Jurisdiction of the House of Lords, 474.- — Formerly delegated by the Crown, 475. — Disputed by House of Commons, 476. — In Scotch and Irish Causes, 477. — In Criminal Cases, 479. — Proceedings in Error, 480. — -Law Lords, 481. — Defects of Judicature of the House of Lords, 483.

CHAPTER VII.

THE JUDICATUEE OF THE PEIVY COUNCIL.

Origin of J udicature of Privy Council, 485. — In the reign of Henry VIII., 487. — Extent of Jm-isdietiou of Judicial Committee, 488. — Its modern Constitution, 489. — Colonial Appeals, 489. — Ecclesiastical and Maritime Appeals, 490. — Appeals in Lunacy and Idiocy, 491.

CHAPTER VIII.

THE COUET OF CHANCEEAA

Origin of its Jurisdiction, 493. — Equitable rights, 495. — Origin of Trusts, 496. — Equitable remedies, 498. — Pleadings, 503. — Statutory Jurisdiction of Chancery, 504. — Judges of Chancery, 505. — Subordinate officers of Chancery, 508. — Trial of Issues in Chancery, 509.

CHAPTER IX.

THE SUPEEIOE COUETS OF COMMON LAW.

Exclusive Jurisdictions of the three Courts, 513.— Their concurrent Jurisdiction, 518. — Their Constitution, 524. — Their Procedure, 525. — Exchequer Chamber, 528.

Chapter X. Courts Of Criminal Jurisdiction

Distinction of Criminal and Civil Procedure, 530. — Courts of Criminal Jurisdiction, 534. — Assizes, 535. — County Sessions, 537. — Borough Sessions, 539. — Trial by Jury, 542. — Arrest or Summons, 542. — Commit-

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ment and Bail, 543.— Prosecution, 545.— Arraignment and Pleading, 547.— Trial and Judgment, 549.— New Trial, Appeal, and Eeversal of Judgment, 553. — Crown Cases Reserved, 553. — Proceedings in Error, 554.— Reprieve and Pardon, 555. — Criminal Procedure without Trial by Jury, 559. — Contempts of Court, 561. — Ecclesiastical Criminal Jurisdiction, 563. — Summary Jurisdiction of Magistrates, 564.

CHAPTER XL

COURTS OP SPECIAL CIVIL JURISDICTION.

Ecclesiastical Courts, 567. — Court of Probate, 570. — Court for Divorce and Matrimonial Causes, 572. — Com-t of Admiralty, 573. — Court of Bankruptcy, 577. — County Courts, 580.— Palatine Courts, 583. — Stannary Courts, 585. — Courts of London, 585. — Courts of Universities, 586.

Chapter III. The Title Op The Crown

Differences in the course of inheritance of the Crown, and of lands, 618. — Interference by Parliament with the Royal Succession, 620. — Appointments of Regents by Parliament, 623. — Effects of Coronation, 626. — Monarchy compared with Republican Government, 627.

Chapter IV. Origin And Distribution Of Administrative Offices

Origin of Administrative Offices partly Prerogative, partly by Statute, 639. — History of Administrative Offices, 640. — Their Con.stitutions compared, 646.

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Chapter V. The Privy Council And Its Committees

Ancient Duties of Council, 647. — Ancient Committees of Council, 649. — Cabinet Council, 651. — Committee on Education, 652. — Board of Trade, 653.

CHAPTER VT.

THE SECRETARIAL DEPARTMENTS.

History of Office of Secretary of State, 660. — Division of the Secretariat, 664.— Home Department, 666. — Foreign Office, 672. — Colonial Department, 674. — Secretary of State for India, 676.

Chapter VII. The Fiscal Administrative Offices

Early History of Exchequer, 679. — The receipt of Public Money, 684. — ■ The issue of Public Money, 687. — Audit, 691. — Appropriation Audit, 692. — The Treasury, 693. — Woods and Forests and Public Works, 698.

Chapter VIII. Military And Naval Offices

Ancient Military Forces, 703. — Mutiny Act, 704. — Secretary at War, 709. — Ordnance Office, 710. — Commissariat, 710. — Secretary of State for War, 711. — Commander-in-Chief, 713. — Naval Officers, 715. — Origin of Navy, 716. — High Admirals, 716. — Board of Admiralty, 718.