right not exercised for four with certain was opposed that it had not been exercised during a period of four hundred years, except in the cases of certain ladies encenturies, dowed in the mean time with life peerages, as mere titles of exceptions; honor, without the right to sit in parliament. While the constitutional lawyers admitted that the position of the crown could not be strengthened by cases of that character, they, relying upon the maxim Nullum tempus occurrit regi, contended that the immemorial right of the crown to create life peerages, although long suspended, had not been lost. They said that Coke had often declared that the crown could create peerages "for life, in tail or in fee," and that doctrine had could create been accepted as unquestionable law not only by Comyns, for life, in Cruise, and Blackstone, but by Lord Redesdale's famous committee "On the Dignity of a Peer." Thus armed, the ministers of the crown, in the hope of improving the appellate jurisdiction of the upper house, which for a long time had been sadly deficient in judicial learning, resolved to make a beginWensley- ning by creating Sir James Parke, lately an eminent baron of dale," for the exchequer, Baron Wensleydale, "for and during the term the term of of his natural life." As all temporal peers, whether English, Coke's claim that the crown peerages tail or in fee;" patent to Baron and during his natural life;" referred to committee of privileges; adverse report confirmed by the lords; Scotch, or Irish, and whether sitting by hereditary right or by I Steph. Blackstone, vol. ii.; May, 2 Hans. Deb., 3d ser. vol. cxl. pp. 263, 1152, et seq.; Clark's House of Lords Cases, vol. v. p. 958. a settle such legislature has since been accepted as a sound exposition of accepted as constitutional law. Upon that basis an act1 was passed twenty ment of the years later constituting two lords of appeal in ordinary, who question; were intended to aid the upper house, as law lords with the creations rank of baron for life, but with the right of sitting and voting by statutory only during their tenure of office. only made authority. upper house thousand constantly peerages Such in short is the present status of that ancient assem- Corporate bly whose identity can be traced for a period of a thousand identity of years through the great councils of the Norman and Angevin traceable reigns back to the witenagemots of the earliest times. While through a during that marvellous process of unbroken development the years; elements composing it have been constantly changing, the its elements assembly itself has been able to preserve throughout its corpo- changing; rate character. With that truth clearly in view the statement should surprise no one, that of the 5072 hereditary peerages of the United Kingdom at present existing, III were created creations during the reign of George III.; 32 in the reign of George last four during the IV.; 30 in the reign of William IV.; and 242 in the reign of reigns; Queen Victoria. Thus of the existing peerages only 92 are only 92 of older than the accession of George III.,- an imperfect crite- the existing rion of the antiquity of the peerage, which should be qualified older than by the fact that, "when the possessor of an ancient dignity sion of is promoted to a higher grade in the peerage, his lesser dignity becomes merged in the greater, but more recent title." 3 Although the ancient rule of procedure, which authorized the peers no peers to vote by proxy, was voluntarily surrendered in 1868, longer vote they still uphold the right of any three members to constitute but three a quorum, any two of whom are competent to pass or reject still constia law so long as their unanimity conceals the defect in their quorum, organization. While the "indifference to business which whom may has often induced the lords to commit their ordinary powers reject a of legislation to a number so small as to appear merely as a law; select committee of the whole-has subjected them to wellmerited reproach, no one who has witnessed their proceedings 139 & 40 Vict. 59. For a definition of lords of appeal under the Appellate Jurisdiction Act, 1876, see Lely and Foulkes, Judicature Acts, pp. 99, 100. 2 Including 15 minors not sitting. Total number of upper house 567. Excluding 5 princes of the blood, 26 arch bishops and bishops, 16 Scottish and 3 May, Const. Hist., vol. i. p. 282. the acces George III.; by proxy, tute a any two of pass or spirited proceedings upon great occasions when their best orators are stirred by on great the spirit of high debate can fail to admit, despite any prejuoccasions. dices that may possess him, that he is in the presence of a real senate, "whose years are awful and whose words are wise." The cabi net, and its the crown and the to commons worked no outward change in the consti tution; cabinet continued sovereign; 5. From the beginning of its history to the present time the relations to inner circle of the privy council, conventionally known as the "cabinet," has been the agent of the supreme executive power, legislature; discharging its functions through the exercise of those attributes known to the law as the royal prerogatives. When that supreme authority was in fact vested in the sovereign himself, the ministers composing the cabinet were his personal appointees, responsible to him alone for the discharge of their transfer of duties, and dismissable at his pleasure. When the Revolution Sovereignty of 1688 transferred the supreme executive power from the person of the sovereign to the majority in the house of commons, there was no change made whatever in the outward forms of the existing system. The new sovereign thus created simply continued the cabinet as its agent, with the understanding that it should exercise the royal prerogatives as before the new in the name of the old sovereign, but only in such manner as it should direct. Out of that anomalous condition of things in which the ostensible sovereignty is vested in the crown and the real sovereignty in the majority of a popular assembly, the question has arisen whether or no there still resides in the ostensible sovereign any personal authority whatever. A striking illustration of the extreme views entertained upon that subject by the house of commons can be found in the incident Bedcham- known as the "Bedchamber question," raised by Sir Robert Peel when he was called upon to form a government upon the resignation of the Melbourne ministry in 1839. As nearly all the ladies of the household were related to the outgoing ministers, or to their dependents, Sir Robert, unwilling to be embarrassed by difficulties incident to the nearness of his political adversaries to the person of the sovereign, informed the queen that the ministerial changes would necessarily embrace some of the higher offices of her court held by ladies, including the ladies of the bedchamber. After consultation with Lord John does any real authority still reside in the old? ber question of 1839; Peel's demand of the queen; 1 For an enumeration of the royal prerogatives and a legal definition of them, see Kerr's Blackstone, vol. i. pp. 213-254. to comply result; Russell and Lord Melbourne, the queen embodied her refusal her refusal to comply with such a demand in a letter to Sir Robert Peel, and its in which she informed him that she could not "consent to adopt a course which she conceived to be contrary to usage, and which was repugnant to her feelings."1 Sir Robert thereupon refused to accept office on any other terms, and thus the Melbourne ministry was for more than two years continued in power. When, however, a subsequent resignation in 1841 Peel's forced the sovereign to again call upon Sir Robert to form victory in a government, the principle for which he contended was admitted, and an arrangement was then made "which has now understandlong prevailed. The Mistress of the Robes, who is not peri- has since ing that odically resident at the Court, but only an attendant on great governed. occasions, changes with the Ministry; the Ladies in Waiting, who enjoy much more of personal contact by virtue of their office with the Sovereign, are appointed, and continue in their appointments, without regard to the political connections of their husbands." 2 sovereign minister minister of foreign A much more important incident of the same general char- What is acter arose in 1850 out of an attempt made by Lord Palmer- due to the ston, as minister for foreign affairs, to resist not only the and prime personal right of the sovereign, but of the prime minister and from the the rest of his colleagues, to supervise and control the details of the department over which he presided. In order to reduce affairs; the controversy to a definite issue, the queen directed Lord John Russell to deliver to Lord Palmerston the following memorandum: "The queen requires, first, that Lord Palmer- memoranston will distinctly state what he proposes in a given case, in delivered order that the queen may know as distinctly to what she gives Palmerston her royal sanction. Secondly, having once giving her sanction in 1850; to a measure, that it be not arbitrarily altered or modified by the Minister. Such an act she must consider as failing in sincerity towards the crown, and justly to be visited by the exercise of her constitutional right of dismissing that minister. 1 Hans. Deb., 3d ser. vol. xlvii. p. 985. "The queen, in her letter, mentions, and refuses, the proposal of Sir Robert Peel 'to remove the ladies of her Bedchamber.' Sir Robert Peel, in his answer, speaks only of his desire to remove a portion of them. . . She declined to remove them as a body; he resigns his charge, because he is dum to Lord submis sion; with the She expects to be kept informed of what passes between him and the foreign ministers before important decisions are taken, based upon that intercourse; to receive the foreign despatches in good time; and to have the drafts for her approval sent to her in sufficient time to make herself acquainted with their contents before they must be sent off. The queen thinks it best that Lord John Russell should show this letter to Lord Palmerston." Although the latter, upon receiving this warnhis offer to ing, promised "that he would punctually obey the directions comply; contained in it," he sent shortly after to the representative of Austria a note containing a paragraph which both the queen and the prime minister considered as "derogatory to the honor of England, as well as discourteous to Austria." When the his second premier insisted that the note should be recalled and another substituted without the offensive paragraph, Lord Palmerston, after threatening to resign, submitted. But after the French his conflict coup d'état of the 2d of December, 1851, he again fell from cabinet in grace by stating upon his own responsibility to the French ambassador "his entire approbation of the act of the Presistatement dent, and his conviction that he could not have acted otherwise than he had done," despite the fact that the cabinet as a whole had agreed upon a policy of non-intervention. Lord Palmerston was thereupon removed from office, not only befood cause he had exceeded his authority as secretary of state, ing his but also because he had taken upon himself alone the right authority; premier, to speak for the whole government. Thus the doctrine was with clearly settled that the prime minister, with the consent of the crown, the crown, controls all state affairs as the recognized medium of communication between the sovereign and the heads of the several departments; and that the prime minister and the cabinet can exercise through the crown the right to dismiss any minister who does not accept the will of the government present as a whole.2 To prevent such conflicts in the conduct of forto drafts of eign affairs, the practice now is for the drafts of despatches despatches. to be agreed upon between the prime minister and the for 1851 by reason of to French ambassa dor; removed from office consent of controls all state affairs; right of dismissal; practice as 1 Hans. Deb., 3d ser. vol. cxix. p. 90; Martin, Pr. Consort, vol. ii. pp. 302-310. 2 The position of the prime minister has been thus defined: "As the cabinet stands between the sovereign and the parliament, and is bound to be loyal to both, so he stands between his colleagues and the sovereign, and is bound to be loyal to both."- Gladstone, Gleanings of Past Years, vol. i p. 243. |