The Growth of the English Constitution from the Earliest Times

by Edward A. Freeman

[(4)] How very recent the establishment of these principles is will be seen by anyone who studies the history of the reign of George the Third in the work of Sir T. E. May. Mr. Pitt, as is well known, kept office in defiance of repeated votes of the House of Commons, and at last, by a dissolution at a well-chosen moment, showed that the country was on his side. Such conduct would not be deemed constitutional now, but the wide difference between the constitution of the House of Commons then and now should be borne in mind.

[(5)] Though the command of the Sovereign would be no excuse for any illegal act, and though the advisers of any illegal act are themselves responsible for it, yet there would seem to be no way provided for punishing an illegal act done by the Sovereign in his own person. The Sovereign may therefore be said to be personally irresponsible.

[(6)] See Macaulay, iv. 435. It should not be forgotten that writers like Blackstone and De Lolme say nothing about the Cabinet. Serjeant Stephen supplies the omission, ii. 447.

[(7)] The lowly outward position of the really ruling assembly comes out in some degree at the opening of every session of Parliament. But it is far more marked in the grotesque, and probably antiquated, ceremonies of a Conference of the two Houses. This comes out most curiously of all in the Conference between the two Houses of the Convention in 1688. See Macaulay, ii. 660.

[(8)] See Note 56, Chapter ii.

[(9)] See Macaulay, iv. 437.

[(10)] “Ministers” or “Ministry” were the words always used at the time of the Reform Bill in 1831-1832. It would be curious to trace at what time the present mode of speech came into vogue, either in parliamentary debates or in common speech.

Another still later change marks a step toward the recognition of the Cabinet. It has long been held that a Secretary of State must always accompany the Sovereign everywhere. It is now beginning to be held that any member of the Cabinet will do as well as a Secretary of State. But if any member of the Cabinet, why not any Privy Councillor?

[(11)] In February 1854 Mr. Cayley moved for a “Select Committee to consider the duties of the Member leading the Government business in this House, and the expediency of attaching office and salary thereto.” The motion was withdrawn, after being opposed by Sir Charles Wood (now Viscount Halifax), Mr. Walpole, and Lord John Russell (now Earl Russell). Sir Charles Wood described the post of Leader of the House as “an office that does not exist, and the duties of which cannot be defined.” Mr. Walpole spoke of it as a “position totally unknown to the constitution of the country.” Yet I presume that everybody practically knew that Lord John Russell was Leader of the House, though nobody could give a legal definition of his position. A discussion then followed between Mr. Walpole and Lord John Russell on the nature of ministerial responsibility. Mr. Walpole said that “members were apt to talk gravely of ministerial responsibility; but responsibility there is none, except by virtue of the office that a Minister holds, or possibly by the fact of his being a Privy Councillor. A Minister is responsible for the acts done by him; a Privy Councillor for advice given by him in that capacity. Until the reign of Charles the Second, Privy Councillors always signed the advice they gave; and to this day the Cabinet is not a body recognised by law. As a Privy Councillor, a person is under little or no responsibility for the acts advised by him, on account of the difficulty of proof.” Lord John Russell “asked the House to pause before it gave assent to the constitutional doctrines laid down by Mr. Walpole. He unduly restricted the responsibility of Ministers.” ... “I hold,” continued Lord John, “that it is not really for the business the Minister transacts in performing the particular duties of his office, but it is for any advice which he has given, and which he may be proved, before a Committee of this House, or at the bar of the House of Lords, to have given, that he is responsible, and for which he suffers the penalties that may ensue from impeachment.”

It is plain that both Mr. Walpole and Lord Russell were here speaking of real legal responsibility, such responsibility as might be enforced by impeachment or other legal process, not of the vaguer kind of responsibility which is commonly meant when we speak of Ministers being “responsible to the House of Commons.” This last is enforced, not by legal process, but by such motions as that of Sir Robert Peel in 1841, or that of the Marquess of Hartington in June 1859.