The Governments of Europe Part 10

[Footnote 176: American Commonwealth, I., 135.]

[Footnote 177: Parliament, 140-141.]

[Footnote 178: See p. 112.]

[Footnote 179: On the officers of the House of Commons see Lowell, Government of England, I., Chap. 12; on the speakership, Redlich, Procedure of the House of Commons, II., 131-171; Graham, The Mother of Parliaments, 119-134; MacDonaugh, The Book of Parliament, 115-132; Porritt, Unreformed House of Commons, I., Chaps. 21-22; A. I. Dasent, The Speakers of the House of Commons from the Earliest Times to the Present Day (New York, 1911); and G. Mer, Les speakers: etude de la fonction presidentielle en Angleterre et aux etats-Unis (Paris, 1910).]

*127. Quorum.*--As fixed by a resolution of 1640, a quorum for the transaction of business in the Commons is forty. If at any time during a sitting the attention of the Speaker is directed to the fact that there are not forty members present, the two-minute sand-gla.s.s which stands upon the Clerk's table is inverted and the members are summoned from all portions of the building as for a division. At the close of the allotted two minutes the Speaker counts the members present, and if there be not forty the House adjourns until the time fixed for the next regular sitting. Except upon occasions of special interest, the number of members actually occupying the benches is likely to be less than two hundred, although most of the remaining members are within the building or, in any case, not far distant.

*128. Kinds of Committees.*--Like all important and numerous legislative bodies, the House of Commons expedites the transaction of the business which devolves upon it through the employment of committees. As early as the period of Elizabeth the reference of a bill, after its second reading, to a select committee was an established practice, and in the reign of Charles I. it became not uncommon to refer measures to committees of the whole house. The committees of the House to-day may be grouped in five categories: (1) the Committee of the Whole; (2) select committees on public bills; (3) sessional committees; (4) standing committees on public bills; and (5) committees on private bills. Until 1907 a public bill, after its second reading, went normally to the Committee of the Whole; since the date mentioned, it goes there only if the House so determines. The Committee of the Whole is simply the House of Commons, presided over by the Chairman of Committees in the place of the Speaker, and acting under rules of procedure which permit virtually unrestricted discussion and in other ways lend themselves to the free consideration of the details of a measure. When the subject in hand relates to the providing of revenue the body is known, technically, as the Committee of Ways and Means; when to appropriations, it is styled the Committee of the Whole on Supply, or simply the Committee of Supply.

*129. Select and Sessional Committees.*--Select committees (p. 124) consist, as a rule, of fifteen members and are const.i.tuted to investigate and report upon specific subjects or measures. It is through them that the House collects evidence, examines witnesses, and otherwise obtains the information required for intelligent legislation. After a select committee has fulfilled the immediate purpose for which it was const.i.tuted it pa.s.ses out of existence. Each such committee chooses its chairman, and each keeps detailed records of its proceedings, which are included, along with its formal report, in the published parliamentary papers of the session. The members may be elected by the House, but in practice the appointment of some or all is left to the Committee of Selection, which itself consists of eleven members chosen by the House at the beginning of each session.

This Committee of Selection, which appoints members not only of select committees but also of standing committees and of committees on private and local bills, is made up after conference between the leaders of the Government and of the Opposition; and the committees whose members it designates are always so const.i.tuted that they contain a majority favorable to the Government. The number of select committees is, of course, variable, but it is never small. A few are const.i.tuted for an entire year and are known as sessional committees.

Of these, the Committee of Selection is itself an example; others are the Committee on Public Accounts and the Committee on Public Pet.i.tions.

*130. Standing Committees.*--Beginning in 1882, certain great standing committees have been created, to the general end that the time of the House may be further economized. Through a change of the standing orders of the chamber effected in 1907 the number of such committees was raised from two to four, and all bills except money bills, private bills, and bills for confirming provisional orders--that is to say, all public non-fiscal proposals--are required to be referred to one of these committees (the Speaker to determine which one) unless the House otherwise directs. It is expected that measures so referred will be so fully considered in committee that they will consume but little of the time of the House. Each of the four committees consists of from sixty to eighty members, who are named by the Committee of Selection in such a manner that in personnel they will represent faithfully the composition of the House as a whole. One of them, consisting of all the representatives of Scotch const.i.tuencies and fifteen other members, is const.i.tuted with a special view to the transaction of business relating to Scotland. The chairmen of the four are selected (from its own ranks) by a "chairman's panel" of not more than eight members designated by the Committee of Selection. The procedure (p. 125) of the standing committees is closely a.s.similated to that of the Committee of the Whole, and, in truth, they serve essentially as subst.i.tutes for the larger body.[180]

[Footnote 180: On committees on private bills see p. 137. The committees of the House of Commons are described in Lowell, Government of England, I., Chap. 13; Marriott, English Political Inst.i.tutions, Chap. 11; Ilbert, Parliament, Chap. 6; Redlich, Procedure of the House of Commons, II., 180-214; and May, Treatise on the Law, Privileges, Proceedings, and Usage of Parliament, Chaps.

13-14.]

III. ORGANIZATION OF THE HOUSE OF LORDS

*131. Sittings and Attendance.*--It is required that the two houses of Parliament shall be convened invariably together, and one may not be prorogued without the other. The actual sittings of the Lords are, however, very much briefer and more leisurely than are those of the Commons. Normally the upper chamber meets but four times a week--on Mondays, Thursdays, and Fridays at 4.30 o'clock and on Tuesdays at 5.30. By reason of lack of business or indisposition to consume time in the consideration of measures whose eventual enactment is a.s.sured, sittings not infrequently are concluded within an hour, although, of course, there are occasions upon which the chamber deliberates seriously and at much length. A quorum for the transaction of business is fixed at the number three; although it is but fair to observe that if a division occurs upon a bill and it is found that there are not thirty members present the question is declared not to be decided. Save upon formal occasions and at times when there is under consideration a measure in whose fate the members are immediately interested, attendance is always meager. There are members who after complying with the formalities incident to the a.s.sumption of a seat, rarely, and in some instances never, reappear among their colleagues.

It thus comes about that despite the fact that nominally the House of Lords is one of the largest of the world's law-making a.s.semblies, the chamber exhibits in reality little of the unwieldiness ordinarily characteristic of deliberative bodies of such magnitude. The efficiency of the chamber is more likely to be impaired by paucity of attendance than otherwise.

*132. Officers.*--The officers of the House of Lords are largely appointive, though in part elective. Except during the trial of a peer,[181] the presiding official is the Lord Chancellor, appointed by the crown on the advice of the premier. The duty of presiding in the Lords, as has been explained, is but one of many that fall to this remarkable dignitary.[182] If at the time of his appointment an (p. 126) inc.u.mbent is not a peer he is reasonably certain to be created one, although there is no legal requirement to this effect. The theory is that the woolsack which comprises the presiding official's seat is not within the chamber proper[183] and that the official himself, as such, is not a member of the body. The powers allowed him are not even those commonly possessed by a moderator. In the event that two or more peers request the privilege of addressing the chamber, the peers themselves decide which shall have the floor. Order in debate is enforced, not by the Chancellor, but by the members, and when they speak they address, not the chair, but "My Lords." Although, if a peer, the Chancellor may speak and vote as any other member, he possesses as presiding officer no power of the casting vote. In short, the position which the Chancellor occupies in the chamber is all but purely formal. In addition to "deputy speakers," designated to preside in the Chancellor's absence, the remaining officials of the Lords who owe their positions to governmental appointment are the Clerk of Parliament, who keeps the records; the Sergeant-at-Arms, who attends personally the presiding officer and acts as custodian of the mace; and the Gentleman Usher of the Black Rod, a pompous dignitary whose function it is to summon the Commons when their attendance is required and to play a more or less useful part upon other ceremonial occasions. The one important official whom the House itself elects is the Lord Chairman of Committees, whose duty it is to preside in Committee of the Whole.

[Footnote 181: See p. 127.]

[Footnote 182: See p. 63.]

[Footnote 183: In the days of Elizabeth the presiding official sat upon a sack actually filled with wool. He sits now, as a matter of fact, upon an ottoman, upholstered in red. But the ancient designation of the seat survives.]

IV. PRIVILEGES OF THE HOUSES AND OF MEMBERS

*133. Nature and Extent of Privileges.*--On the basis in part of custom and in part of statute there exists a body of definitely established privileges, some of which appertain to the Commons as a chamber, some similarly to the Lords, and some to the individual members of both houses. The privileges which at the opening of a parliament the newly-elected Speaker requests and, as a matter of course, obtains for the chamber over which he presides include princ.i.p.ally those of freedom from arrest, freedom of speech, access to the sovereign, and a "favorable construction" upon the proceedings of the House. Freedom from arrest is enjoyed by members during a session and a period of forty days before and after it, but it does not protect a member (p. 127) from the consequences of any indictable offense nor, in civil actions, from any process save arrest. Freedom of speech, finally guaranteed effectually in the Bill of Rights, means simply that a member may not be held to account by legal process outside Parliament for anything he may have said in the course of the debates or proceedings of the chamber to which he belongs. The right of access to the sovereign belongs to the Commons collectively through the Speaker, but to the Lords individually. With the growth of parliamentary government both it and the privilege of "favorable construction" have ceased to possess practical importance. Another privilege which survives is that of exemption from jury duty, though no longer of refusing to attend court in the capacity of a witness. Each house enjoys the privilege--for all practical purposes now the right--of regulating its own proceedings, of committing persons for contempt, and of deciding contested elections. The last-mentioned function the House of Commons, however, has delegated to the courts. A privilege jealously retained by the Lords is that of trial in all cases of treason or felony by the upper chamber itself, under the presidency of a Lord High Steward appointed by the crown. The Lords are exempt from arrest in civil causes, not merely during and immediately preceding and succeeding sessions, but at all times, and they enjoy all the rights, privileges, and distinctions which, through law or custom, have become inherent in their several dignities.

*134. Payment of Members of the Commons.*--Until recently the fact that there was no salary attached to service in Parliament operated to debar from election to the Commons men who were not of independent means. Through some years the Labor Party was accustomed to provide funds wherewith its representatives were enabled to maintain themselves at the capital,[184] but this arrangement affected only a small group of members and was of an entirely private and casual nature. Public and systematic payment of members, to the end that poor but capable men might not be kept out of the Commons, was demanded by the Chartists three-quarters of a century ago, and from time to time after 1870 there was agitation in behalf of such a policy. In 1893, and again in 1895, a resolution in favor of the payment of members was adopted in the Commons, and March 7, 1906, a resolution was carried to the effect that every member should be paid a salary of 300 annually.

But it was not until 1911 that a measure of the kind could be got through the upper chamber. Fresh impetus was afforded by the Osborne Judgment, in which, on an appeal from the lower courts, the House of Lords ruled in December, 1909, that the payment of parliamentary (p. 128) members as such from the dues collected by labor organizations was contrary to law. The announcement of the Judgment was followed by persistent agitation for legislation to reverse the ruling. In connection with the budget presented to the Commons by the Chancellor of the Exchequer May 16, 1911, the proposition was made, not to take action one way or the other upon the Lords' decision, but to provide for the payment to all non-official members of the House of Commons of a yearly salary of 400; and with little delay and no great amount of opposition the proposal was enacted into law. The amount of the salary provided is not large, but it is ample to render candidacy for seats possible for numbers of men who formerly could not under any circ.u.mstances have contemplated a public career.[185]

[Footnote 184: The sum provided from the party funds was ordinarily 200 a year.]

[Footnote 185: On the privileges of the Commons see Anson, Law and Custom of the Const.i.tution, I., 153-189; Lowell, Government of England, I., Chap.

11; Walpole, Electorate and Legislature, Chap. 5; Redlich, Procedure of the House of Commons, III., 42-50. A standard work in which the subject is dealt with at length is May, Treatise on the Law, Privileges, Proceedings, and Usage of Parliament, Chaps. 3-6.]

V. THE FUNCTIONS OF PARLIAMENT

When the king summons the two chambers he does so, "being desirous and resolved as soon as may be to meet his people, and to have their advice in Parliament." No mention is made of legislative or financial business, and, technically, Parliament is still essentially what originally it was exclusively, i.e., a purely deliberative a.s.semblage. Practically, however, the mere discussion of public questions and the giving of advice to the crown has become but one of several distinctive parliamentary functions. The newer functions which, with the pa.s.sing of time, have acquired ever increasing importance are, in effect, three. The first is that of criticism, involving the habitual scrutiny and control of the measures of the executive and administrative organs. The second is the exercise, under limitations to be described, of the power of judicature. The third, and much the most important, is the function of public and private legislation and of fiscal control.

*135. Criticism: Ministerial Responsibility.*--Parliament does not govern and is not intended to govern. Never save when the Long Parliament undertook the administration of public affairs through committees of its members has Parliament a.s.serted a disposition to gather immediately into its own hands those powers of state which are executive in character. At the same time, the growth of parliamentary government has meant the establishment of a connection between the executive and the parliamentary chambers (princ.i.p.ally the Commons) (p. 129) as close as may be so long as separateness of organization is still maintained. The officials who comprise the working executive are invariably members of Parliament. They initiate public measures, introduce them, advocate and defend them, and, in general, guide and control the conduct of public business both inside and outside the chambers. But for every act they are responsible directly to the House of Commons. They may continue in power only so long as they are supported by a majority in that chamber. And their conduct is subject continually to review and criticism, through the instrumentality of questions, formal inquiries, and, if need be, judicial procedure.

It is within the competence of any member to address a question to any minister of the crown who is also a member, to obtain information.

Except in special cases, notice of questions must be given at least one day in advance, and a period of approximately three-quarters of an hour is set apart at four sittings every week for the asking and answering of such questions. A minister may answer or decline to answer, but unless a declination can be shown to arise from legitimate considerations of public interest its effect politically may be embarra.s.sing. In any event, there is no debate, and in this respect the English practice differs from the French "interpellation."[186]

The asking of questions is liable to abuse but, as is pointed out by Ilbert, "there is no more valuable safeguard against maladministration, no more effective method of bringing the searchlight of criticism to bear on the action or inaction of the executive government and its subordinates. A minister has to be constantly asking himself, not merely whether his proceedings and the proceedings of those for whom he is responsible are legally or technically defensible, but what kind of answer he can give if questioned about them in the House, and how that answer will be received."[187] Any member is privileged to bring forward a motion censuring the Government or any member or department thereof, and a motion of this sort, when emanating from the leader of the Opposition, const.i.tutes a vote of confidence upon whose result may depend the continued tenure of the ministry. By a call upon the Government or a given department for information, by the const.i.tution of parliamentary committees, departmental committees, or royal commissions, and, in particular by taking advantage of the numberless opportunities afforded by the enactment of appropriation bills, the House of Commons may further impose upon the executive the most thoroughgoing responsibility and control. "A strong executive (p. 130) government, tempered and controlled by constant, vigilant, and representative criticism," is the ideal at which the parliamentary inst.i.tutions of Great Britain are aimed.[188]

[Footnote 186: See p. 314.]

[Footnote 187: Parliament, 113-114.]

[Footnote 188: Ilbert, Parliament, 119. On the Commons' control of the Government see Lowell, Government of England, I., Chap. 17; Moran, English Government, Chap. 8; Low, The Governance of England, Chap. 5; Todd, Parliamentary Government, II., 164-185.]

*136. Judicial Powers: Impeachment and Attainder.*--The functions of a judicial character which, in the capacity of the High Court of Parliament, the two chambers fulfill are of secondary importance and do not call for extended discussion. So far as the law of the subject goes, they comprise (1) the powers possessed by each of the houses to deal with the const.i.tution and conduct of its own membership; (2) the power of the Lords to try their own members when charged with treason or felony; (3) the jurisdiction of the Lords in the capacity of a final court of appeal for the United Kingdom; (4) the power of the two houses, acting jointly, to carry through impeachments of public officers and to enact bills of attainder; and (5) the effecting of the removal of certain kinds of public officers through the agency of an address from both houses to the crown. In days when the king and the ministers were disposed to defy the law and to evade responsibility the power of impeachment by the Commons at the bar of the Lords, originated as early as the reign of Edward III., was of the utmost importance. When, however, the House of Commons progressed in competence to the point where it was able to review and control the conduct of ministers with such thoroughness and continuity as to make it impossible for them to conduct business without a parliamentary majority, impeachment lost its value and fell into disuse. The last occasion upon which impeachment proceedings were inst.i.tuted was in 1805.[189] Procedure by bill of attainder, arising from the legislative omnipotence of Parliament and following the ordinary course of legislation, is also obsolete.

[Footnote 189: Anson, Law and Custom of the Const.i.tution, I., 362-366; Moran, English Government, 327-332.]

*137. The House of Lords as a Court.*--Most important among surviving parliamentary functions of a judicial character is the exercise of appellate jurisdiction by the House of Lords. The judicial authority of the Lords is an anomaly, although as it is actually exercised it does not seriously contravene the principle which forbids the bringing together of judicial and legislative powers in the same hands.

Historically, it arose from a confusion of the functions of two groups of men which were long largely identical in personnel, i.e., the Great Council, on the one hand, and the Lords of Parliament, on (p. 131) the other. In the reign of Henry IV. the Commons asked specifically to be relieved from judicial business, and the parliamentary jurisdiction which survived was recognized thereafter to be vested in the House of Lords alone. From an early date this jurisdiction was, as it is to-day, both original and appellate. As a court of first instance the chamber acquired the right to try peers charged with treason and felony and, on the accusation of the House of Commons, to bring to justice, through the process of impeachment, offenders who were not of the peerage. Nowadays these powers are of no practical consequence.

The position of the Lords as an appellate tribunal, however, is still a fundamental fact in the judicial system. Starting with control, by way of appeal, over the courts of common law in England, the chamber acquired in time a similar control over the English courts of chancery, and eventually over the courts of both Scotland and Ireland.

Its jurisdiction has stopped short only of the ecclesiastical courts, and of the courts of the outlying portions of the Empire, appeals from which are heard in the Judicial Committee of the Privy Council. By the Supreme Court of Judicature Act of 1873, whereby the higher tribunals of the realm were remodelled, the appellate jurisdiction of the Lords was abolished outright; but in 1876, before the measure had been put in operation the plan was modified and there was pa.s.sed the Appellate Jurisdiction Act whereby the appellate functions of the Lords were restored and provision was made for the creation at first of two, later of three, and eventually of four, salaried life peers, to be selected from men of eminence in the law, and to be known as Lords of Appeal in Ordinary. In so far as it is controlled by statute at all, the appellate jurisdiction of the chamber is regulated to-day by this measure. Nominally, judicial business is transacted by the House as a whole, and every member has a right not only to be present but to partic.i.p.ate in the rendering of decisions. Actually, such business is transacted by a little group of law lords (the attendance of but three being necessary) under the presidency of the Lord Chancellor, and the unwritten rule which prohibits the presence at judicial sessions of any persons save the law lords is quite as strictly observed as is any one of a score of other important conventions of the const.i.tution.[190]

Under the act of 1876 it is within the competence of the law lords to sit and to p.r.o.nounce judgments in the name of the House at any time, regardless of whether Parliament is in session.[191] A sitting of the Court is, technically, a sitting of the Lords, and all actions (p. 132) taken are entered in the Journal of the House as a part of its proceedings.[192]

[Footnote 190: Lowell, Government of England, II., 465.]

[Footnote 191: When Parliament is in session the sittings of the law lords are held, as a rule, prior to the beginning of the regular sitting at 4.30 p.m.]

[Footnote 192: The judicial functions of Parliament are described at some length in Anson, Law and Custom of the Const.i.tution, I., Chap. 9. The princ.i.p.al work on the subject is C. H. McIlwain, The High Court of Parliament and its Supremacy (New Haven, 1910). On the House of Lords as a court see MacDonaugh, The Book of Parliament, 300-309; A. T.

Carter, History of English Legal Inst.i.tutions (London, 1902), 96-109; and W. S. Holdsworth, History of English Law, I., 170-193.]

*138. Control of Legislation and Finance.*--The princ.i.p.al and altogether most indispensable ends which Parliament to-day subserves are those of legislation and of financial control. Many of the measures, important and unimportant, under which the affairs of the realm are regulated are but temporary and require annual re-enactment, and the volume of fresh legislation which is unceasingly demanded is all but limitless.

Similarly, to employ the words of Anson, the revenues which accrue to the crown and can be dealt with independently of Parliament would hardly carry on the business of government for a day,[193] and not only does Parliament (in effect, the House of Commons) by its appropriation acts make possible the legal expenditure of virtually all public moneys; it provides, by its measures of taxation, the funds from which appropriations are made.

[Footnote 193: Law and Custom of the Const.i.tution, I., 52.]

VI. GENERAL ASPECTS OF PARLIAMENTARY PROCEDURE

By reason of the supreme importance which attaches to the legislative and fiscal activities of the two chambers it is necessary that attention be directed at this point to the character of the procedure which these activities involve. For the purpose in hand it will be sufficient to speak of only the more important principles of procedure in relation to the three fundamental phases of legislative work: (1) the enactment of non-financial public bills, (2) the adoption of money bills, and (3) the pa.s.sage of private bills. And within at least the first two of these domains the preponderance of the Commons is such that the procedure of that chamber alone need be described. The procedure of the two chambers upon bills is substantially the same, although, as is ill.u.s.trated by the fact that amendments to bills may be introduced in the Lords at any stage but in the Commons at only stipulated stages, the methods of conducting business in the upper house are more elastic than those prevailing in the lower.

*139. Fundamental Principles.*--The legislative omnipotence of Parliament has been emphasized sufficiently.[194] Any sort of measure upon any conceivable subject may be introduced and, if a sufficient number of the members are so minded, enacted into law. No measure (p. 133) may become law until it has been submitted for the consideration of both houses, but under the terms of the Parliament Act of 1911 it has been rendered easy for money bills, and not impossible for bills of other sorts, to be made law without the a.s.sent of the House of Lords.

In the ordinary course of things, a measure is introduced in one house, put through three readings, sent to the other house, put there through the same routine, deposited with the House of Lords to await the royal a.s.sent,[195] and, after having been a.s.sented to as a matter of course, proclaimed as law. Bills, as a rule, may be introduced in either house, by the Government or by a private member. It is important to observe, however, in the first place, that certain cla.s.ses of measures must originate in one or the other of the houses, e.g., money bills in the Commons and bills of attainder and other judicial bills in the Lords, and, in the second place, that with the growth of the leadership of the Government in legislation the importance, if not the number, of privately introduced bills has tended steadily to be decreased, and likewise the chances of their enactment.

[Footnote 194: See p. 45.]

[Footnote 195: Except that money bills remain in the custody of the Commons.]