VIII. THE MINISTERS AND THE CIVIL SERVICE
[Sidenote: The Need of both Expert and Layman.]
As scientific and technical knowledge increase, as the relations of life become more complex, there is an ever-growing need of men of special training in every department of human activity; and this is no less true of the government than of every other organisation. Any work, therefore, carried on at the present day without the assistance of experts is certain to be more or less inefficient. But, on the other hand, experts acting alone tend to take disproportionate views, and to get more or less out of touch with the common sense of the rest of the world. They are apt to exaggerate the importance of technical questions as compared with others of a more general nature--a tendency which leads either to hobbies, or, where the organism is less vigorous, to officialism and red tape. These evils have become so marked in the case of some governments as to give rise to the ill name of bureaucracy. In order, therefore, to produce really good results, and avoid the dangers of inefficiency on the one hand, and of bureaucracy on the other, it is necessary to have in any administration a proper combination of experts and men of the world. Now, of all the existing political traditions in England, the least known to the public, and yet one of those most deserving attention, is that which governs the relation between the expert and the layman.
[Sidenote: The Judge and Jury.]
The first branch of the English government to reach a high point of development was that which dealt with the administration of justice; and it is here that we first see the cooperation of professional and lay elements. They appear in the form of judge and jury; and in that form they have worked together from the Middle Ages to the present day. The judge, a royal officer of high rank, supplies the expert knowledge, while the lay influence is exerted by means of a panel of twelve men of average ignorance, drawn from the community by lot for the occasion; and although this is not the usual method of combining the two elements, their reciprocal control has certainly been effective.
[Sidenote: The Justice of the Peace and his Clerk.]
It was not, however, in the superior courts of law alone that the principle made itself felt. Its working, if less evident on the surface, may be traced no less clearly in the exercise of petty jurisdiction by the justices of the peace sitting without a jury. But here the mutual relation of the two elements was reversed. The justice of the peace was in most cases a landowner, a country gentleman, not skilled in law. In the earlier period the commission included a number of trained lawyers, who were said to be of the quorum, because without the presence of one of them the justices were not by law competent to act.[174:1] But in process of time the trained lawyers ceased to be appointed, while the names of almost all the justices came to be inserted in the quorum clause;[174:2] and thus it happened that judicial authority was vested in a squire who knew little of the law he was called upon to administer. But the justice supplied, in fact, the lay, not the professional, element in his own court; the requisite legal knowledge being usually furnished by his clerk, who was learned in the law; or, at least, learned in the duties of the justice of the peace as set forth in the statutes and in the manuals published for the purpose.
The office of clerk of the peace for the county must be of considerable age, for it is referred to in a statute of Richard II. in 1388.[174:3] But besides this office, which is a public one, it has been the habit time out of memory for an active justice to retain a private clerk of his own to assist him when acting as a single magistrate; such a clerk being paid partly out of the justice's pocket, partly from the fees that accrued.[175:1]
[Sidenote: As Portrayed in Literature.]
More important than the age of these offices is the question of the real power exerted by their holders. That the influence of a clerk over the justice who employed him has long been both great and notorious is clear from the frequent references to it in literature. Early in the seventeenth century Fletcher, in "The Elder Brother," makes Miramont say to Brissac:[175:2]--
"Thou monstrous piece of ignorance in office! Thou that hast no more knowledge than thy Clerk infuses."
Near the end of that century the same idea was expressed with singular frankness in a manual on "The Office of the Clerk of the Peace," published in 1682. In an address "to the reader," which precedes the second part of the volume, the author explains the object of the book. After saying of the justices of the peace that their birth is a glory to their seats, he continues:--
"But divers of these Gentlemen having not been conversant in the Practice of the Ordinary Courts of Justice, often in the absence of those worthy Persons, who be associated with them for their Learning in the Law, meet with many difficulties and discouragements."
Coming down to the eighteenth century there is the case of Squire Western and his clerk in "Tom Jones"; and later in the same novel the scene in the inn at Upton, where the strange justice is unwilling to act because he has not with him his book or his clerk. The reader will probably remember Justice Foxley and his clerk in "Redgauntlet"; and also Dickens's burlesque of the relation in the scene at Ipswich, where after much whispering between the justice (Mr. Nupkins) and his clerk (Mr. Jinks) the magistrate says to Mr. Pickwick:--
"An information has been sworn before me that it is apprehended you are going to fight a duel, and that the other man, Tupman, is your aider and abettor in it. Therefore--eh, Mr. Jinks?"
"Certainly, Sir."
"Therefore, I call upon you both to--I think that's the course, Mr. Jinks?"
"Certainly, Sir."
"To--to--what, Mr. Jinks?" said the magistrate pettishly.
"To find bail, Sir."
"Yes. Therefore, I call upon you both--as I was about to say, when I was interrupted by my clerk--to find bail."
The satire here is particularly keen, because before the public the magistrate always takes the whole credit to himself, and is very sensitive about having the world believe that he is under the control of his clerk.
[Sidenote: Lay Chief with Expert Subordinate an English Usage.]
Leslie Stephen, I think, remarks somewhere that the characteristic feature of the English system of government is a justice of the peace who is a gentleman, with a clerk who knows the law; and certainly the relationship between the titular holder of a public post, enjoying the honours, and assuming the responsibility, of office, and a subordinate, who, without attracting attention, supplies the technical knowledge and largely directs the conduct of his chief, extends throughout the English government from the Treasury Bench to the borough council. Perhaps, indeed, it is not altogether fanciful to attribute the ease with which the principle has become established in the national government to the fact that the members of Parliament, and the ministers as well, have been drawn in the past mainly from the same class as the justices of the peace, and have brought with them to a larger sphere the traditions of the local magistrate.
[Sidenote: Influence of Permanent Officials in the Colonial Office.]
The extent of the control exerted in the national administration by the permanent officials is forcibly illustrated by the history of the Colonial Office. My colleague, Professor Edward Channing, has pointed out to me that the records of the American colonies reveal how largely the Committee for Trade and Plantations was in the hands of Blathwayt, its secretary. In spite of all the violent political upheavals of the time that functionary retained his post without interruption from the latter part of the reign of Charles II. until some years after the revolution of 1688; and if a colony wanted anything done by the home government it was he that must be persuaded, sometimes by inducements of a pecuniary nature.
The power, but happily not the corruption, of the permanent officials in the Colonial Office can be traced still more clearly at a much later time. In 1839 Lord Durham, in his famous "Report on the Affairs of British North America," complains that owing to the repeated changes in the political chiefs of the Colonial Office, the real management of the colonies fell into the hands of "the permanent but utterly irresponsible members of the office"; and he quotes from a report made in the preceding year by a select committee of the Assembly of Upper Canada, to show that this was felt by the colonists themselves as a grievance.[177:1] The group of English colonial reformers, with whom Lord Durham was associated, held the same opinion. Gibbon Wakefield tells us, in his "View of the Art of Colonization" that "The great bulk, accordingly, of the labours of the office are performed, as the greater portion of its legislative and executive authority is necessarily wielded, by the permanent under-secretary and the superior clerks."[177:2] Wakefield and his school disapproved of the colonial policy of the day, and disliked cordially the permanent officials and their methods. "Our colonial system of government," Wakefield adds, "is the bureaucratic, spoiled by being grafted on to free institutions."[178:1] He had a special aversion for Sir James Stephen--long the legal adviser, and afterwards permanent under-secretary, to the Colonial Office--whom he regarded as the archetype, if not the founder, of the class of officials that had become the real arbiters of the destinies of the colonial empire.[178:2]
[Sidenote: Mr. Mothercountry.]
Wakefield quotes from Charles Buller's "Responsible Government for Colonies" (a work published in 1840, but at that time already out of print), an extract entitled "Mr. Mothercountry, of the Colonial Office."[178:3] Parliament, Buller declares, takes no interest in the colonies, and exercises no efficient control over the administration and legislation affecting them; and hence the supremacy of England really resides in the Colonial Office. But the Secretary of State holds a shifting position. Perplexed by the vast variety of questions presented to him, he is obliged at the outset to rely on one or other of the permanent officials, and the official who thus directs the action of the British government Buller calls "Mr. Mothercountry." He is familiar with every detail of his business, and handles with unfaltering hand the piles of papers at which his superiors quail. He knows the policy which previous actions render necessary; but he never appears to dictate. A new Secretary of State intends to be independent, but something turns up that obliges him to consult Mr. Mothercountry. He is pleased with the ready and unobtrusive advice which takes a great deal of trouble off his hands. If things go well, his confidence in Mr. Mothercountry rises. If badly, that official alone can get him out of the colonial or parliamentary scrape; and the more independent he is the more scrapes he falls into. Buller goes on to point out the faults of Mr. Mothercountry; his love of routine, his tendency to follow precedent, his dislike of innovation, and his dread of being criticised.
[Sidenote: Memoirs of Colonial Officials.]
Any one, with even a slight knowledge of government offices in England, will recognise that the portrait of Mr. Mothercountry and his influence is hardly overdrawn, in cases where the political chief either holds his place for a short time, or is not a man of commanding ability. The impression of the critics of colonial administration is, indeed, strikingly reenforced in this respect by memoirs of the permanent officials themselves; although some allowance must, no doubt, be made for a natural overestimate of their own importance.[179:1] Sir Henry Taylor confided to the world in his autobiography a number of remarks that throw light on the internal working of the Colonial Office in the second quarter of the century. While never its permanent under-secretary, he was for a great many years a highly influential person there, as may be seen from the fact that early in his career he drew up, on his own judgment, a despatch recalling a governor, which the secretary signed.[179:2] Taylor tells us that Lords Goderich and Howick, who became the political chiefs of the Colonial Office in 1831, were "not more in pupilage than it is necessary and natural that men should be who are new to their work."[179:3] He says that when Lord Stanley was appointed Secretary of State, in 1833, he asked no advice from his subordinates, and a measure he prepared was blown into the air by the House of Commons; whereupon he had recourse to Mr. Stephen,[179:4] "who for so many years might better have been called the Colonial Department itself than the 'Counsel to the Colonial Department.'"[179:5] A little later he repeats this last statement, saying that while Lord Glenelg was Secretary "Stephen virtually ruled the Colonial Empire."[179:6] Taylor's own influence was shown when complaints were made of his administration of the West Indies. The House of Commons appointed a committee of inquiry, and the report of that committee, with the exception of the last few sentences, was entirely drawn up by Taylor himself.[180:1]
Sir Frederick Rogers (afterwards Lord Blachford), who was permanent under-secretary from 1860 to 1871, has left in his letters suggestive comments upon most of his political chiefs. The Duke of Newcastle, he says, is "very ready to accept your conclusions, very clear in his own directions, and extremely careful (which I respect very highly) never to throw back on a subordinate any shadow of responsibility for advice that he has once accepted."[180:2] "Cardwell," he remarks, "is happily absent, though not so much as I could wish";[180:3] and, finally, he writes that he likes Lord Granville, who "is very pleasant and friendly, and I think will not meddle beyond what is required to keep us clear of political slips."[180:4] Some people outside of the office evidently thought that the secretaries of state had not meddled overmuch, for George Higginbottom, afterwards Chief Justice of Victoria, once remarked in the Assembly, "It might be said with perfect truth that the million and a half of Englishmen who inhabit these colonies, and who during the last fifteen years have believed they possessed self-government, have been really governed during the whole of that time by a person named Rogers";[180:5] and in the same vein Rees, in his "Life and Times of Sir George Grey," refers to Sir Robert Herbert (permanent under-secretary from 1871 to 1892) as the man who "controls the destinies of the Colonial Office."[180:6]
[Sidenote: Influence of Permanent Officials in Other Departments.]
With the growing interest in the empire, there has come a change; but until a very recent period the fact that British statesmen knew little of the subject, and did not care much more, no doubt made the power of the permanent officials peculiarly great in the Colonial Office.
Their influence, however, upon the policy of the government in the other departments, if less absolute, has nevertheless been very large. This impression one obtains both from published documents, and from private conversations, although the former alone can be cited as evidence. As far back as 1845 we find the Lord Lieutenant speaking of the permanent under-secretary as "the main-spring of your government in Ireland."[181:1] But more important than scattered statements of this kind is the information derived from the testimony taken by parliamentary committees of inquiry. One cannot read, for example, the evidence collected in 1900 by the Committee on Municipal Trading[181:2] without being convinced that not only the efficiency, but also in large measure the current policy, of the Board of Trade depended upon the permanent official at its head, and this is true of every branch of the administration.[181:3] Sir Lyon Playfair gave the reason for it when he said: "The secretary being a very busy man is very apt to take the advice of the clerk who has been looking over all the details and the correspondence before it comes to him."[182:1] A superior, indeed, lacking the time to become thoroughly familiar with the facts, must be to a great extent in the hands of a trusted subordinate who has them all at his fingers' ends. It is the common case of the layman and his confidential expert; and it must be observed in this connection that with exacting parliamentary and other duties, the cabinet ministers cannot devote all their time to the work of their departments.
[Sidenote: Theoretical Relation of Political and Permanent Heads.]
The theoretical relation between the political chief and his permanent subordinate is a simple one. The political chief furnishes the lay element in the concern. His function is to bring the administration into harmony with the general sense of the community and especially of Parliament. He must keep it in accord with the views of the majority in the House of Commons, and conversely he must defend it when criticised, and protect it against injury by any ill-considered action of the House. He is also a critic charged with the duty of rooting out old abuses, correcting the tendency to red tape and routine, and preventing the department from going to sleep or falling into ruts; and, being at the head, it is for him, after weighing the opinion of the experts, to decide upon the general policy to be pursued. The permanent officials, on the other hand, are to give their advice upon the questions that arise, so as to enable the chief to reach a wise conclusion and keep him from falling into mistakes. When he has made his decision they are to carry it out; and they must keep the department running by doing the routine work. In short the chief lays down the general policy, while his subordinates give him the benefit of their advice, and attend to the details. It is easy enough to state a principle of this kind, but in practice it is very hard to draw the line. The work of a public department consists of a vast mass of administrative detail, the importance of which is not self-evident until some strain is brought to bear upon it; and all the acts done, however trifling in themselves, form precedents, which accumulate silently until they become as immovable as the rocks of the geologic strata. To know how far the opinion of an expert must be followed, and how far it may be overruled; to know what is really general policy, and what is mere detail; to know these things is the most valuable art in life. The capacity of an administrator on a large scale depends upon what he attends to himself, and what he commits to others. But the political chief of a department is so situated that it is difficult for him to determine what questions he will reserve for himself and what he will leave to his subordinates. To understand why that is the case it is necessary to know something of the procedure in the government offices.
[Sidenote: Procedure in the Public Departments.]
The method of doing business in a public office is of necessity more elaborate than in a private concern. There is more responsibility for the work done; more subjection to public criticism in small matters; and a stronger obligation to treat every one alike, which means a more strict adherence to precedent. All this entails a complicated machinery that is less needed in private business, where a man can say that if he makes a mistake the loss falls upon himself and is no other person's affair. In a public office, therefore, more writing is done, more things are preserved and recorded, than in a private business, and there are more steps in a single transaction.[183:1] Now although the procedure in the English departments varies somewhat in detail, the general practice is much the same throughout the public service.
When a minister wishes to prepare a measure for Parliament, or to make any change in administrative policy, he consults the permanent under-secretary and any other officials especially familiar with the subject; if, indeed, the matter has not been suggested to him by them. He weighs their advice, and states his conclusion to the permanent under-secretary, who in turn gives his directions to the proper subordinates for carrying it into effect. In such a case the procedure is obvious; but by far the greater part of the action in the central offices begins at the other end, and comes from the contact of the government with the public, or from questions that arise in the course of administration. When anything of this kind occurs, whether it be in the form of a despatch, a petition, a complaint, a request for instructions, or a communication of any sort, it is sent by the official charged with the opening of correspondence to the principal, or senior, clerk within whose province it falls. The senior clerk intrusts it to one of the junior first-class clerks in his division. He examines the paper, and unless it is of such a purely routine character that he feels authorised to dispose of it, he affixes to it a minute or memorandum, which gives a history of the matter, the precedents in similar cases, and any other information that may assist his superiors in reaching a decision, commonly adding a suggestion of the course to be pursued. The paper then goes back to the senior clerk, who inspects it, and if the question is of small consequence approves the minute or directs a different disposition, subscribing his initials. If the affair is more weighty, he adds his own comments in the form of a second minute, and transmits the paper to the permanent under-secretary.[184:1] That officer, as the permanent head of the department, gives the final directions,[184:2] and returns the paper, unless the matter is of great importance, or involves a new question of policy, or is likely to give rise to discussion in Parliament, when he submits it to his political chief with a further minute of his own.[184:3]
[Sidenote: Each Official a Reader for his Superior.]
Each permanent official thus performs a double service for his immediate superior. He collects all the material that bears upon a question, presenting it in such a form that a decision can be readily and quickly made; and he acts to a certain extent as a reader, examining a mass of papers that the superior would be quite unable to go through, and making up his own mind how far they contain anything that requires his chief's attention.[185:1] This system runs throughout the department, from the junior first-class clerks to the parliamentary head, each official deciding what he will submit to his superior; in the same way that the minister himself determines what matters he will settle on his own authority, and what he had better lay before the cabinet. No doubt a subordinate in undertaking to decide a question occasionally makes a mistake for which the minister must assume the responsibility; but that is not a serious danger. The besetting sin of bureaucracy is the tendency to refer too much to a higher authority, which cannot become familiar with the facts of each case, and finds its only refuge in clinging to hard and fast rules. It is fortunate, therefore, that the growth in the machinery of central administration in England has been accompanied by greater deconcentration within the departments.[185:2] The process has not been without effect on the position of the permanent under-secretary. By relieving him of detail it has made him more free to devote his attention to general policy; and, in fact, a departmental committee reported a few years ago that he ought "to divest himself of all but the most important matters in which the application of a new principle is involved." No question, the report continued, ought to reach him until it has been threshed out by the responsible head of a division, and is ripe for decision. "The permanent secretary should be able to devote himself to such work as conferring with and advising his Parliamentary chiefs, framing or elaborating proposals for new legislation or administrative reform, considering all questions in Parliament, receiving members of Parliament, or representatives of the Public on questions of difficulty, and generally controlling and directing the conduct of the Department."[186:1]
[Sidenote: Differences between the Departments.]
The point to which deconcentration is carried is not the same in all branches of the public service. Mr. Gladstone declared that the Chancellor of the Exchequer could not take as active a part as other ministers in the current business of his department;[186:2] while in the Foreign Office, on the other hand, it has been the tradition that the Secretary of State ought to see almost everything. No doubt this is in part due to the very nature of diplomatic relations, but there can also be no doubt that in the past it has been carried much too far. When Mr. Hammond was under-secretary for foreign affairs he insisted on making the first minute on all papers in the office.[186:3] A change has been made in this respect, and the practice brought more into accord with that which prevails in other departments;[186:4] but the Foreign Secretary is still expected to give his personal attention to a greater mass of detail than other ministers.[186:5]
[Sidenote: Effect of the Procedure on the Power of Officials.]
Now any subordinate who determines what questions he may decide himself, and what he will refer to his superiors, and who prepares the materials for a final judgment in the cases that he does refer, is certain to exert a great deal of influence. The permanent under-secretary, holding his position, as he does, for an indefinite period, devoting his whole time to the work, and becoming thoroughly familiar with the affairs of his department, can, no doubt, regulate the class of questions that shall be referred to him, and can acquire complete control over the administration. But the minister, who is usually unfamiliar with the department to which he is assigned, who remains at its head a comparatively short time, and whose attention is largely engrossed by the more exciting scenes enacted in the cabinet, in Parliament, and on the platform, must, unless gifted with extraordinary executive capacity, be to a considerable extent in the hands of his permanent subordinates.
[Sidenote: Need of Mutual Confidence between Political and Permanent Heads.]
The smooth working of a system of this kind evidently depends upon the existence of mutual respect and confidence between the minister and the permanent under-secretary. If the minister, knowing that the under-secretary does not share his own political views, fails to treat him with perfect frankness, or if, after one party has been long in power, the permanent officials have little sympathy with a new ministry from the other party, and do not give it their active and cordial help, then mistakes are certain to be made, the efficiency of the service suffers, and the plans of the government are likely to miscarry. The permanent under-secretary ought to feel, and in fact does feel, a temporary allegiance to his chief, although of a different political party. He gives his advice frankly until the chief has reached a decision, and then he carries that out loyally. Confidential communications--and they are numberless--he treats as sacred even from the next parliamentary chief. If one minister prepares a measure which never sees the light, the permanent under-secretary might refuse to show the documents to the succeeding minister, and the latter would recognise the propriety of such a course. The minister on his part seeks the advice of the under-secretary on all questions that arise, making allowance for bias due to preconceived political or personal conviction. This does not mean that if a government comes into power pledged to a definite policy, such as Home Rule or a preferential tariff, the under-secretary would be consulted about the general principle. In a case of that kind the policy has been settled in Parliament or by a general election, and the advice of the permanent officials would be limited to the details of the measure proposed.
The system has, of course, its limits. There are cases where the known opinions of the under-secretary would make it almost impossible for him to conduct a certain policy effectively. When the Conservatives, for example, came into office in 1895 with a policy of coercion for Ireland, they found as permanent Irish under-secretary Sir Robert Hamilton, who was known to be a strong Home Ruler, and believing that it would be very difficult for them to govern the country through his agency, they promoted him out of the way; such cases must sometimes occur, but they are extremely rare. It is, indeed, astonishing how far the system can be carried; to what an extent an under-secretary can act as the loyal adviser and administrator for chiefs of totally different political opinions.
[Sidenote: Actual Relation Depends on Personality.]
The actual relations between the minister and the permanent under-secretary depend in any particular case very much upon the personality of the men. Peel and Gladstone, for example, maintained a close supervision and control over the departments under their charge, while John Bright felt that his real field of usefulness was in the House of Commons, and left the affairs of the Board of Trade almost altogether in the hands of the permanent officials. The system naturally works at its best when minister and under-secretary are both strong, good-tempered men, when each is active, but recognises clearly the province of the other. The saying has become almost proverbial that the most valuable minister is one who knows nothing about his department when appointed, and like most paradoxes it contains a distorted truth. A good minister must be a good administrator, but he must look to results, and not suppose that he knows as much about the technical side of the work as his permanent subordinate. For, as Bagehot quotes Sir George Cornwall Lewis, "It is not the business of a Cabinet Minister to work his department. His business is to see that it is properly worked."[189:1] If he attempts to go beyond his province, to be dogmatic and to interfere in details, he will cause friction and probably come to grief.
[Sidenote: Methods of Controlling a Minister.]
The permanent officials have, indeed, several means of controlling a minister who ventures to disregard them. They have been heard to say that a fool, if given rope enough, will hang himself. If he does not care for their advice they need not tender it, and then he is sure to make mistakes for which he alone will be held responsible. If, on the other hand, he tries, with the best intentions, to go too much into detail, nothing is easier than the trick, familiar, probably, to every bureaucracy, of overwhelming him with detail. He wishes to decide questions himself. The papers bearing upon them are brought to him in ever-increasing piles, until he finds himself hopelessly unable to cope with the mass of documents, and virtually surrenders at discretion. Then there are the means of control arising from the audit of accounts and from questions in Parliament. The permanent under-secretary points out to his chief that an expenditure he proposes is likely to be disallowed by the auditor, or that an action he suggests may very well give rise to an embarrassing question in the House of Commons, and to these things a minister is highly sensitive. Questions afford, indeed, a means of mutual control, for the permanent officials are usually far more afraid of the House of Commons than the minister is himself, and tend to be reticent in preparing answers.
The Treasury Bench is not so omniscient as it appears when answering questions in the House. After notice of a question has been given, the materials for a reply are prepared, and often the answer itself is drawn up, by some permanent official in the department. Sometimes the minister merely reads the answer as it has been placed in his hands, but more commonly while keeping the substance, he puts it into words of his own that he thinks better suited to the temper of the House. The labour of working up the answers to innumerable questions on every conceivable subject, and of every degree of importance and triviality, is in the aggregate very great, and places a heavy burden upon the permanent officials during the session of Parliament. But no satisfactory method of limiting the privilege has yet been devised, and although abused, it has the effect of keeping the administration up to the mark. The system affords an opportunity for constant public criticism, and while it gives the permanent officials some control over the minister, it is, on the other hand, a most effective means of preventing the growth of a bureaucratic spirit.
[Sidenote: Evils where a Minister is Inactive.]
If the permanent officials can restrain a minister from interfering overmuch, there is no similar means of preventing him from neglecting his duties. Yet in that case the service suffers. It is apt to become numbed and bureaucratic. Permanent officials tend to follow precedent, and, indeed, the force of precedent furnishes the basis of their power, but the tendency to be too rigid in their rules is the curse of all their tribe. They shrink from innovation, rarely making a new precedent themselves. This is particularly true in the lesser offices, giving rise, at times, to complaint; and the political chief has to insist upon the need of making exceptions in hard cases, without allowing the hard cases themselves to make bad law. The surest remedy for an excess of routine is a parliamentary head who is interested in the department, and with him a permanent under-secretary of large calibre and wide experience in affairs.
[Sidenote: Influence of Permanent Officials not Increasing.]
Speaking in 1884 about the Reform Bill then pending, Sir Stafford Northcote predicted that an extension of the franchise would increase the power of the permanent officials;[191:1] and many people think that the prophecy has been fulfilled. But this would seem to be one of the cases where an impression is due not so much to a real change of conditions, as to the fact that a state of things already existing has become recognised. The power of the civil service has undoubtedly grown very much within the last hundred years; owing partly to the fact that the ministers, instead of being primarily administrators, have become legislators, engrossed by the work of Parliament and by general politics; partly to the much shorter periods for which they hold office. During the one hundred and two years from 1721 to 1823 there were nineteen chancellors of the exchequer; of whom five held office for more than ten years apiece, the aggregate length of their services being seventy-eight years. In the eighty-two years from 1823 to 1905, twenty-three men held the office, one of them for thirteen years, another for nine, and no one else for more than about six years. The effect of such a shortening of the minister's tenure of office upon the position of his permanent subordinates is self-evident. But the present conditions of political life have now existed with little change for a generation; and, in the opinion of men well qualified to form a judgment, the power of the permanent officials, while varying from time to time with the personnel of the ministry, has not of late years shown any general tendency to increase.
[Sidenote: Self-Effacement of the Civil Servants.]
Although the civil servant enjoys a great deal of the substance of power, yet he purports to act only under the directions of his political chief. Sir Stafford Northcote was admonished early in his career by Mr. Gladstone "that references from the Opposition Bench to opinions of the permanent officers of Government, in contradiction to the opinion of the Minister who is responsible in the matter at issue, were contrary to rule and to convenience."[192:1] If this were not so the principle of ministerial responsibility could hardly be maintained. The minister is alone responsible for everything done in his department, and he receives all the credit and all the blame. The civil servant never talks in public about the policy of his department,[192:2] never claims anything done there as his own work; and, on the other hand, the minister ought not to attribute blunders or misconduct to a subordinate unless prepared at the same time to announce his discharge. This rule is not, indeed, always observed in the military services, for within a few years the House of Lords has heard the late Secretary of State for War and the Commander-in-Chief charge each other with the responsibility for the lack of preparation in South Africa;[192:3] and in 1901 the First Lord of the Admiralty in the House of Lords laid the blame for the capsizing of the royal yacht at her launching upon the naval constructor, while praising, at the same time, his skill in designing battleships.[192:4] In the civil services the principle has been, as a rule, very strictly followed; although here, also, in the case of Sir Antony MacDonnell, the under-secretary to the Lord Lieutenant of Ireland, an exception occurred which caused no small stir at the time.[192:5] Nor is the responsibility of the minister merely formal and conventional, for the mistakes of the officials in his department go into the great balance of good and evil report, whereby the reputation of the cabinet is made, and its fate at the next election is determined. In short, the permanent official, like the King, can do no wrong. Both are shielded by the responsibility of the minister, and in fact it may happen that a policy adopted, let us say by the Foreign Office, which is popularly attributed to the personal wishes of the King, is in reality the work of some permanent subordinate.
Fifty years ago the public was not aware of the power of the civil servants, and Parliament, regarding them as clerks, paid little attention to them. But now that their importance has come to be understood there is, in the opinion of some of their own members, a danger that they will be made too prominent, that the screen which protects them from the public gaze will be partly drawn aside, and that they will thereby lose their complete irresponsibility, and with it their permanence and their non-political character. Whether such a danger will prove serious is at present only a matter for conjecture.
[Sidenote: Honours Conferred upon Civil Servants.]
While the permanent official can win no credit for particular acts, a life of exceptional service does not pass unrecognised. Sir Robert Peel, who appreciated their importance, lamented that honours were not conferred upon them more freely.[194:1] Such a complaint could hardly be made to-day, for a number of them are knighted every year, and occasionally a permanent under-secretary, on retiring from office, is even raised to the peerage. In spite of self-effacement, therefore, the career of a permanent official is honourable and attractive. If he is debarred from the excitement and the glory of the political arena, he is spared its hazards, its vexations, and its disappointments. He wields great power, takes a real part in shaping the destinies of the nation, and if capable and fortunate he may end his days in the subdued lustre of the House of Lords.
FOOTNOTES:
[174:1] Cf. Gneist, "Self-Government in England," 3 Auf., 196-97.
[174:2] Blackstone, Bk. I., 351.
[174:3] 12 Ric. II., c. 10 (4). Cf. 32 Hen. VIII., c. 1.
[175:1] Gneist, "Self-Government," 212.
[175:2] Act II., Sc. I. The characters of the play purport to be French, but the manners and customs are, of course, English. Fletcher died in 1625. An earlier, though less definite, reference to the power of the clerk is found in William Lambard's "Eirenarcha or, Of the Office of the Justices of Peace," published in 1581 (p. 468): "Howbeit, I do not thinke, that in our case, this dutie of Estreating is so peculiar to the Clarke of the Peace, but that the Justices of the Peace themselves, ought also to have a common and carefull eye unto it . . . least otherwise, it lye altogither in the power of the Clarke of the Peace, to Save or Slay (as one sayd) the Sparrow that he holdeth closed in his hand."
[177:1] Com. Papers, 1839, XVII., 1, pp. 37-38.
[177:2] P. 235.
[178:1] P. 235.
[178:2] P. 268.
[178:3] P. 279.
[179:1] For the quotations from these memoirs I am indebted to Mr. Evan Randolph, who made, while a student at Harvard College, a careful examination of the subject.
[179:2] "Autobiography," London Ed. (1885), I., 70.
[179:3] Ibid., 130.
[179:4] Ibid., 133.
[179:5] Ibid., 136.
[179:6] Ibid., 233, cf. 123. It was during Lord Glenelg's time that Stephen became permanent under-secretary.
[180:1] "Autobiography," II., 38.
[180:2] Marindin, "Letters of Lord Blachford," 227.
[180:3] Ibid., 252.
[180:4] Ibid., 275.
[180:5] Morris, "Memoirs of Higginbottom," 183.
[180:6] II., 505.
[181:1] Parker, "Sir Robert Peel," III., 184.
[181:2] Com. Papers, 1900, VII., 183.
[181:3] In that same year much discussion was provoked by Lord Salisbury's sweeping remark that the British Constitution was not a good fighting machine on account of the power of the Treasury to restrain military expenditure. (Hans., 4 Ser. LXXVIII., 32, 237, 239.) It was pointed out that if the political chiefs of the Army and Navy want to increase their expenditure they cannot be blocked by the Treasury clerks. They can confer with the Chancellor of the Exchequer, and if he will not consent, they can appeal to the Prime Minister, and ultimately to the cabinet. Nevertheless it is true that if the political chief does not consider a matter of first-class importance--and many of the most far-reaching matters do not appear so at the time--or does not want to fight about it, the opinion of the Treasury officials may prevail, even to the extent of blocking useful reforms that cost a little money.
Moreover, if a matter is fought out between the political chiefs, their opinions may very well be derived from their permanent subordinates. When the subject of Treasury control was investigated by the Committee on Civil Establishments, Sir Reginald (now Lord) Welby was asked, "Is not this question not so much between political ministers as between permanent heads of departments?" He answered "Yes, but the permanent heads of departments to (sic) convince their political chiefs behind whom they fight," and added that the political chiefs commonly support their subordinates. (Com. Papers, 1888, XXVII., 1, Qs. 10721, 10723.)
[182:1] Com. Papers, 1888, XXVII., 1, Q. 20168.
[183:1] Cf. Giffen's Ev., 2d Rep. Com. on Civil Estabs., Com. Papers, 1888, XXVII., 1, Qs. 19131-32, 19139.
[184:1] If there is an assistant under-secretary the paper passes, of course, through his hands; and in case local conditions require to be examined an inspector is sent down to report.
[184:2] It has already been observed that in some departments the parliamentary under-secretary is the administrative head for some matters.
[184:3] Todd, with his unfailing industry, searched the Blue Books for information on this subject. (Parl. Govt. in England, 2 Ed. II., 542, 614, 628-31, 645-46, 671, 708.) Since he wrote, a great deal of evidence on the procedure in the several departments has been collected by the Com. on Civil Estabs. (2d Rep., Com. Papers, 1888, XXVII., 1, Qs. 10992-11001, 11849-51, 12034-35, 12072-78, 12360-64, 12887-91, 19434, 19442-43).
[185:1] Com. Papers, 1888, XXVII., 1, Qs. 12072-78.
[185:2] In the Home Office, for example, the minuting for replies to papers was formerly done by the permanent under-secretary alone. Later the senior clerks were allowed to make minutes, and now the process begins with the junior clerks. (Com. Papers, 1888, XXVII., 1, Qs. 10992-11001.) The same tendency has been at work in the Foreign Office, as will be explained later.
[186:1] Rep. on clerical staff of Local Gov. Board, Com. Papers, 1898, XL., 429, p. 12.
[186:2] He said "The relation of the Chancellor of the Exchequer to the Treasury is somewhat anomalous; it does not correspond at all with that of a Secretary of State to his department, because of course he lies a good deal outside the Treasury, and a good deal of the current business never comes before him at all." (3d Rep. Com. on Pub. Accounts, Com. Papers, 1862, XI., 467, Q. 1640.)
[186:3] Cf. Mr. Hammond's memorandum entitled "The Adventures of a Paper in the Foreign Office," Rep. of Sel. Com. on Trade, Com. Papers, 1864, VII., 279, Q. 1384; reprinted in 1st Rep. of Com. on Dip. and Cons. Services, Com. Papers, 1871, VII., 197, Qs. 1145-46.
[186:4] Com. Papers, 1871, VII., 197, Qs. 1145-46. Hans. 3 Ser. CCXXXII., 1058.
[186:5] 4th Rep. Com. on Civil Estabs., Com. Papers, 1890, XXVII., 1, Ev. of Mr. Bryce, Qs. 27927-31, Sir Charles Dilke, Q. 29252.
The position of the Secretary of State for War, and the First Lord of the Admiralty, although in most ways not unlike that of the other ministers, is peculiar in the fact that they are the lay heads of great professions. Their relation to the military officers detailed for service in the principal administrative posts in their departments has already been discussed in Chap. IV.
[189:1] "The English Constitution," 1 Ed., 240.
[191:1] "After that there will come a bureaucratic despotism; that is to say, the permanent officials will take the management of affairs into their hands, and Parliament will have little to do." Andrew Lang, "Life, Letters, and Diaries of Sir Stafford Northcote," 2 Ed., II., 219.
[192:1] Lang, "Life, Letters, and Diaries of Sir Stafford Northcote," I., 160.
[192:2] After resigning his post in the Education Department in 1903, Sir George Kekewich condemned publicly the Education Bill which had been passed while he was in office, but it may safely be said that even this is not regarded as the best form.
[192:3] Hans. 4 Ser. XC., 327 et seq., XCI., 6 et seq.
[192:4] Ibid., XCVI., 969.
[192:5] Sir Antony MacDonnell, who had distinguished himself greatly as an Indian administrator, and had just been given a place on the Council of India, was appointed by Mr. Wyndham under-secretary for Ireland in September, 1902, in spite of the fact that he was an Irishman, a Roman Catholic and a Liberal in politics. In the summer of 1904, believing that he had the approval of Mr. Wyndham, the Chief Secretary, in so doing, he assisted Lord Dunraven to formulate the policy of devolution in Ireland. But Mr. Wyndham hastened to make public his disapproval of that policy as soon as the plan appeared in the press. When Parliament met in February, 1905, Mr. Wyndham, in reply to questions of the Irish Unionists, stated these facts, adding that Sir Antony MacDonnell had been censured by the cabinet, which was, however, thoroughly satisfied that his conduct was not open to the imputation of disloyalty. (Hans. 4 Ser. CXLI., 324-26.) The occurrence gave rise to a good deal of hot discussion in both Houses of Parliament in the latter half of February, in the course of which Mr. Wyndham said that he could not invite such a man as Sir Antony MacDonnell to come and help him as a clerical assistant, that he was invited rather as a colleague than as a mere under-secretary. (Hans. 4 Ser. CXLI., 650, and see Lord Lansdowne's remarks, Ibid., 461.) The letters that passed between Mr. Wyndham and Sir Antony MacDonnell at the time of his appointment were then produced, and they contain a stipulation couched in language that can fairly be interpreted as implying either a position of exceptional importance, or merely such influence as an under-secretary possessing the full confidence of his chief might enjoy. (Hans. 4 Ser. CXLI., 979-81.) The debate led to the resignation of Mr. Wyndham; and his successor, Mr. Long, as well as Mr. Balfour, insisted that no agreement made with Sir Antony gave him a position different from that of other under-secretaries in the civil service. (Hans. 4 Ser. CXLI., 995; CXLII., 1225-26; CXLIV., 647-48, 1278-79). An aftermath of the trouble came in the autumn of 1906 when Mr. Long challenged Sir Antony MacDonnell to publish any letters bearing upon the events of 1904-1905, but these the Conservative government, when in power, had declined to produce in Parliament. (The Times, Aug. 30, 31, Sept. 1, 4, 1906.) Correspondence of this nature cannot, of course, be published, at the good pleasure of the possessor. The whole episode illustrates clearly the difficulties that arise when a parliamentary chief fails to assume complete responsibility for everything that happens in his department. It shows also that the relations between the political chief and his permanent subordinate are fixed by the nature of the parliamentary system, and cannot be effectively changed in special cases.
[194:1] Parker, "Sir Robert Peel," II., 35-36.
IX. THE HOUSE OF COMMONS
Constituencies and Voters
[Sidenote: Electors and Constituencies Offer Distinct Problems.]
The composition of any representative body involves two separate things; the electors and the constituencies. During the first part of the nineteenth century public attention outside of England was mainly concentrated upon the electors, or in other words upon the extension of the franchise. But now that something like universal suffrage has been introduced into most of the countries which have a popular element in their government, the franchise is little discussed, and much more is said about the constituencies, that is, the method of combining the voters into groups. The change is largely due to discontent with some of the results of democracy, a feeling which finds vent in widespread criticism of representative institutions.[195:1]
It was formerly assumed that the interests of the masses of the people were fundamentally identical; and hence the mode in which the electors were grouped was comparatively unimportant, the main question being the enlargement of the basis of representation. We have now learned that the formation of the constituencies offers a distinct problem with grave practical effects, and popular government not having brought the millennium that was foretold, men seek a remedy in different methods of combining the voters. We constantly see discussions of this subject. We hear of the relative advantage of scrutin d'arrondissement and scrutin de liste; that is, single electoral districts or large areas choosing a number of representatives apiece. We hear about the grouping of voters on the basis of their natural economic relations into urban and rural constituencies; or on the basis of wealth, as in the three-class system of Prussia. We hear suggestions of possible grouping on the basis of occupations;[196:1] and a vast amount of literature has been published to prove the advantage of a grouping on the basis of opinions, by some form of proportional representation.
[Sidenote: How Treated in England.]
In England the two questions of the electors and the constituencies, although usually considered, and made the subject of legislation, at the same time, have always been kept distinct. Each of the great series of measures of parliamentary reform has touched both subjects, but in unequal degree; and, in fact, it was really the state of the constituencies that forced both problems upon public attention.
The Reform Act of 1832 brought in a general franchise for boroughs in place of the multifarious, and on the whole highly exclusive, privileges which had existed before. It also changed, though in a less radical way, the franchise in the counties. But as a political measure its greatest importance lay in its effect upon the constituencies by the redistribution of seats. It took from small boroughs in various stages of decay and rottenness one hundred and forty-three seats, and gave them to the counties, and to new large towns hitherto unrepresented. The Act of 1867, on the other hand, while transferring seats to some extent, was mainly a measure for extending greatly the borough franchise. In 1884 and 1885 both subjects were dealt with radically. By the Act of 1884 the franchise for counties was much enlarged; and by that of 1885 the distribution of seats was reorganised upon a basis closely akin to equal electoral districts.
[Sidenote: The Constituencies.]
The constituencies for the English Parliament are of three kinds; counties, boroughs and universities. The last are quite different from the others in nature and franchise, and a word may be said about them here.
[Sidenote: Universities.]
Oxford and Cambridge were given two seats apiece by James I. The University of Dublin, which had already one seat, obtained another by the Reform Act of 1832; and, finally, the Act of 1868 gave one member to London University, one to Glasgow and Aberdeen combined, and another to Edinburgh and St. Andrews. The franchise for the universities belongs in general to the registered graduates.[197:1]
[Sidenote: The Reform Act of 1832.]
Until 1832 each county, and each borough that had the privilege of being represented, elected, as a rule, two members of Parliament. This, however, was not true of the Scotch boroughs, which were, with few exceptions, grouped into districts returning a single member apiece; a system that has been maintained to the present day. Some of the English boroughs had been given the right of electing members by the Tudors and the early Stuarts, not because they were places of importance, but, on the contrary, because they were not populous, and their members could be easily controlled by the Crown--the electoral rights being commonly vested in the governing council, which was a close corporation. Other boroughs that had once been places of consequence had, in the course of time, fallen into decay. So that by the beginning of the nineteenth century many members of the House represented no substantial communities, and were really appointed either by small self-perpetuating bodies, or by patrons, who, owning the land, controlled the votes of the few electors in the constituency. This condition of things was made scandalous by the open practice of selling elections to Parliament for cash; and the demand for reform, which had been checked by the long struggle with France, began again after the peace, culminating finally in the Reform Act of 1832.[197:2] The object of this measure was to remove a manifest abuse, rather than to reorganise the representation of the country on a new basis, and it applied to the conditions a somewhat rough and inexact remedy. The boroughs with less than two thousand population by the census of 1821 were disfranchised altogether, those with more than two thousand and less than four thousand lost one member, and the seats thus obtained were divided about equally between the counties and the new large towns that had hitherto been unrepresented.[198:1] But the constituencies still remained very uneven in population--and, indeed, the framers of the act had no desire for equal electoral districts.
[Sidenote: The Reform Act of 1867.]
The same process was continued by the Act of 1867, which again took members from little towns and gave them to larger ones and to the counties. While there was no general attempt to make the number of representatives proportional to the size of a constituency, a few of the largest provincial towns were given three members; and in that connection an interesting experiment was tried. With the object of providing for minority representation, the electors in the boroughs returning three members--the so-called three-cornered constituencies--were allowed to vote for only two candidates apiece. This resulted in diminishing the real representation of the borough, as compared with the rest of the country. If Manchester, for example, was Liberal, she would probably be represented by two Liberals and one Conservative. But in a party division the Conservative would neutralise one of the Liberals, so that Manchester would count for only one vote, and would, therefore, have only half as much weight as a much smaller borough with two members both belonging to the same party. The experiment gave so little satisfaction that it was afterward abandoned; and it is chiefly interesting to-day because the effort to organise a large party majority so as to compass the election of all three members gave rise to the Birmingham Caucus, whose birth and whose progeny will be described in a subsequent chapter. Except for the few three-member constituencies, and a much larger number of boroughs having only a single seat, the constituencies still returned two members apiece; and this continued to be the rule until the third and last of the great measures of parliamentary reform.
[Sidenote: The Reform Act of 1885.]
The Redistribution Act of 1885, although, like all English measures of reform, to some extent a compromise between the old ideas and the new, rested upon the principle of equal electoral districts each returning a single member. The proportion of one seat for every 54,000 people was roughly taken as the basis of representation; and in order to adapt the principle to the existing system with the least possible change, boroughs with less than 15,000 inhabitants were disfranchised altogether, and became, for electoral purposes, simply a part of the county in which they were situated. Boroughs with more than 15,000 and less than 50,000 people were allowed to retain, or if hitherto unrepresented were given, one member; those with more than 50,000 and less than 165,000, two members; those above 165,000 three members, with an additional member for every 50,000 people more. The same general principle was followed in the counties.[199:1]
The boroughs that had hitherto elected two members, and were entitled to the same number under the new scheme, remained single constituencies for the election of those two members. Of these boroughs there are twenty-three,[199:2] which, with the City of London, and the three universities (Oxford, Cambridge, and Dublin), makes in all twenty-seven cases where two members are elected together. All the other constituencies are single-member districts, a result which was brought about by a partition of the counties, of boroughs with more than two members, and of the new boroughs with only two members, into separate electoral divisions, each with its own distinctive name.
It may be interesting to note that the Reforms of 1832 and 1867 did not change the total number of members of the House, but merely redistributed the existing 658 seats. By the disfranchisement, after 1867, for corrupt practices, of four boroughs returning six members, the number was reduced to 652; and the Reform Act of 1885 increased it to 670, where it has since remained.
[Sidenote: Inequalities in Representation.]
The distribution of seats under the Act of 1885 was only a rough approximation to equal electoral districts; and in time it has become far less close, until to-day the difference in the size of the constituencies is very great. The smallest is the borough of Newry in Ireland, which had at the census of 1901 a population of only 13,137; or, if we leave Ireland aside on account of its peculiar conditions, the smallest in Great Britain is the city of Durham with a population of 14,935; while the largest is the southern division of the County of Essex, with 217,030 inhabitants; so that the largest constituency to-day is nearly fifteen times as populous as the smallest.[200:1] Nor are the inequalities confined to extreme cases; for they exist in lesser degree throughout the electoral body, many of the constituencies being two or three times as large as many others.
But unless one assumes that the exact equivalence of all votes is a fundamental principle of political justice, differences of this kind are of little consequence, provided one part of the community, or rather one set of opinions or interests, is not distinctly over-represented at the expense of another. Now, in Parliament an over-representation of this kind does exist; not, indeed, in regard to the different social classes or economic interests in the nation--for inequalities of that sort are not marked enough to be important--but between the different parts of the country.
[Sidenote: Over-Representation of Ireland.]
Some parts of Great Britain have grown very rapidly, while the population of Ireland has actually diminished during the last half century; and the result is that whereas in the United Kingdom as a whole there is now, on the average, one member of Parliament for every 62,703 people, England has only one for every 66,971; and Ireland one for every 44,147. If a redistribution of seats were to be made in strict proportion to population, Ireland would therefore lose thirty members, and England would gain about as many, while Scotland would gain one seat, and Wales would lose three.
The question of the proportional representation of England and Ireland is a burning one, because the parliamentary system cannot work well unless one party has a majority which can give to the ministry a stable support. But eighty of the Irish members are Nationalists, who do not belong to either of the great parties, and may at any general election acquire a balance of power, and cause confusion in politics, as they did after the election of 1885. The loss of twenty-five seats, which they would suffer by a reduction of the Irish representation, would materially lessen that danger. The Conservative government was constantly urged by its supporters to make the transfer of seats from Ireland to England, and was actually preparing to do so at the time it resigned in 1905. On behalf of Ireland it was argued that this would be a violation of the Act of Union, which was in the nature of a treaty, and allotted to Ireland one hundred members in the House of Commons.[201:1] On the other hand the advocates of the policy replied that the terms of the Act of Union cannot be forever binding under a change of circumstances; they referred to the fact that in 1868 the Church of England was disestablished in Ireland, notwithstanding the provision in the Act for its perpetual establishment there;[201:2] and they said that conditions had so changed as to justify a redistribution of seats. The Irish, however, claim that the great bulk of their people wanted disestablishment, and that Ireland could waive provisions made in her behalf; but it may be urged that the provision about the Church was made for the benefit not of Ireland, or its people, but of a minority there.
The formation in England of new constituencies for the seats transferred would raise great practical difficulties. Even if it did not involve a general redistribution bill, it would necessitate changing many of the districts. Quite apart from the danger of incurring a charge of gerrymandering for party purposes, there would be a host of personal interests of members of Parliament to be considered. Each member affected would be anxious that the change should not make his seat less secure than before; and claims of this sort have peculiar weight in a country where, as in England, the sitting member has almost a prescriptive right to renomination by his party.
[Sidenote: Effect of the English Method of Distributing Seats.]
The English practice of rearranging the constituencies, and apportioning the representatives among them, only at long intervals, of treating a bill for the purpose as an exceptional measure of great political importance, instead of the natural result of each new census, has the advantage of preventing frequent temptations to gerrymander. But, on the other hand, it raises the matter of electoral districts to the height of a constitutional, and almost a revolutionary, question, preceded sometimes by long and serious agitation, and always fought over on party grounds. This is a perpetual difficulty, for the shifting of population, which must always be changing the ratio of representation, will from time to time make a redistribution of seats inevitable.
[Sidenote: The Franchise.]
The extension of the franchise was long a grave constitutional question also, but it has now been so nearly worked out that it can hardly be regarded in that light in future. Before the Reform Act of 1832 the franchise in the counties depended entirely upon the ownership of land, an old statute of 1429,[202:1] having confined the right of voting to forty-shilling freeholders; that is, to men who owned an estate of inheritance, or at least a life estate, in land of the annual value of forty shillings.[203:1]
In the boroughs the franchise was based upon no uniform principle, but varied according to the custom or charter of the borough. Sometimes it depended upon the tenure of land; and, since residence was by no means always necessary, it might happen that the voters did not live in the place, and there were even cases where members were returned to Parliament by boroughs that had no longer a single inhabitant. Sometimes the right belonged to the governing body of the town; sometimes to all the freemen; sometimes to all householders who paid local taxes; and in one place, at least, it extended to all the inhabitants. In these last cases the franchise was actually wider before the Reform Act of 1832 than it was afterward, so that although the act enlarged the electorate very much on the whole, and preserved the rights of all existing voters, it narrowed the franchise seriously for the future in a few places.[203:2]
[Sidenote: Reform Act of 1832.]
[Sidenote: Counties.]
In the counties the Act of 1832 continued to treat the right to vote as dependent upon the tenure of land, although in some ways restricting and in others much more largely extending it. In order to prevent the manufacture of forty-shilling freeholders for electoral purposes, the act provided that a voter must have been in possession of his land for six months, unless it came to him by descent, devise, marriage or promotion to an office;[203:3] and, also, that if he held only a life estate he must either have acquired it by one of these methods, or must be in actual occupation, unless again it was of the clear yearly value of ten pounds.[203:4] On the other hand the act extended the right of voting in counties to persons entitled to copyholds, and leaseholds for sixty years, of the annual value of ten pounds; to leaseholds for twenty years of the value of fifty pounds; and to leaseholds of fifty pounds annual value without regard to the length of the term, if the tenant was in actual occupation of the land.[204:1]
[Sidenote: Boroughs.]
In the boroughs the Reform Act wrought a complete change. Except that it preserved the personal rights of living voters,[204:2] and retained the privileges of freemen in towns where they existed,[204:3] it swept away all the old qualifications,[204:4] and replaced them by a single new franchise based exclusively upon the tenure, or rather the occupation, of land. The new qualification was uniform throughout England, and included every man who occupied, as owner or tenant, a house, shop, or other building, worth, with the land, ten pounds a year. But while the franchise in the boroughs was thus based, like that in the counties, upon land, the effect was entirely different, and was intended to be so. It has been said that the framers of the act meant the county members to represent property, and the borough members to represent numbers. The boroughs, as will appear later, did not really stand for numbers, but the counties did certainly represent property, and that in spite of the Chandos Clause which admitted fifty-pound leaseholders and was resisted by the authors of the bill. The electorate in the counties consisted of the landholders with a few large farmers, while in the towns it comprised the great middle class.
Later in the same session acts of a similar nature were passed for Scotland[204:5] and Ireland;[204:6] and in fact it was the practice until 1884 to deal with the franchise in the three kingdoms by separate statutes.
[Sidenote: Effect of the Act of 1832.]
As the practice of keeping a register of persons entitled to vote at parliamentary elections did not begin until this time, it is impossible to say precisely how much the Act of 1832 increased the size of the electorate. But from returns made just prior to the passage of the Act,[205:1] it would appear that the number of borough electors in England and Wales was then about 180,000; whereas immediately after the Act had gone into effect it was 282,398.[205:2] The total increase in the borough electorate, which was the one chiefly affected, was therefore about 100,000, and a great part of this increase consisted of the voters in the large towns that had been given seats for the first time by the Act.
The new system was in no sense either democratic or proportionate to population. The average ratio of electors to population for the whole United Kingdom was about one in thirty; but the variation in different constituencies and different parts of the kingdom was very great. In the English and Welsh counties the ratio ran all the way from one in five in Westmoreland, to one in thirty-seven in Lancashire, one in thirty-nine in Middlesex, and one in sixty in Merioneth. In the English and Welsh boroughs it ran from nearly one in four in Bedford and Aylesbury, where practically all adult males were voters, to one in forty-five in the manufacturing towns. In Scotland even a smaller part of the population enjoyed the franchise. In the counties the ratio ran from one in twenty-four in Selkirk, to one in ninety-seven in Sutherland; and in boroughs or districts, from one in twenty in the Elgin district, to one in forty in that of Linlithgow. In the Irish counties it ran from one in fifty-eight in Carlow, to one in two hundred and sixty-one in Tyrone; and in the boroughs from one in nine in Carrickfergus and Waterford, to one in fifty-three in Tralee.
The proportion of members of Parliament to population was far more uneven still. As reformers at a later date were constantly pointing out, one half of the borough population of England was contained in sixteen boroughs, and elected only thirty-four members; the other half, numbering less than two and a half millions, still returning two hundred and ninety-three members; while the counties with eight millions of people returned one hundred and forty-four members. Thus it happened that less than one fifth of the population in England elected nearly one half of the representatives; and as these came from the boroughs it can hardly be said that the borough members represented numbers.[206:1]
[Sidenote: Later Reform Bills.]
Mr. G. Lowes Dickinson, in his "Development of Parliament during the Nineteenth Century,"[206:2] has pointed out that while the framers of the Act of 1832 had not the least intention of introducing democracy, the measure itself could not have furnished a permanent settlement of the franchise, and was destined inevitably to lead to further steps in the direction of universal suffrage. The first step was a slight reduction, in 1850, of the amounts required for the qualification of voters in Ireland.[206:3] This was followed by a series of moderate English reform bills, which failed to pass the House of Commons.[206:4]
[Sidenote: The Act of 1867.]
In 1867 Disraeli, who had educated his reluctant party until it accepted the political need of extending the franchise, brought in a bill with elaborate safeguards against the predominance of the masses. Under the existing law a small fraction of the working classes had votes in the boroughs;[206:5] and it was Disraeli's intention to admit a larger number of the more prosperous workingmen without giving them an overwhelming weight in the electorate. But the parliamentary situation was peculiar. The Conservative government, which had come into power only through the quarrels of its opponents, had not a majority in the House of Commons, and could not insist upon its own policy; while the Liberals were not under the sense of responsibility that comes with office. The result was that the bill was transformed by amendments, the safeguards proposed by the cabinet were swept away, and a far longer stride toward universal suffrage was taken than any one had expected.
In the counties the Act of 1867[207:1] reduced the ten-pound qualification for owners and long leaseholders to five pounds, and created a new twelve-pound occupation franchise. But a far greater extension was made in the boroughs, where two new franchises were introduced. The most important of these was that of the "householder," whereby a vote was given to every man who occupied, as owner or tenant for twelve months, a dwelling-house, or any part of a house used as a separate dwelling, without regard to its value.[207:2] The other franchise admitted lodgers who occupied for the same period lodgings of the clear value, unfurnished, of ten pounds a year.[208:1] In the course of the next session acts, in general similar, were passed for Scotland and Ireland.[208:2]
[Sidenote: Its Effects.]
From 1832 to 1862, in spite of the general gain in wealth, the electors had increased very little faster than the population; in England and Wales, indeed, the voters remained about one twentieth of the people,[208:3] while in Scotland they had risen only from one thirty seventh to one thirtieth.[208:4] But the Acts of 1867 and 1868 almost doubled the electorate. In the counties the voters, who numbered 768,705 just before those acts, were, by 1871, 1,055,467; while the borough voters increased from 602,088 to 1,470,956.[208:5]
[Sidenote: The Act of 1884.]
It was evident that the qualifications for voting could not long remain far wider in one class of constituencies than in another; that the franchise of the boroughs must, in time, be extended to the counties. This was done in 1884,[208:6] and the change more than doubled the county electorate. The franchise, therefore, is now substantially uniform throughout the United Kingdom, except that certain owners and leaseholders have a right to vote in counties, and that in some old towns the freemen still possess the suffrage. Inasmuch as most of the boroughs are included in counties, the occupier, householder, or lodger would be entitled on the same qualifying property to vote in both; and hence a man in a borough would have two votes at an election, while another man with the same qualification outside of the borough would have only one. To avoid this result it is provided that a man shall not be entitled to vote at an election for a county in respect of the occupation of a dwelling-house, lodging, land or tenement in a borough;[209:1] but he may vote in the county on account of the ownership of land in a borough which he does not occupy, or on account of land which he both owns and occupies if he occupies other land in the borough sufficient to qualify him there.[209:2]
[Sidenote: The Existing Qualifications.]
Although the franchise is now substantially uniform, it is not exactly the same for the different parts of the United Kingdom; nor is it by any means simple. The latest acts have not codified the law. It must still be sought in many statutes, whose provisions are so complicated, and often obscure, that they can be understood only by studying the interpretation put upon them by the courts. The reader who wishes to ascertain the law on a special point must refer to treatises upon the subject, such as Rogers on "Elections." It will be enough for our purpose to summarise the various franchises as they exist to-day.
[Sidenote: Property.]
There are two qualifications which are not universal. One of these, relating to property rights in land, applies only to counties, and to some extent to boroughs which are counties in themselves.[209:3] It confers the right to vote on owners of land[210:1] of forty shillings yearly value, who hold an estate of inheritance; or who hold an estate for life, and are in actual occupation of the land, or have acquired it by some means other than purchase, or whose land is of five pounds clear yearly value.[210:2] Under this franchise come, also, the leaseholders of land of five pounds yearly value if the original term was not less than sixty years, and fifty pounds value if the term was not less than twenty years.[210:3] The corresponding qualifications for Scotland and Ireland are slightly different in their conditions and in the values required.
[Sidenote: Freemen.]
The other franchise which is not universal is that of freemen in those towns where they had a right to vote before 1832. The privilege still exists in a number of old boroughs, but, except in the City of London, is confined to freemen who have become such by birth or apprenticeship.
[Sidenote: Occupiers, Householders, and Lodgers.]
The three remaining franchises are universal, though not precisely uniform. They are those of the ten-pound occupiers, the householders, and the lodgers. The first of these gives the right to vote to a man who occupies, as owner or tenant, any land or tenement of the clear yearly value of ten pounds. The second confers the right on a man who occupies, as owner or tenant, any dwelling-house, or part of a house used as a separate dwelling, without regard to its value. The qualification extends also to men who are not owners or tenants, but who occupy by virtue of an office, service, or employment, a dwelling-house in which the employer does not himself reside. The third of these franchises confers the right to vote upon a man who occupies lodgings of the value, unfurnished, of ten pounds a year.
The application of these franchises to particular cases has given rise to a great amount of litigation, and in particular the courts have found it almost impossible to distinguish between a householder and a lodger. For the general reader, who is concerned with the study of the English government, and not with the effort to get the largest possible number of party members registered, such questions have little interest; but there are two or three matters that ought to be noted, because they have an important bearing on the actual size of the electorate.
[Sidenote: Period of Occupation.]
One matter of political consequence relates to the period of occupation required. Owners of land in counties, who have acquired it by descent, marriage, promotion to an office, etc., are not required to have owned it for any period. All other owners must have held the title for six calendar months before the 15th of July preceding the registration; and all other voters, except freemen, must have been in occupation of the qualifying premises, or some other premises within the same constituency, for one year preceding the 15th of July.[211:1] This, of course, has the effect of disqualifying entirely persons whose occupation has not been continuous for the whole of that year, and as the register does not take effect until the 1st of January following, and then remains in effect a whole year, voters who have moved to another part of the country within eighteen months after their year of occupation can vote only by a journey back to their former place of abode.
[Sidenote: Residence.]
A second matter that must be noticed is the question of residence. Before the Reform Act of 1832 the qualification for counties was based upon ownership; that for boroughs varied very much; but in those places where the franchise was broad it was based mainly upon residence. This distinction has, to some extent, persisted. In general it may be said that for English and Scotch counties, and in Ireland for both boroughs and counties, residence is not required, except so far as the occupation of a dwelling-house or lodging may involve residence and this is not necessarily the case.[211:2]
In English boroughs a voter must have resided for six calendar months previous to the 15th of July in the borough, or within seven miles thereof;[212:1] and in Scotland he must have resided there for a whole year.
The requirement of residence does not, however, imply quite so much as might appear, because, according to English law, the possession of a chamber in which a man occasionally sleeps, and to which he can return at any time, is enough to constitute residence; and, hence, he may have a residence in more than one place.[212:2] In the counties, therefore, residence is unnecessary, and even in the boroughs the requirement of residence does not limit a man to voting in a single constituency. The importance of this will shortly be pointed out.
[Sidenote: Payment of Rates.]
The third matter to be noticed is the question of rating. We have already observed that at one time the personal payment of rates by the voter was much discussed, and was regarded as an important guarantee of character.[212:3] In England poor rates are assessed upon the occupiers, not the owners, of the property, and it is still provided that all voters whose qualification depends upon the occupation of land (except lodgers, who are not from the legal point of view occupiers) must have been rated and must have paid their rates.[212:4] But this means only that the rates must have been paid on their behalf; and the practice of compounding by the landlord for small tenements is so universal that practically the landlord pays the rates in almost all cases where the occupiers would be likely to fail to do so. In England, therefore, the requirement that the rates must have been paid has little or no effect on the electorate. In Scotland, on the other hand, this is not the case. There the rates are divided between the owner and the occupier, and the practice of compounding does not exist. The result is that many occupiers are omitted from the parliamentary register every year on account of their failure to pay rates. For the whole of Scotland the number reaches fifty thousand.[213:1]
[Sidenote: Actual Extent of the Suffrage.]
A comparison of the number of electors on the register with the total population shows that England is not very far to-day from manhood suffrage. The ratio is about one in six,[213:2] whereas the normal proportion of males above the age of twenty-one years (making no allowance for paupers, criminals, and other persons disqualified by the laws of all countries), is somewhat less than one in four. The only classes excluded from the franchise are domestic servants, bachelors living with their parents and occupying no premises on their own account, and persons whose change of abode deprives them of a vote. Now, these are not necessarily the worst political elements in the community. No doubt the provision requiring twelve months' occupation excludes vagrants, but it also excludes excellent artisans who migrate with changes of trade, and other persons whose calling compels them to move from place to place. In 1902 a school-teacher, in a plaintive letter to The Times,[213:3] described how he had never been able to vote at a general election. He had graduated with honours from his university, was nearly forty years old, married, and prosperous; but his very success in his profession, by involving changes of residence, had always cost him the right to vote. It is a common saying that many respectable people are disfranchised from this cause, although the slums, which move little, are not.
The present condition of the franchise is, indeed, historical rather than rational. It is complicated, uncertain, expensive in the machinery required, and excludes a certain number of people whom there is no reason for excluding, while it admits many people who ought not to be admitted if any one is to be debarred. But the hardship or injustice affects individuals alone. No considerable class in the community is aggrieved, and neither political party is now anxious to extend the franchise. The Conservatives are not by tradition in favour of such a course, and leading Liberals have come to realise that any further extension would be likely to benefit their opponents.
[Sidenote: Plural Voting.]
Although there is no urgent demand for a closer approach to manhood suffrage, there has long been a strong desire to restrict each man to a single vote. That a man should have a vote in two different constituencies is as clearly a breach of political equality as if he had two votes in the same place; and for this reason, as well as from the fact that most of the men who have more than one vote are Conservatives, a demand for the abolition of plural voting has been for many years an article in the Liberal programme. So far as the franchise is not dependent upon residence there is nothing to prevent a man from voting in every constituency where he possesses a qualification.[214:1] Now for the counties and the universities residence is not necessary; and even in the boroughs, where it is required, plural voting is restrained only in part, because a man may have more than one residence, and because residence within seven miles of the borough is enough, so that the men who carry on their business in the town and live in the suburbs are qualified in the borough by reason of their offices or workshops, and in a suburban borough or the county by reason of their dwellings.
It is not easy to determine how many persons are entitled to vote in more than one constituency, or how much they affect the result of elections. In a return of resident and non-resident voters made to Parliament in 1888,[214:2] it appeared, as was natural, that the proportion of the latter was greatest among the freeholders in the counties, nearly one quarter of whom were non-residents. In all there were about two hundred thousand non-resident voters in England and Wales. This is between four and five per cent. of the total electorate, which does not seem an important fraction; but it fails to express the full effect of plural voting, because it does not include the persons who have more than one residence, or who live outside the limits of a borough but within seven miles of it, or those again who reside in a borough that forms part of a county and are qualified to vote in both. Moreover, the men with more than one vote, although a small proportion of the whole electorate of the kingdom, are quite numerous enough to turn the scale in a close constituency.
One of the first acts of the new Liberal ministry in the session of 1906, was to bring in a bill to abolish plural voting altogether. This could not be done simply by making residence a condition of the franchise, because in England a man may have more than one residence. The measure provided, therefore, that the voter must elect in which of the places where he possessed a qualification he would be registered, and forbade him to vote anywhere else. The bill was passed by the House of Commons, but rejected forthwith by the Lords.
[Sidenote: Number of Electors by Classes.]
It is interesting to observe the number of voters registered under the different franchises. In 1906 the figures for the United Kingdom were as follows:--
Owners 579,827 Occupiers 6,357,817 Lodgers 226,191 Freemen, etc. 57,728 Univs. 45,150 --------- Total 7,266,706
By far the greater part of the voters are registered as occupiers, a class which includes both the householders and the ten-pound occupiers. The table contains a surprisingly small number of lodgers; and this is due to the fact that whereas the lists of owners and freemen are virtually permanent, and the list of occupiers is made up by the overseers of the poor from the rate-book,[216:1] a lodger alone must make every year a personal application to be registered.[216:2] The result is that no one seeks to be enrolled as a lodger if he has any other franchise; and no doubt many lodgers, who have no other qualification, neglect to register at all.
[Sidenote: Disqualifications for Voting.]
A characteristic, although not in itself a very important peculiarity of the English electoral law, is the rule depriving peers of the right to vote;[216:3] and in fact the Commons still profess to be highly jealous of any part taken in electoral campaigns by members of the House of Lords.[216:4] In other respects the disqualifications for voting in England are now much the same as in other countries. There are the usual rules excluding aliens, infants, idiots, paupers, convicts, and persons who have been guilty of corrupt practices at elections. Formerly there were also provisions excluding large classes of public officers, but these have been repealed, except in the case of the Irish police, of certain officers directly concerned in the conduct of elections, and of persons employed and paid by the candidates.
Women cannot vote for members of Parliament, although they possess the franchise for almost all local elections. This question has of late aroused much interest. Although both of the political parties have at times adopted resolutions in favour of woman suffrage, the leading men in both are divided about it, and the Labour Party may be said to be the only political organisation of men in England that want it heartily. But many women are agitating for it very vigorously, and the most enthusiastic of them have sought martyrdom by refusing to pay taxes, by creating a disturbance in the ladies' gallery of the House of Commons, and by getting arrested for speech-making in the Palace Yard. They are known as Suffragettes, and evidently have faith in the old adage that Parliament never redresses grievances until they are brought forcibly to its notice. Women will no doubt ultimately obtain the suffrage if they are substantially united in wanting it, and the principle is certainly making great headway among them in England to-day.
[Sidenote: Registration.]
It is not enough that a man possesses the requisite qualifications for the franchise. His name must also be upon the register of voters for the constituency, and the process of compiling the register is cumbrous and expensive. This is due in part to the complicated nature of the various franchises, which may involve intricate questions of law and of fact, and partly to the practice of leaving the duty of proving claims and objections mainly in the hands of private individuals. The lists are made up in the first instance by the overseers of the poor in each parish; but any person whose name is omitted may claim to have it inserted, and any person whose name is on the lists may file an objection to any other name which he thinks ought not to have been included. These claims and objections are heard in September by the Revising Barrister--a barrister of not less than seven years' standing, appointed for the purpose by the judge in whose circuit the constituency lies, and paid by the Treasury. It is his duty to revise the register by adding the names of persons who prove their claims, and by striking off names improperly inserted. In doing this he is not limited to names against which objections have been filed, for he has a right to make inquiries and summon witnesses on his own motion.[217:1] In practice, however, the cases are prepared beforehand, and argued before him, by the local agents of the two political parties, whose object is to get the names of their partisans on to the register and keep off those of their opponents.
The process is repeated every year, and the work and cost involved are considerable, the money being provided by the candidate for Parliament, or by means of subscriptions to the party funds. This is one of the things that makes elections expensive; and it helps to explain the desire of each party in a constituency to have a candidate at all times, even when an election is not impending. In Scotland registration is far less of a burden upon the parties, and costs the candidate very little, because the qualifications of all the voters, except the lodgers, are investigated by a public officer, called the assessor, and a corps of assistants, with the result that there are few claims or objections for the political agents to contest. There seems to be no self-evident reason why this should not be done everywhere, and for every class of voter.
FOOTNOTES:
[195:1] This feeling was forcibly expressed by Godkin in his essay on "The Decline of Legislatures."
[196:1] This is elaborately discussed by Charles Benoist, La Crise de l'Etat Moderne.
[197:1] For "keeping one's name on the books" the university sometimes requires a fee which diminishes seriously the number of graduates entitled to vote either for Parliament or on academic questions. In Cambridge, for example, the electors are only about one half the graduates.
[197:2] For England, 2 Will. IV., c. 45. For Scotland, 2-3 Will. IV., c. 65. For Ireland 2-3 Will. IV., c. 88.
[198:1] Scotland obtained eight additional members, and Ireland five.
[199:1] In several cases small Scotch counties are combined in pairs for the election of a single member, but this antedated the Act of 1885.
[199:2] Whereof twenty are in England, and one each in Wales, Scotland, and Ireland.
[200:1] This is not because the county constituencies are essentially larger or smaller than those of the boroughs. The Borough of Wandsworth, for example, had, in 1901, a population of 179,877. These figures are taken from single-member constituencies; for it so happens that the two-member boroughs, when their population is divided by two, are neither among the largest or the smallest. Com. Papers, 1905, LXII., 333 et seq.
[201:1] 39-40 Geo. III., c. 67, Art. 4.
[201:2] Ibid., Art. 5.
[202:1] 8 Hen. VI., c. 7.
[203:1] In Scotland the value of the land, if not of "old extent," had to be 400_l._ a year. In Ireland an Act of 1829 had raised the limit of annual value to 10_l._, to restrain the practice of manufacturing fagot voters on the eve of an election.
[203:2] In Ireland the borough franchise was multifarious as in England. In Scotland it was wholly in the hands of the councils of the royal burghs.
[203:3] 2-3 Will. IV., c. 45, Sec. 26.
[203:4] Ibid., Sec. 18.
[204:1] 2-3 Will. IV., c. 45, Secs. 19, 20. The last provision was added during the passage of the bill, and is known from its proposer as the Chandos Clause.
[204:2] Ibid., Sec. 33.
[204:3] Ibid., Sec. 32; but freemen thereafter admitted could vote only if made such by birth or servitude.
[204:4] Ibid., Sec. 33. By Sec. 31, 40_s._ freeholders retained the franchise in boroughs that are counties by themselves.
[204:5] 2-3 Will. IV., c. 65.
[204:6] Ibid., c. 88.
[205:1] Com. Papers, 1831-1832, XXXVI., 489.
[205:2] It is interesting to observe that of these, 108,219, or nearly two fifths were freemen, scot and lot voters, potwallopers and other persons whose ancient rights had been preserved. They belonged, of course, only to the old boroughs. Election Returns (Boroughs and Counties), Com. Papers, 1866, LVII., 215, p. 8.
[206:1] These figures, about the proportion of electors and members to population, are taken from a Report on Electoral Expenses, Com. Papers, 1834, IX., 263, App. A.
[206:2] Pp. 47 et seq.
[206:3] 13-14 Vic., c. 69.
[206:4] In reading the debates on these bills a foreigner is often puzzled by the distinction between ratable value and clear yearly value. The latter is what is called gross estimated rental in the Rate Book, while the ratable value is supposed to be the net yearly value, and it is obtained by making a reduction from the gross, which varies from place to place, but is on the average about ten per cent.
[206:5] Of the borough electors in England and Wales 26.3 per cent belonged to the working classes; Com. Papers, 1866, LVII., 47, p. 5. In Scotland the proportion was 18.3 per cent. Ibid., 805, p. 12.
[207:1] 30-31 Vic., c. 102.
[207:2] One of the safeguards in the bill was the provision that householders must be separately rated for the relief of the poor, and must have paid their rates; and in order to insure personal payment by the householder, the Act forbade the common practice of rating the owner of dwellings in lieu of the occupier. But the practice saved the local authorities much trouble. It enabled them to receive the rates in a single payment from the owner of a number of houses, instead of collecting small sums from many tenants; and they were in the habit of allowing a commission or rebate to owners who paid in this way.
The convenience of the old practice was so great that in 1869 it was again permitted; and the Act (32-33 Vic., c. 41) also provided that such a payment by the owner should be deemed a payment by the occupier for the purpose of the franchise, thus sweeping away the safeguard of personal payment of rates.
The practice is called compounding for rates, and the tenant whose rates were paid by the landlord was the subject of fierce discussion under the name of "compound householder," although it was in fact the rate, and not the house or the holder thereof, that was compounded.
[208:1] It will be observed that the 10_l._ occupier differed from the householder in the fact that he might occupy any shop, warehouse, or other building, whereas the householder was qualified only by a dwelling-house. On the other hand, the premises occupied by a 10_l._ occupier must be of the clear yearly value of 10_l._, whereas the householder was qualified without regard to the value of the house.
By the Act of 1867 the householder might occupy any part of a house used as a separate dwelling; while the 10_l._ occupier must occupy a whole building. This difference was, however, done away with in 1878 by an act (41-42 Vic., c. 26, Sec. 5), which provided that the occupation might be of any separate part of the building, if that part were of the yearly value of 10_l._.
[208:2] 31-32 Vic., cc. 48, 49.
[208:3] They ran from a little less than one in twenty-one to a little more than one in twenty. Cf. Com. Papers, 1866, LVII., 215, 569.
[208:4] Ibid., 643. The extension of the franchise in Ireland in 1850 nearly trebled the number of county voters there, in spite of the falling off in population.
It may be observed that the growth in registered voters is not an exact measure of the increase in the number of persons qualified for the franchise, because with the organisation of the political parties there has been a greater and greater effort to make every man register who is entitled to do so.
[208:5] Com. Papers, 1872, XLVII., 395.
[208:6] 48-49 Vic., c. 3. The Act also extended the household qualification--both for counties and boroughs--to men who occupy a dwelling-house not as owners or tenants, but by virtue of their office or employment, provided the employer does not also occupy the house, the object of that proviso being to exclude domestic servants. This qualification is known as the "service franchise."
[209:1] 48-49 Vic., c. 3, 6; and see also 2-3 Will. IV., c. 45, Sec. 24, and 30-31 Vic., c. 102, Sec. 59.
[209:2] Rogers on Elections, I., 64-66. The references to Rogers are to the 16th Ed. of Vol. I., to the 17th Ed. of Vol. II.
[209:3] The amount required for the qualification of freeholders in boroughs which are counties is not exactly the same as in counties; and the leasehold qualifications do not extend to them. In England there are now only four boroughs which retain these rights: Bristol, Exeter, Norwich, and Nottingham. Rogers on "Elections," I., 160 et seq.
[210:1] Rent charges, whether arising from the commutation of tithes or otherwise, are realty, and qualify a voter as land.
[210:2] If the land is copyhold or other tenure, it must in any case be of the yearly value of 5_l._
[210:3] The 50_l._ leaseholders admitted by the Chandos Clause in the Act of 1832 were required to occupy the land, and are now included in the 10_l._ occupation franchise.
[211:1] Rogers, I., 61-63, 125.
[211:2] Ibid., 27, 66.
[212:1] Rogers, I., 148-49, 162. In the City of London he may reside within twenty-five miles.
[212:2] Ibid., 149-50.
[212:3] Page 207, note 2, supra.
[212:4] Rogers, I., 27, 30, 126 et seq., 142 et seq.
[213:1] Com. Papers, 1898, LXXX., 755.
[213:2] It is slightly less in Scotland than in England and Ireland.
[213:3] Aug. 30.
[214:1] A man cannot vote in more than one division of the same borough. 48-49 Vic., c. 23, Sec. 8. But there is no such limitation in the case of divisions of a county. Ibid., Sec. 9. Metropolitan London is not a single borough, but a collection of boroughs, several of which contain more than one division, and hence the effect of this provision is quite irrational there.
[214:2] Com. Papers, 1888, LXXIX., 907.
[216:1] Where the landlord compounds for the rates he is required to give to the overseers a list of the actual occupiers. Rogers, I., 130.
[216:2] Rogers, I., 265, 266, 268.
[216:3] An Irish peer actually sitting for a constituency in Great Britain can vote.
[216:4] They adopt every year a sessional order that for a peer "to concern himself in the election of members" is "a high infringement of the liberties and privileges of the Commons."
[217:1] For the duties of the Revising Barrister, see Rogers, I., 297-336. From the decision of the Revising Barrister an appeal lies on questions of law to the King's Bench Division of the High Court of Justice.
X. THE HOUSE OF COMMONS
Electoral Procedure
All elections to Parliament, whether general elections following a dissolution, or the so-called by-elections resulting from an accidental vacancy, take place in pursuance of a writ under the Great Seal, issued from the Crown Office, and directed to the returning officer of the constituency. In all counties, and in Scotch and Irish boroughs, the returning officer is the sheriff or his deputy. In English boroughs he is the mayor.
[Sidenote: Procedure at Elections.]
[Sidenote: Before the Ballot Act.]
Until 1872 candidates for Parliament were nominated viva voce at the hustings,--a temporary platform erected for the purpose. If more names were proposed than there were seats to be filled, the election was said to be contested, and a show of hands was called for. Many of the persons present were probably not entitled to vote, but that was of no importance, because the show of hands was merely formal, and a poll was always demanded. A time for taking it was then fixed, extending over a number of days, during which the electors declared their votes publicly. This gave a chance for bribery, for the intimidation of voters, and for disturbances of various kinds, not seldom deliberately planned. The disorderly scenes that accompanied an election have often been described both in histories, and in novels such as "The Pickwick Papers" and "Coningsby," written by men familiar with the old polling days. In 1872 the method of conducting elections was changed by the Ballot Act,[219:1] which introduced secret voting, and made the procedure more orderly in many other respects.
[Sidenote: Existing Procedure.]
[Sidenote: Nomination.]
Nominations are now made in writing by proposer, seconder, and eight others, all registered voters. If only one person is nominated for a seat, the candidate, or candidates if it be a two-member constituency, are at once declared elected; nor is this a hypothetical case, because, for reasons that will be described hereafter, usually more than one fourth, and sometimes more than one third, of the seats are not contested at a general election.
[Sidenote: Election Days.]
If, on the other hand, the election is contested, a day is fixed for the poll; for voting is now confined to a single day in each constituency. It is not the same day in all of them, on account of the latitude still given to the returning officer. He has a right, within certain limits which are different for counties and boroughs, to determine how many days shall elapse between his receipt of the writ and the election (that is, the nomination) and how many between the election and the poll.[220:1] The result is that in boroughs the voting may take place anywhere from four to eight days after the receipt of the writ; and in counties anywhere from six to seventeen days. Now, as the writs are sent out by mail at the same time, the voting at the general election covers a period of more than two weeks.
It might be supposed that such a power to arrange the order of elections would be used by the returning officer to help his own party, and this is said to be done, not systematically over the country, but in particular places. The multiplicity of election days has another and more important political effect; for it gives time to the out-voters, as the non-residents are called, to get from one constituency to another, and thus it facilitates voting in more than one place. For this reason the Liberal party--which is opposed to plural voting--has demanded in its platform that all elections should take place on the same day. To this it has been objected that the change would, by lengthening the electoral period in the boroughs, increase the fatigue and cost to borough candidates; and in view of the rate at which labour and money are expended on such occasions the objection is not altogether without foundation.
[Sidenote: Method of Voting.]
For the convenience of voting the constituency is divided into a number of polling districts; and when an election is contested, the vote is taken in these districts between eight in the morning and eight in the evening of the appointed day. The method of voting under the Australian system of secret ballot, which was adopted in 1872, need not be described, because in some form its use has become well-nigh universal in civilised countries.[221:1] It may be noted, however, that the Ballot Act has never been extended to the universities, where voting is still done orally, or by means of a voting paper tendered at the polls by another elector to whom it has been intrusted.[221:2] In fact most of the university votes are given by proxy--a practice which was introduced in 1861,[221:3] and would be abolished by the ballot.
[Sidenote: Legislation against Corruption.]
Before the Reform Act of 1832, huge sums of money were sometimes expended at parliamentary elections, and bribery and corruption were rife. Nor did the disfranchisement of rotten boroughs, and the extension of the franchise, by any means put an entire stop to the practice. Even as late as 1880 the special commissions appointed to inquire into the conduct of a number of boroughs, for which election petitions had been filed, found a bad state of affairs.[221:4] In Macclesfield and Sandwich about half the voters had been guilty of bribery and other corrupt practices;[222:1] and as a result of the investigation those two boroughs, which were decidedly the worst, were entirely disfranchised. A series of attempts have been made to root out the evil by legislation. They have been more and more elaborate, and reached their culmination in the Corrupt and Illegal Practices Act of 1883.[222:2] These laws seek to restrain improper conduct at elections by several methods; first, by forbidding altogether certain classes of acts, which either interfere directly with the purity of elections, or have proved a source of inordinate expense; second, by limiting the total amount that can be spent, and the purposes for which it can be used; third, by requiring that disbursements shall be made through one recognised agent, who is obliged to return to the government a full account thereof; and, fourth, by imposing for violation of these provisions penalties, political and other, inflicted not only by criminal process, but also summarily by the tribunal that tries the validity of a controverted election.
[Sidenote: Corrupt Practices.]
The most demoralising acts forbidden by law are known as corrupt practices. They are bribery, treating, undue influence, and personation.[222:3]
[Sidenote: Bribery.]
Bribery at elections is, of course, criminal in all countries; and in England the offence is defined in great detail, for just as there are seven recognised kinds of lies, so the English statutes describe seven distinct methods by which bribery can be committed.[222:4] It is unnecessary for anybody who is not engaged in electoral work to remember these; and it is enough here to point out that they include a promise, or endeavour, to procure any office or employment for a voter in order to influence his vote.
[Sidenote: Treating.]
Treating differs from bribery in the fact that bribery involves a contract for a vote, express or implied, whereas the person who treats obtains no promise from the voter, and relies only upon his general sense of gratitude. But, as one of the judges remarked in the trial of an election petition some years ago, it is difficult in the large constituencies of the present day to bribe successfully, while a small amount of treating is sufficient to procure a great deal of popularity.[223:1] This is particularly true in England, where the habit of treating is made easy by the existence of sharp class distinctions. Treating was forbidden as long ago as the days of William III., and it is now defined[223:2] as giving, or paying the expense of giving, "any meat, drink, entertainment or provision to or for any person for the purpose of corruptly influencing that person or any other person to give or refrain from giving his vote."
[Sidenote: Undue Influence.]
Undue influence is defined by the Act of 1883[223:3] as making use, or threatening to make use, of any force, violence, or restraint, or inflicting, or threatening to inflict, any temporal or spiritual injury on any person in order to influence, or on account of, his vote; or by duress or fraud impeding the free exercise of the franchise by any man. These provisions cover threats by an employer to discharge workmen,[223:4] and the denunciation by priests of spiritual penalties on political opponents.[223:5]
Personation it is unnecessary to describe.
[Sidenote: Corrupt Practices avoid the Election.]
All these corrupt practices are criminal offences punishable by fine or imprisonment, and by the loss of political rights for seven years.[223:6] What is more important for our purpose, they are liable to cost the member his seat; for if upon the trial of a controverted election the court reports that any corrupt practice has been committed by the candidate, or that bribery or personation has been committed with his knowledge and consent, his election is void, and he is forever incapable of being elected to Parliament by that constituency.[224:1] Moreover, if the election court reports that a corrupt practice has been committed by his agents, although he may be personally quite innocent, his election is void, and he is incapable of being chosen by that constituency for seven years.[224:2]
[Sidenote: But only if done by the Candidate or his Agents.]
It will be observed that in order to set aside an election, the corrupt practice must be brought home to the candidate, personally or through his agents. In accordance with the older traditions of English public life, the election is regarded as the affair of the candidates alone. The action of party organisations, or other bodies, is not taken into account,[224:3] and their conduct has no effect upon the result, unless their relations with the candidate have been such as to make them his agents. So long as a political association is urging the general interests of the party, rather than supporting a particular candidate, he is not responsible for their acts. It has been held, for example, that a candidate is not responsible for treating by such an association, although he was present and spoke at the meeting where it was done, if it was got up by them for their own purposes, and not to assist in his election.[224:4] It has been held, also, that a payment by a party organisation of bills for music and beer at public meetings, previous to an election, and even the candidate's subscription to their funds, need not be included in his election expenses, unless the organisation was a sham supported by him.[224:5]
In all such cases it is difficult to prove agency to the satisfaction of an election court. The time must come in any election, however, when the local party association by active assistance to the candidate becomes his agent.[225:1] But this is not true of other bodies less directly connected with the party organisation, which are, nevertheless, in the habit of doing a great deal of work at elections. Thus it has been held that a Licensed Victuallers Association, having a distinct and direct interest in the election, did not become the agent of the candidate, although it played an important part in the campaign.[225:2] That this leaves a door wide open for corrupt influence is self-evident.
[Sidenote: General Corruption.]
To the general principle that a corrupt practice must be brought home to the candidate there is one exception. If bribery, treating, personation, intimidation, or undue influence, whether physical or ecclesiastical, has been general in the constituency--that is, so extensive that the voting could not have been the free expression of the will of the electorate--the result of the election is invalid at common law, although neither the candidate nor his agent are directly implicated.[225:3]
[Sidenote: Distinction between Corrupt and Illegal Practices.]
Besides corrupt practices, certain other acts are forbidden under the name of illegal practices; but the provisions relating to them are mainly designed to restrain the expense of elections, and will be described under that head. The essential distinction between the two practices is much like that which lawyers were formerly in the habit of drawing in the case of crimes between malum prohibitum and malum in se. A corrupt practice involves moral turpitude, and it is necessary to prove a corrupt intent.[225:4] A gift to a voter, for example, is not bribery unless it is made for the purpose of influencing his vote; but an illegal practice is simply an act forbidden by statute, and as such--in the case, for instance, of a payment of expenses above the maximum fixed by law--is illegal without regard to the motive with which it is done. For this reason a corrupt practice cannot be excused,[226:1] while the election court may grant relief from the consequences of an illegal practice where it is trivial in itself, and was committed without the connivance of the candidate who took all reasonable means to prevent it; or where, although the direct act of the candidate or his election agent, it arose from inadvertence, accidental miscalculation, or other reasonable cause; or, finally, where a failure to make a return of expenses has been due to illness.
[Sidenote: Practices Tending to Lower the Tone of Elections.]
Some acts which, without involving great expense, tend to lower the tone of elections, are treated as illegal practices, and forbidden by statute. Such are the use for committee rooms[226:2] of premises where liquor is sold, and the furnishing of voters with cockades, ribbons, or other marks of distinction,[226:3] a proceeding which is believed to engender broils.
[Sidenote: Restraint of Expenditure.]
Other acts apparently harmless are prohibited in order to prevent extravagance. The most curious example of this is the provision forbidding the use of hired carriages to take voters to the polls.[226:4] Such a rule may seem unnecessary; but before the Act of 1883, by which it was enacted, thousands of pounds were said to have been spent in certain cases for the conveyance of electors. The Act does not forbid the use of carriages, but only of hired ones; and the result is that the private carriages and motor cars of wealthy partisans, sometimes blazoned with ancient armorial bearings, are placed at the disposal of the candidate. In fact in estimating the chances of an election one constantly hears that the Conservative has the advantage of a larger number of carriages.
[Sidenote: Authorised Expenses.]
[Sidenote: Employment.]
But by far the most systematic effort to restrain extravagance at elections is found in the provisions that prescribe on the one hand the objects of expenditure, and on the other its total amount. A schedule to the Act of 1883 enumerates the objects for which expenses may be legally incurred, and the first part of the schedule deals with the persons who may be employed. These are: one election agent;[227:1] a polling agent to watch the voting at each polling station; and clerks and messengers in proportion to population, the allowance being somewhat more liberal in counties than in boroughs on account of the greater area of the constituency. The act provides that, except as authorised by this schedule, no person shall be employed for pay;[227:2] and that no paid employee shall vote.[227:3] It may be noticed that among the list of persons who can be employed, canvassers are not mentioned, and hence the use of paid canvassers is illegal.[227:4] Now, as canvassing, that is the personal solicitation of votes, is by far the most effective part of the work done at an election, each candidate is always assisted by an army of volunteers. Wherever possible he is also helped by the agents of other constituencies, or of distinct associations, who, not being paid by him, and in fact, receiving no additional pay for their services on this occasion, are not within the prohibition of the law.
[Sidenote: Other Expenses.]
The other expenditures authorised by the schedule are printing, advertising, stationery, postage, and the like; public meetings; one committee room for every five hundred electors;[227:5] and miscellaneous expenses not exceeding two hundred pounds for matters not otherwise illegal. The candidate is also allowed to incur personal expenses for travelling and hotel bills;[227:6] and, finally, there are the charges of the returning officer for the cost of erecting polling booths, the payment of persons on duty thereat, and the other expenses attending the election.[227:7] These last charges are divided between the candidates and they are by no means small, as may be seen from the fact that at the general election of 1900 they amounted, for the whole United Kingdom, to 150,278_l._ 10_s._ 11_d._, or nearly one fifth of the whole expense incurred.[228:1] The National Liberal Federation has, indeed, repeatedly urged in its programme that such charges ought to be defrayed by the state, instead of being a burden upon the candidates.
[Sidenote: Maximum Expenditure.]
In order to reduce the cost of elections, Parliament has not only enumerated the objects for which money may be used, but has also set a maximum limit to the amount that may be spent.[228:2] In the case of boroughs this is fixed at three hundred and fifty pounds if the registered electors do not exceed two thousand, with an additional thirty pounds for every thousand electors above that number. In the counties the scale is somewhat higher, six hundred and fifty pounds being allowed where the registered electors do not exceed two thousand, with sixty pounds for each thousand electors more.[228:3] These sums do not, however, represent the total cost, for they include neither the personal expenses of the candidate to an amount of one hundred pounds, nor the charges of the returning officers.
[Sidenote: Penalties for Illegal Payments.]
The rules in regard to election expenses are furnished with sanctions of the same nature as those attached to corrupt practices, although the penalties are less severe. In addition to the criminal punishments that may be inflicted, it is provided that a candidate, or his election agent, who violates those rules shall be guilty of an illegal practice;[228:4] and that if a candidate is guilty, personally or by his agents, of an illegal practice (from the consequences of which he has not been relieved as heretofore described) he shall lose his seat, and cannot be elected by the same constituency during the life of that Parliament.[228:5]
[Sidenote: The Election Agent.]
It is one thing to make elaborate regulations about election expenses, and it is quite a different thing to insure their observance. The device adopted for this purpose in England is that of requiring each candidate to appoint an election agent, who is responsible for the disbursements. Except for the personal expenses of the candidate, to an amount not exceeding one hundred pounds, no payment of election expenses can be made by the candidate, or by any person on his behalf, except through the election agent,[229:1] and no contract for any such expenses is valid unless made by him.[229:2] Within thirty-five days after the election the agent must give to the returning officer an account of all his payments, and of all sums that he has received from the candidate or any one else, for the purposes of the campaign; and the candidate must certify that the account is true to the best of his knowledge and belief.[229:3]
The class of person selected for this duty is not only a matter of great importance to the candidate, but upon it depends also in large measure the purity of elections. A candidate may act as his own election agent, but this is rarely done. Usually, though by no means invariably, he takes the paid secretary of the local political association, who has the advantage of knowing the constituency better than any one else; and the Practical Manual for Parliamentary Elections, issued by the Conservative party, advises that course.[229:4] Rogers, on the other hand, in his work on Elections,[229:5] warns candidates that it is unwise to select such persons, because "when this is done attempts are frequently made to saddle the candidate with responsibility for the acts of the association and its members." "A further danger," he remarks, "arises in such cases of the election expenses being confused with or concealed under registration or other expenses of the association." With the modern organisation of parties a confusion of that kind is liable to occur in any event; and perhaps it is not so much dreaded by candidates as the author of the text-book on elections might imply. In spite of any dangers that may lurk in the practice, it is not only common, but apparently growing; and in fact the occupation of a paid secretary and agent has developed into a profession whose characteristics will be discussed in the chapters on party organisations.
[Sidenote: The Election Court.]
Formerly the validity of elections was decided by the House of Commons itself, with the natural consequence that politics were a large factor in the result. To such an extent was this true that the fall of Sir Robert Walpole was brought about by a hostile vote on an election case. In 1770 the matter was placed by statute in the hands of select committees of the House; but that did not put an end to political bias, and finally in 1868, the trial of election petitions, whether filed on the ground of a miscount, or of corrupt or illegal practices, was committed to a judicial body. The tribunal now consists of two judges of the King's Bench Division of the High Court of Justice, selected by the other judges of that division.[230:1]
A defeated candidate, or any voter, may present to the court a petition stating the grounds on which he claims that the election is invalid, and the case is then tried, witnesses are examined, and costs are awarded, according to the usual course of judicial proceedings. The decision takes the form of a report to the Speaker of the House of Commons, but it is really a final judgment upon the questions involved, for if the court finds that corrupt or illegal practices have taken place, the report has the effect not merely of avoiding the election, but of subjecting the candidate, and any guilty persons, to the political incapacities which those practices entail.[230:2]
[Sidenote: Results of the Corrupt Practices Act.]
[Sidenote: Reduction of Expense.]
So far as the reduction of the cost of elections is concerned, the English method of dealing with the subject has certainly been successful. According to the returns laid before Parliament, the total aggregate expenses incurred by candidates throughout the United Kingdom at the general election of 1880--the last that took place before the Corrupt Practices Act of 1883--was 1,736,781_l._; at the next election in 1885 it fell to 1,026,645_l._, and on every subsequent occasion it has been less than that. In 1900 it was 777,429_l._, which is not far from the average in these days. The expense of English elections is, however, far from small to-day. In 1900 the average cost for the United Kingdom in constituencies that were not uncontested was four shillings and four pence, for every vote cast.[231:1]
[Sidenote: Returns of Expenses Sometimes Incomplete.]
Moreover the returns undoubtedly do not in every case include all that is spent. A recent series of letters to The Times, under the title "The worries of a parliamentary representative," throws light on this subject.[231:2] It opened with a letter from the member for a Welsh borough complaining that about a month after he had signed the return of his election expenses he received a note from his agent in regard to claims by workers at the election; that upon his refusal to pay any such claims in violation of the Corrupt Practices Act the agent wrote asking whether he would or would not fulfil the obligations made on his behalf during the election. His continued refusal, the member declared, had made him unpopular with many of his former supporters, who were now trying to prevent his renomination. In answer to this charge the agent, in a letter to The Times, explained that all he had meant was that the member "should find some way--legal, of course--of expressing his gratitude to men who had worked splendidly in his cause;" and he added that this way had eventually been found, its name being "undoubted distress." In his reply in The Times the member denied that his relief of distress in the constituency had any relation to the election, or was a mode of expressing gratitude to men who had worked for him. It would be rash to assert that indirect means of rewarding party workers are not often found; and in fact another election agent stated in a letter to The Times[231:3] in the course of the foregoing controversy, that promises of such a nature, made in behalf of the candidate, were unfortunately too common.
[Sidenote: Ease of Evasion.]
[Sidenote: Difficult to Prove Agency;]
Apart from occasional acts involving direct violations of the Corrupt Practices Act by the candidate himself, the statute has holes through which others can pass so readily that an election agent has been known to speak of the return of expenses as largely a farce. In fact the elaborate provisions of the law can easily be evaded if the candidate and his agent have a mind to do so. If they only keep their eyes shut tight enough, and are sufficiently ignorant of what goes on, it is very difficult to connect them with corrupt or illegal practices in such a way as to avoid the election.[232:1] An agent from another constituency may pay the railway fares of out-voters. The Primrose League, or some other body, may give picnics, teas and what not, which would be corrupt treating if done by the candidate, but for which he is not held responsible. The brewers may furnish free beer in public houses where voters are collected before going to the polls, and yet the candidate has done nothing to forfeit his seat. Nor is this an imaginary danger; for, with the introduction of what is known as the tied-house system, the publicans have come under the control of the great brewing establishments, which have to-day a huge stake in the results of parliamentary elections. Agency, in short, is a very difficult thing to establish in such cases. As Rogers, who devotes a whole chapter to the subject, remarks: "It is to conceal agency, and so to relieve the candidate from the consequences of corruption practised on his behalf, that efforts of unscrupulous men engaged in the conduct of an election have been generally directed, and it is not too much to say that an election inquiry has been more frequently baffled from a failure in the proof of agency than from all other causes put together."[232:2]
[Sidenote: Or Know When Election Period Begins.]
Then there is the uncertainty when the election period begins, and hence what payments must be included in the return of election expenses. The Act of 1883 defines a candidate, unless the context otherwise requires, as one who is nominated or declared to be such on or after the issue of the writ or the dissolution or vacancy in consequence of which it is issued.[233:1] But clearly this does not mean that a corrupt act committed earlier will not avoid the election. On the contrary it is settled by repeated decisions that a man may become a candidate, and his election expenses may begin, before that date;[233:2] although it is impossible to lay down any hard and fast limit of time.[233:3] A great deal must depend on the nature of the expense itself. Registration, for example, is something entirely distinct from the election, and the cost of registration, whenever incurred, need not be included in the return of expenses.[233:4] On the other hand proof of the actual purchase of a vote at any time would certainly cost the candidate his seat.[233:5] Between these two extremes there are a great many acts whose character is affected by the proximity of an election. A subscription to a local political organisation, made when the dissolution was impending, has been held to be a part of the election expenses,[233:6] when it would not be so under other circumstances;[233:7] and in the same way the question whether a gift of money or food to relieve distress in the constituency is or is not made with a corrupt purpose of influencing votes may depend upon the expectation of an election in the near future.[233:8]
[Sidenote: Nursing Constituencies.]
As general elections in England come at irregular intervals, and at short notice, it is common to select candidates without regard to the prospect of a dissolution, sometimes years before it occurs; and in fact the sitting member, having a presumptive right to stand again, is regarded in the light of a permanent candidate. Under these conditions it is the habit in most places for a candidate, who can afford it, to ingratiate himself with his constituents by subscribing liberally to public and charitable objects; and since a payment to be corrupt must be made for the purpose of influencing particular voters[234:1] subscriptions of this kind are not deemed corrupt; nor, unless given near the time of an election, are they election expenses or illegal payments.[234:2] The practice is called nursing a constituency, and it takes a great variety of forms, from a subscription for a cricket club to the founding of a hospital. The sums expended vary very much with the nature of the place and the wealth of the candidate, and no one knows how large they are in the aggregate, because men do not state publicly what they give in this way; but as far as one can form an opinion, it would appear that such gifts by a member of Parliament commonly amount to a number of hundred pounds a year. It is obvious that the custom of nursing, combined with the uncertainty about the time when the election period begins, opens a door to abuse.
[Sidenote: Difficulty in Getting Evidence.]
Another difficulty in a strict enforcement of the election laws is connected with the proof of the offence. A witness cannot, indeed, refuse to give evidence on the ground that it will incriminate him, for the law provides that he must testify; and if he tells the truth he is entitled to a certificate of indemnity, which protects him against prosecution.[234:3] But the facts that tend to establish bribery, for example, are directly known, as a rule, only to persons who have the strongest motives for concealing them; and the same thing is true to a greater or less extent of other breaches of the election law. It is clear, therefore, that if the offence must be proved by legally competent evidence beyond reasonable doubt, as in criminal cases, an election procured by improper means may well stand, just as many criminals escape punishment; and this brings us to another question, that of the efficiency of the election courts.
[Sidenote: Merits of the Election Courts.]
The system of sending petitions for trial to a couple of judges selected by the bench itself has provided a court as free as any human tribunal can be from the party bias that always affects the decisions of such questions by a legislative body.
[Sidenote: Their Defects.]
[Sidenote: Expense of Petitions.]
But no institution is altogether without defects. A select committee on the subject of election petitions reported in 1898 that the grievances alleged to exist in the present system related to delay, to the expense involved, and to the lack of security for costs in favour of the successful party; and it recommended some changes in procedure to improve these matters.[235:1] The expense of an election trial is undoubtedly great--sometimes thousands of pounds--and since the charges are borne by the litigants, and a favourable judgment involves a fresh election, while the trial itself is likely to entail a certain amount of unpopularity, it is not surprising that a defeated candidate hesitates to file a petition.
[Sidenote: Uncertainty of the Result.]
With all respect to the select committee of the House of Commons, it would seem to a foreign observer that the defects it reported are not the only ones to be found in the existing system. The bringing of election petitions is discouraged not only by the cost involved, but also by uncertainty both in the result and in the grounds on which it will be based. A candidate may feel convinced that his defeat was due to corruption practised by his opponent, by the publicans, and by the local political organisation, and yet the court, finding some of these charges unproved, may think it unnecessary to inquire into others because much graver questions are decisive of the case; the graver matter being that, contrary to the provision forbidding "marks of distinction," the defendant's agent furnished his supporters with cards to wear in their hats.[236:1] Where serious corrupt practices are charged, the election may be set aside on account of the payment of a railway fare to an out-voter.[236:2] And in a case where the facts stated by the court portrayed a bacchanalian orgy in the form of a drunken procession through the streets, headed by the candidate himself in a barouche, with some direct evidence that he offered free drink to the crowd, the judges found that there was no sufficient evidence of treating; but avoided the election on account of the payment of two shillings for conveying a voter to the polls.[236:3]
[Sidenote: Attitude of the Judges.]
Such results are thoroughly unsatisfactory for both parties; to the defeated party because he loses his seat; to the successful party because he does not want to have an election, which he believes to be vitiated by gross corruption, set aside on account of a trivial breach of the law. The main difficulty seems to lie in the attitude of mind of the judges. They require a degree of proof of corrupt intent, which is very proper in criminal cases, but which would seem to be out of place in an election petition. On a charge, for example, that an agent of the candidate, to whom pay was promised, had voted, it was held necessary to prove an actual express promise of payment, and not such an implied promise as would support a civil action.[236:4] So, also, where a candidate named Lowles caused to be distributed among the poor, some time before an election, his own visiting cards exchangeable for food, and it was announced in a newspaper that gifts of food had been arranged by the Unionist candidate, one of the judges said: "I cannot bring myself to believe in the circumstances of this case that the motive of Mr. Lowles in giving away the tickets, months before any election was imminent; was to influence voters."[237:1] Nor is this an isolated instance. Where soup and coal tickets were distributed largely at the expense of a candidate, who reminded voters, when the election came on some months later, that he had given away soup, the court said that "although . . . it would have been more prudent for the Respondent had he kept aloof from the immediate distribution of the relief, we cannot infer, from the evidence before us, that his motive or conduct was corrupt."[237:2]
The difficulty seems to lie to some extent in the fact that a report of corrupt or illegal practices by the court involves not only the setting aside of an election, but the same loss of political rights as would follow upon a conviction;[237:3] and, hence, the judges tend to require the kind of evidence that would support a criminal prosecution. Moreover, they seem to find it incredible that a candidate for Parliament can be guilty of the grosser kind of offences. One feels this very strongly in reading the opinions in election cases.
[Sidenote: How Much Corruption Still Exists.]
If the present system of trying election petitions is not a complete success, it is nevertheless certain that the old electoral abuses have been very much reduced. There is a current impression both in England and elsewhere that the bribery of voters in Great Britain has been entirely rooted out. But any one familiar with English elections knows that this is by no means altogether true.[237:4] That the cases where gross corruption occurs are not made public by means of election petitions is due, partly to the reluctance to bring such petitions which has already been pointed out, and partly to the fact that where bribery is extensive both sides are usually guilty. Bribery in England is disappearing. In by far the greater part of the constituencies it does not exist, and the elections are, on the whole, pure; but in a few places the old traditions still persist. These are mostly boroughs in the South of England containing a considerable number of ancient freemen, among whom corruption is sometimes widespread. The writer has heard the number of such places estimated by persons in a position to know the facts at a score or two dozen. The names of several of them are well known to every one who takes an active part in electoral work; but even in these boroughs the increase in the number of voters has lowered the price paid for votes, and in some of them the practice is slowly dying out. It is only fair to add that it does not receive any countenance or encouragement from the central authorities of the great political organisations.
FOOTNOTES:
[219:1] 35-36 Vic., c. 33.
[220:1] He must, within a day after receiving the writ in boroughs and two days in counties, give notice of the day of election. This must be not less than three days in boroughs, or four in counties, after the notice is given; and must be in boroughs within four days of the receipt of the writ, and counties within nine days. If, on the day fixed for nomination, the election is contested, he must appoint for the polling a date falling within the next three days in boroughs, and not less than two nor more than six days distant in counties.
[221:1] "In one only of the three kingdoms the ballot helped to make a truly vital difference; it dislodged the political power of the Irish landlord. In England its influence made for purity, freedom, and decency, but it developed no new sources of liberal strength." Morley, "Gladstone," II., 370. But the ballot is also said to have slowly strengthened the Liberal party in English rural districts by shielding the agricultural labourer.
[221:2] 35-36 Vic., c. 33, Secs. 27, 31. Rogers, II., 118.
[221:3] 24-25 Vic., c. 53.
[221:4] Com. Papers, 1881, XXXVIII.-XLV.
[222:1] Com. Papers, 1881, XLIII., XLV., and schedules to these reports.
[222:2] 46-47 Vic., c. 51.
[222:3] Ibid., Sec. 3.
[222:4] 17-18 Vic., c. 102, Secs. 2, 3.
[223:1] Hexham Div., 4 O'M. & H., 143, at 147. After the general election of 1906 a member was unseated on this ground. Bodmin Div., 5 O'M. & H., 225.
[223:2] 46-47 Vic., c. 51, Sec. 1.
[223:3] Ibid., Sec. 2.
[223:4] Rogers, II., 316-19.
[223:5] So. Meath & No. Meath, 4 O'M. & H., 130, 185.
[223:6] 46-47 Vic., c. 51, Sec. 6.
[224:1] 46-47 Vic., c. 51, Sec. 4.
[224:2] Ibid., Sec. 5.
[224:3] In the return of election expenses the candidate and his agent must declare that to the best of their knowledge or belief no person, club, society, or association has made any payment in respect to the conduct of the election. Ibid., Sched. 2. But this merely requires them to take care to be ignorant of any such payment.
[224:4] Cockermouth Div., 5 O'M. & H., 155. St. George's Div., 5 O'M. & H., 89, at 97-98. In the first of these cases the treating was done by a Liberal Unionist Association; in the second by an Irish Unionist Alliance.
[224:5] Lancaster Div., 5 O'M. & H., 39, at 42-43.
[225:1] Walsall, 4 O'M. & H., 123, per Pollock B, at 124.
[225:2] Ibid.
[225:3] Rogers, II., 293, 308, 325-329, 335.
[225:4] A false statement in the return of election expenses, if made knowingly, is a corrupt and not illegal practice. 46-47 Vic., c. 51, Sec. 33 (7).
[226:1] Here, again, there is an exception; for relief may be given in the case of treating or undue influence committed by an agent, other than the election agent, if trivial in itself, and if the candidate and his election agent did not connive at it, but took all reasonable means to prevent corrupt and illegal practices. 46-47 Vic., c. 51, Sec. 22.
[226:2] Ibid., Sec. 20
[226:3] 17-18 Vic., c. 102, Sec. 7.
[226:4] 46-47 Vic., c. 51, Secs. 7, 14.
[227:1] And in counties a sub-agent for each polling station.
[227:2] 46-47 Vic., c. 51, Sec. 17.
[227:3] Ibid., Sec. 36 and Sched. I., Part 1 (7).
[227:4] Rogers, II., 156, 160, 350.
[227:5] In counties one central committee room, and in each polling district one committee room for every five hundred voters.
[227:6] 46-47 Vic., c. 51, Sec. 31.
[227:7] 38-39 Vic., c. 84; 48-49 Vic., c. 62.
[228:1] Com. Papers, 1901, LIX., 145, p. 84.
[228:2] 46-47 Vic., c. 51, Sched. I., Part IV.
[228:3] In Ireland the limit both for boroughs and counties is somewhat lower.
[228:4] 46-47 Vic., c. 51, Sec. 21.
[228:5] If the offence was committed with his knowledge and consent, the incapacity continues seven years. Ibid., Sec. 5.
[229:1] Ibid., Secs. 28, 31.
[229:2] Ibid., Sec. 27.
[229:3] Ibid., Sec. 33 and Sched. II.
[229:4] 2 Ed. (1892), 14.
[229:5] II., 152-153.
[230:1] 31-32 Vic., c. 125; 42-43 Vic., c. 75; 44-45 Vic., c. 68, Sec. 13.
[230:2] 46-47 Vic., c. 51, Secs. 4, 5, 11.
[231:1] Com. Papers, 1901, LIX., 145, p. 85.
[231:2] July 22, 26, 29, 1904.
[231:3] July 25, 1904.
[232:1] See the cases already cited in the discussion of agency.
[232:2] Rogers, II., 360. In a case at the general election of 1906, where bribery was proved, the election was upheld because the judges disagreed on the question of agency. Great Yarmouth, 5 O'M. & H., 176.
[233:1] 46-47 Vic., c. 51, Sec. 63.
[233:2] Rogers, II., 157-58.
[233:3] Counties of Elgin and Nairn, 5 O'M. & H., 1.
[233:4] Rogers, II., 162.
[233:5] Ibid., 259, 268.
[233:6] Lichfield Div., 5 O'M. & H., 27, at 34-38.
[233:7] Counties of Elgin & Nairn, 5 O'M. & H., 1.
[233:8] Cf. Lichfield Div., 5 O'M. & H., 27; Haggerston Div., Ibid., 68, at 72-88, St. George's Div., Ibid., 89. So of treating, Great Yarmouth, Ibid., 176, at 198.
[234:1] Hastings, 1 O'M. & H., 217, at 218.
[234:2] Subscriptions bona fide made for public or charitable purposes are not election expenses, Rogers, II., 161-62. But it is not easy to say what is bona fides; for gifts of this kind by a candidate for Parliament who has no other connection with the constituency must always be made, in part at least, for the sake of indirectly gaining votes by increasing his popularity.
[234:3] 46-47 Vic., c. 51, Sec. 59.
[235:1] Com. Papers, 1898, IX., 555.
[236:1] Walsall, 4 O'M. & H., 123, at 126.
[236:2] Pontefract, 4 O'M. & H., 200.
[236:3] Southampton, 5 O'M. & H., 17.
[236:4] Lichfield Div., 5 O'M. & H., 27, at 29-30.
[237:1] Haggerston Div., 5 O'M. & H., 68, at 84.
[237:2] St. George's Div., 5 O'M. & H., 89, at 96.
[237:3] 46-47 Vic., c. 51, Secs. 4, 11.
[237:4] After the general election of 1906 one member was unseated for bribery by his agents. Worcester, 5 O'M. & H., 212.
XI. THE HOUSE OF COMMONS
Disqualifications, Privilege, Sessions
[Sidenote: Disqualifications for Parliament.]
No property qualification is now required for sitting in the House of Commons, and any male British subject may be elected, who is not specially debarred.[239:1]
Infants are excluded both at Common Law, and by statute, although this rule has been disregarded in several notable instances, the best known cases being those of Charles James Fox and Lord John Russell who entered Parliament before they came of age. Incurable insanity was a disqualification at Common Law, and so by statute is confinement in a lunatic hospital. But it would seem that a temporary lunatic, if at large, is not incompetent to sit and vote.
Peers are also excluded; and this is true even of those Scotch peers who, not having been chosen among the sixteen representatives of the peerage of Scotland, have no right to sit in the House of Lords. There is one exception, however, to the rule that peers are ineligible to the House of Commons, for a peer of Ireland, who is not selected to represent that kingdom in the House of Lords, may sit for any county or borough in Great Britain, but not for an Irish constituency. The rule excluding peers is sometimes a hardship on a rising young man transferred by the death of his father from the active battlefield of politics in the House of Commons to the dignified seclusion of the House of Lords. But it has had, on the other hand, some effect in preventing the House of Commons from absorbing all the political life of the country, and has thus helped to maintain the vitality of the House of Lords. Among the peers there have always been men of great national authority who would have preferred to sit in the other House. It is safe to say that in the year 1900 two of the statesmen who possessed the greatest influence with the people--Lord Salisbury and Lord Rosebery--would have been in the House of Commons had it not been for the rule excluding peers.
The clergy of the Roman Catholic Church and the Church of England, and ministers of the Church of Scotland, are disqualified by statute;[240:1] but these provisions do not include dissenting ministers; and it may be added that at the present day a clergyman of the Church of England may by unfrocking himself remove his disqualification.[240:2]
As in most other countries, there are in England rules disqualifying persons who, by assuming certain relations with the government, or by misconduct, have rendered themselves unfit to serve; such are government contractors, and holders of pensions not granted for civil or diplomatic services; bankrupts,[240:3] and persons convicted of treason or of felony, or guilty of corrupt practices.
[Sidenote: Office-holders.]
The exclusion of permanent officials has already been discussed; and it will be remembered that by the compromise effected in the reign of Queen Anne the holders of certain specified offices, or of any offices created after Oct. 25, 1705, are absolutely disqualified; while a member accepting any other office from the Crown loses his seat, but can be reelected.[240:4] It will be remembered, also, that by later statutes or by custom all holders of civil offices not distinctly political are now excluded from the House of Commons; and so are the judges of the higher courts, and most of those in the lower ones.
Now the offices held by ministers are either old offices within the meaning of the Act of Anne, and therefore compatible with a seat in Parliament, or new offices that have been taken out of the rule by special statutes passed usually when the office was created. This is not, indeed, universally true; for by special provision of statute only four of the five secretaries of state, and four of their under-secretaries, can sit in the House of Commons at one time. With that limitation every minister is capable of sitting; but on his appointment he loses his seat, and must go back to his constituents for a new election. The last rule, however, like every other, has its exceptions. The under-secretaries of state occupy old offices, but as they do not accept them from the Crown they are not obliged to undergo a fresh election on their appointment; and they are not, in fact, in the habit of doing so.[241:1] The same privilege has been extended by statute to the Financial Secretary of the War Office. There is, indeed, no self-evident reason to-day why it should not be extended to all the ministers. The original fear of influence on the part of the Crown no longer applies; and the only important effect of the rule is that if a new cabinet comes into power when Parliament is in session, all business there has to be suspended while the ministers are seeking reelection. A number of attempts have been made to do away with the rule, and they have been supported by very eminent statesmen, but they have been constantly defeated, mainly on the ground that a constituency, having elected a man while he was in an independent position, has a right to reconsider its choice when he assumes the burden of public office.[241:2] Such reasoning is characteristic of English political life. It either proves nothing or it proves too much, for if it is sound, the same principle applies with quite as much force to the under-secretaries, and with a great deal more force to the Speaker. This objection to a change was avoided, while a part of the practical inconvenience was removed, by a provision in the Reform Act of 1867 that a person who has been elected to Parliament since he became a minister shall not vacate his seat on account of accepting a different office in the ministry.[242:1]
[Sidenote: Extinct Disqualifications.]
Formerly there were a number of other qualifications and disqualifications that have now been swept away, such as the requirement of ownership of land, and of residence in the constituency,[242:2] and the provision for oaths and declarations intended mainly to exclude Roman Catholics. It is curious that after the disabilities of the Roman Catholics were removed in 1829 the oath continued to be an impediment to the admission of Jews and atheists, although it had never been aimed at them. In each case the law was changed, but only after the matter had been brought somewhat violently to the attention of the House. The last religious impediment was taken away in 1888 at the conclusion of the unseemly wrangle with Mr. Bradlaugh.
[Sidenote: Resignation.]
A disqualification not only prevents a person from sitting in the House, but is also the only way in which he can voluntarily get out of it. A man cannot resign his seat, and hence the regular method of accomplishing the same result is the acceptance of a disqualifying office. Two or three sinecures are retained for that purpose, the best known being the stewardship of the Chiltern Hundreds, a position which the member desiring to leave Parliament applies for, accepts, and immediately gives up. The place is, in fact, not an office, but an exit. It may be added that the House has power, for reasons satisfactory to itself, to declare a seat vacant, and to expel a member.
[Sidenote: Privileges of the House.]
[Sidenote: Freedom from Arrest.]
It is unnecessary to say much here about the privileges of the House of Commons. Most of them are matters of historical rather than present political significance. At the opening of each new Parliament, the Speaker, after being confirmed by the Crown, demands the ancient and undoubted rights and privileges of the Commons, the most important of which are freedom from arrest and liberty of speech. The freedom from arrest, which is enjoyed by members during the session and forty days before and after it, does not protect a member from the consequences of any indictable offence, or of contempt of court; nor in civil actions does it now prevent any process against him except arrest.
[Sidenote: Liberty of Speech.]
Freedom of speech was not acquired without a long struggle; but since the Bill of Rights of 1689 it has been a settled principle that "the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament." A man cannot, therefore, be prosecuted criminally, or made civilly responsible, for anything he has said in the House; although the House itself may punish what it deems an abuse of the forms of debate.
[Sidenote: Publication of Debates.]
Curiously enough the privilege of free speech in the House does not necessarily include the right to publish that speech outside. This matter has had an eventful history. Until about one hundred years ago the House attempted to prevent the report of its debates in the public press, and in the course of the struggle became entangled in the memorable controversy with Wilkes. The question has never been dealt with by legislation, and it is still assumed that the House might declare the publication of its debates a breach of privilege, and put a stop to it. But the struggle came to an end because the House changed its mind. Instead of objecting to the publication of the debates it came, in time, to desire it; and whereas it had attempted earlier to keep out reporters, it now strove to protect them.
The privilege of free speech covered only words uttered in the House and matter printed for circulation among the members alone. It did not extend to the printing of a speech, or to documents intended for general distribution even though issued by order of the House itself; and in its later attempt to insist upon its right of publication, as in its earlier effort to insist upon its right to prevent publication, the House came into conflict with the judiciary. In the case of Stockdale v. Hansard[244:1] the Queen's Bench held that a publisher might be liable in damages to a person injured by defamatory matter contained in a report made to the House of Commons, although the printing was ordered by the House itself. The question was then set at rest by a statute[244:2] providing that publication by order of either House should be a defence to any civil or criminal proceedings. But this has no effect upon the newspapers, and although a fair account of a debate published in the ordinary course of reporting is not in itself libellous, even if it contain defamatory matter, yet a faithful report of a speech published with a malicious intent is still libellous, and it is never safe to go to a jury on a question of intent.
If the attitude of the House of Commons toward the publication of its debates has changed entirely, it is because its relation to the public has undergone a complete transformation. Every member of Parliament to-day is seeking for the approbation of his constituents, and far from dreading publication of what he says in the House, his effort is rather to attract attention to himself by the reports in the local press of his remarks in Parliament. Moreover, the House as a whole depends more than ever upon popular support; and one may find a striking illustration of the way the same thing produces different political effects under different conditions by observing that while the cabinet would lose authority if its discussions were not secret, Parliament would suffer if its debates were not public.
[Sidenote: Privilege in the Courts of Law.]
Sir William Anson remarks that "The Privileges of Parliament, like the Prerogative of the Crown, are rights conferred by Law, and as such their limits are ascertainable and determinable, like the limits of other rights, by the Courts of Law."[245:1] This principle has not always been accepted by the House, which has on several occasions come into collision with the courts; but the latter have always maintained, and maintained successfully, that when a question involving a privilege of the House comes before them for decision, it is their duty to ascertain whether the privilege exists or not, and to determine its effect upon the case before them. They have further maintained that they must decide the question for themselves, and that a claim to the privilege on the part of the House is not conclusive.
In one respect the authority of the courts is incomplete; for the House has a right to order a man committed to prison for contempt, and the question what constitutes a contempt is so far within the discretion of the House that the court will not order the prisoner set at liberty on habeas corpus where the return to the writ simply states that he is committed for contempt by order of the House. Referring to this subject, Professor Dicey says: "The powers exercised by the Houses, and especially in practice by the House of Commons, make a near approach to an authority above that of the ordinary law of the land."[245:2] Such a power, however, is exceedingly unlikely to be used in any dissension with the courts to-day; and if it were used, the courts would be almost certain to win, because the commitment by the House terminates with the session.
[Sidenote: Summons and Dissolution.]
There remain to be considered only the methods of calling Parliament together, and of putting an end to its labours.
Parliament can be summoned and dissolved, and its sessions can be opened and closed by the Crown alone, the only legal restraint upon the arbitrary power of the sovereign in the matter being the Act of William and Mary, which provides that a new Parliament shall be summoned within three years after a dissolution.[245:3] This statute is now, of course, unnecessary; and, in fact, the same proclamation which dissolves one Parliament always announces the issue of writs for the election of another. If Parliament is not dissolved by the Crown, its term expires at the end of the seven years prescribed by the Septennial Act of 1716; but, as a matter of fact, Parliament never dies a natural death, and if its life is not cut off earlier, a dissolution takes place shortly before the end of the seven years.
Until 1867 the death of a sovereign always wrought a dissolution of Parliament; but this rule, which depended more on ancient theory than on modern convenience, was abolished by the Reform Act of that year.
[Sidenote: Prorogation and Adjournment.]
[Sidenote: Effect on Unfinished Business.]
While a session can be brought to a close only by prorogation, either house may adjourn for any period at its pleasure, subject only to the right of the Crown to terminate an adjournment of more than fourteen days. Although a prorogation is made by the Crown, and adjournment by the House itself, practically both are virtually in the hands of the ministry to-day, and the really important difference between them is that a prorogation terminates all unfinished business, while an adjournment does not. For that reason a government which has business that it cannot put through during the regular session, and does not want to abandon, will sometimes resort to an adjournment instead of a prorogation. This was done, for example, in 1902 in order to complete the stages of the Education Bill in the autumn, and again in 1906 chiefly in order that the House of Lords might consider the pending government measures. The wisdom of the rule that the close of the session puts an end to all measures that have not finished their course in both Houses is not so clear in the case of Parliament, as in that of legislative bodies where a vast number of measures are brought in by irresponsible members. In such bodies the rule may result in killing a great many bills that had better die, but in Parliament this is far less true. Almost all important legislation relating to public affairs is now introduced by the ministers; and every year measures to which both they and the House have devoted much time and thought are killed by the close of the session. A day comes when the leader of the House arises and states what bills he is obliged by lack of time to drop, a process commonly known as the slaughter of the innocents. The necessity would seem to be unfortunate.
In fact the House of Commons spends so much time in debating each bill that it gets through its work slowly; and whereas many other popular chambers are reproached with legislating too much, Parliament is accused of legislating too little. Moreover the House of Commons suffers less from an excess of the easy good nature, which, in America at least, is the parent of many ill-considered and unwise laws; yet the present rule does act as a serious check upon the persistent member with a mission, and perhaps it kills off, on the whole, more bad bills than good ones.
[Sidenote: Suspending Private Bills.]
There is, however, a class of measures on which the rule, if carried out strictly, would have a distinctly injurious effect. These are the private bills--a term applied to projects which relate to private or local interests, such as bills for the extension of a railway, or for authority to supply water, gas, tramways and the like. Legislation of that kind is, as we shall see, conducted in Parliament by a semi-judicial process, and as it is highly expensive for both sides, it would be unreasonable that the closing of the session, for reasons quite unconnected with these matters, should oblige the promoters and objectors to incur the cost of beginning proceedings all over again. In practice this seldom happens, for in the few cases where such a bill cannot be completed before the end of the session it is usually suspended by a special order providing that the stages it has already passed shall be formally taken at the opening of the next session, so that the bill really begins its progress again at the point it had already reached. When, as in 1895, Parliament comes to an untimely end in the midst of a session, a general provision of this kind is made suspending all unfinished private bills, and thus a great deal of unnecessary hardship is avoided.
FOOTNOTES:
[239:1] In a couple of instances natives of India have been elected.
[240:1] The question was raised in 1801 in the famous case of Horne Tooke, and set at rest for the future by an Act of that year: 41 Geo. III., c. 63. The provision in regard to the Roman Catholic clergy was made in 1829: 10 Geo. IV., c. 7, Sec. 9.
[240:2] 33-34 Vic., c. 91.
[240:3] A cause that disqualifies will not always unseat. For the latter purpose bankruptcy and lunacy must have continued six months. Rogers, II., 43, 44.
[240:4] 6 Anne, c. 7, Secs. 25, 26. Referred to in the Revised Statutes as 6 Anne, c. 41.
[241:1] Statement by the Attorney General, Hans. 3 Ser., CLXXIV., 1236-37.
[241:2] Todd, "Parl. Govt. in England," 2 Ed., II., 331-39.
[242:1] 30-31 Vic., c. 102, Sec. 52, and Sched. H.
[242:2] This became obsolete by long-continued disregard. It is said to be the only case of a statute which is deemed to have been annulled by "contrarius usus." It was afterwards expressly repealed by statute. Rogers, II., 38.
[244:1] 9 A. & E., 1.
[244:2] 3-4 Vic., c. 9.
[245:1] "Law and Custom of the Constitution," I., 175.
[245:2] "Law of the Constitution," 5 Ed., 56, note.
[245:3] Anson, I., 287-88.
XII. PROCEDURE IN THE HOUSE OF COMMONS
The House, its Rules and Officers
[Sidenote: Small Number of Seats.]
To the traveller who cares for history, either of the past or in the making, there is no place more interesting than the long sombre building with a tower at each end, that borders the Thames just above Westminster Bridge. Apart from occasional meetings at other places during the Middle Ages, the Mother of Parliaments has sat close to this spot for more than six hundred years. Except for old Westminster Hall, almost the whole of the present structure was, indeed, built after the fire of 1834. Yet if it contains little that is really venerable, save memories, the smoke of London has given to the gothic panelling of the outer walls the dignity of apparent age. The interior has a more modern air, for it is not only well planned with a view to its present use, but in some parts it expresses with peculiar fitness the purposes it serves. From opposite sides of the large central lobby corridors lead to the two Houses, but the hall of the Lords seems designed for ornament, that of the Commons for doing work. The House of Commons is seventy-five feet long by forty-five feet wide and forty-one feet high, panelled in dark oak, and lit by long stained glass windows and sky-lights in the ceiling. From the main entrance a broad aisle runs the whole length of the chamber, with the clerks' table filling nearly the whole upper end of it, and beyond this a raised chair for the Speaker with a canopy over his head. Facing the aisle on each side long rows of high-backed benches, covered with dark green leather, slope upward tier above tier to the walls of the room; and through them, at right angles to the aisle, a narrow passage, known as the gangway, cuts across the House. There is also a gallery running all around the room, the part of it facing the Speaker being given up to strangers, while the front rows at the opposite end belong to the reporters, and behind them there stands, before a still higher gallery, a heavy screen, like those erected in Turkish mosques to conceal the presence of women, and used here for the same purpose. The structure and arrangement of a legislative chamber are not without influence upon the mode of transacting business. The whole number of seats in the House of Commons is far from large, not large enough for all the members. The two side galleries are reserved for them, but they are very narrow, containing only a little more than one hundred seats apiece, and although they are occupied on very crowded nights, they are practically useless for any one who intends to take part in debate. A small portion of the space under the strangers' gallery is also appropriated for visitors, and the rest of the floor contains only three hundred and sixty seats, enough for little more than one half of the six hundred and seventy members of the House. During the greater part of the time even those seats are not filled, for they are adapted only for the transaction of the business of the House. They are merely benches with no means for writing. If a member wants to carry on his correspondence, he goes to the library, or to one of the other rooms near by. In the House he can only speak, listen, and applaud.
[Sidenote: Attendance Often Small.]
On a great occasion, like the introduction by Mr. Gladstone of his first Home Rule Bill, every seat in the House is taken. At the opening of an ordinary sitting, also, while questions to the ministers are asked and answered, and at a time when the leaders of the two great parties are speaking about a measure of general interest, most of the seats on the floor are occupied; but as soon as the lesser lights arise the members begin to drop off, going to the lobby, the library, the smoking-room, the dining-room, or the terrace. Nor is it always the lesser lights alone that speak to nearly empty benches, or rather to the reporters' gallery. The writer well remembers, on the first occasion when he saw the House, now more than twenty years ago, that Sir William Harcourt, then Home Secretary, made a speech an hour and three quarters long upon a bill which he had brought in to reform the government of London, and that, during a great part of the time, the only persons present besides the officers of the House, were the Lord Mayor, the Chairman of the Metropolitan Board of Works, and a casual who sat on one of the upper benches behind the minister. This is the smallest number of members the writer has ever beheld in the House, but to see only a score or two on the benches is by no means unusual. Many more, however, although not within ear-shot, are potentially present. Forty members constitute a quorum, but if any one suggests that they are not there, electric bells are rung all over the building, summoning the members into the House, a two-minute sand-glass is turned, and the members are not counted until it has run out. The same process takes place whenever a division--that is a vote by count--is challenged.
[Sidenote: Effect of This on Debates.]
The small size of the chamber makes it easy to hear an ordinary tone of voice; and this, coupled with the still smaller attendance, discourages flights of oratory or popular eloquence, and gives to the debates a businesslike and almost conversational character. Moreover, the very fact that members do not stay in the House if not interested in what is being said, prevents the distracting hum of conversation which is sometimes annoying in other representative bodies. All this makes the spectator feel that the members are present for public business and nothing else. Except for occasional scenes enacted for the most part by the Irish members, the proceedings are orderly, and respect for the dignity of the House, and the authority of the chair, are almost universal.
[Sidenote: The Arrangement of Seats.]
Even the arrangement of seats in the House is not without its bearing upon political life; and although a small matter, it affords another illustration of the principle that an institution which, instead of being deliberately planned, is evolved slowly, will develop in harmony with its environment, or force its environment into harmony with itself. The front bench at the upper end of the aisle, close at the right hand of the Speaker, is called the Treasury Bench, and is reserved for the ministers; the corresponding bench on the other side being occupied by the former ministers of the party now in Opposition. Behind these two benches sit for the most part men whose fidelity to their respective parties is undoubted, members whose allegiance is less absolute generally preferring seats below the gangway on either side.
Of course, on a crowded night members cannot always find seats that express their exact sentiments. Still, the arrangement is fairly well preserved, especially in the case of prominent men, with whom it is sometimes a matter of no little consideration.[251:1] Any group that desires to emphasise its freedom from regular party control always sits below the gangway. The Fourth Party, for example, sat in 1884 below the gangway on the Opposition side, the Labour Party has sat there since the election of 1906, and the same position is occupied by the Irish Nationalists under every ministry; while the Liberal Unionists at the time of their breach with Mr. Gladstone over his first Home Rule Bill took up their seats below the gangway on the government side. The House at a great debate resembles a martial array, with the leaders face to face in the van, supported by their troops in ranks behind them. The minister leans over the table, and points in indignation or in scorn at the "honourable gentlemen opposite." All this expresses the idea of party government, and lends a dramatic effect to parliamentary warfare.
[Sidenote: Mode of Treating the Subject of Procedure.]
Nowhere in the whole range of British institutions does the interaction of law and custom baffle any attempt at logical description so much as in the case of procedure in Parliament. The cabinet, which is becoming more and more exclusively the motive force in all important legislative action, is not, indeed, so completely unknown to the rules of the House as it is to the statute-book; and yet a study of the rules alone would give but a faint idea of the authority of the Treasury Bench. On the other hand, it is impossible to understand how the government is attacked, and how it carries through its plans, unless one is familiar with the rules themselves. At the present day the discussions connected with appropriations, for example, turn little on financial questions, and are used mainly as an opportunity for criticising administrative conduct; but to understand how this is done, and to what extent the government has sought to limit the practice, a knowledge of the process of granting supply is essential.
The actual working of the House of Commons involves three problems: first, the regular forms of procedure; second, the action of the cabinet and of private members, operating subject to those forms; and third, the methods by which the cabinet maintains a control over its own supporters, and through them over the House itself. To deal with these three matters together would involve so much confusion, that it has seemed better to take up one of them at a time. This chapter and the two succeeding ones are, therefore, devoted solely to the organisation of the House and the forms of procedure on public matters, the relation of the government to the work of the House being described in the chapters that follow, while the machinery for keeping the majority compact and under the lead of the Treasury Bench will be dealt with at a later stage under the head of "Party Organisation in Parliament." Legislation for private and local objects, which has had a peculiar and instructive development, is treated in a chapter by itself.
[Sidenote: The Method of Voting.]
[Sidenote: A division.]
Before describing the organisation and procedure of the House it may be well to explain the method of voting, because frequent reference must be made to it, and the terms are technical. After stating the question to be voted upon, the Speaker, or the Chairman, calls in the ordinary way for the ayes and noes. According to the apparent preponderance of voices he then says, "I think the ayes (or noes) have it." If no objection is raised, he adds a moment later, "The ayes (or noes) have it," and the vote is so recorded. If, on the other hand, any of the minority doubt the result, or wish the numbers and names recorded, they cry out contrary to the Speaker, "The noes (or ayes) have it." Whereupon the Speaker directs strangers to withdraw (except from the places reserved for them), the division bells are rung all over the building, the two-minute sand-glass is turned, and when it has run the doors are locked, and the question and vote are repeated in the same way.[253:1] If the Speaker's opinion of the result is again challenged--and this is almost always done--he orders a division of the House, that is, he directs the ayes to go to the right, the noes to the left; and he appoints two tellers from each side, one of each pair to count the ayes, and the other the noes, in order to check one another. The ayes then go into the lobby that runs parallel to the House on the Speaker's right, the noes into that on his left; and until 1906 every member in the House, except the Speaker, was obliged to go into one lobby or the other, unless he was physically disabled, when his vote might be counted in the House.[253:2] The tellers, standing at the door of each lobby, count the members as they pass between them in returning to the House, while clerks at tables in the lobbies take down their names.
Ever since 1836, when the method of taking a division assumed its present form, the names of members voting on each side have been printed and preserved, although curiously enough these division lists are not included among the parliamentary papers. The process may seem a clumsy way of counting votes, but under the system in force until 1906 it took, on the average, only twenty minutes, and under the new system, whereby the recording of names begins when the sand-glass is turned, it takes not much more than half as long. This is less time than would be consumed by a roll-call, and the system has been found so satisfactory that it was adopted by the House of Lords.
Until recently a division was the only means, apart from an oral vote, of taking the sense of the House; and any one member could force a division by challenging the result of an oral vote, or rather any two members could do so, for a division cannot take place unless two tellers can be found for each side. In 1888, however, as a part of the movement to prevent obstruction and waste of time, the Speaker or Chairman was empowered, if he thinks a division frivolously or vexatiously claimed, to call upon the ayes and noes to rise in their places. He can then count them, and declare the result;[254:1] but this is in fact rarely done.
The names of the men selected as tellers indicate the political nature of the vote. If the government intend to treat the question, I will not say as one of confidence, (for there are cases of secondary importance where a ministry may be beaten without feeling that they have lost the confidence of the House and must resign), but if they intend to treat it as one where an adverse vote is a defeat for them, if they desire to rally their followers to vote solidly upon it, then the government whips are appointed tellers. If in the same way the Opposition want to treat it as a party question, their whips are appointed tellers upon the other side. But if on one side or the other this is not the case, private members who have made or seconded the motion or taken an active part in debate are selected by the chair as tellers, and if so any member may, without disloyalty to his party, vote according to his own unaided convictions.
[Sidenote: Standing and Sessional Orders.]
Like other legislative bodies the House of Commons has printed rules, and the most important of these, the standing orders, are published every year among the parliamentary papers. But the standing orders are by no means a code of procedure, for they cover only a fraction, and so far as they relate to public business a small fraction, of the subject.[255:1] The procedure rests essentially upon custom, to be gathered in part from precedents and the rulings of Speakers, in part from unrecorded tradition known by personal experience. Many standing orders have, in fact, been adopted from time to time in order to modify or forbid an existing practice, and hence their effect is mainly negative. No particular formality is required for the adoption of these rules, but in 1902, when extensive changes were made, the proposals were read several times, and were, in fact, submitted to a procedure similar to that for the enactment of a bill.[255:2]
[Sidenote: Standing Orders Endure from One Parliament to Another.]
The standing orders differ from the rules of legislative bodies in some other countries in two important respects. In the first place they do not have to be adopted afresh by each new House of Commons, but once established they continue in force from Parliament to Parliament until repealed. There are, indeed, sessional orders which require to be renewed at the beginning of each session, and sometimes a new rule after proving its utility in this way is given the permanent form of a standing order. Orders or resolutions without any fixed duration are also adopted at times. These expire upon prorogation, but it sometimes happens that without being formally revived they continue to be observed as a part of customary practice of the House.[256:1]
[Sidenote: They Can be Suspended by a Simple Vote.]
The second peculiarity of the standing orders lies in the fact that they can be suspended by a simple majority vote. Notice of a motion for that purpose is usually required and given, but it may be dispensed with; and it is not even necessary to refer in the motion to the standing orders at all. Any order or resolution, inconsistent with their terms, has, if adopted, the effect of suspending them,[256:2] and the House is, in fact, constantly adopting special orders which change the course of procedure as prescribed by the standing orders or the customary practice. This has often been done when the government has needed to take, for its own measures, part of the time allotted to private members, or has wanted to extend the sitting beyond the usual hour. Many of these cases are now provided for by the new rules adopted in 1902; but the most effective form of cutting short debate, the process known as the "guillotine," although now regulated by standing order in the case of supply,[256:3] is still applied in the case of all other bills solely by a special order of the House adopted for a particular bill on the motion of a minister.
[Sidenote: Tendency of Changes in the Standing Orders.]
Most of the changes in the standing orders made during the last fifty years have been aimed at preserving order, or preventing waste of time, or altering the distribution of time.[256:4] Those of the first class, such as the provisions authorising the suspension of a member for disorder, arose from the conduct of the Irish members, and may be regarded as an accident unconnected with the normal evolution of the parliamentary system. This is not true of the rules designed to prevent waste of time; for although the provisions to cut off debate grew out of Irish obstruction, the subsequent history of closure has shown that some process of this kind was certain to come sooner or later in the natural course of things, and that the Irish merely hastened it.[257:1]
[Sidenote: Efforts to Save Time.]
The changes made in order to save time are commonly attributed to the increase in the amount of business the House is called upon to despatch, and if in that business be included the enlarged control of the House over administrative detail by means of questions and otherwise, this is undoubtedly true, but so far as legislation is concerned, it would be more accurate to attribute the changes to the fact that it requires more time to transact business than it did formerly. There are a far larger number of members who want to interrogate and criticise the ministers, and to take part in debate. The pages of Hansard are more numerous in proportion to those of the statute-book. Now the old procedure was very elaborate. In the passage of an ordinary public bill through the House there were, apart from amendments, more than a score of different steps, upon each of which debate might take place, and a division might be claimed. Then motions to adjourn, and other dilatory tactics could be used indefinitely. Moreover, the general rule that amendments and debate must be relevant to the question before the House[258:1] was subject to wide exceptions, if, indeed, there could be said to be any such general rule at all. The debate upon a dilatory motion, for example, was not limited to the motion itself;[258:2] and every time a motion was made to go into Committee of the Whole on Supply, any grievance could be brought forward and discussed.[258:3]
All this was unimportant so long as the battles between the parties were confined to occasional full-dress debates, and the rest of the time was devoted to the real work of legislation. But when systematic obstruction arose, and when without any intent to obstruct it became the recognised business of the Opposition to oppose, and in the case of measures that aroused strong party feeling to oppose at every step, the opportunities for doing so were too numerous to endure. Some of the steps in the enactment of a bill, such as engrossment,[258:4] passage,[258:5] and first and second reading in the Committee of the Whole,[258:6] have been discontinued altogether. Others, such as taking up the consideration of a bill,[258:7] or going into Committee of the Whole on a bill,[258:8] or bringing up a report from Committee of the Whole,[258:9] are taken as a matter of course without question put. In other cases again the question is put, but no debate is allowed.[258:10] With the same object debate upon a dilatory motion has been limited to the subject-matter of the motion, and the Speaker or Chairman has been empowered to forbid debate upon it, or even to refuse to put the question at all, if he considers the motion an abuse of the rules of the House.[258:11]
The opportunities for criticising the government both in going into Committee of Supply, and by other means, have also been limited in various ways, and above all the system of cutting short debate by means of closure has been brought of late years to a condition of great efficiency. These matters, and the distribution of time between the government and private members will be considered more fully hereafter, and it is only necessary to remark now that the tendencies noted are permanent, because although a party while in Opposition may object to changes in the rules that enhance the control of the government over the conduct and time of the House, it finds itself compelled to maintain them when it comes into office. The tendencies are, in fact, the natural result of the more and more exclusive responsibility of the ministry for all public action, legislative as well as executive.
[Sidenote: The Speaker.]
The Commons are always summoned to the bar in the House of Lords to hear any formal communication from the Crown, and when after a general election they meet on the day appointed, they are summoned there to hear the formal opening of the new Parliament. They are then desired in the name of the sovereign to choose a Speaker, and retire to their chamber for the purpose. As soon as he has been chosen, the mace is placed on the table before him, as a symbol of his authority and a token that the Commons are sitting as a House. But he is still only Speaker-elect, until the next day, when, followed by the Commons, he again presents himself at the bar of the Lords, announces his election, and asks for the royal confirmation, which is now, of course, never refused.
[Sidenote: His Election.]
If only one person is nominated for Speaker, he is called to the chair without a vote. If more than one, they are voted upon successively, a majority being required for election.[259:1] The proposer and seconder are always private members, for it is considered more fitting that the ministers should not be prominent in the matter.[259:2] The Speaker is, however, always selected by the government of the day, and a new Speaker is always taken from the ranks of the party in power. Sometimes the election is not uncontested, and this happened when Mr. Gully was chosen in 1895. But although the Speaker may have been opposed when first chosen, and although he is elected only for the duration of the Parliament, it has now become the invariable habit to reelect him so long as he is willing to serve. The last cases where a Speaker's reelection was opposed occurred in 1833 and 1835, and on the second of those occasions he was defeated. The principle is well illustrated by the career of Mr. Gully. He was elected by a small majority, during the last few months of a moribund Liberal cabinet. His selection had not pleased the Conservatives, and he was warned that they held themselves at liberty not to reelect him if they came to power in the next Parliament. Contrary to the ordinary rule his constituency was contested at the next general election, but although the Conservatives obtained a large majority in the new Parliament, he was returned to the chair without opposition.
[Sidenote: His Powers over Debate.]
The Speaker is purely a presiding officer. He has nothing to do with appointing any committees, or guiding the House in its work. He is not a leader but an umpire, otherwise he could not remain in the chair through changes of party. As an umpire, however, his powers are very great, and in some cases under the modern changes in the standing orders they are autocratic. He decides, for example, whether a motion to closure debate may be put, or whether it is an infringement of the rights of the minority;[260:1] he can refuse to entertain a dilatory motion if he considers it an abuse of the rules of the House;[260:2] and he can stop the speech of a member who "persists in irrelevance, or tedious repetition."[260:3] Moreover, from his decision on those matters, or on any points of order, there is no appeal.[260:4] The House can suspend or change its own rules by a simple majority vote, but it cannot in a concrete case override the Speaker's construction of them.[260:5] This is a general principle of English parliamentary law, which is applied in almost all public bodies.[261:1] It may render a conscientious man more careful in his rulings, but it certainly places in his hands enormous power.
[Sidenote: His Power to Preserve Order.]
Familiarity with representative bodies seems to breed contempt, for the last half century has been marked by an increase of disorderly scenes in the legislatures of many countries. In England such things were brought about by the growth of the Irish Home Rule party, which regarded the government of Ireland by the British Parliament as unjust on principle, and oppressive in fact; and which, to say the least, was not distressed by loss of dignity on the part of the House of Commons. In 1880 the Speaker was given the power to repress disorder, now embodied, with subsequent modifications, in Standing Order 18. He can name a member who disregards his authority or obstructs business, and then a motion is in order, to be decided at once without amendment or debate, to suspend that member.[261:2] When the standing orders were revised in 1902 they contained a clause prescribing the duration of the suspension for the first and subsequent offences, but this was struck out during the discussion, and a suspension is now indeterminate. It is obvious that to a party, in a hopeless minority, which denies the authority of Parliament, a disorderly scene followed by a suspension, and an opportunity to go home and make stirring speeches, may not be an undesirable form of protest.
Apart from occasional outbursts chiefly, though not exclusively, on the part of the Irish members, a stranger in the gallery is much impressed by the respect paid to the Speaker, and by his moral control over the House.[262:1] His emoluments are in proportion to the dignity of his position. He enjoys a salary of five thousand pounds a year, with an official residence in the Houses of Parliament and other perquisites; and although standing aloof from political leadership, he is regarded as the first commoner of the realm. He is, indeed, on the threshold of the House of Lords, for it has been the habit of late years to make him a peer when he retires.
[Sidenote: He Votes Only in Case of a Tie.]
[Sidenote: The Chairman of Committees.]
As late as 1870 the Speaker occasionally took part in debate, when the House was in Committee of the Whole where he does not preside;[262:2] but it would now be thought inconsistent with his position of absolute impartiality to speak or vote in committee. He therefore never votes unless he is obliged to do so by a tie occurring when he is in the chair. It is commonly said that he always gives his casting vote in such cases so as to keep the question open; but this is not strictly true. When, however, his vote involves a final decision, he bases it, not upon his personal opinion of the merits of the measure, but upon the probable intention of the House as shown by its previous action, or upon some general constitutional principle;[262:3] and it may be added that the chairman of a Committee of the Whole, when called upon to break a tie, follows the same practice.[262:4] The chair in Committee of the Whole is regularly taken by the Chairman of the Committee of Ways and Means--commonly called for that reason the Chairman of Committees--who, like the Speaker, withdraws, on his appointment, from political contests, speaking and voting in the House nowadays only on questions relating to private bills. He is nominated at the beginning of the Parliament by the ministry, from among their prominent supporters, and retires from the position when they resign. Considering that his duties consist in presiding, like the Speaker, with strict impartiality, and in a purely non-partisan supervision of private bill legislation, it is somewhat strange that he should go in and out of office with the cabinet, but in fact one hears no criticism of his conduct on that score, largely, no doubt, because he always takes the Speaker as his model. Since 1855 he has acted as deputy speaker, when the Speaker is unavoidably absent,[263:1] and in order to prevent any possible inconvenience from the absence of both of these officers from the House, or of the Chairman of Ways and Means from the Committee of the Whole, provision was made in 1902 for the election of a deputy chairman who can fill the vacant place.[263:2]
[Sidenote: Other Officers of the House.]
The only other officers of the House that need be mentioned here are the Sergeant-at-Arms, who acts as the executive officer and chief of police of the House under the direction of the Speaker; the Clerk of the House; and the Counsel to Mr. Speaker, who is a legal adviser, and has important duties in connection with private bill legislation. It is a curious survival that the Sergeant-at-Arms,[263:3] and the Clerk of the House with his chief assistants,[263:4] are appointed by the Crown, and hold office permanently. Their work is, of course, of a non-partisan character, and they do not always belong to the party of the ministry that appoints them. Sir Courtenay Ilbert, for example, the present Clerk of the House, although a Liberal, was appointed by the Conservative government, and not by way of promotion in the service of the House, for he was at the time Parliamentary Counsel to the Treasury.
FOOTNOTES:
[251:1] The question where the Peelites should sit in 1852 was much discussed among themselves. Morley, "Life of Gladstone," I., 422-23.
[253:1] Standing Orders 28-29, Com. Papers, 1905, LXII., 159. Under the new rule adopted in 1906 the Speaker orders the lobby to be cleared, and the members begin to pass through it at once.
[253:2] To refuse to do so has been treated as such a disregard of the authority of the chair as will justify suspending the member. May, "Parl. Practice," 10 Ed., 338.
On March 5, 1901, twelve Irish Nationalists, who refused to go into the lobby because they had had no chance to speak when the closure was moved on a vote on account, were suspended; Hans. 4 Ser. XC., 692-96; and on Aug. 5, 1904, the Welsh members refused to vote as a protest against the use of closure on the Education (Local Authorities Defaults) Bill. After they had persisted so far that the Chairman reported the matter to the House, they consented to withdraw altogether, and no further steps were taken against them. Hans. 4 Ser. CXXXIX., 1259-68.
[254:1] S.O. 30.
[255:1] The standing orders relating to private business are much more elaborate and come far nearer to a code of procedure.
[255:2] This had not been the practice earlier; but the discussion of changes in the standing orders has sometimes been very long. In 1882 the new rules, which dealt with closure, the suspension of disorderly members and the creation of standing committees, were debated for thirty-three days. On the other hand, a change was made in 1901 on the motion of a private member, at a single sitting. Hans. 4 Ser. XCII., 555-75. In 1906 the changes were referred to a select committee and then each of them adopted on a motion by the government. Hans. 4 Ser. CLV., 197 et seq.
[256:1] May, 145.
[256:2] Ibid., 145.
[256:3] S.O. 15.
[256:4] In his excellent Recht und Technik des Englischen Parlamentarismus--the only systematic history of procedure in the House of Commons--Dr. Redlich dwells on two tendencies in the evolution of the standing orders since 1832. One of these consists in giving to the ministry an ever greater control over the time, and hence over the activity, of the House; the other in keeping the House more and more strictly to its prearranged order of business for the day. Now the manifestations of this last tendency, which he makes very clear, can also be classed as changes made to save time or to arrange the distribution of time. Whether in the form of forbidding motions to vary the prescribed order of business, or to confine amendments and debate to matters relevant to the main question, or to exclude dilatory motions and others that open an indefinite field for discussion, they have the effect either of preventing waste of time by debating trivial questions or matters that the House does not care to take up, or of preventing the use for some other purpose of time allotted to the government or to a private member.
Since this was written Dr. Redlich's book has happily been translated into English, but as the English edition has not yet been received the references to the German edition are left unchanged.
[257:1] This is also Dr. Redlich's opinion, Recht und Technik, 246.
[258:1] May, 299.
[258:2] Ibid., 301.
[258:3] Ibid., 571.
[258:4] Ibid., 471.
[258:5] Ibid., 472-3.
[258:6] S.O. 36.
[258:7] S.O. 40.
[258:8] S.O. 32, 51.
[258:9] S.O. 53.
[258:10] E.g. S.O. 1 (7), 18, 26, 31, 91.
[258:11] S.O. 22, 23.
[259:1] May, 151.
[259:2] Cf. ibid., 150, note 3.
[260:1] S.O. 26.
[260:2] S.O. 23.
[260:3] S.O. 19.
[260:4] But the Speaker himself may submit a question to the judgment of the House. May, 331.
[260:5] The action of the Speaker can be brought before the House only by a motion made at another time after due notice, but this is, of course, almost useless for the purpose of reversing the ruling complained of: Hans. 3 Ser. CCLVIII., 10, 14. On the occasion when Speaker Brand made this ruling he intimated that a member making on the spot a motion to disagree with it would be guilty of disregarding the authority of the chair, and liable to suspension under the standing orders. Ibid., 9.
[261:1] The Lord Chancellor has far less power as presiding officer of the House of Lords. May, 186, 296, 307, 331.
[261:2] S.O. 18. If a member who is suspended refuses to leave the House, the Speaker may, on his own authority, suspend him for the remainder of the session. Ibid.
[262:1] In 1902 the provision, common in continental legislatures, which authorises the Speaker to suspend the sitting, in case of grave disorder, was embodied in S.O. 21. This has been used only once, on May 22, 1905, when the Opposition, thinking it was the duty of the Prime Minister to give an immediate explanation, refused with great disorder to hear another member of the government. (Hans. 4 Ser. CXLVI., 1061-72.) One may hope that it will rarely be necessary to apply this undignified process of taking off the lid to allow the tea-pot to cool down.
[262:2] May, 348-49.
[262:3] May, 344-48.
[262:4] May, 361-62.
[263:1] May, 191; S.O. 81 (formerly S.O. 83).
[263:2] S.O. 81 (2). By S.O. 1 (9), the Speaker nominates a panel of not more than five members to act as temporary chairmen of committees, but this would seem to have been rendered less necessary by the new provision for a deputy chairman.
[263:3] May, 198.
[263:4] May, 195.