THE LAW AND CUSTOM OF THE CONSTITUTION PART II THE CROWN BY SIR WILLIAM R. ANSON, BART., D.C.L. M OF THE INNER TEMPLE, BARRISTER-AT-LAW WARDEN OF ALL SOULS COLLEGE, OXFORD SECOND EDITION LIBRARY OF THE UNIVERSITY OF CALIFORNIA AT THE CLARENDON PRESS LONDON: HENRY FROWDE OXFORD UNIVERSITY PRESS WAREHOUSE, AMEN CORNER AND STEVENS & SONS, LIMITED 119 & 120 CHANCERY LANE 1896 PREFACE TO THE FIRST EDITION I REGRET that the second part of my work on the Constitution should have been so long in following its predecessor, and that it should not be better worth waiting for. For the delay I am not wholly in fault; for the shortcomings I can only plead a capacity unequal to the task which I undertook with a light heart, which I have pursued with interest and pleasure, and now conclude with misgiving. I have tried to show how the executive government of this Empire is conducted-to draw a picture of the executive as distinct from the legislature,-of the Crown in Council as distinct from the Crown in Parliament. Of the difficulties which I have experienced, two stand out prominently before me. I think that any one will find it difficult to describe faithfully the daily working of a business with which he is not practically conversant. I have found it so in the course of my endeavour to describe the working of the departments of government. In spite of the kindest and most generous help from many friends who have the details at their command, I fear that I have not done justice to their efforts on my behalf. But my greatest difficulty has been to arrange my subject. I wished to show how the business of government is carried on; who settles what is to be done; who acts; on what authority; and in what manner. In order to do this, and to do it within reasonable compass, I have omitted two matters, which I have found to occupy a place in other treatises. The royal prerogatives set forth at length 81880 by Blackstone are either attributes ascribed to royalty by lawyers, or are powers exercised through departments of government. As such I have dealt with them, and my chapter on the prerogative will be found to contain, apart from history, only an account of what the Crown actually does, at the present day, in the choice of ministers, the settlement of policy, and the business of administration. Another matter with which I have not specially dealt is the conflict which has from time to time arisen between the rights of the subject and the assertion of rights by the executive officer. It does but illustrate the working of that 'rule of law' which, as Mr. Dicey has impressed upon his readers, is a marked feature in our constitution. I have noted the exceptional position of persons subject to ecclesiastical or military law, and I have noted also the circumstances under which the Crown and its servants enjoy any special privileges or immunities in the administration of justice; but having once stated the principle that the King's command cannot excuse a wrongful act, and the fact that the Crown has no longer the power to control the action of the Courts, I have not made these matters the subject of any special treatment or illustration. I could but have said over again, what Mr. Dicey has set forth once for all, that in the relations of the Crown and its servants to the subjects of the Queen the rules of Common Law prevail. Omitting these topics, which I conceived to be either useless or irrelevant to my purpose, I had still to arrange, in their proper places, the parts which the Crown plays in the work of government; the composition and action of the Cabinet-the determining power in the constitution; the departments of government which carry out the policy accepted by the Crown, on the advice of the Cabinet; and the working of these departments over the vast area of the Queen's dominions; finally I had to state the relations in which the Crown stands to the Churches, and to the Law Courts of the United Kingdom and the Empire. Of the arrangement which I have adopted, I will only say that it represents an anxious effort to supply the student with the information which he requires, and to supply it in the place and order in which he might reasonably expect to find it. As to the information itself, I have had to collect it from many sources. Of books dealing with the subject in its entirety, I have found the fullest and the most serviceable to be the work of Mr. Alpheus Todd on Parliamentary Government in England,' but for the most part I have had to go to special treatises, to Parliamentary papers, or, directly, to the various government offices. For the kindness of members of many of the departments of government, I find it hard to express my gratitude in terms satisfactory to myself. If I do not make more than this general acknowledgement now, it is because I am unwilling to associate their respected names with a work which may perhaps prove to be a failure. If my book should meet with such approval as to need another edition, it will be my pleasure as well as my duty to thank them individually. It may be thought that the historical matter which I have found it necessary to introduce, occupies too large a space. I can only say that I found it impossible to explain the present, without such reference to the past. Nor can I regret that this should be so. For when we contemplate our institutions in their monumental dignity, and the world-wide span of our Empire, it is well to remember the patience and courage of our forefathers, and the long line of kings and queens and statesmen, often conspicuously great in force of purpose and vigour of intellect, to whom we owe what we now possess. It would be a mean thing, even if it were possible, to take stock of our inheritance without asking how we came by it. But it is not possible. If it is difficult to dissociate law from history in any branch of legal study, least of all can this be done in describing the fabric and machinery of an ancient state. I will not |