enacted in (7) That after the said limitations shall take effect as aforesaid, judges' Other procommissions be made quamdiu se bene gesserint, and their salaries visions ascertained and established; but upon the address of both Houses of lieu, by Parliament, it may be lawfull to remove them.1 6 Anne, c. 7, natural and rendering much of the learning as to allegiance and aliens contained in the famous Calvin's case (supra, p. 393, n.) and in subsequent cases, now only historically interesting. Under the existing law an alien may take, acquire, hold, and dispose of real and personal property in the United Kingdom, of every description (except British ships) in the same manner Naturalised in all respects as a natural-born British subject, but without the right to alien now any office or franchise, municipal, parliamentary, or other; and on obtain- invested with ing a certificate of naturalisation from one of Her Majesty's Principal political as Secretaries of State, he becomes entitled, in the United Kingdom, to all well as other political and other rights and privileges, and subject to all the obligations, rights of of a natural-born subject. It is also provided that a natural-born subject born subject. may become a statutory alien" by being voluntarily naturalised in a Foreign State, and may again acquire British nationality by permission of a Secretary of State. [In the case of Rex v. Lynch, referred to (supra, p. 314) it was held that the Naturalisation Act, 1870 (33 & 34 Vict. c. 14) does not permit naturalisation in a foreign State at war with Great Britain, and that a British subject who renounces his allegiance and attempts to procure himself to be naturalised in an enemy's country in time of war is guilty of high treason, and that the Statute of Treasons (25 Edw. III. stat. 5, cap. 2, applies to acts committed within or without Great Britain. It was held in this case that a British subject cannot become naturalised in an enemy's State in time of war; and that the act of becoming naturalised under such circumstances is itself an act of treason and ineffectual to afford protection in an indictment for treason in subsequently joining the enemy's forces. By the Alien Immigration Act (1905) a check has been placed upon Alien the influx of pauper and undesirable foreigners into England, without how- Immigration ever restricting the privilege of asylum to such political refugees as are Act, 1905. not dangerous to the peace of the realm.-ED.] 1 This important provision, which established the independence of the Independence Judicial bench, as well as the provision in the 8th clause that the Royal of judges. pardon should not be pleadable to an impeachment, had been omitted in the hasty and imperfect Bill of Rights. Supra, p. 510. [The judges are independent in the sense of holding their office by a permanent tenure and of being raised above the direct influence of the Crown or the Ministry. But the judicial department of Government does not pretend to stand on a level with Parliament, as its functions might at any time be modified by Act of Parliament, and such a statute would be no violation of the law. (See A. V. Dicey, Law of the Constitution, 6th ed., 1902, and Gardiner's History of England, vol. ii. cap. 22, as to the position of judges.) The colour and working of our institutions depend on the authority and independence of the Judicial Bench; a good example of the maintenance of the rule of law by the judges of the land, during a period of revolutionary violence is afforded, by Wolf Tone's case, 2 State Trials, 614. The principle that Parliament speaks only through an Act of Parliament greatly increases the authority of the judges and ensures fixity of the law. Thus a Bill which has passed into a Statute immediately becomes subject to judicial interpretation, and the English Bench interprets solely by reference to the words of the enactment, ignoring resolutions of either House, or anything that passed in debate, or changes which the Bill may have undergone, since its first introduction, and until it received the Royal assent. The supremacy of Parliament is really mitigated by the fact that once it has uttered its will as lawgiver, that will becomes subject to the interpretation put on it by the judges of the land, who naturally adopt a construction, if possible, in harmony with Common Law principles (Dicey, Law of the Constitution, P. 351, et passim). In England, moreover, every individual is amenable to the rule of ordinary law and to the dominion of ordinary tribunals, over which the judges of the land preside, and there is not in England, as in many countries of the Continent, any separate administrative law governing General confirmation of the Laws and Statutes of the realm for securing the estab lished religion and the rights and liberties of the people. (8) That no pardon under the Great Seal of England be pleadable to an impeachment by the Commons in Parliament.1 IV. And whereas the Laws of England are the birthright of the people thereof, and all the Kings and Queens who shall ascend the throne of this Realm ought to administer the government of the same according to the said laws, and all their officers and ministers ought to serve them respectively according to the same; the said Lords Spirituall and Temporall, and Commons, do therefore further humbly pray, That all the Laws and Statutes of this Realm for securing the Established Religion, and the Rights and Liberties of the people thereof, and all other laws and statutes of the same now in force, may be ratified and confirmed: And the same are by his Majesty, by and with the advice and consent of the said Lords Spirituall and Temporall, and Commons, and by authority of the same, ratified and confirmed accordingly. GROWTH OF THE CABINET. The Concilium Ordinarium. The 4th and 6th of the Constitutional clauses of the Act of Settlement, although repealed in Queen Anne's reign before they could come into operation, call for some detailed comment, and lead us to a consideration of the growth of Cabinet government. The fourth clause was intended to put a stop to a very remarkable change which had been silently effected in the executive functions of the King's Ordinary or Privy Council: the sixth, had it not been repealed, would have entirely severed the connection between the House of Commons and the Executive. Of the Concilium Ordinarium something has already been said in an earlier chapter of this work. Consisting of the chief officers of the Court, of the two archbishops, and of certain leading members of the baronage selected by the king, the Ordinary or Continual Council was originally a kind of permanent committee of the "Great Council" or Common Council" of the realm, sitting for the despatch of executive business during the intervals between the meetings of the larger assembly, but becoming merged in that assembly whenever it was convened. Gradually, however, the nature both of the Common Council and of the Ordinary Council underwent a change. with the rise of the House of Commons the "Common Council developed into the National Parliament, the Ordinary Council the relation of individuals to the State. In connection with the independence of judges, it is to be noted that their salaries were originally charged upon the Civil List, and were thus mixed up with the king's private expenditure, but are now chargeable upon the whole public revenue, not as the king's property, but as public income. See Dicey, Law of the Constitution, p. 310.-ED.] 1 See supra, p. 413, n. 2 Supra, pp. 139, 146, 147. As tended more and more to become a strictly official body, distinct from the larger assembly out of which it had grown; its members ceased to be appointed exclusively from the ranks of the baronage, clerical or lay, and commoners (not necessarily members of the House of Commons) were admitted to the Council board. In 1404, under Henry IV., the Council consisted of 19 members, of whom 3 were bishops, 9 peers, and 7 commoners. They were bound by a special oath of fidelity and secrecy, and received regular salaries of large amounts. But the Council still remained a checking as well as a ministerial body. It was at once the controller and the servant of the Crown; the instrument of the king's prerogative, and the curb placed by the baronage on the arbitrary exercise of his will. The number of councillors The Privy soon, however, appears to have proved too large for effective Council. administration, and about the time of Henry VI. the more eminent and assiduous members were formed into a select or confidential committee, exercising alone all the administrative functions previously shared with the other members of the Ordinary Council, and distinguished from these latter by the title of Privy Councillors. The oath of secrecy was now only exacted from the Privy Councillors, the Ordinary Councillors being no longer consulted on purely executive business, although they continued to take part in the judicial duties of the Council in its Court of Star Chamber. Under Edward VI., in 1533, the Ordinary Council consisted of 40 members (22 being commoners), and was divided, for judicial and administrative purposes, into 5 commissions or committees. The most important of these, composed of eleven noblemen, two bishops, and seven commoners (one half of the whole number of Councillors) was styled the committee "for the State," and constituted, in fact, the Privy Council. The large number of commoners, both in the whole Council and in the committee "for the State," marks the change which had silently been effected in the relations between the Council and the Crown. The independence of the Council had rested on the presence of men who could not easily be removed, great hereditary officials and powerful nobles. Under the Tudors the large infusion of commoners changed the nature of the Council from a mixed checking and administrative, into a purely official body, exercising the whole Executive power of the Crown, and, through the medium of the Star Chamber and of proclamations, a very large part of the judicial and legislative powers also. On the abolition of the Star Chamber the judicial functions of the Council fell into abeyance, and the reason for the distinction between Ordinary and Privy Councillors having then ceased to exist, all the members of the Council, from the date of the Restoration, were sworn as Privy Councillors. The Cabinet The "Cabal" Temple's scheme for reorganisation of the Privy Coun cil, 1679. The Privy Council continued to be the Constitutional body of advisers of the king, whom he was bound by the laws and customs of the realm to consult. But Charles II. hated the delays and restraints imposed upon his designs by long debates in Council, and having greatly augmented its numbers was able to allege with truth that "the great number of the Council made it unfit for the secrecy and despatch which are necessary in great affairs." Availing himself of one of the peculiar characteristics of the Council-its action through committees-Charles formed a small select committee or Cabinet Council,1 with whom he concerted all measures of importance before submitting them, for a merely formal ratification, to the whole body of Privy Councillors. "Formerly," says Trenchard, writing towards the close of the 17th century, "all matters of state and discretion were debated and resolved in the Privy Council, where every man subscribed his opinion and was answerable for it. The late King Charles [II.] was the first who broke this most excellent part of our Constitution, by settling a Cabal or Cabinet Council, where all matters of consequence were debated and resolved, and then brought to the Privy Council to be confirmed." 2 The word "cabal" with the meaning of "club" or "association of intriguers" had been popularly applied to the secret councillors of the king even under James I., and the accidental coincidence that, in 1671, the Cabinet consisted of the five unprincipled Ministers, Clifford, Arlington, Buckingham, Ashley, and Lauderdale, the initials of whose names made up the word Cabal, caused the latter designation to be used for some years as synonymous with Cabinet, and did much to bring the Cabinet system of government into disrepute. Moreover, though convenient and even necessary for administrative purposes, Cabinet government, in the form which it assumed at this period, was undoubtedly fraught with great evils. It deprived the Privy Council of all power to check the actions of the king, and vested the real government of the country in a body of Ministers practically irresponsible to the nation. Accordingly, in 1679, an attempt was made, on the advice of Sir William Temple, to restore the Privy Council to its former position. It was remodelled, and its numbers reduced from fifty to thirty, of whom fifteen were the chief officers of State, and the other fifteen were made up of ten 1 “The . . . name of a Cabinet Council," says Hallam, " as distinguished from the larger body, may be found as far back as the reign of Charles I." (Const. Hist., iii. 182); but it occurs in the preceding reign in the writings of Lord Bacon, who, in treating of the "inconveniences of counsel," says. 'for which inconveniences, the doctrine of Italy, and practice of France, in some kings' times, hath introduced cabinet counsels: a remedy worse than the disease." Bacon, Works (ed. Spedding, Ellis & Heath, 1858), vi. 4242 Trenchard, Short History of Standing Armies, p. 2. lords and five commoners. The joint income of the new Council was not to fall below £300,000, a sum nearly equal to the estimated income of the whole House of Commons. Temple hoped that a body thus constituted of great nobles and wealthy landed proprietors, too numerous for a Cabal and yet not too numerous for secret deliberation, would form at once a check upon the Crown and a counterbalance to the influence of Parliament. By the advice of this Council of Thirty, Charles II. pledged himself to be guided in all affairs of State; but the pledge was quickly broken, and an interior or Cabinet Council was again formed, The Cabinet which differed from the whole body of the Privy Council as, system under Edward VI., the committee "for the State," and under Henry VI., the Privy Council itself, had differed from the Ordinary Council.1 resumed. This distinction of the Cabinet from the Privy Council has ever since continued. The Privy Council 2 still remains the only legally recognised body; but the Cabinet, though altogether unknown to the law, and for a long time regarded as unconstitutional and dangerous, has gradually drawn to itself the chief executive power, and become, by universal consent and usage, the essential feature of our system of Parliamentary government. The firm Change in establishment of the Cabinet system has, however, only been its essential rendered possible and advantageous by a gradual, but long since istics. completed, change in its essential characteristics. Under the last two Stuarts the Cabinet was, in truth, a cabal of the king's servants for sustaining the authority of the Crown, not only against its legally authorised Privy Councillors, but against the wishes and power of Parliament. Since the Revolution it has become a Ministry 3 nominally appointed by the sovereign, 1 An excellent sketch of the history of the Privy Council will be found in Mr. A. V. Dicey's Arnold Prize Essay, Oxford, 1860, to which the author was indebted for several of the details in the text. [Supplementary to the foregoing work, should be compared Mr. L. O. Pike's treatment of the Privy Council; its proceedings and jurisdictions," in Const. Hist. of House of Lords, pp. 251-252, 281, and 307-309.-Ed.] 2 Since the time of Charles II. the number of Privy Councillors has been greatly augmented, and is now indefinite. The appointment, which confers the title of "Right Honourable," is frequently given as an honorary reward for important political services; but no Privy Councillor attends a meeting of the Council unless specially summoned; and "with the exception of such of them as are called cabinet ministers, the privy councillors are not in modern practice ordinarily summoned to advise the sovereign on affairs of State." (Stephen, Com., 5th ed., ii. 476.) The right to attend without summons was, however, asserted by the Dukes of Argyle and Somerset on the memorable occasion of Queen Anne's last Council in 1714, when they suddenly appeared unbidden at the Council board, and disconcerted the plans of the Jacobites. (See Lord Mahon's Hist. of Eng., i. 91.) 3 In 1711 the Earl of Scarsdale, in the House of Lords, having proposed a Resolution in which the responsible advisers of the Crown were referred to as the "Cabinet Council," "afterwards substituted the word "Ministers" as being "better known." This alteration gave rise to a discussion, in the course of which some peers maintained that "Ministers" and " Cabinet character |