ministers a promise of future increase; and the danger is that the
House will urge too much extravagance. He insisted that the real object
of the Committee of Supply is the chance it affords to private members
of criticising the executive and administrative action of the
government; that it is an open platform for members, where the
ministers, for the sake of getting their appropriations passed, are
bound to keep a quorum.[344:1] This is, indeed, manifest to any one
familiar with the debates upon the estimates. They are not to any great
extent discussions of financial questions, of what the nation can, or
cannot, afford to do. They are a long series of criticisms upon the
policy of the ministers, and the conduct of the departments under their
control. From this point of view Mr. Balfour suggested a method of
making the debates more valuable. He described the futility of the old
system of taking up the estimates in their numerical order, pointing out
how much time was wasted every year in discussing the earlier votes in
Class I.,--repairs of royal palaces, etc.,--while some of the largest
appropriations were always hurried through with little comment at the
fag end of the session. He promised in future to bring forward the
important votes in the earlier part of the year, and in fact to give
precedence to estimates that any group of members might wish to
discuss.[344:2]

Adding together the days regularly allotted to supply under the standing
order, the additional sittings used for the purpose, and those devoted
to supplementary estimates,[344:3] the better part of more than thirty
days are spent every year in Committee of Supply. This would appear to
give time enough for a thorough overhauling of many branches of the
administration; and under Mr. Balfour's practice, which will, no doubt,
be followed by future cabinets, the question what departments shall be
examined is determined by the critics themselves.

The debates in the Committee of Supply must be relevant to the estimates
under consideration, that is, they must be confined to the particular
vote then before the House, and the conduct of the government connected
therewith. The greater part of the time is therefore taken up with a
discussion of small details of administration. But there are certain
votes that give a chance to review the broader questions of policy. As
the grants made to the Army and Navy for one purpose can, with the
consent of the Treasury, be used for another, the debate on the great
votes for the pay of the men is allowed to range over the general policy
and management of the service concerned.[345:1] The items for the
salaries of the ministers give a similar, though less comprehensive,
chance to examine the policy pursued in their several departments; and
in order to raise a debate of that kind it is common to move to reduce
the salary of a minister by one hundred pounds. If an excessive
proportion of the time devoted to supply is consumed in the ventilation
of small grievances, that is due to the fact that the criticism is
conducted, in the main, by individual members of the House, and not by
an organised opposition; but at least it has the merit of keeping the
administration in all its details highly sensitive to public opinion.

[Sidenote: Amendments in Supply as an Expression of Opinion.]

The debates in supply afford an excellent opportunity for criticising
the acts of the government, but the divisions in supply are not an
effective means of expressing the judgment of the House upon those acts.
The items of appropriation are grouped into votes, each of which, as its
name implies, is passed as a single vote; and every vote contains so
many items that the House cannot reject it entirely.

Moreover, the only amendment in order is a motion to reduce the vote,
by omitting a particular item or otherwise. Now a reduction may be moved
either because the House really objects to the appropriation, or as a
means of expressing condemnation of some act of the government connected
with the item in question. Even in these days of extravagance the House
occasionally objects to an appropriation on the ground that it is
unnecessary or excessive, or because it disapproves of the purpose
altogether. In such cases the Chancellor of the Exchequer is apt to
withdraw the estimate or consent to the reduction. In fact, there have
been only two instances in the last twenty years where a reduction was
made for this reason without the consent of the government, and only one
where it was carried against their opposition.[346:1]

[Sidenote: Reductions used as a Protest.]

A reduction is often moved, on the other hand, to emphasise some
grievance, some act of the administration that is the subject of
complaint. But such a motion is not an effective means of testing the
opinion of the House upon the matter in debate. When, for example, a
reduction of a minister's salary is proposed in order to draw attention
to a shortcoming in his department, the supporters of the cabinet almost
invariably vote against the reduction without regard to their opinion
upon the shortcoming in question; and they are perfectly right in so
doing. They would be quite justified, and quite logical, in refusing to
vote the reduction in salary, while saying that the act complained of
had been a mistake and ought not to occur again. An amendment of that
kind is, therefore, seldom carried; and then usually by accident. It has
happened only four times in a score of years. On June 14, 1895, when
Lord Rosebery's cabinet was struggling for its life, with only a
majority of a dozen in the Commons, it was beaten on an amendment
reducing the appropriation for the Parliament buildings by five hundred
pounds to call attention to the quantity of rooms occupied by officials
of the House. The number of members who took part in the division was so
small--the vote being sixty-three to forty-three--that the result must
be regarded as a fluke, rather than as an expression of opinion by the
House. A week later the government was defeated again on an amendment to
reduce the salary of the Secretary of State for War by one hundred
pounds to draw attention to an alleged lack of supply of cordite. This
was done by a trick. Enough Conservatives to turn the scale were brought
into the House, by way of the terrace, without the knowledge of the
whips on either side. Under ordinary circumstances the ministers would
not have paid much attention to such a division, but their position in
this case was so precarious and so uncomfortable, that they took
advantage of the occurrence to resign. The third instance happened in
1904 when the grant for the Commissioners of National Education in
Ireland was reduced by one hundred pounds as a protest against a
circular they had issued which limited the teaching of the Irish
language in the schools. It was a "snap" vote, coming suddenly after a
very short debate. Had the ministers foreseen the division they could
easily have called in enough of their followers to change the
majority;[348:1] and, in fact, they seem to have disregarded the vote
altogether, save that they expended for Irish education one hundred
pounds less than they had intended. The last case was in 1905, when the
appropriation for the Irish Land Commission was reduced by one hundred
pounds as a protest against the administration of the Land Act of 1903.
This was serious, and the government considered its position for a
couple of days, but decided for the moment neither to resign nor
dissolve.[348:2]

Manifestly the debates in Committee of Supply offer a very wide field
for individual criticism, while they give little chance for collective
condemnation of the matters criticised. This is even more obvious in
certain other forms of procedure that are yet to be considered.

[Sidenote: Debates on the Finance Bill;]

The debates upon the resolutions embodying the proposals of the budget,
and upon the Finance Bill that carries them into effect, are governed by
the ordinary rules of debate upon bills, and are confined to the
questions immediately before the House.[348:3]

[Sidenote: on the Budget;]

But in introducing his budget the Chancellor of the Exchequer makes a
statement covering the income and expenditure of the current and coming
years, and incidentally reviewing the economic condition of the country
and the state of trade. The debate that ensues may wander as far as the
statement itself, regardless of the particular resolution on which it is
nominally based. This gives a chance to examine fully the financial
policy--but only the financial policy--of the government; without,
however, any corresponding means of expressing the judgment of the House
thereon.

[Sidenote: on the Consolidated Fund Bills.]

In his treatise on parliamentary practice, Sir Thomas Erskine May states
that debate and amendment on the stages of Consolidated Fund Bills "must
be relevant to the bill, and must be confined to the conduct or action
of those who receive or administer the grants specified in the
bill."[349:1] The first part of this statement is true of the committee
stage. Debate and amendment must then be strictly relevant; and as the
object of the bills is simply to authorise the issue out of the
Consolidated Fund of the sums required to meet the grants already voted,
and to provide that those grants must be used for the purposes for which
they are made, no criticism of administrative conduct is in
order.[349:2] The proceedings in committee are, therefore, brief. The
latter part of May's statement applies to the second and third readings,
but as the bills cover the grants that support practically every branch
of the government, except the India Office,[349:3] the acts of almost
any department can be discussed at those stages. The occasions are, as a
rule, freely used for the purpose. Sometimes the debate is of a
miscellaneous character, and runs off into small details, but more
commonly it turns upon a few large questions of domestic, colonial or
foreign policy that have aroused general interest.[349:4] Amendments
can, indeed, be moved, and they may range as far as the debate itself.
The procedure would appear, therefore, to resemble that of going into
Committee of Supply. But the House is aware that it must pass the bills,
and although a division on the reading is often taken, the negative
votes are usually confined to the Irish members, who are more anxious to
impede than to make use of the parliamentary system. In the rare cases
where amendments have been moved the object is simply to concentrate
discussion upon some particular question,[350:1] and they have seldom,
if ever, been carried.

[Sidenote: Debates on Adjournment for Easter and Whitsuntide.]

Perhaps the most striking case of an opportunity for criticising the
government, without any means of condemning its action, is furnished by
the motion to adjourn over Easter or Whitsuntide. According to the old
practice about adjournment, the rule of relevancy does not apply in
these cases, and hence the discussion may, and in fact does, wander
wherever the members please. It is of a heterogeneous nature, touching
upon many subjects. But as the Speakers have ruled that no amendment is
in order, except on the time of adjournment,[350:2] the motion which
provides the excuse for a debate is always adopted as it stands.

[Sidenote: Motion of Want of Confidence.]

The foregoing comprise all the ordinary means of criticising the conduct
of the government. The leader of the Opposition has one more. He can at
any time claim to move a vote of want of confidence, and within
reasonable limits the leader of the House will always assign a day for
the purpose. But this is quite a different matter from the criticism of
particular acts of which we have been speaking. Whatever the precise
form of the motion may be, the object is to turn the ministry out, and
every member goes into one or the other lobby, according to his desire
that the cabinet shall stand or fall. The judgment of the House is
passed not upon any one act or question of policy, but distinctly upon
the record of the ministry as a whole; and a defeat must be immediately
followed by resignation or dissolution.

[Sidenote: Freedom of Criticism.]

[Sidenote: Difficulty in Passing Judgment.]

From this survey of the various methods by which the ministers can be
called to account in the House of Commons, it is clear that the
opportunities to air grievances, to suggest reforms, and to criticise
the government for both large matters and small, for their general
policy and their least administrative acts, are many and constant. If
less numerous than formerly, they are in practice quite as useful. For
the object they serve, that of turning a searchlight upon the
government, and keeping the public informed of its conduct, they are
abundant. On the other hand, the opportunities to pass judgment upon
particular acts of the ministers have diminished very much, and there is
a marked tendency to make a definite expression of opinion on such
matters by vote of the House more and more difficult. Such a tendency is
entirely in accord with the true principle of parliamentary government.
There ought to be the fullest opportunity for criticism; but the cabinet
must be free not only to frame its own policy, but also to carry that
policy out, and it ought not to be shackled, or thrust out, so long as
its conduct of affairs is on the whole satisfactory to the nation.

[Sidenote: Illustrated by the Debates on Fiscal Policy.]

So far we have considered primarily the functions of the House in
relation to administrative matters, but, except for the bills brought in
by the government, what has been said applies equally to its control
over the general policy of the cabinet, for its means of criticising and
passing judgment are the same. How far the ministers are free to-day to
frame the programme on which they will take their stand, and how hard it
is to force an issue on a question that they do not choose to bring
forward, may be seen from the recent history of the debates on the
fiscal question. A considerable number of Unionists were strongly
opposed to a return to protective duties in any form, and especially to
a taxation of food. There were enough of them to turn the scale, so that
if a division could have been taken at any time on the fiscal question
alone, the House would in all probability have voted in favour of
maintaining the existing system. On the other hand, most of the
free-food Unionists, being heartily in accord with the cabinet on other
matters, desired to keep it in power so long as it adopted no fiscal
policy hostile to their principles; and therefore they were anxious not
to vote against the government if they could conscientiously abstain
from doing so. Under these circumstances the Liberals sought by every
means to force a direct vote upon the fiscal question, while Mr. Balfour
cautiously avoided any definite statement of policy himself, and strove
to prevent the House from expressing a distinct opinion on the subject.
He took the ground that until the cabinet announced a fiscal programme
the only form in which the attitude of the ministers on the question
could properly come before Parliament was that of a general motion of
want of confidence in them.

[Sidenote: In 1903.]

Mr. Chamberlain broached his plan of preferential tariffs in a speech at
Birmingham on May 15, 1903. By that time it was just too late in the
year to bring forward a private member's motion on the subject; so that
the first debate upon it took place on the motion to adjourn over
Whitsuntide,[352:1] when no amendment or vote expressing the opinion of
the House was in order. This was May 28. The next opportunity for
extensive discussion came on June 9 over the Finance Bill; but the
Speaker ruled, that as the government had made no proposals for a change
of fiscal policy, such changes could not be brought into the debate on
that bill.[352:2] The Opposition then resorted to a motion to adjourn.
But it was not easy to treat as an urgent matter the question of
adopting a policy, which the ministers declared the existing Parliament
incompetent to adopt, and the Opposition insisted ought never to be
adopted at all. The Liberals solved the difficulty by taking advantage
of a recent occurrence, and on June 17 moved to adjourn to discuss a
misunderstanding of the tariff speeches of Mr. Balfour and Mr.
Chamberlain by the premier of New South Wales. The Speaker, however,
ruled that a general debate of the fiscal question did not come within
the terms of the motion, although a motion of wider scope might have
been made. The adjournment was, of course, rejected, and by a vote of
252 to 132.[352:3] Both on this and on later occasions, Mr. Balfour,
while refusing to give any of the government's time for the discussion
of fiscal policy as such, expressed his entire readiness to assign a day
for a formal motion of lack of confidence;[353:1] but the Liberals did
not accept the offer. They said, and with truth, that a vote of censure
would not test the opinion of the House on the fiscal question; and they
knew that it would result in an overwhelming defeat for them. Finally,
on Aug. 11, the Speaker ruled that, as no official act of any minister
was involved, the question could not be debated on the second reading of
the Appropriation Bill.[353:2] And thus, although there were many
questions put on the subject, and some incidental discussion during the
debates on other matters, the session of 1903 came to an end without any
vote on fiscal policy.

[Sidenote: In 1904.]

When the House met again great changes had taken place in the ministry.
Both Mr. Chamberlain and his strongest opponents had resigned, and it
was certain that the cabinet would take no positive attitude on the
fiscal question during the life of the Parliament. Yet the Liberals had
several means of extracting a vote on the subject, which they had lacked
in the second half of the preceding session. They began at once with the
debate on the address, by moving that the removal of protective duties
has conduced to the welfare of the population, and that any return to
them would be injurious. The wording was not well adapted to drive a
wedge into the government majority, for the ministers repudiated the
charge that they contemplated protection. Only twenty-one Unionists
voted for the amendment, which was rejected by 327 to 276.[353:3] Then
came, on March 9, a private member's motion to the effect that the House
expresses its condemnation of the continual agitation in favour of a
protective tariff encouraged by the ministers. This also was not well
conceived, and was rejected by 289 to 243, nineteen Unionists voting
against the government. On May 18 another private member's motion came
on; which stated that the House, believing a protective tariff on food
burdensome to the people, welcomes the declaration that the government
is opposed to it. It was a more dangerous attack, which the ministers
met by moving an amendment that it was unnecessary to discuss the
question. They succeeded by about the same majority as on the other
occasions, for the amendment was carried by a vote of 306 to 251,
seventeen Unionists in the minority.[354:1]

At last the Liberals asked for a day to move a vote of censure, and Aug.
1 was set apart for the purpose. The motion expressed regret that
certain ministers had accepted official positions in the Liberal
Unionist Association, which had recently declared its adhesion to the
policy of preferential duties, involving the taxation of food. But the
form of the motion was unimportant, and the result illustrates the
nature of a vote of want of confidence, and the futility of using it to
test the opinion of the House on any particular question of policy. No
one voted against the ministers who was not prepared to turn them out,
and the motion was rejected by a vote of 288 to 210.[354:2] Only one
member classed as a Unionist voted for it, while of those who had gone
into the Opposition lobby on previous occasions one voted with the
government, and the rest absented themselves. Although the fiscal
question had been debated several times,[354:3] the Opposition had again
been baffled throughout the session in their efforts to get a vote upon
its merits.

[Sidenote: In 1905.]

The result in the following year was the same, but the tactics were
different. The first private member's motion on the subject was shelved
by the previous question, and the government dealt with the subsequent
ones by the novel device, already described, of staying away from the
division altogether. Mr. Balfour virtually took the ground that a vote
on which the government exerted no pressure could not be regarded as a
true expression of the opinion of the House, and might therefore be
ignored--an extension, although by no means an illogical extension, of
the accepted doctrines of the constitution.

[Sidenote: Parliament the Great Inquest of the Nation.]

The system of a responsible ministry can develop in a normal and healthy
way only in case the legislative body is divided into two parties, and
under those conditions it is the inevitable consequence of the system
that Parliament cannot support the cabinet on one question and oppose it
on another. The programme of the ministers must be accepted or rejected
as a whole, and hence the power of initiative, both legislative and
executive, must rest entirely with them. This is clearly the tendency in
Parliament at the present day.[355:1] The House of Commons is finding
more and more difficulty in passing any effective vote, except a vote of
censure. It tends to lose all powers except the power to criticise and
the power to sentence to death. Parliament has been called the great
inquest of the nation, and for that purpose its functions have of late
been rather enlarged than impaired. Nor are the inquisitors confined to
any one section of the House, for while that part is played chiefly by
the Opposition, the government often receives a caution from its own
supporters also. If the parliamentary system has made the cabinet of the
day autocratic, it is an autocracy exerted with the utmost publicity,
under a constant fire of criticism; and tempered by the force of public
opinion, the risk of a vote of want of confidence, and the prospects of
the next election.

FOOTNOTES:

[327:1] For a collection of instances from 1807 to 1874 see Todd, "Parl.
Govt. in England," I., 422-28, 449-50.

[327:2] In the year 1904, for example, there were three motions clearly
of this character. The first two (in favour of paying unskilled
government workmen the standard rate of wages, and against granting
permits for the vivisection of dogs) did not come to a vote; while the
third (calling upon the government to encourage cotton growing in
Africa) was agreed to without a division.

[328:1] It is sometimes difficult to distinguish between censure of past
action, and a direction for the future; but, if we exclude votes
indirectly implying censure, by a reduction of an appropriation, or an
adjournment of the House, the only instances since 1886 where a vote
relating in express terms to either of these things has been carried
against the opposition of the government, have been as follows: On June
12, 1888, a resolution was adopted that redundant officials ought to be
transferred to other departments, although a Royal Commission was
already considering the subject. On April 30, 1889, a vote was passed
condemning the Indian fiscal system for encouraging the opium trade; and
another vote to the same effect was carried, on going into the Committee
of Supply on April 10, 1891. A commission appointed by the government
reported in favour of the existing system which was thereupon
maintained. (Com. Papers, 1894, LX., 583; LXI.; LXII.; 1895, XLII., 31
_et seq._; _cf._ 1892, LVIII.; and 1893, LXVI.) Finally, on June 3,
1893, it was voted that the examinations for the Indian Civil Service
ought to be held in India as well as in England; but, after collecting
the opinions of Indian officials, which were almost wholly adverse to
the change, the government decided not to make it (Com. Papers, 1893,
LXIV., 869; 1894, LX., 1), and so informed the House, Hans. 4 Ser.
XXIV., 1537.

[330:1] Cf. Dupriez, _Les Ministres_, II., 440-45. Lowell, "Governments
and Parties," I., 117-26.

[331:1] May, 206, note 1, 236, note 1. Todd, II., 421-22.

[332:1] May, 237-38. Questions may also be addressed to the Speaker, or
to private members in regard to bills or motions in their charge, but
questions of this kind are few, and do not concern us here.

[333:1] May, 301.

[334:1] In the five years from 1873 to 1877 thirty-one such motions were
made, of which all but three were withdrawn. Those three were negatived
by an oral vote, and were not pushed to an actual division. In the next
five years, up to the adoption of the Standing Order of 1882, the
motions numbered sixty-four, and only eighteen of them were withdrawn,
while twelve (one in 1878, seven in 1881, and four in 1882) were pushed
to a division. For these and many other facts relating to these motions
to adjourn I am indebted to my students at Harvard, Messrs. O. M.
Dickerson and E. Takasugi.

[334:2] In 1871 and 1878.

[334:3] Now S.O. 22.

[334:4] The rules framed by the Speaker on Feb. 9, 1881, provided, in
regard to motions to adjourn, that no adjournment should be moved before
the business of the day was taken up, except by leave of the House; and
that debate on a motion to adjourn made after business had been taken
up, should be confined to the question of adjournment. Com. Papers,
1881, LXXIV., 1.

[335:1] Now S.O. 10. The changes made in 1902 did not affect these
provisions, but merely the time when the debate on the motion should
take place.

[336:1] The debate was over the arrest of Mr. Dillon, M.P. Mr.
Gladstone, not thinking it a proper way to bring the question before the
House, declined to resist the motion, which was carried without a
division. Hans. 3 Ser. CCLXI., 183-216.

[336:2] In the twenty years that the Standing Order of 1882 remained
unchanged, the number of motions to adjourn, before public business
began averaged seven a year. In 1903 there were only three of them, and
in 1904 seven; but in 1905, when Mr. Balfour's cabinet was manifestly
losing its hold upon the country, the number rose to nine. Incidentally
the change of rule has tended to shift the debates on those motions into
the time reserved for private members, for the debate must occur at the
evening sitting, and in the earlier part of the session two of the four
evening sittings belong to the private members.

[337:1] May, 264-65, 286.

[337:2] _E.g._ Hans. 4 Ser. CXXV., 379-80, 382-83, 386-87, 397-98, 415,
629-30, 1229-32; _Ibid._, CXXXVI., 836-40. _Cf._ remarks by Mr. Swift
MacNeill in 1906. _Ibid._, CLII., 1178-79.

[337:3] Hans. 4 Ser. CXXXV., 1229. Since this was written a report has
been made by a select committee on the subject; and appended thereto is
a memorandum by Sir Courtenay Ilbert on the history of the rule against
anticipation.

[338:1] _Ibid._ 1232. _Cf._ CXXXVI., 840.

[340:1] Hans. 4 Ser. CXLIII., 886-95.

[341:1] Anson, "Law and Custom of the Const." I., 270; May, 571-72.
Redlich (_Recht und Technik_, 116-17) points out that these amendments
began in 1811 at the very moment when special days were first reserved
for the government.

[341:2] Old S.O. 56.

[341:3] May, 573-74.

[341:4] Friday was especially reserved for this purpose by old S.O. 11,
_cf._ Old S.O. 51.

[342:1] S.O. 17.

[342:2] May, 573.

[342:3] May, 574; Ilbert, "Manual," § 231.

[342:4] May, 574.

[342:5] Ilbert, "Manual," § 45.

[343:1] The change consisted in leaving the Committee of Ways and Means
out of the exceptions, in S.O. 51, to the general rule that the House
goes into committee without question put.

[Sidenote: The Committee on Indian Accounts.]

Debate on the motion to go into committee on the East Indian Accounts is
still allowed, in order to provide an opportunity for general debate on
the questions that may arise on these accounts. (S.O. 51, _cf._ Ilbert,
"Manual," § 64.) An amendment can also be moved (_Ibid._, § 117), but in
practice this has no serious effect.

[344:1] Hans. 4 Ser. XXXVII., 724-26. With this may be contrasted the
Report of the Select Committee on Procedure in Supply in 1888 (Com.
Papers, 1888, XII., 27), which said that the debates on the estimates
were an effective means, both of criticising the administration and of
controlling expenditure. It expressed the opinion that although the
estimates were not often actually reduced, the discussion prevented
future extravagance. For the condition at the present day see the Report
of the Committee on National Expenditure, and the evidence thereto
annexed (Com. Papers, 1902, VII., 15; 1903, VII., 483).

[344:2] Hans. 4 Ser. XXXVII., 727-30.

[344:3] Debate on supplementary and excess grants is limited to those
particular grants. May, 585-86.

[345:1] May, 584-85.

[346:1] Since the reduction of the vote for royal parks on March 11,
1886, the only two instances have been a reduction of the salaries of
the officers of the House of Lords, carried against the government in
1893 on the ground that they were excessive, and in 1895 a rejection of
the appropriation for a statue of Cromwell.

A list of all the reductions in the estimates from 1868 to 1887 may be
found in Appendix 5 to the Report of the Committee on Estimates
Procedure (Com. Papers, 1888, XII., 27). A list of those from 1887
through 1901 in Appendix 1, of the first report of the Committee on
National Expenditure (Com. Papers, 1902, VII., 15. _Cf._ Return of
Divisions in Supply, 1891-1901. Com. Papers, 1902, LXXXII., 139). There
were eighteen reductions in the twenty years covered by the earlier
report, eleven in the fourteen years next following. Of those eleven,
four were cases where estimates were withdrawn by the government (two of
them supplementary estimates, afterward voted as regular estimates for
the next year), three were reductions moved by the government because
the expenditure had become unnecessary, another was a reduction accepted
by the government, two more were the two cases mentioned in the text,
and the remaining one was moved to call attention to a grievance, _i.e._
the number of rooms in the Parliament buildings occupied by officers of
the House. This last case, together with the reduction of the salary of
the Secretary of State for War (which occurred in 1895, but is not
mentioned in the list), is described hereafter in the text.

[348:1] The vote was 141 to 130. (Hans. 4 Ser. CXXXI., 1141-50.)

[348:2] The vote was 199 to 196. (Hans. 4 Ser. CIL., 1486 _et seq._) Mr.
Balfour's cabinet resigned three months later when Parliament was not in
session.

[348:3] _Cf._ May, 588.

[349:1] May, 561. He speaks here only of the Appropriation Bill, but
what he says is equally true of all the Consolidated Fund Bills, of
which the Appropriation Bill is merely the last, completing the process
for the year.

[349:2] _Ibid._, 562.

[349:3] The India Office is maintained out of the revenues of India,
but, as already explained, an opportunity to criticise the
administration of that country is provided every year when the Indian
accounts are laid before Parliament.

[349:4] The debate must relate to the administrative conduct of those
who receive the grants (May, 561-62), and therefore the Speaker, in
1903, ruled out of order a discussion of the fiscal question on which
the cabinet had taken no action, and had refused to announce a policy.
(Hans. 4 Ser. CXXVII., 867-70.)

[350:1] This was true of the latest example, that of an amendment
relating to native labour in South Africa, moved on the second reading
of the Consolidated Fund (No. 1) Bill of 1903. It was withdrawn when it
had served the purpose. (Hans. 4 Ser. CXX., 72.)

[350:2] May, 581.

[352:1] Hans. 4 Ser. CXXIII., 142.

[352:2] _Ibid._, 327.

[352:3] _Ibid._, 1241, 1245, 1274.

[353:1] Hans. 4 Ser. CXXIII., 1250, 1323; CXXV., 571-74.

[353:2] _Ibid._ CXXVII., 867.

[353:3] Hans. 4 Ser. CXXIX., 623, 1446. There was on March 7 a motion to
adjourn to call attention to the failure of Mr. Balfour to explain the
resignations of ministers in the autumn. This involved the fiscal
question only indirectly, and was rejected 237 to 172.

[354:1] Hans. 4 Ser. CXXXV., 253 _et seq._

[354:2] _Ibid._, CXXXIX., 284 _et seq._

[354:3] It had also been discussed on the adjournment for Easter.

[355:1] Redlich ends his book on the procedure of the House of Commons
with the remark (p. 800), that the rules of a legislative body are the
political manometer, which measures the strain of forces in the
parliamentary machine, and thereby in the whole organism of the state.

CHAPTER XIX

THE FORM AND CONTENTS OF STATUTES

[Sidenote: Difficulty of Passing Laws.]

We have seen that the legislative capacity of the House of Commons has
nearly reached its limit. What is more, it is small, and markedly
smaller than in the past. In the decade beginning with 1868, ninety-four
government bills on the average became law each year, but of late the
number has not been half so large, and private members' bills have
fallen off in about the same proportion. The fact is that a growth in
the number of members who want to take part in debate, a more minute
criticism, and a more systematic opposition, have made the process of
passing a bill through the House increasingly difficult. This is
particularly true of measures that are long or complicated, for the
greater the length the more the pegs on which to hang amendments.[356:1]
Now the difficulty of passing laws has had an effect both on the form of
the statutes and on the content of legislation.

[Sidenote: Drafting of Bills.]

A public bill introduced by a private member may be drafted by him, or
by counsel he has employed for the purpose. There is no systematic
supervision over such bills,[356:2] no stage at which their drafting is
reviewed, and whether well or ill drawn, they are not likely to be much
improved in their passage through Parliament. Government bills, on the
other hand, which relate to England, and are not of a purely formal and
routine character,[356:3] are now all drafted by the Parliamentary
Counsel to the Treasury, or by his assistants under his
direction.[357:1] They are prepared under instructions from, and after
consultations with, the departments concerned, and are sometimes recast
several times before they are introduced into Parliament. They are then
assailed by a host of critics, both in and out of the Houses; some of
them trying to pick flaws in a measure which they want to destroy; while
others, who are not opposed to the general principle involved, discover
provisions that affect their interests, based, perhaps, on local custom
or privilege. The objections raised may not have been entirely foreseen,
or may prove of greater political importance than was supposed, and
hence amendments and new clauses are adopted during the debates in
committee. These changes are usually made with the consent of the
minister in charge of the bill, and the Parliamentary Counsel, as well
as the permanent head of the department concerned, is often present
under the gallery to give his advice; but still the amendments mar the
fair handicraft of the draftsman, and an effort has to be made to
improve the text either on the report stage or in the House of Lords.

[Sidenote: Defects of Form.]

Sir Courtenay Ilbert attributes the defects of form in the English
statutes of the present day chiefly to the battering that a bill must
almost necessarily encounter in passing through the House of Commons,
and to the fact that an Act of Parliament is essentially a creature of
compromise.[357:2] Yet there would seem to be other difficulties arising
from the conditions under which legislation is conducted.

The Parliamentary Counsel's office has certainly improved the statutes
very much by making them more concise, uniform and orderly; but their
form is far from perfect. Two objects must be aimed at in drafting an
act; one that it shall be intelligible to the persons who are compelled
to obey it; and the other that the courts which interpret it, or the
counsel who are called upon to advise upon it, shall be able to
ascertain its precise meaning with certainty. Now to a layman, and even
to a foreign lawyer, an English act is often difficult to understand,
and sometimes misleading. To penetrate its intent one must frequently be
familiar with all previous legislation on the subject. It is no doubt
true that "No statute is completely intelligible as an isolated
enactment. Every statute is a chapter, or a fragment of a chapter, of a
body of law."[358:1] Still it does not seem necessary that English acts
should be quite so obscure as they often are. Nor, judging from the
amount of litigation that sometimes occurs over their interpretation,
does this defect appear to be always counterbalanced by remarkable legal
certainty. The most celebrated case is that of the Education Act of
1902. After the provision for the payment of religious instruction in
the church schools out of local rates had provoked dogged resistance,
and the magistrates had enforced it against recalcitrant rate-payers for
a couple of years, the matter was brought before the higher courts by
the refusal of the County Council for the West Riding of Yorkshire to
make the payment; and the majority of the Court of Appeal was of opinion
that the statute did not oblige it to do so.[358:2] The House of Lords
reversed the decision;[358:3] but for Parliament to pass the Act in such
a form that the Court of Appeal could regard it as failing to effect
what everybody knew to be one of its main objects is surely an amazing
example of bad drafting. Nor was this the result of amendments in the
House of Commons, for the provision in question went through unchanged;
and although in this case the fault is said not to lie at the door of
the Parliamentary Counsel, it shows none the less the defects of the
system.

[Sidenote: The Defects Arise;]

It has already been remarked that the limited capacity of Parliament
for law-making affects both the form and the content of its acts; and
this is one of many elements in a complex problem. The lack of time for
comprehensive legislation, the political temperament of the nation, and
the exigencies of a responsible ministry have each a marked influence on
the form and the substance of the statutes; and, indeed, all these
factors act and react upon one another.

[Sidenote: from Difficulty of Legislating;]

The difficulty of passing long or complicated measures makes the
minister insist that his bill shall be as short as possible,[359:1] and
hence it must include no clauses not absolutely necessary for the object
he has in view. The draftsman, therefore, disturbs existing statutes as
little as he can, either in the way of revising or incorporating their
provisions. If he must embody earlier enactments in his draft, he does
so by referring to them, rather than by repeating them.[359:2] The
practice of legislation by reference, which is a source of no small
inconvenience in using the statutes, has been carried very far. In fact
there is a long series of "Clauses Acts" on various subjects, not
enacted with an independent legislative force of their own, but placed
on the statute book as standard provisions to be embodied in subsequent
acts by reference express or implied.[359:3] The desire to have the bill
short has also given a strong impulse to the practice of removing
details from the body of the act, and massing them in schedules at its
close.[359:4] This is an advantage to the minister who has charge of the
bill, because while it does not withdraw the matters in the schedules
from the control of the House, it does make them less conspicuous and
concentrates the attention of the members on the principal questions of
policy.

[Sidenote: from Political Temperament;]

A similar result, although one that concerns more directly the substance
than the form of the statutes, may be traced to a conservative
tradition in legislation. It is commonly said that in industrial matters
Englishmen do not appreciate the value of the scrap-heap, that they tend
to use old-fashioned machinery when it would be better to discard it
altogether. If they dislike to abandon a machine, they have a still
greater aversion to repealing an Act of Parliament. Every Briton happily
believes that it is better to readjust the institutions of a country
slowly, than to pull them down and build anew; and there being no line
between the institutions that are fundamental, and those that are not, a
fragment of the veneration for the British Constitution attaches to
every statute; and, indeed, to custom also. This helps to make the
legislator cautious, and his work tentative. Moreover, there is a great
respect for vested rights, and for that matter for vested habits, and
sometimes vested abuses. Sir Courtenay Ilbert tells us how much
solicitude is aroused by the probable effect of a bill on the peculiar
circumstances of the parish of Ockley-cum-Withypool, or the emoluments
of the beadle of Little Peddlington.[360:1] Too much attention seems to
be paid at times to such interests when they conflict with those of the
public; and this brings up the third factor in the problem, that of
cabinet responsibility, which has a marked influence on both the form
and the content of legislation.

[Sidenote: Reform-sponsibility of Ministers.]

If the parliamentary system, as it has developed in England, intrusts
the active conduct of legislation and administration to the ministry of
the day, and thereby concentrates enormous political power in the hands
of a few men, it does so among a highly individualistic people. The
ministers wield their great authority on two conditions. One is that
they must retain an absolute hold upon their own majority, and the other
is that their rule must be tempered by liberty of criticism. They must
explain everything they do, they must defend it against the attacks of
the whole House, and justify it to the satisfaction of almost all their
followers. The result is that they try to bring into their measures
nothing that might furnish a needless target for critics, or prove a
cause of offence to any of their supporters.

Restraint, in some form, is the price paid for power; and great strength
in one direction is apt to conceal weakness in another. An English
ministry with a good majority at its back appears omnipotent. It
announces its policy, forces through its bills against the protests of
the Opposition, and even against appeals from members on its own side
not to put pressure upon them. But the power it exerts is in large part
the resultant of other forces less openly displayed. If, on pain of
disloyalty, and for fear of handing the government over to the
adversary, the private adherent of the party in power must follow the
whips in critical divisions, the ministers, on their part, are sometimes
compelled by an insistent group of their supporters to adopt one
measure, or to mutilate or abandon another. They cannot disregard the
serious objections of any considerable section of their own followers,
and this has become more and more true with the evolution of the
parliamentary system. Half a century ago they might win as many votes
from the other side of the House as they lost on their own, but that is
rarely possible to-day. They must now carry with them on every question
substantially the whole of their party.[361:1] Their omnipotence is
therefore a very limited and cautious omnipotence, and this has shown
itself, especially under the late Conservative government, in the meagre
annual production of statutes.

[Sidenote: Revision and Codification of Statutes.]

If the legislation of a country is to consist, not in passing
comprehensive laws dealing with a whole subject, but in making
progressive changes by tinkering and patching the existing acts, it
would seem an obvious convenience to issue from time to time new
editions of those acts compiled in a more compact and intelligible form.
It would be a great advantage to have frequent revisions or
codification of the statutes on a subject, not involving a change of
substance, but merely a simplification of form. But such a process of
consolidation has not been common in England. A great deal of labour was
expended on this object by several commissions during the nineteenth
century; but the only positive results have been the production of two
editions of revised statutes--being simply the statutes at large
rearranged with the parts no longer in force omitted--and the passage of
a limited number of acts consolidating the statutes on certain
subjects.[362:1] Such acts are not easy to pass, because, as Sir
Courtenay Ilbert remarks, "It is difficult to disabuse the average
member of Parliament of the notion that the introduction of a
consolidation bill affords a suitable opportunity for proposing
amendments, to satisfy him that reënactment does not mean approval or
perpetuation of the existing law, or to convince him that attempts to
combine substantial amendment with consolidation almost inevitably spell
failure in both."[362:2] The process has neither been extended to so
many subjects, nor repeated at such short intervals, as might be wished.

[Sidenote: Temporary Laws.]

Another curious result of the difficulty of enacting laws may be seen in
the long list of temporary statutes, continued in force from time to
time, sometimes for many years. Some of these are acts of a transitory
nature, designed to cover an emergency, or to deal with an ephemeral
state of things. Laws of that kind expire with the conditions that
called them forth. But the English temporary acts often relate to
permanent matters. That a statute of an experimental character should be
enacted at the outset for a limited period is natural enough, but when
the period has come to an end, and the experiment has proved a success,
one would expect to see the law reënacted in an enduring form. In
England, however, there is passed every year an Expiring Laws
Continuance Act, giving another twelve-month's lease of life to a list
of acts appended in a schedule, many of which are already old. One or
two have already reached the age of threescore years and ten; and among
the list are still found the Ballot Act of 1872, with most of the
statutes of the last half century that regulate the conduct of
elections. The reason for the existence of perpetual temporary laws is
to be found, no doubt, in the fact that in this form they can be
continued almost without opposition, while an attempt to enact them as
permanent statutes would give rise to great debates with a host of
amendments, and consume a vast deal of the one thing whereof the
ministry has never enough--that is time.

[Sidenote: Delegation of Legislative Power.]

The limited capacity of Parliament to pass statutes is not felt as a
pressing evil, because the period of great remedial legislation is over.
The transition from the political and industrial conditions of the
eighteenth century has been accomplished, and the consequent change in
laws and institutions has been, in the main, effected. The demand for
radical legislation is, therefore, comparatively small, and for the time
at least the process of making law can afford to run slow. Yet it may be
doubted whether, with the great extension in the sphere of government,
Parliament could be suffered to move at its present pace were it not for
the growing practice of delegating legislative power. We hear much talk
about the need for a devolution of the power of Parliament on
subordinate representative bodies, but the tendency is not mainly in
that direction. The authority of this kind vested in the county councils
by recent statutes is small, too small to affect the question. The real
delegation has been in favour of the administrative departments of the
central government, and this involves a striking departure from
Anglo-Saxon traditions, with a distinct approach to the practice of
continental countries.[363:1]

[Sidenote: Statutory Orders.]

Formerly an English statute went into great detail, attempting to
provide expressly for every question that could possibly arise. Its
interpretation, or its applicability to a special case, could be
determined only by the courts, while its defects could be remedied, or
its omissions filled up, only by another statute. It contained in itself
the complete expression of the legislative will. But of late it has
become more and more common for Parliament to embody in a statute only
general provisions, and give to some public department a power to make
regulations for completing the details, and applying the act to
particular cases. These regulations--known as statutory orders--cover a
great variety of subjects, and govern not only the duties of officials,
and the administration of public affairs, both national and local, but
also the conduct of individuals in the management of their own concerns.
They prescribe, for example, how many persons can live on canal-boats,
the number of cubic feet of air in factories, the precautions that must
be taken for cleanliness in dairies, what per cent of water may be
contained in genuine butter, and under an authority of this kind a
general order was issued in 1900 for muzzling all the dogs in the
country.

[Sidenote: Control of Parliament over Provisional Orders.]

Parliament usually attempts to retain a control, or at least an
oversight, of the orders made by the public departments under the
authority delegated to them in this way. Sometimes the order is issued
under a power that is provisional only, and does not become operative
until confirmed by a statute. This is usually, though not
invariably,[364:1] true of rights granted to private companies or local
authorities to construct works of public utility, such as waterworks,
gas-works, tramways, and the like.[364:2] Provisional orders of that
kind do not involve any true delegation of legislative power, because
they derive their validity, not from the act of the department, but from
the statutes by which they are confirmed; and they are included among
the Acts of Parliament, and not the statutory orders of the year.
Practically, however, they are almost always confirmed without
amendment.

[Sidenote: Over Statutory Orders.]

Parliamentary control over statutory orders strictly so called, which
involve a real delegation of legislative power, is commonly maintained
by requiring them to be reported to the two Houses; and in order to give
an opportunity for preliminary criticism, the regulation, or a draft
thereof, must sometimes be laid on the table for a certain time before
it becomes operative.[365:1] Moreover, control by Parliament is often
expressly reserved by providing that if, within forty days, either House
presents an address to the Crown against a draft or order, then the
order shall not be made, or in case it has already gone into effect it
shall thenceforth be void.[365:2] An address under such a provision is
exempted from the rule about the interruption of business in the House
of Commons, and hence can be moved by a private member at the close of
the sitting on any evening, without taking his chance in drawing lots,
or appealing to the government for a part of its time.[365:3] As a
matter of fact, motions of this kind are uncommon, and are rarely, if
ever, successful; although the frequency with which the statutory orders
are revised by the departments would seem to show that the officials who
make them are highly sensitive to outside opinion.

Since 1893 the statutory orders of each year have been regularly
published like the Acts of Parliament;[365:4] and an idea of their
number may be derived from the fact that they always fill one, and often
two, large volumes, each much thicker than the present emaciated book of
the Public General Acts.[366:1] In spite of the potential control
retained by the Houses over statutory orders, the growing habit of
delegating authority to make them involves a substantial transfer of
power from Parliament to the executive branch of the government, a
transfer due in part to the increasing difficulty in legislation.

The existing relation between the cabinet and the House of Commons has
thus had a number of distinct, and at first sight contradictory,
effects. While placing the initiative for almost all important
legislation in the hands of the ministers, it has tended to reduce the
number and completeness of the laws they can carry through; and on the
other hand it has helped to invest them with a power of subordinate or
secondary legislation quite foreign to English traditions. This is true
of public matters, but in regard to private and local acts the relation
of the cabinet to Parliament, and hence the effects of that relation,
are wholly different.

FOOTNOTES:

[356:1] _Cf._ Ilbert, "Legislative Methods and Forms," 217.

[356:2] Ilbert, _Ibid._, 90-91. Private bills are, of course, drafted by
the counsel for the petitioners, and provisional order bills by the
department that grants the provisional order.

[356:3] Ilbert, "Leg. Methods and Forms," 86 note. The Scotch and Irish
bills, and almost all the most important Indian bills, are drawn by
draftsmen attached to the offices for those countries.

[357:1] Sir Courtenay Ilbert, himself Parliamentary Counsel at the time
he wrote his work on "Legislative Methods and Forms," has given therein
an excellent description of the history (67-69, 80-85) and the work
(85-97, 218-19, 227-31) of the office.

[357:2] "Leg. Methods and Forms," 229-31.

[358:1] "Leg. Methods and Forms," 254.

[358:2] Rex _vs._ West Riding of Yorkshire, (1906) 2 K.B., 676.

[358:3] Atty. Gen. _vs._ West Riding of Yorkshire, (1907) App. Cas., 29.

[359:1] Ilbert, "Leg. Methods and Forms," 217, 241.

[359:2] _Ibid._, 217-18. _Cf._ 254-66.

[359:3] This is particularly true in the case of local and private
bills, where the provisions of "Clauses Acts" must often be
incorporated, either by the terms of those acts, or in consequence of
the standing orders on private business. _Ibid._, 261.

[359:4] _Cf. Ibid._, 266-68.

[360:1] Ilbert, "Leg. Methods and Forms," 230.

[361:1] The extent to which this is done, and the amount it has
increased, is shown by statistics in the chapter on "The Strength of
Party Ties." The difficulty to-day comes, not from the opinions or
interests of individual members, but from groups of members acting on
public grounds, or at least, on grounds which affect a great part of
their constituents.

[362:1] Ilbert, "Leg. Methods and Forms," Chs. iv., vii.

[362:2] _Ibid._, 113.

[363:1] _Cf._ Ilbert, "Leg. Methods and Forms," Chap. iii., and pp.
220-21, 224.

[364:1] Authority, for example, to construct a light railway, which is
legally distinct, but physically indistinguishable, from a tramway, does
not require confirmation by Parliament, 59-60 Vic., c. 48, §9.

[364:2] A change in the boundaries of a county or borough requires in
the same way confirmation by Parliament; but an order altering an urban
or rural district or parish, requires only to be laid upon the table of
each House, 51-52 Vic., c. 41 (part 3).

[365:1] Drafts of orders that are not required to be laid before
Parliament before they come into operation, must, by 56-57 Vic., c. 66,
§ 1, be open to criticism, by any public body interested, for forty days
before they are finally settled and made. But this does not apply to
rules made by the Local Government Board, the Board of Trade and some
others (§ 1 (4)).

[365:2] _Cf._ Ilbert, "Leg. Methods and Forms," 41, _cf._ 310-14.

[365:3] Ilbert, "Manual," § 36.

[365:4] 56-57 Vic., c. 60, § 3.

[366:1] This last, however, does not contain the text, but only a list
of titles, of local and private acts, although many of them are legally
public general acts. On the other hand the published statutory orders
for the year do not include by any means all the orders of a temporary
nature.

CHAPTER XX

PRIVATE BILL LEGISLATION

If the direction of important legislation of a public character lies
almost altogether in the hands of the ministers, special laws affecting
private or local interests are not less completely outside of their
province.

[Sidenote: The Nature of Private Bills.]

Private Acts of Parliament are of immemorial antiquity, but they seem to
have first become numerous in connection with the building of turnpike
roads and the enclosure of commons in the second half of the eighteenth
century.[367:1] They were also the means used to authorise the
construction of canals, and later of railways; and, in fact, it was the
great number of railway bills, presented in 1844 and 1845 that gave rise
to the modern private bill procedure in the House of Commons.

Apart from railway bills they have been used of late years chiefly to
regulate local police and sanitary matters, or to grant powers to
private companies or municipal corporations for the supply of public
conveniences, such as water, gas, electric light, or tramways; for
private bill procedure applies not only to bills that affect private
persons or companies, but also to those that deal with the rights and
duties of organs of local government in any particular place.[367:2]

The line, however, between public and private bills is not altogether
logical. Measures, for example, touching matters of general interest
affecting the whole metropolis have been passed as public bills; and
this has been true to a smaller extent of other places; while bills
regulating affairs of less importance for those very areas have been
treated as private. In fact the same subject has at different times been
dealt with by public and private bills; the question which procedure
should be followed depending upon the uncertain standard of the degree
in which the public interest was involved.[368:1] With these exceptions
it may be said that every bill introduced for the benefit of any person,
company or locality, is, for the purposes of procedure, a private bill.

[Sidenote: Procedure on Private Bills.]

The standing orders that govern procedure upon private bills are much
more elaborate and comprehensive than those relating to public bills.
They fill in print five times as many pages; and although custom and
precedent play an important part, still the printed rules approach very
nearly to a code of private bill procedure.[368:2]

[Sidenote: Petition and Notice.]

Before a private bill is introduced, a petition therefor is drawn up,
and in order to give any one interested an opportunity to prepare his
objections, notice of the petition must be given, in October or
November, in _The Gazette_, in appropriate local newspapers, and in some
cases by posters upon the roadside. Personal notice must also be served
in December upon the owners of land directly affected, and if the
petition is for leave to build a tramway, the consent of the local
authority must be obtained.[369:1] Plans of the work proposed must also
be deposited for inspection both at Westminster and with some local
officer.[369:2] The petition, with the bill itself, must be filed on or
before Dec. 17 in the Private Bill Office of the House, and a copy must
be delivered to the Treasury, the Local Government Board, the Post
Office, and to any other department whose duties relate to the subject
involved.[369:3] The petitioner is also required to file estimates of
cost, and to deposit a sum equal to four or five per cent. of the
proposed expenditures as a guarantee fund for the benefit of persons who
may be injured by a commencement, and failure to complete, the
work.[369:4]

[Sidenote: Examiners of Petitions.]

The next step is to make sure that these preliminary regulations have
been obeyed. It is done by paid officers of the House called Examiners
of Petitions for Private Bills,[369:5] and since 1855 the two Houses
have appointed the same persons to that post, so that the process is
gone through only once.[369:6] The petitioner must prove before the
examiner that he has complied with the standing orders; and any person
affected has a right to be heard on the question, if he has filed a
memorial of his intention to appear. The examiner certifies that the
standing orders have been followed, or reports in what respect they have
been disregarded.[369:7]

[Sidenote: Legislative and Judicial Aspects of the Procedure.]

Private bill procedure has both a legislative and a judicial aspect. The
final aim being the passage of an act, a private bill goes through all
the stages of a public bill, and the records of its progress appear in
the journals of the House. But the procedure is also regarded as a
controversy between the promoters and opponents of the measure, and this
involves an additional process of a judicial character. For that purpose
the full records of the case are preserved in the Private Bill Office,
where they are open to public inspection. The preliminary steps already
described are intended chiefly to prepare the case for the judicial
trial, and to give opponents a chance to make ready their defence. They
correspond to the pleadings in the clerk's office of a court; and they
are conducted by a parliamentary agent who performs the duties of a
solicitor in a law suit.[370:1]

[Sidenote: Introduction of the Bill.]

The preliminaries over, the bill is ready to be introduced, and the
first thing is to arrange in which House it shall begin its career. This
is decided at a conference between the Chairmen of Committees of the two
Houses, or in practice by the gentlemen who act as their legal advisers,
the Counsel to Mr. Speaker and the Counsel to the Lord Chairman of
Committees.[370:2] All these proceedings take place before the usual
date for the meeting of Parliament, so that when it assembles the bills
can be brought in at once.[370:3]

If the examiner reports that the standing orders have been complied
with, the bill is presented forthwith by being laid upon the table of
the House. If not, his report is referred to the Committee on Standing
Orders, composed of eleven members chosen by the House itself at the
opening of the session.[371:1] This committee reports whether the
omission is of such a nature that under the circumstances it ought to be
excused or not; and the report is almost always adopted by the House. In
case the omission is excused the bill is presented by being laid upon
the table; and every bill is deemed when presented to have been read a
first time.[371:2]

[Sidenote: Second Reading.]

On the next stage, the second reading, a debate may take place upon the
general principle involved, and a bill is sometimes rejected at this
point, either because it is inconsistent with public policy, or because
opponents whose interests are involved have been able to persuade a
majority of the members to vote against it. Instructions to the
committee about the provisions to be inserted in the bill can also be
adopted at that time.

[Sidenote: Private Bill Committees.]

The committee stage of the bill, for the consideration of its provisions
in detail, is devolved upon a private bill committee. Here takes place
the judicial process, or trial of the controversy between conflicting
interests, which presents the peculiar feature of the English procedure.
Until near the middle of the nineteenth century the committees for
private bills were made up on the same principle as select committees on
other matters. They consisted in large part of supporters and opponents
of the measure. But in 1837 the Lords began to form their private bill
committee of a small number of wholly impartial members,--a practice
which was adopted by the Commons for railway bills in 1844, and for all
other private bills in 1855.[371:3] The system of committees in the two
Houses is now very much the same,[372:1] the order of proceeding in the
Commons being as follows: All opposed private bills, except those
relating to railways and canals, divorce, and police and sanitary
matters, are referred under the rules to the Committee of Selection,
which divides them into groups and refers each group to a separate
committee, consisting of a chairman and three members not locally or
otherwise interested, all of whom it appoints for the purpose.[372:2]

[Sidenote: Railway and Canal Bills.]

In order to secure greater uniformity in the private acts relating to
railways, a general committee on railway and canal bills was created in
1854.[372:3] It is appointed every year by the Committee of Selection,
and to it are referred all bills of that kind. But it does not take
charge of them itself. It merely divides them into groups, and then acts
as a chairman's panel; that is, it refers the bills to separate
committees, the chairman of which it selects from its own ranks, the
other three members being appointed by the Committee of
Selection.[372:4]

[Sidenote: Police and Sanitary Bills.]

With the same object of obtaining uniformity, all bills promoted by
local authorities for police and sanitary purposes were referred after
1881 to a single committee. In this case, however, the bills were not
too numerous to be considered by the committee itself, although to
relieve pressure it was, in 1892, enlarged to eleven members, and
authorised to bisect itself for the more rapid despatch of business.
Curiously enough the committee was discontinued for some years, but,
after loud complaints about exceptional powers granted by private acts,
it was revived by sessional order in 1903, and intrusted with all police
and sanitary bills which contain powers "in conflict with, deviation
from, or excess of, the general law."[373:1]

A committee on divorce bills is still provided for in the rules, but
since the power of granting divorces in England and Scotland has been
entirely transferred to the courts, bills of this kind have become rare.
While the various private bill committees are thus formed in slightly
different ways, their mode of dealing with the measures that come before
them is the same.

[Sidenote: _Locus Standi._]

The bills referred to these committees have been described as "opposed,"
but that implies an opponent, and means, not an objector in the House,
but an outside contestant on the basis of interest, for the chief object
of these committees is a judicial hearing of opposing parties. If there
is no opponent, so that the question is solely whether the privileges
sought are consistent with the public welfare, the bill is said to be
unopposed, and goes through quite a different procedure to be described
hereafter. Plainly, therefore, the question who may oppose a bill, and
on what grounds, is of vital importance. A person who enjoys the right
is said to have a _locus standi_; and the first question to be decided
is whether an opponent does or does not have it.

Now, any one who wishes to oppose a bill must, on or before Feb. 12,
file a petition in the Private Bill Office, stating the ground of his
objection,[373:2] and if the promoters contest his right to
appear,[373:3] the question of _locus standi_ is decided by the Court of
Referees, consisting of the Chairman of Ways and Means, the Deputy
Chairman, and not less than seven members of the House appointed by the
Speaker. The Counsel to Mr. Speaker assists the court, but sits now only
as an assessor.[373:4] The principal divergence in the procedure of the
two Houses arises at this point, for questions of _locus standi_ are
determined in the House of Lords by the committee that considers the
bill; and there is some difference of opinion about the relative merits
of the two systems.[374:1] In both Houses the decisions are governed
partly by express provisions in the standing orders,[374:2] and partly
by precedents that have hardened into rules.

[Sidenote: Grounds of _Locus Standi_.]

In order to have a _locus standi_, an opponent must, as a rule, show
that the bill may affect his property or business. He must prove a
personal interest distinct from that of the rest of the community.
Moreover, it is a general principle that, except on the ground of some
special injury to themselves, both individuals and public boards are
precluded from opposing before a private bill committee a public body on
which they are represented. If, for example, a borough proposes to
construct and work a tramway, an omnibus company has a right to be heard
in opposition, but a rate-payer who believes that the plan will be
financially disastrous has not.[374:3]

It is, of course, unnecessary to describe here all the kinds of private
interest that will furnish a _locus standi_.[374:4] But in general, it
may be said that the right is enjoyed by all persons whose land is to be
compulsorily taken; by the owners and occupiers of buildings along the
line of a proposed tramway; by traders affected by the tolls, fares, or
rates proposed;[374:5] by public authorities; and sometimes by
inhabitants acting on behalf of a county, town, or district, that is or
may be affected. Competition, also, is a ground for _locus standi_,
although the right to appear is usually confined to monopolies, to
organisations that represent the trade as a whole, or to individuals
whose business is important enough to represent that trade;[375:1]
moreover the privilege is extended by the standing orders to chambers of
agriculture, commerce or shipping.[375:2] While, therefore, the rules of
_locus standi_ are not perfectly logical, they are distinctly based upon
private interest, individual or collective, and not upon the general
welfare.

[Sidenote: Hearing before the Committee.]

The hearing of the parties before the committee follows the pattern of a
trial in a court of law, even to the standing of the counsel employed.
Up to this point the parties have been represented by parliamentary
agents, who, although not necessarily attorneys or solicitors, hold a
similar position, and must be registered in the Private Bill
Office.[375:3] The actual hearings, however, like trials in court, are
conducted by barristers. The fees, which are large, attract a high order
of talent, and in fact the practice before private bill committees has
become almost a distinct branch of the profession, the counsel who
pursue it being known as the parliamentary bar.[375:4] The proceedings
are strictly judicial in form, the barristers examining and
cross-examining the witnesses and making the arguments in the ordinary
way. Moreover, if either party has vexatiously subjected the other to
expense, the committee can award costs like a court of law, and this is
occasionally done.[375:5]

The first thing taken up is the preamble, the hearing upon this
involving the general merits of the bill, so that if the committee is
of opinion that promoters have failed to prove that part of their case,
it reports at once against the bill. Otherwise the clauses are taken up
in order, and the committee reports the bill with or without amendments.

[Sidenote: The Committee and Public Policy.]

Although the peculiar function of the committee consists in passing upon
the conflicting claims of the parties that appear before it, the
question whether the public welfare will be promoted by the enactment of
the bill must be considered also. This is, of course, one of the chief
things that the promoters must prove; but the committee seeks no
evidence on its own account, nor can it permit a private person who has
no _locus standi_ to address it on the subject. In the interest of
public policy, however, some safeguards have been devised. In the first
place the standing orders direct that in various classes of measures
certain provisions must be inserted. These relate to such matters as the
level of roads, grade crossings, the amount of mortgages, the time for
completing works, deposits to secure completion, minimum rates of fare,
the application of general railway acts, leaving open spaces for
recreation in enclosure bills, and the erection in London of new
workmen's dwellings to replace others that are torn down. In some cases
also the committee must report specially any unusual provisions
contained in the bill, notably in relation to the borrowing powers of
local authorities.

Moreover, on some questions the committee has the benefit of advice from
public officials. That private bills must be filed with one or more of
the public departments has already been pointed out. In a few cases the
departments are directed to submit to Parliament a report upon the
bill,[376:1] and they are always at liberty to do so. Under the rules
these communications are referred to the committees,[376:2] which are
required to notice in their reports the recommendations of the
departments, and state the reasons for dissent where they have not been
followed.[376:3] Occasionally, representatives of the departments
appear before the committees;[377:1] and, what is more important, a
general oversight of private bill legislation, with the right to make
suggestions, is maintained by the officers of the Houses.[377:2] This is
especially true of the Counsel to Mr. Speaker, and of the Chairman of
Committees and his counsel in the House of Lords; but the question how
effective their supervision is must be deferred until the results of the
system are discussed.

[Sidenote: Unopposed Bills.]

Unopposed bills, that is bills where no adverse petition has been filed,
or where the petitioner has not proved a _locus standi_, do not involve
a judicial trial between contestants, but only an examination with a
view to the public interest.[377:3] They are, therefore, referred to
quite a different committee. Until 1903 it consisted of the Chairman, or
Deputy Chairman, of the Committee of Ways and Means, and the Counsel to
Mr. Speaker, assisted usually, but not always, by one other member of
the House.[377:4] The Select Committee of 1902 on Private Business was
of opinion that a body with so much authority ought to be strengthened
by the addition of more members directly responsible to the
House,[377:5] and in partial fulfilment of its recommendations the
standing orders provided in the following year that the Committee on
Unopposed Bills should consist of the Chairman and Deputy Chairman of
Ways and Means, of two other members of the House, appointed by the
Committee of Selection, and of the Counsel to Mr. Speaker.[378:1]

The bills having already been read through by the Speaker's Counsel, and
in part by the Chairman of Ways and Means, the committee goes over them
rapidly with the promoters, discussing chiefly such points as have been
raised by the Speaker's Counsel, and by any reports from government
departments.[378:2] If any other question should come up involving a new
and important matter of public policy, the Chairman, who was already
overworked, would formerly have avoided the responsibility of deciding
it himself by reporting to the House, as he has power to do,[378:3] that
the bill ought to be treated as opposed;[378:4] and this although there
was no one to conduct the opposition.[378:5] One of the objects of
strengthening the committee was to put it in a position to decide all
such questions itself. As a matter of fact the committee often makes
amendments in a bill, but seldom reports that it ought not to pass.

[Sidenote: Report and Consideration.]

After a bill, whether opposed or not, has been reported, the House, if
dissatisfied, may recommit it either as a whole or with reference to
particular clauses, and with or without instructions. When this does not
happen, and it is unusual, the bill, if reported without amendment, and
not a railway or tramway bill, stands ready for its third reading. If,
on the other hand, it has been amended by the committee, or is a railway
or tramway bill, it is ordered to lie upon the table for consideration
on report.[378:6] At that stage amendments may be proposed, or a motion
may be made to recommit, but in order to insure that the standing orders
are complied with, both by the private bill committee and by the House
itself, the consideration cannot take place until the Chairman of Ways
and Means has informed the House that this is the case; nor can any
amendments be offered until the Committee on Standing Orders has
reported upon them, if the Chairman thinks it proper that they should do
so.[379:1]

The last stage is that of third reading where only verbal amendments are
in order.[379:2]

[Sidenote: Private Bills in the Lords.]

After passing through one House a private bill goes to the other, and
there is the usual process for reaching an agreement upon amendments. It
is needless to trace here the course of a private bill in the
Lords.[379:3] The procedure is essentially the same as in the Commons,
and the only differences of any consequence have already been mentioned
in the text or in the notes. A great deal of discussion has taken place
upon the wisdom of having two separate hearings before the private
committees of the two Houses.[379:4] It has been suggested that a second
hearing is needless, and that time and expense would be saved by having
a single trial before a joint committee. On the other hand it is urged
that where a bill is objectionable or defective the second hearing gives
a better chance to reject or improve it; and that as a matter of fact
the parties often accept the decision of the first committee, or
compromise their differences, only about one third of the bills opposed
in one house being opposed again in the other.[379:5]

[Sidenote: Special Procedure for Scotland.]

The inconvenience and expense of a trial before a committee in London
led to a strong demand for hearings in Scotland upon private bills
relating to that kingdom, and in 1899 a statute was enacted for that
purpose.[380:1] The Act and the general orders made in pursuance
thereof, provide that, instead of following the ordinary procedure,
promoters of Scotch private bills shall, in April or December, file a
petition with the Secretary for Scotland for a draft provisional order
deposited therewith. They must also comply with rules similar to those
in force for private bills about giving notice, and filing copies and
plans with the government departments. The draft order is submitted to
the Chairmen of Committees of the two Houses. If either of them is of
opinion that it affects interests outside of Scotland, or is of such a
character, or raises such a question of policy, that it ought not to be
dealt with in the new way, then it takes the regular course of an
English private bill. If not, the order follows the new Scotch
procedure. The two Chairmen assign an examiner to see that the general
orders about notice, and other matters, have been observed, the final
power of dispensation in case of non-compliance resting also in their
hands. After these preliminary steps have been taken, the petition is
ready to begin its active career.

[Sidenote: Scotch Private Bill committees.]

If the petition is not opposed, the Secretary for Scotland may, after
considering the reports of the public departments, make the provisional
order, as prayed for or with amendments. In short, he takes the place of
a committee on unopposed private bills. If, on the other hand, he thinks
an inquiry ought to be held, or if the petition is opposed, he sends it
to a commission selected on a curious plan designed to retain the work
as far as possible in parliamentary hands. The difficulty, on one side,
of getting members of Parliament to undertake such a service, and the
desire, on the other, to retain a close connection with the Houses,
resulted in a compromise between a parliamentary committee and a
permanent commission.[381:1] Each House provides a panel of its own
members, that of the Commons consisting of not more than fifteen members
appointed by the Committee of Selection.[381:2] There is also an extra
parliamentary panel of twenty men appointed for a term of five years by
the two Chairmen and the Secretary for Scotland. The commission upon
every petition consists of four persons taken from these panels, the
Chairmen of Committees selecting two from the panel of each House, if
possible; if not, they appoint as many of the four as they can from the
two House panels indiscriminately, the remainder in any case being taken
by the Secretary from the extra parliamentary panel.[381:3] The
commission so formed holds its sessions, of course, in Scotland,
proceeds like a committee upon an opposed private bill, and has power to
decide all questions of _locus standi_. It reports to the Secretary
whether the provisional order should be issued and in what form; and he
acts accordingly.[381:4]

[Sidenote: Confirmation by Parliament.]

The order of the Secretary, whether opposed or unopposed, is not final,
but provisional only, and requires confirmation by Parliament. He brings
in a bill to confirm it, and if the order was not opposed in Scotland,
or is not opposed in Parliament, it is treated as if it had already gone
through all the stages up to and including committee, and is ordered to
be considered as if reported from a committee of the House. But the
right of the parties to a hearing in Parliament as the final court of
appeal has been to some extent preserved, for a petition may be
presented against any order that has been opposed, or has been the
subject of a local inquiry, in Scotland, and in that case a motion may
be made to refer the bill to a joint committee, which hears the parties
as in the case of an ordinary private bill, but reports to both Houses.
The question of permitting an appeal to a parliamentary committee in
London was much discussed at the time, and the bill as finally passed
reserved the right, limiting it to a single hearing before a joint
committee, instead of two hearings before separate committees of each
House as in the case of an ordinary private bill. The promoter,
moreover, as well as the opponent, has a right to appeal to Parliament.
If his draft order is refused, he may, without going through the other
preliminary steps, file it in the form of a substitute bill in the
proper public office, and proceed with it like a private bill.[382:1]

The Scotch procedure has thus the effect of a compulsory arbitration in
Scotland, preceding a possible trial at Westminster. It appears,
however, that a Scotch confirmation bill is in fact seldom opposed in
London.

[Sidenote: Ireland and Wales.]

Two years after the Scotch statute was passed, similar acts were
proposed for Ireland and for Wales, but neither of them was passed. A
select committee on a Welsh bill of this kind reported in 1904 that the
Scotch procedure as it stood was not adapted to Wales, and that any
desire in England for a less costly procedure than now existed would
best be met by an extension of the system of provisional orders. The
committee remarked that while most of the witnesses examined thought the
Scotch Act had worked well on the whole, some of them believed there had
been no saving of expense in the case of large schemes. This was
attributed by the witnesses mainly to the cost of bringing counsel and
experts from London, and in fact, the evidence showed no little
difference of opinion about the advantages of the new procedure in
several respects.[382:2] In Ireland there is another obstacle to the
adoption of the Scotch Act; for while local hearings on private bills
would have especial value beyond St. George's Channel, the Nationalists
do not want any form of devolution that leaves the final management of
Irish affairs in the hands of the British Parliament.

[Sidenote: Provisional Orders.]

The vast amount of private legislation enacted in England every year is
due in large measure to the absence of general statutes upon subjects
that would seem to be ripe for them. Year after year private bills are
passed on the same subject, until a policy is established which might
well be crystallised into a general law, leaving the controversies that
arise in its application to be settled by a body of purely judicial
character; or, as in continental countries, a final power of dealing
with these matters might, subject to rules fixed by law, be vested in
the administrative departments. That many costly bills in Parliament
would be saved by passing appropriate statutes has been
suggested,[383:1] yet the process goes on slowly, and so far as it has
been carried it is for the most part incomplete. During the last fifty
years central administrative authority in local and other matters has
increased enormously, but in conferring powers upon public departments
Parliament has been reluctant to give up its own ultimate control over
particular cases. This is especially true of the compulsory sale of land
for public purposes; for property in land still retains a peculiar
sanctity in England.[383:2]

Parliament has, no doubt, in many cases, delegated to the administrative
organs of the state a final authority to grant special powers to local
bodies or private companies, or at least to sanction their use;[383:3]
but in other cases the grant must be laid before the Houses, and does
not go into effect if either of them passes a resolution of
disapproval.[383:4] Sometimes if opposed,[384:1] and more often whether
opposed or not, the orders conferring the powers must be submitted to
Parliament for a formal ratification. This is the origin of provisional
orders. They are issued by a government office under the authority of
statutes, but they are merely provisional until confirmed by Parliament.
Except the Treasury, the Admiralty, and the Indian and Colonial Offices,
which can hardly come into direct touch with local affairs, almost all
the important departments, and even the county councils, have been given
some powers of this kind; and they cover all manner of subjects that
would otherwise be dealt with by private bills.[384:2]

[Sidenote: Procedure upon Provisional Orders.]

Provisional orders are begun by an application to the department that
has power to issue them, and although the standing orders do not as a
rule apply to these applications,[384:3] yet, by the enabling acts, or
by the instructions issued by the departments themselves, similar
regulations about notices, deposit of plans, consent of local
authorities, and so forth, are enforced. The department usually holds,
by means of an inspector, an inquiry on the spot; and either in this or
in some other way objectors who are interested are given a chance to
present their case. Upon the report of the inspector, and such other
information as it obtains, the department decides whether it will make
the order or not.

The orders made are then arranged in groups according to their subjects,
and each group is scheduled to a confirming bill, which is introduced
into Parliament like a public bill by the minister at the head of the
department. But it is not treated as a public bill, still less as a
government bill.

The minister does not try to force it through; he does not put pressure
upon his followers by having the government whips act as tellers in a
division. The measure is treated as a group of private bills, except
that if an order is unopposed an officer of the department appears in
support of it before the committee. The bill is read a first time, sent
to the examiner, read a second time and referred to the Committee of
Selection or the Committee on Railway and Canal Bills. Then if no
petition has been filed against any of the orders in the bill it goes to
the Committee on Unopposed Private Bills; otherwise it goes, with all
the orders it contains, to an ordinary private bill committee which
gives a hearing in the usual form to the promoters and opponents of the
orders that are opposed.[385:1] Finally, the bill goes through the
regular stages in the House.[385:2] In fact the standing orders
direct[385:3] that provisional order bills, after being reported, shall
be subject to the same rules as private bills, except so far as the
payment of fees by the promoters is concerned.

[Sidenote: Advantages of Provisional Orders.]

The question of fees is a very important matter. It is one of the chief
reasons for resorting to a provisional order; because the fees charged
by the Houses to the promoters of private bills are heavy, and in the
case of unopposed bills they form a large part of the cost of obtaining
the act. An unopposed provisional order is, therefore, very much less
expensive than an unopposed private bill; and although, with the large
fees of counsel and expert witnesses, an opposed order may cost as much
or even more than an opposed bill, it has the benefit of the presumption
arising from the action of the department. Moreover, provisional orders,
even if contested before the department, are not commonly opposed in the
House. In the four years from 1898 to 1901 less than one tenth of the
provisional orders were opposed in Parliament, and only one of them
failed to pass.[386:1] It is, indeed, noteworthy that of the 2520
provisional orders issued by the Local Government Board from 1872 to
1902 only 23 were rejected by Parliament.[386:2]

[Sidenote: Defects of Private Bill Legislation.]

[Sidenote: Expense.]

The system of private bill legislation, like the rest of man's
handiwork, is not altogether without defects. One of these is the
costliness of the procedure. A local governing body that wants to do
some obvious and necessary public duty, such as to take land for the
purpose of a new street or schoolhouse, must go to the expense of
getting a provisional order; or if the object happens to be one not
covered by any statute for provisional orders, it must incur the greater
cost of promoting a private bill; and in either case the owner, if
determined to fight to the bitter end, can force the expense up to a
considerable sum. In the House of Commons there is a fee for almost
every step that is taken by the promoters of a private bill; the minimum
fees for the various stages in the House itself taken together are never
less than thirty-five pounds, and they increase according to the amount
involved, up to four times as much. There is, moreover, a fee of ten
pounds for each day that the committee sits, if the promoters appear by
counsel, and of five pounds if they do not. Fees on a smaller scale are
also charged to opponents. Altogether the annual receipts of the House
of Commons from private bill legislation average over forty thousand
pounds, while its expenses on that account are less than twelve
thousand.[386:3] In the House of Lords the fees are arranged somewhat
differently, but they are, on the whole, about as large;[386:4] so that
the parliamentary charges on the smallest unopposed private bill amount
to over one hundred and ninety pounds. Then there are the expenses of
parliamentary and local agents, of printing, advertising, and, in the
case of opposed bills, of counsel, witnesses, and experts. Sometimes,
all this makes a very large sum. Birmingham, for example, spent £44,750
in 1892 in promoting a single bill.[387:1]

The total amount spent by local authorities in the United Kingdom during
the seven years from 1892 to 1898 in promoting and opposing private
bills was £1,396,407, while private companies expended for the same
purpose £2,806,813. Adding the smaller sums spent on provisional orders,
and those paid out by harbour and dock boards, the grand total consumed
in private legislation was £4,496,834.[387:2] The cost of opposed bills
cannot be materially reduced by Parliament if the present system is to
be maintained; and while this is not true of unopposed bills, it has
been argued that high fees are an earnest of good faith and tend to
check private speculation in concessions.

[Sidenote: Neglect of the Public Interest.]

A second defect in the system is a lack of sufficient attention to the
interests of the public. As early as 1865 it struck observers that,
apart from certain partial safeguards, the public had no friend in this
class of legislation.[387:3]

The fact is that private bill committees are chiefly occupied by a
hearing between conflicting interests, in which a citizen whose only
motive for appearing is the general welfare has no _locus
standi_.[387:4] Moreover, they are shifting tribunals, whose decisions
are uncertain, and whose very nature renders a consistent policy
extremely difficult. In fact it is this uncertainty that often causes
promoters to try the chance of a private bill, rather than apply for a
provisional order on the same subject to a public department that is
trying to enforce a well-known policy at variance in some respects with
the powers the promoter is seeking to obtain.

The committees are sometimes willing to grant new and unusual powers,
without enough regard for the ultimate effect of the precedent they
create. This has been specially true in the case of borough councils,
and was a cause of no small complaint before the Committee on Municipal
Trading in 1900.

[Sidenote: Effect of the Standing Orders.]

There are, indeed, certain means of preserving uniformity of action that
are more or less effective. The first of these are the standing orders,
which lay down some rules for the guidance of the committees, and
prescribe a few provisions that must be inserted in certain classes of
bills. They do not, however, go very far.

[Sidenote: Clauses Acts and Model Bills.]

Then there are the clauses acts, of various kinds, which are practically
always incorporated--though not without additions or exceptions--in
private bills on the subjects with which they deal. There are, also, the
model bills, which have been carefully drawn up as standards for the
committees to follow, although they are by no means obliged to do so.
But all these things tend merely to maintain uniformity in legislation
of a well-recognised type, along familiar lines. They have little effect
in cases where a request is made for new and unusual powers. Cases of
that kind are not, indeed, wholly without supervision. If a bill deals
with local police or health, it goes before the Police and Sanitary
Committee created by the House of Commons for the very purpose of
preserving a consistent policy in such matters, and of no small use in
that way.[388:1] But this is true only for a very limited class of
measures.

[Sidenote: The Government Departments.]

The only general oversight comes from the government departments, and
the officers of Parliament. It has already been pointed out that all
private bills must be referred to one or more of the departments, and
that these are sometimes obliged, and always at liberty, to make reports
upon them. The reports go to the private bill committees, which are
required to notice the recommendations therein in their own reports to
the House. The suggestions cannot, therefore, be entirely ignored, but
the departments have no means of enforcing them. The Home Office is,
indeed, always represented before the Committee on Police and Sanitary
Bills,[389:1] but it is rarely asked to attend before others;[389:2]
and, in general, it may be said that for a department to communicate
with the committees save by its written reports is somewhat
exceptional.[389:3] On novel questions of policy, moreover, the
departments seem to follow rather than lead the private bill
committees.[389:4]

[Sidenote: Chairman of Ways and Means.]

The officers of the Houses of Parliament have a more effective
influence. Under the standing orders of the Commons all private bills
must be shown to the Chairman of Ways and Means, both before they are
considered by a committee and after any amendments have been
made.[389:5] When sitting in the Committee on Unopposed Bills, he
frequently requires the agent of the promoters to omit or insert
clauses,[389:6] and occasionally he draws the attention of the chairman
of a private bill committee to an extraordinary provision; but he does
not feel it his duty to try to secure a general uniformity in private
bills.[389:7] In fact, he is so busy that he can examine personally only
a small part of them.[389:8] The appointment of a Deputy Chairman has
been an assistance in this way.[389:9] But the work is mainly done by
the Counsel to Mr. Speaker, who reads all the bills; makes a careful
analysis of them, noting the reports from the government departments;
sees the agents about any amendments he has to suggest; and calls the
attention of the Chairman of Ways and Means to any matters that may
require it.[389:10] Sometimes he is consulted by the chairman of a
private bill committee;[390:1] while the paid referee, on account of his
large experience, had formerly some influence with the committees.[390:2]

[Sidenote: The Lord Chairman.]

But by far the most important officer of Parliament in this respect is
the Chairman of Committees in the House of Lords, the Lord Chairman, as
he is called. Being less busy with public affairs than the House
Chairman, he is able to devote much more time to private bill
legislation. He examines all the bills, even reading those introduced
into the House of Commons before the Speaker's Counsel sees them;[390:3]
and he is in constant communication with the Chairman of Ways and Means,
and with the government departments.[390:4] He does not, as a rule, act
directly upon the private bill committees,[390:5] but he confers with
the promoters of the bills or their agents, and explains to them what
changes he requires them to make. In such cases the promoters usually
comply with his wishes. In fact they are practically obliged to do so or
withdraw their bill, because the second and third readings of private
bills in the House of Lords are always moved by the Lord Chairman, who
would simply refuse to act if his advice were not accepted. Of course,
some other peer might make the motion and carry it, but this is said to
have happened only once within living memory.[390:6] The Lord Chairman
examines provisional orders less thoroughly, and if they contain
objectionable provisions he confers with the department that is
responsible for them rather than with the promoters.[390:7]

The greatest obstacles which the Lord Chairman meets with come from what
are known as "agreed clauses," that is, clauses agreed upon between
opponents and promoters of the bill. These in most cases are accepted
without much examination by the private bill committees. The Lord
Chairman tries to strike them out when he deems them against public
policy; but this is not always easy, because it may be an injustice to
one of the parties who has consented not to urge or oppose other
provisions on the faith of those clauses. Moreover, even if the clauses
are struck out of the bill, they may still be operative in fact, as the
persons interested often feel bound in honour to carry them out. The
matter has a very important bearing on the subject of municipal
trading,[391:1] that is, the supply of public utilities by companies and
public bodies, and it will be noticed hereafter in that connection. It
is curious that the protection of the public interest in private bill
legislation should depend very largely on the action of one man, and
that man not the holder of a representative office or responsible to the
public, but a member of an hereditary chamber who practically holds his
post as long as he pleases.

[Sidenote: Merits of the System.]

If the English system of private bill legislation has its defects, they
are far more than outweighed by its merits. The curse of most
representative bodies at the present day is the tendency of the members
to urge the interests of their localities or their constituents. It is
this more than anything else that has brought legislatures into
discredit, and has made them appear to be concerned with a tangled skein
of private interests rather than with the public welfare.[391:2] It is
this that makes possible the American boss, who draws his resources from
his profession of private bill broker. Now the very essence of the
English system lies in the fact that it tends to remove private and
local bills from the general field of political discussion, and thus
helps to rivet the attention of Parliament upon public matters. A
ministry stands or falls upon its general legislative and
administrative record, and not because it has offended one member by
opposing the demands of a powerful company, and another by ignoring the
desires of a borough council.

[Sidenote: It Depends on the Support of the Committees by the House.]

Such a condition would not be possible unless Parliament was willing to
leave private legislation in the main to small impartial committees, and
abide by their judgment. If this were not true--and it would not be true
in most other legislatures--the promoters and opponents of the bill
would attempt to forestall or reverse the decisions of the committees on
the floor of the House, and would try to enlist the support of the
members in their favour. That is, indeed, occasionally done, and has
called forth no small complaint. Perhaps the most notable instance of
late years was that of the bills for the organisation of companies to
supply electric power in Durham and South Wales. The bills were opposed
on the ground both of public policy and of local interest, and were
rejected by the House of Commons in 1899 under the powerful influence of
the Association of Municipal Corporations. Public feeling was, however,
aroused, and the bills were passed in 1901.

In the very nature of things Parliament must have power to overrule the
private bill committees, and sometimes does so, but the permanence of
the system depends upon the fact that it is not done often. The
question, therefore, whether there is a growing tendency to override the
committees is a very interesting one. Such meagre statistics as have
been collected would appear to show that there has been a slight
increase in the number of bills opposed on second and third reading, and
in the number of instructions to committees that have been moved,[392:1]
as well as in the amount of time spent in the House in debating these
matters.[392:2] It seems, also, to be the general opinion of men in
close touch with private bill practice, that the habit of overruling the
committees has gained ground of late years, but fortunately not to any
dangerous extent.[393:1]

FOOTNOTES:

[367:1] For the History of this subject see Clifford's "History of
Private Bill Legislation."

[367:2] The distinction between public and private bills, and public and
private acts is not the same. The former depends upon the nature of the
procedure in Parliament; while acts are classified as (1) Public General
Acts, (2) Local Acts, which have the same legal effect as public acts,
but apply only to a particular locality, and may relate to an organ of
local government or a company; (3) Private Acts--now few in
number--which are of a personal nature, and are not taken notice of by
courts unless specially pleaded. With some exceptions that will appear
sufficiently in the text, the acts in classes (2) and (3) do, and those
in class (1) do not, go through the procedure of private bills.

[368:1]

[Sidenote: Hybrid Bills.]

_Cf._ May, 634-43. Ilbert, "Leg. Methods and Forms," 29-32. Moreover, as
measures intended primarily to affect particular places, may, on account
of their far-reaching importance, be treated as public bills, so others
designed for public objects may interfere in a peculiar way with private
interests. Measures of either kind are sometimes, under the name of
"Hybrid Bills," put through a mixed procedure. They are introduced as
public bills, and then referred to a private bill committee, which is,
however, larger than an ordinary committee of that kind, the members
being appointed partly by the House and partly by the Committee of
Selection. A procedure of this sort is required in the case of bills of
the London County Council for raising loans (S.O.P.B. 194).

[368:2] To distinguish between the two classes of standing orders the
numbers of those relating to public business are printed in the
parliamentary papers in bold-faced type. But in the footnotes to this
book those relating to private business are referred to as S.O.P.B. The
references are to the standing orders as revised in 1903, because a
number of changes were made in that year in pursuance of the
recommendations of the Select Committee of 1902. The statements in this
chapter relate to the procedure in the House of Commons; for the
practice in the House of Lords is so nearly the same in almost all
essential points, that it is enough to indicate the more important
differences in the text or in the notes. A memorandum on the differences
in detail may be found in the Report of the Committee on Private
Business (Com. Papers, 1902, VII., 321, App. 15).

[369:1] The rules about notice are contained in S.O.P.B. 3-22. See also
May, 680-81.

[369:2] S.O.P.B. 23-31.

[369:3] _Ibid._, 32-34.

[369:4] _Ibid._, 35-37, 55-59. By the so-called Wharncliffe Order a
special meeting of the members of any company must be held to authorise
or ratify an application for a private bill. _Ibid._, 62-68.

[369:5] S.O.P.B. 69-78.

[369:6] May, 682; _cf._ Clifford, 788-95.

[369:7] S.O.P.B. 69-78, 230-32. May, 683-91.

[370:1] The legislative procedure in the House is regulated by Part IV.
(193-226) of the Standing Orders Relating to Private Business; the
conduct of the Private Bill Office by Part V. (227-49); the judicial
procedure before private bill committees, with the supervision thereof
by the officers of the House, and the prescription of provisions that
must, or must not, be inserted, by Part III. (69-162).

[370:2] Rep. of Sel. Com. on Priv. Business, Com. Papers, 1888, XVI., 1,
Q. 340; Rep. of a similar Com., Com. Papers, 1902, VII., 321, Qs. 193,
1957-5. Formerly many more private bills began in the Commons than in
the Lords, but now the numbers are not very far from the same. _Ibid._,
Q. 337, and App. 8.

[370:3] Until 1903 the division of bills between the two Houses was not
made until after Parliament met. _Ibid._, Qs. 166-68, 197. But the
committee of 1902 recommended a change which was made (_Ibid._, Report
Sect. 18 S.O.P.B. 79).

[371:1] S.O.P.B. 91-97. There is a committee with similar powers in the
House of Lords, composed of forty peers, besides the Chairman of
Committees who with any two other members forms a quorum. May, 796.

[371:2] S.O.P.B. 197. This is a change made in accordance with the
report of the Select Committee of 1902. Before that time a vote, though
a formal one, took place on the first reading.

[371:3] Clifford, I., 70-71, 256; II., 821-43. Rep. of Com. on Priv.
Bill Leg., Com. Papers, 1888, XVI., 1, p. xix.

[372:1] In the Lords the committees on opposed bills consist of five
members and the chairman has no casting vote. In the Commons he has both
an ordinary and a casting vote, S.O.P.B. 124. In the Lords there is no
Committee on Railway and Canal Bills.

[372:2] S.O.P.B. 98, 103, 105-6, 108, 110-13, 116-17, 208. Until a few
years ago there was a paid referee who could sit on the committee with
an advisory voice but no vote. May, 728. There were formerly two paid
referees, and later only one.

[372:3] Clifford, I., 117.

[372:4] S.O.P.B. 98-106, 115, 208.

[373:1] May, 767. Ilbert, "Manual," § 92, and p. 294. It is appointed by
the Committee of Selection.

[373:2] S.O.P.B. 127-28. If the bill is brought from the House of Lords,
or delayed in any other way, the petition must be filed within ten days
of the first reading.

[373:3] May, 733.

[373:4] S.O.P.B. 87-89. Until 1902 the Speaker's Counsel and the paid
referee were members, and the important members, of the court.

[374:1] Rep. Com. on Priv. Bill Leg., Com. Papers, 1888, XVI., 1, p.
iv., and see the evidence before the Committee on Private Business, Com.
Papers, 1902, VII., 321.

[374:2] S.O.P.B. 129-35. These precedents are collected in the reports
of cases in the Court of Referees, by Rickards and Saunders, and
Saunders and Austin.

[374:3] By the Borough Funds Act of 1872 the expense of promoting a
private bill cannot be incurred by a local authority unless sanctioned
by a meeting of the rate-payers. Glen, "Law of Public Health," 12 Ed.,
483, 967-68. But this does not apply to matters for which provisional
orders can be obtained. _Ibid._, 970; _cf._ Rep. of Com. on Priv.
Business, Com. Papers, 1902, VII., 321, Qs. 2242, 2290-92, 2329-31. By
the Borough Funds Act, 1903, no such sanction is required for opposing a
private bill.

[374:4] _Cf._ May, 734-52.

[374:5] But usually only in case they appear as a class. S.O.P.B. 133;
May, 735.

[375:1] Rep. of Com. on Municipal Trading, Com. Papers, 1900, VII., 183,
Qs. 576, 582, 2377.

[375:2] If the Court of Referees thinks fit. S.O.P.B. 133a. This
provision is not restricted to cases of competition.

[375:3] May, 691-93.

[375:4] By custom, parliamentary counsel are never appointed to the
bench, and as they cannot enter Parliament without giving up their
practice, they are shut out from a political career.

[375:5] May, 781-82.

[376:1] _Cf._ S.O.P.B. 154, 155, 157a, 158b, 173, 194c.

[376:2] S.O.P.B. 212.

[376:3] _Ibid._, 150, 157, 157a, 173a, 194c, 194d.

[377:1] Rep. Com. on Municipal Trading, Com. Papers, 1900, VII., 1, Qs.
569, 985.

[377:2] _Cf._ S.O.P.B. 79-86.

[377:3] The total number of private bills that come before the House of
Commons runs from 150 to 250 a year, and of these about one half are
unopposed in that House. There are also about 50 unopposed provisional
orders.

[377:4] _Cf._ S.O.P.B. (1902) 109, 137. For bills originating in the
House the third man was the member indorsing the bill. But this member,
if interested, locally or otherwise, although taking part in other ways,
could not vote. S.O.P.B. (1902) 139, now S.O.P.B. 138. For bills coming
from the House of Lords he was Mr. Parker Smith, M.P. Rep. Com. on Priv.
Business, Com. Papers, 1902, VII., 321, Qs. 23, 68-69, 368; and see the
Return printed yearly in the Commons Papers of the persons who served on
the committee for each unopposed bill.

In the Lords the Committee on unopposed bills consists of the Chairman
of Committees and such lords as think fit to attend, but the work is
practically done by the Chairman and his counsel. May, 801. Rep. Com. on
Priv. Business, Com. Papers, 1902, VII., 321, Qs. 1961, 1984-85, 2096,
2099-2104.

[377:5] Com. Papers, 1902, VII., 321, pp. viii-ix.

[378:1] S.O.P.B. 109.

[378:2] Rep. Com. on Priv. Business, Com. Papers, 1902, VII., 321, Qs.
25, 27, 72-73, 1393, 1405-8.

[378:3] S.O.P.B. 83, 209.

[378:4] Rep. Com. on Priv. Business, Com. Papers, 1902, VII., 321, Qs.
75-76, 1410-12.

[378:5] _Ibid._, Q. 1391.

[378:6] S.O.P.B. 213.

[379:1] S.O.P.B. 81, 84, 85, 215-16, 218. Amendments made by the Lords
must also be laid before the Chairman of Ways and Means. _Ibid._, 86.
Before consideration bills must also be sent again to the government
departments where they have to be deposited before they are introduced.
_Ibid._, 84.

[379:2] S.O.P.B. 219. In the House of Lords there is no consideration or
report stage, and substantial amendments may be made on third reading.
Rep. of Com. on Priv. Business, Com. Papers, 1902, VII., 321, App. 15.

[379:3] _Cf._ May, Ch. xxix.

[379:4] _Cf._ Reps. of the Sel. Coms. of 1888 and 1902, Com. Papers,
1888, XVI., 1; 1902, VII., 321.

[379:5] _Cf._ Rep. of Com. on Priv. Business, Com. Papers, 1902, VII.,
321, Apps. 8, 12.

[380:1] 62-63 Vic., c. 47. Section 15 of the act empowers the Lord
Chairman of Committees and the Chairman of Ways and Means, acting
jointly with the Secretary for Scotland, to make, subject to objection
by either House, general orders for regulating proceedings under the
Act. These orders, which are voluminous, may be found in Com. Papers,
1900, LXVII., 649. A few standing orders for Scotch bills are published
as Part VI. of the Standing Orders relating to Private Business.

[381:1] Rep. of Com. on Priv. Bill Proc. (Scotland), Com. Papers, 1898,
XI., 625.

[381:2] S.O.P.B. 253.

[381:3] The parliamentary returns show that of the dozen persons
required each year to make three commissions on groups of petitions, it
has been necessary to take only a couple of names from the extra
parliamentary panel.

[381:4] By § 8 if the commission report that the order be issued, he may
amend their draft.

[382:1] S.O.P.B. 255-58.

[382:2] Com. Papers, 1904, VI., 409.

[383:1] _E.g._ Rep. of Com. on Police and Sanitary Bills, Com. Papers,
1898, XI., 555; Rep. of Com. on Priv. Business, Com. Papers, 1902, VII.,
321, p. vii.

[383:2] The cases where land can be taken compulsorily without
confirmation by Parliament, are few, and are in the main confined to
widening highways, enlarging public buildings, providing for national
defence, furnishing allotments to labourers, and acquiring land for
parish purposes. The most striking departure from the rule is in the Act
of 1896 for the construction of light railways. _Cf._ Ilbert, "Leg.
Methods and Forms," 320.

[383:3] This applies to many matters connected with local government. It
is true also of the construction of light railways. 59-60 Vic., c. 48, §
9.

[383:4] This is true, for example, of certificates granted by the Board
of Trade to railways, for raising capital, working agreements, and other
matters.

[384:1] To this class belong the orders for providing dwellings for the
working classes, granting charters to municipal boroughs, changing the
boundaries of divided parishes, constructing tramways in Ireland, etc.

[384:2] For a description of the various statutes giving authority to
issue provisional orders see Clifford, Ch. xviii., and May, Ch. xxvi.,
and for a more exhaustive list of those relating to the Local Government
Board see Rep. of Com. on Priv. Business, Com. Papers, 1902, VII., 321,
App. 10.

[384:3] The only ones that apply are S.O.P.B. 38 and 39 about replacing
workmen's dwellings and the deposit of plans.

[385:1] S.O.P.B. 208a.

[385:2] In the House of Lords an unopposed bill, like a public bill, is
referred after second reading to a Committee of the Whole. An opposed
order goes to a private bill committee, and then, with the rest of the
bill to a Committee of the Whole.

[385:3] S.O.P.B. 151.

[386:1] Rep. of Com. on Priv. Business, Com. Papers, 1902, VII., 321,
App. 11.

[386:2] _Ibid._, p. 185.

[386:3] _Ibid._, App. 6.

[386:4] _Ibid._, App. 15, and see the tables appended to the standing
orders.

[387:1] Return of Expense of Private Bill Legislation, 1892-98, Com.
Papers, 1900, LXVII., 111, p. 7.

[387:2] _Ibid._, 187, p. 66. See also the returns for the preceding
seven years in Com. Papers, 1892, LXIII., 51.

[387:3] Clifford, II., 800.

[387:4] At the local inquiries held by the departments for the purpose
of issuing provisional orders, any resident of the district has, in some
cases, at least, a right to be heard. Macassey, "Private Bills and
Provisional Orders," 388, 418.

[388:1] Rep. of Com. on Municipal Trading, Com. Papers, 1900, VII., 183,
Qs. 421, 423.

[389:1] Rep. of the Com. on Municipal Trading, Com. Papers, 1900, VII.,
183, Q. 987; Rep. of the Com. on Priv. Business, Com. Papers, 1902,
VII., 321, Qs. 2368-69, 2403-4.

[389:2] Rep. of Com. on Priv. Business, 1902, VII., 321, Qs. 2378,
2401-2.

[389:3] Rep. of Com. on Municipal Trading, 1900, VII., 183, Qs. 233-34.

[389:4] _Cf. Ibid._, Qs. 3, 103, 145, and 1063.

[389:5] S.O.P.B. 80.

[389:6] Rep. of Committee on Priv. Business, 1902, VII., 321, Qs. 403-5.

[389:7] _Ibid._, Qs. 391-94.

[389:8] _Ibid._, Q. 2327.

[389:9] _Ibid_., Qs. 85-87.

[389:10] Rep. of Com. on Priv. Bill Legislation, Com. Papers, 1888,
XVI., 1, Qs. 340-42.

[390:1] Rep. of Com. on Priv. Bill Legislation, Com. Papers, 1888, XVI.,
I., Qs. 348. Rep. of Com. on Municipal Trading, 1900, VII., 183, Q. 545.

[390:2] Rep. of Com. on Municipal Trading, 1900, VII., 183, Qs. 2372,
2393, and 2399.

[390:3] Rep. of Com. on Priv. Business, 1902, VII., 321, Q. 248.

[390:4] Rep. on Municipal Trading, 1900, VII., 183, Q. 3915.

[390:5] _Ibid._, Qs. 290-91 and 3923-24.

[390:6] _Ibid._, Qs. 284-85, 390, 3912, 3920, 3922; Rep. of Com. on
Priv. Business, 1902, VII., 321, Qs. 77-80, 214-15.

[390:7] Rep. on Municipal Trading, 1900, VII., 183, Qs. 454-55 and
3917-18.

[391:1] _Cf._ Rep. on Municipal Trading, 1900, VII., 183, Qs. 298,
341-44, 347, 3939-41.

[391:2] For a careful study from this point of view of a fairly good
legislative body, by one of its members well fitted to observe, see an
article by Francis C. Lowell, in the _Atlantic Monthly_, LXXIX., 366-77,
March, 1897.

[392:1] In the five years 1891-95 the number of bills opposed on second
reading averaged 17-3/5, while from 1897-1901 they averaged 32. Rep. of
Com. on Priv. Business, 1902, VII., 321, Q. 218.

[392:2] Rep. of Com. on Priv. Business, 1902, VII., 321, App. 2. But
these periods are too short to warrant any accurate conclusion. In not
more than eight or nine per cent. of the cases does the opposition seem
to have succeeded. _Ibid._, Q. 219-20.

[393:1] _Cf._ Rep. of Com. on Priv. Bill Leg., Com. Papers, 1888, XVI.,
1, Qs. 346-47, 487-88, 553, 1244. Rep. of Com. on Municipal Trading,
1900, VII., 183, Qs. 519, 523-26, 529. Com. on Priv. Business, 1902,
VII., 321, Qs. 42-43. In conversation the writer found the opinion that
the habit was increasing substantially universal.

When the Speaker's Counsel hears that opposition in the House is likely
to be made, he sometimes tries to prevent it by arranging for a
conference between the promoters and opponents in the presence of the
Chairman of Ways and Means. Rep. of Com. on Priv. Bill Legislation,
1888, XVI., 1, Q. 346.

CHAPTER XXI

THE HOUSE OF LORDS

Tracing its origin to the ancient council of the magnates of the realm,
the House of Lords has, in the fulness of time, undergone several
changes of character.[394:1] From a meeting of the Great Council of the
King, it became an assembly of his principal vassals, the chief
landholders of the Kingdom, ecclesiastical and lay; and finally it was
gradually transformed into a chamber of hereditary peers, enjoying their
honours by virtue of a grant from the Crown. Each phase has left a trace
upon its organisation or functions, or upon the privileges of its
members.

[Sidenote: Composition of the House.]

Before the Reformation the ecclesiastics in the House of Lords,[394:2]
including the abbots and priors, usually outnumbered the laymen; but
upon the dissolution of the monasteries, and the disappearance therewith
of the abbots and priors, the proportions were reversed, and the
hereditary element became predominant. At present the House contains
several kinds of members, for it must be remembered that every peer has
not a right to sit, and all members of the House are not in every
respect peers.

[Sidenote: The Hereditary Peers.]

First there are the peers with hereditary seats. They are the peers of
England, created before the union with Scotland in 1707; the peers of
Great Britain created between that time and the union with Ireland in
1801; and the peers of the United Kingdom created thereafter. They rank
as dukes, marquises, earls, viscounts, and barons, whose precedence,
with that of their wives and children, furnishes abundant interest to
those who care for such things. The Crown, that is, the ministry of the
day, has unlimited power to create hereditary peerages with any rules of
descent known to the law in the case of estates in land,[395:1] and
since the accession of George III. the power has been freely used. All
but seventy-four out of nearly six hundred seats belong to this class,
which is now the only channel for an increase in the membership of the
House.

[Sidenote: The Representative Peers of Scotland.]

When the union with Scotland was made in 1707, the Scotch peers were
more numerous in proportion to population than the English; and
therefore, instead of admitting them all to the House of Lords, it was
provided that they should elect sixteen representatives of their order
for the duration of each Parliament. No provision was made for the
creation of new Scotch peers, so that with the dying out of peerages,
and the giving of hereditary seats to Scotch noblemen by creating them
peers of the United Kingdom,[395:2] the number of Scotch peers who have
no seats in their own right has fallen from one hundred and sixty-five
to thirty-three. Within another generation they may not be more than
enough to furnish the sixteen representatives.

[Sidenote: Of Ireland.]

The same problem arose upon the union with Ireland a hundred years
later; but the Scotch precedent was not followed in all respects; for
the act provided that the Irish peers should elect twenty-eight of their
number representatives for life, and an arrangement was also made for
perpetuating the nobility of Ireland within certain limits. Not more
than one new Irish peerage was to be created for every three that became
extinct, until the number--exclusive of those having hereditary seats in
the House of Lords under other titles--had fallen to one hundred, a
limit above which it can never be raised.[396:1] There is another
important difference between the Scotch and Irish peers. The former are
wholly excluded from the House of Commons, but the latter can sit for
any constituency in Great Britain, though not in Ireland. Under this
provision Irish peers have, in fact, often sat in the Commons, the most
famous case being that of Lord Palmerston. The Irish peerage thus
affords an opportunity to ennoble a statesman, without putting an end to
his political career in the popular chamber.

[Sidenote: The Bishops.]

The dissolution of the monasteries, by removing the abbots and priors
from the House of Lords, left the bishops the only spiritual peers; and
as such they have held their seats to the present day. By the time the
union with Scotland was made, the established church of that kingdom was
Presbyterian in form, and no Scotch ecclesiastics were added to the
House of Lords. But the Irish established church was Episcopal and
Protestant, and hence at the union with Ireland in 1801 four places were
given to her bishops, who filled them by rotation sitting for a session
apiece. With the disestablishment of the Irish Church in 1869 its
representatives vanished from Parliament, leaving the English prelates
as the only spiritual peers in the House of Lords.[396:2] Meanwhile the
greater attention paid to the needs of the Church has brought about the
creation of new bishoprics in England; but in order not to increase the
number of spiritual peers, it has been provided that while the
Archbishops of Canterbury and York, with the Bishops of London, Durham,
and Winchester, shall always have seats in the House of Lords, of the
rest only the twenty-one shall sit who are seniors in the order of
appointment.[396:3] The spiritual peers are members of the House solely
by virtue of their office, and so long as they retain it. Except, in
fact, for the five great sees they are members only by virtue of
seniority in office. At times the Nonconformists have tried to exclude
them altogether; but with the growth in the number of lay peers their
relative importance has diminished, and it is not probable that they
will be removed, unless as part of a larger movement for the reform of
the House of Lords, or the disestablishment of the Church.

[Sidenote: Life Peers.]

[Sidenote: The Case of Baron Wensleydale.]

Since the House of Lords is not only a legislative chamber, but also the
highest court of appeal for the British Isles, it is well that it should
contain at all times the legal talent required for the purpose. An
obvious method of accomplishing the result, without permanently
enlarging the House, or hampering the career of heirs who may not have
the wealth to support the dignity, is by giving seats for life to
eminent judges. With this object Sir James Parke, a distinguished baron
of the Court of Exchequer, received in 1856 a patent as Baron
Wensleydale for life. Much learning has been expended upon the question
whether the Crown has ever exercised the power to create a life peer
with a seat in the House of Lords,[397:1] and whether, if it ever
existed, the power has become obsolete; but the Wensleydale case was
settled by a vote of the House that the Letters Patent did not enable
the grantee to sit and vote in Parliament. Sir James Parke was thereupon
created Baron Wensleydale with an hereditary title, and the appointment
of Law Lords as life peers was postponed a score of years.

[Sidenote: The Lords of Appeal.]

At last the need for increasing the legal members of the House became so
clear that in 1876 an act was passed to authorise the appointment of
two, and ultimately of four, Lords of Appeal in Ordinary for
life.[397:2] They hold the position, and enjoy a salary of six thousand
pounds, on the same tenure as other judges; and since 1887 they have
also had a right to sit in the House as long as they live, irrespective
of their tenure of the office. The motive for their creation was simply
to strengthen the House of Lords as a court of appeal. Proposals for
life peerages on a more extended scale have also been made in connection
with plans to reform the House of Lords as a branch of Parliament. So
far these have come to nothing; and, as we shall see hereafter, it is by
no means clear that they would attain the end in view, or that, if they
did, they would be wise.

[Sidenote: The House Determines the Qualification of its Members.]

The authority of the House of Lords to determine the validity of new
patents has already been referred to in connection with the Wensleydale
case. It is also empowered by statute to pass upon the election of
Scotch and Irish representative peers. Disputed claims to the succession
of hereditary peerages, on the other hand, may be settled by the Crown
on its own authority, but it is the habit at the present day to refer
these likewise for decision to the Lords.[398:1]

[Sidenote: Disqualifications.]

Infants, aliens, bankrupts, and persons under sentence for grave
offences, are incapable of sitting in the House of Lords;[398:2] and
instances occurred in the seventeenth century of special sentence of
exclusion by the House itself. But more important from a political point
of view than the disqualifications for the upper chamber is the fact
that a peer cannot escape from the peerage. This is sometimes a
misfortune when a man, who has made his mark in the House of Commons,
has an obscure greatness thrust upon him by the untimely death of his
father. In such a case he loses at once and forever his seat in the
House where the active warfare of politics goes on, and this although he
may be a Scotch peer, who has no seat in the House of Lords. The
question was debated at some length in 1895, when Lord Selborne tried to
retain his seat in the Commons by omitting to apply for a writ of
summons as a peer; but the Commons decided that he could not do
so.[398:3]

[Sidenote: Personal Privileges of the Peers.]

Besides the liberty of speech and freedom from arrest which they
possess in common with the members of the other House, the peers, partly
in memory of their position as councillors of the Crown, partly as an
aftermath of feudal conditions, retain certain personal privileges, of
small political importance, but sometimes of interest to the person
concerned. One of these is the right of access to the sovereign for the
purpose of an audience on public affairs. Another is the right to be
tried by their peers in all cases of treason or felony.[399:1] If
Parliament is in session, the trial is conducted by the whole House of
Lords, presided over by the Lord High Steward appointed by the Crown. If
not it takes place in the court of the Lord High Steward, to which,
however, all the peers are summoned.[399:2] The privilege extends to the