« ElőzőTovább »
may appear archaic and to have outlasted the measure of their utility. It should be remembered, however, that the British Constitution resembles a vast machine which requires the most delicate and complicated adjustment, so that it would be unwise to condemn at once as useless any provision that to the casual observer seems of little value. An instance of this occurs, as will be seen later, in the composition of the various boards which have developed from committees of the Privy Council.
The history of the Constitution can be traced from a time when the King did everything, until at the present day he does nothing personally. Theoretically, even now, the King is the source from which all the functions of government spring. Laws are passed by the "King's most Excellent Majesty by and with the advice and consent of" Parliament. Executive acts are done in the King's name, and the heads of the administrative departments are his ministers. Lastly, the King is the fountain of justice, and the judges are appointed by him to keep his peace and to dispense justice in his name. This theoretical aspect of the functions of government illustrates, better perhaps than anything else, the unbroken character of the development of the British Constitution. The history of that Constitution is indeed the history of the gradual limitation of the King's power in the various spheres of government, until in all branches of the administration it can now be exercised only in accordance with a settled procedure laid down and determined by the laws and conventions of the Constitution. The English King, however, has never been an autocratic despot. There never has been a time when he was not limited to some extent by a council of the nation.
It is in the development of this council and the gradual acquisition by it of the control over matters which were at
first almost wholly in the hands of the King that the clue is to be found for tracing the development of the Constitution. The first step was the acquisition of the control over taxation. This, once acquired, led naturally and of necessity to the control over legislation. The control over
the Executive was the last to be acquired, but is now as complete as the control over taxation and legislation.
In the following pages the Legislature, the Executive, and the Judiciary will be separately treated. First of all their gradual growth and development will be traced, and then their composition and method of working at the present day will be considered. Some account will also be given of the nature and working of Local Government in England and Wales, and the book will conclude with a consideration of the relations which exist between the United Kingdom and its colonies and dependencies.
THE TITLE TO THE CROWN.
§ 10. The Crown before the Tudors.-The succession to the Crown of England has rested partly upon election by the popular assembly of the day and partly upon hereditary right. At times the views of kingship which these titles embody have been in conflict, but as a general rule each king has endeavoured to support his claim to the throne on both these grounds. To-day the title of Edward VII. rests upon the fact that he is the direct heir of Sophia, the widow of the Elector of Hanover, and that the Crown of England was settled on her heirs by the Act of Settlement, 1701.
Before the Norman Conquest the kingship was elective, but the choice of the Witan (p. 16) was confined to the royal family, and theoretically the eldest son of the late King was preferred. In practice, however, the Witan did little more than accept as king the member of the royal house whom the nomination of the late King or his own personal influence imposed on them. A king could be deposed for bad government, but in such cases the Witan did little more than recognise officially the result of a
With the introduction of feudalism
into England the King was regarded as supreme landholder, and hence the idea that the Crown ought to descend like an estate in land, or, in other words, by hereditary right, grew stronger. Yet Henry II. was the first king after the Conquest who had a good hereditary title, and the reign of Edward I. was the first to begin before his coronation.
The Wars of the Roses were really dynastic quarrels between the Lancastrians and the Yorkists to determine the right to the Crown. In this period the desire of the various kings for the support of a Parliamentary title was most marked. In 1404 and 1406 Parliament settled the Crown on Henry IV. and his heirs; in 1460 the title of Henry VI. was recognised for his life, and in 1484 the Crown was settled on the heirs of Richard III. The fact, however, that the last two of these settlements were but of short duration shows the weakness of Parliament at this period.
§ 11. The Tudors and the Stuarts.-The period of, roughly, two hundred years which is covered by these reigns shows the gradual triumph of the principle of parliamentary choice over that of hereditary right. In 1485 the Crown was settled on Henry VII. and his heirs, while during the reign of Henry VIII. the succession was regulated on several occasions. The most important of these was in 1536, when Parliament gave the King power to nominate his successors by will. After his three children, Edward, Mary, and Elizabeth, and their issue, Henry directed that the Crown should be held by the descendants of his younger sister Mary, Duchess of Suffolk.
But on the death of Elizabeth, James VI. of Scotland, who was the descendant of Henry's elder sister Margaret, came to the throne, and his title was confirmed by an Act
of Parliament which recited that he was entitled by descent. No further question arose as to the succession until James II. fled in 1688. The interregnum which occurred during the Commonwealth must be regarded as an emphatic protest against the misuse of the royal power under the doctrine of the divine right of kings. It foreshadowed the final triumph of the elective theory of kingship in 1688. It should be noted that, in law, the reign of Charles II. dates from 1649, when his father was beheaded.
§ 12. The Revolution Settlement.-In the cases of Edward II. and Richard II. the abdication or resignation of the Crown, though in fact compulsory, was in form voluntary. In like manner, by the Declaration of Right, 1689, it was stated that James II. had abdicated the government and that the throne was thereby vacant. The Crown was then given to William Prince of Orange and Mary his wife, who was the daughter of James II. The Declaration of Right was embodied in the Bill of Rights 1689, which provided for the succession after the deaths of William and Mary. Further provision for the succession had, however, to be made owing to the fact that the succession established by the Bill of Rights showed signs of failure. This was done finally by the Act of Settlement 1701, which made the Crown descend to the heirs of Sophia, the Dowager Electress of Hanover and granddaughter of James I., being Protestants.
It had previously been provided by the Bill of Rights "that every person that is or shall be reconciled to, or shall hold communion with the See or Church of Rome, or shall profess the Popish religion, or shall marry a Papist, shall be excluded" from and incapable of inheriting the Crown, and that in such cases the people of the realm should be absolved from their allegiance.