Delphi Complete Works of Stephen Leacock, page 702
This dependence on habit, or custom runs all down the history and all across the practice of British Government, from the Saxon Heptarchy to the present Commonwealth of Nations. The world has always been very old. There has always been a good old way of doing things, and this, by their temperament, the British people prefer. A new law is made by calling it an old law, as was done in the Magna Charta of 1215 — and already an old trick at that.
Nor is this system mere antiquity. It follows us down. We no sooner set up an organization by law than it gathers round it in the current of history a set of customs, a way of doing things, as watercress gathers in a running stream. Every parish council has its own ‘ideas.’ Every parish club its own way of running its affairs, and even every family its own system of how to keep Christmas and what to give to father.
The French love regulation and a code. They like to know where they are beforehand. The British prefer to wait till after; there’s time enough then, and, in any case, everything depends. Hence British government, especially in the parent Isles, has accumulated around it a cloud of anomalies, inconsistencies, and obsolescences like its own insular fog. Through these the Briton finds his way by the guidance of common sense. All attempt at straightening it out only makes it the more illogical. The Magna Charta, as indicated above, is largely fiction, and the Great Statute of Westminster of 1931, the last settlement, is in its way the most complete mess of the lot. After that no one can tell what the Empire essentially is. It passes into that class of things indicated by English words and phrases which all understand but none define; such as ‘gentleman,’ of which no gentleman would care to indicate the meaning; such as what is and what is not ‘cricket;’ and above all what is ‘the thing.’ This last becomes after all the test and criterion of British government, thus could a Dominion under the Statute of Westminster secede out of the Empire? It could, but it wouldn’t be the thing and therefore no Dominion would do it.
Nor has mankind yet found a more real basis of free government after three thousand years of search.
Yet, admittedly, for foreigners the understanding of our government is difficult. Talleyrand said of the British constitution, ‘Elle n’existe pas.’ Mr. Gladstone didn’t go as far as that but he said that it relied more than any other on the good sense and understanding of those called upon to administer it. He meant that the constitution was whatever he thought it was, like the McGregor at the head of the table. George III said that we ought to venerate the constitution even when we couldn’t understand it — a gratifying doctrine for ourselves but of no great help to foreigners.
Now there was in the Greek mythology a hero called Theseus, who managed to find his way in and out of the Labyrinth of Crete. He was, as we would say in America, ‘out after Minotaur,’ and the trick he used was a thread. He stuck to that.
The thread to the labyrinth of British government is found in the history and status of the monarchy. From that you can analyse all the rest. The first thing to notice is that all acts of government are supposed to be done by the King — not merely in his name, but actually by him. All Acts of Parliament, British and Dominion, except only Eire, contain an enacting clause stating that the King makes them. ‘Be it enacted by the King’s Most Excellent Majesty,’ so runs the Statute of Westminster. Orders in Council state that ‘His Majesty in Council does order and it is hereby ordered.’ The King informs Parliament what he is doing with his army and is glad to tell them that his campaign against the Wazoo hillmen has restored peace to his Empire. He thanks his House of Commons for the money they have supplied — not the House of Lords, they haven’t given him any for five hundred years. In other words, all legislation and administrations are done by the King. So also with appointment. If you are appointed let us say, Chief Commissioner of the Chignecto Canal, it is done in a document which tells you that, whereas it becomes apparent to His Majesty that it would be of use to his Empire to cut a canal, dike, ditch, trench or other excavation, to intersect the neck of land known (to the King) as the Isthmus of Chignecto between his Province of New Brunswick and his Province of Nova Scotia, he has therefore entrusted this task to his trusty and well beloved — and so forth. The document sets you wondering how it came that the King had been thinking about the Chignecto Canal all these years, and selecting you as just the man for it — which is exactly the meaning and magic of British government. To make the case truly British the sequel should be that the canal is never cut but that there continues to be a Commissioner of the Chignecto Canal, whose duties are purely social — along with the Garter King-of-Arms and the Pursuivant Unicom and those other people.
Let it be added further that the King carries on all justice, punishing offences, from motor speeding to murder and is head of the Church of England and head of the Church of Scotland.
This fantastic appearance has behind it a reality of great meaning and value. In it is all our history; without it there would be no Empire today. This vast fiction carries back to the times when the King really did control the whole government, let us say, the period of the Norman Conquest. As a matter of fact, that also is partly legal fiction. No King ever controlled everything, and the Norman Conquest could also be called the Saxon Absorption of the Normans. Most of our government is Saxon in origin. The Normans just sat on top of it, as children play, ‘I’m King of the Castle.’
But let it go that the King controlled everything, or at least ordered everything. Yet he needed in those pious days a Keeper of his Conscience — a very delicate matter for men like William Rufus. So he had to have a Chancellor (even before William the Conqueror) to advise him on ghostly matters. This presently meant that the Chancellor took over all the ghostly matters himself. Also the King needed some one to look after his money. The children’s rhyme runs— ‘The King was in his counting house, counting out his money.’ But I doubt if any could, before Queen Elizabeth, or perhaps her father. They had no proper numerals for multiplication. So they had to count on squares like a draught-board, the ‘counters’ of the shops, and the King’s money was counted by the Barons of the Exchequer, sitting round a table all marked in squares. The second was kept on notched sticks called ‘tallies.’ These accumulated for so many hundred years that when at last they decided to burn them, they burnt down the House of Commons with them (1834).
Thus beside the King grew up the Exchequer. The King also was supposed to judge all disputes, whether breaches of the peace, or questions of bargains between man and man. For these three grew up the courts of the King’s Bench and of Common Pleas. Moreover, since all justice must be tempered with mercy and charity, defeated suitors could, in Heaven’s name, fall at the King’s feet in appeal. The King moved them from his feet to the Chancellor’s. That made a court of Chancery.
Thus grew up a whole apparatus of government. The greatest part of all, which presently absorbed and swallowed (in legal power) all the others, was the Parliament. This just meant at first a conference, a talk. The Saxons had had it already, but they called it a think (Gemot). The Normans changed the idea to a talk, which is easier. There were ‘parliaments’ of any special group, or order, of people — of Great Barons, or of merchants, or of clergy. Then in the vexed years after King John’s death, with rival factions calling ‘parliaments,’ the idea came up of falling back on the old Saxon plan of having ‘select men’ added to the Barons and Clergy, people chosen out of the Knights of the Shires and the Burgesses of the Boroughs. This system shows itself fully developed in the Model Parliament of Edward I in 1295. The ‘Commons’ now appear — not meaning the common people, who never got in till yesterday, but the ‘Communities.’ After that date, gradually, this kind of parliament outranked all other assemblies. It at first included the abbots. The Reformation removed them; archbishops and bishops remained and are still there; lesser clergy once came by elections held by the bishops; they dropped out. The election writs for centuries still vainly called them to come. But the clergy wanted to sit alone; they still do, as the Convocation of the Church in the Provinces of Canterbury and York. They sat the other day, January 1940, discussing the morality of war. But when they decide on anything new, such as a Revised Prayer Book, the Parliament alone can make it law. Probably half the members of the House of Commons claim that they don’t belong to the Church; but the law of the land soothingly tells them that they do. Hence prayers are made by people who never pray, and rituals by people who never go to the Church that uses them. Per contra, bishops vote on the tariff. These things never worry the British. They merely ask, how does it work.
Thus Parliament became supreme. It means in this sense not the two Houses, but the King, Lords and Commons. But as a matter of fact the King’s share in legislation became by progressive custom less and less till it dwindled to nothing. At first the King consulted Parliament and made a law — as far as a new law ever was made, for they always called it an old one. The notion of making a law is modern; to early ages it would sound like making your grandfather. Presently Parliament asked for the law and the King made it. Then, to make sure that they would get the law they wanted, they wrote the very text of it and put the ‘enacting clause’ in front of it and the King merely said yes or no. The very words he used became fixed in the customary ‘le roi le veult,’ or the polite refusal that the King would think it over (‘le roi s’avisera’). But it became the custom, the gentleman’s understanding, that if the two Houses said yes, the King never said no. The last sovereign who proposed to think it over was Queen Anne. Hence parliamentary supremacy came to mean supremacy of the two Houses. This ‘omnipotence of Parliament,’ arising in the fourteen hundreds was later so absolutely accepted that Walter Bagehot said (see his English Constitution of 1860) that Queen Victoria must sign her own death warrant if sent to her by Parliament. It was Walter Bagehot who said this, not Queen Victoria. And the warrant was never sent. Academic fancies of what people have to do and what nations are bound to do, were as free in Bagehot’s day as a poet’s reverie. We know better now.
So it came that the prerogative of the King, the original ‘all power,’ was limited by the supremacy of Parliament. Infinite confusion exists about the extent of this ‘royal prerogative,’ a mystery to casual students of history. In reality it is as simple as logic itself. The King has power to do anything and everything which Parliament has not forbidden him to do, taken on itself to do, or vested elsewhere. The King cannot of his own power levy taxes. Statutes such as the Petition of Right, 1628, forbid it. The King cannot regulate custom-duties, because Parliament took over that power when it made a customs act. The King cannot create new constituencies for Members of Parliament, as that power was taken over in 1832. Nor can the King alter any of the arrangements made by parliamentary statutes, such as railway acts, factory acts, local government acts and such. But he can alter anything which by these statutes themselves is left to be altered by an Order in Council. Yet, per contra, the King can dissolve the Parliament and never need call it again. True the money would run out, for lack of the annual vote of supply, and the army would fall to pieces for lack of the repassing of the Army Act which creates the authority of discipline. If an officer said, ‘Eyes right,’ the private might answer, ‘not just now, thanks, I’m looking at something interesting.’ But the King could, on those terms, do without a parliament; he could also make all his friends dukes, and his favourite comedian Archbishop of Canterbury. There is no end to what he could do, except that he wouldn’t do it, which puts one back again at the beginning of British government.
All the King’s public acts are done, however, through a minister. This itself is only an understanding unless one can twist the legal maxim ‘the King can do no wrong’ to mean that all he does must be someone else’s fault. The minister was ‘responsible,’ in older days with his head, now only with his office. Charles I, after agonizing hesitation, signed the death warrant of his minister Lord Strafford (1641). ‘By so terrible an example was that doctrine sanctioned which now needs for its assertion and effect nothing more than a ministerial defeat on a vote of confidence.’ The comment is that of the Cambridge Modern History.
In this frame has grown up the structure of government of the Empire both in the British Isles and overseas. The United Kingdom itself, Great Britain and Northern Ireland, is under the sovereign control of Parliament. There are no such constitutional limitations as circumscribe American governments. In the country which its citizens like to think the freest country in the world the individual has no rights, none that Parliament cannot destroy at will — except that it wouldn’t be ‘cricket’ to do so. This sovereignty of Parliament does not cover all the British Isles. Outside of the United Kingdom is Ireland (Eire), occupying, as will be discussed later, a position partly in and partly out of the Empire and defying all definition. The Channel Islands present another anomaly, but historic and sentimental only, not aggressive. The islanders were subjects of the Duke of Normandy; from their point of view they conquered England. Till the Great War of 1914 the sovereignty of Parliament did not extend to them, nor did the income tax reach their shores. Now, admittedly, Parliament is supreme, but local legislatives make laws. Control from Westminster is only executive. The Isle of Man was for centuries (till 1765) just a feudal holding under the Crown. Parliamentary sovereignty and taxation reach it now. But it has a quaint apparatus of government, a survival of ancient times, a ‘court of Tynwald,’ divided into a Council and a House of Keys, and it writes its laws in Manx as well as English. ‘Deemsters’ sit on its criminal bench. But inside this setting of a Druid world the writ of habeas corpus and the income tax run as merrily as on the mainland.
In all the vast overseas Empire the government rests on what has been established by the royal prerogative, or what has been set up by Acts of Parliament, and Orders in Council and similar documents authorized by the Acts. That right to set up a government in any ceded, conquered or settled territory was an inherent right of the Crown, was accepted as part of the prerogative and definitely declared by the Colonial Laws Validity Act of 1865. But Governments thus set up are supplemented by those created, or remodelled by Acts of Parliament such as the various statutes regulating the Government of India, or the fundamental statutes, almost similar to written Constitutions, by which the Dominion of Canada (1867), the Commonwealth of Australia (1900) and the Union of South Africa (1909) were created.
The result of this is that the governments of the overseas Empire under the Crown have been set up in a variety of ways and in a great diversity of terms. Taken in alphabetical order, or even in geographical order, they seem to spell confusion itself, hardly any two alike — a mass of officials, councils and assemblies, with or without election, with or without local participation, with cabinet government, half cabinet government or no cabinet government. They run the gamut all the way from the South Atlantic island of Ascension, governed by the navy as a ship, till 1922, to Eire, which has a constitution of 1937 calling itself a ‘sovereign independent state,’ and sits like a ground-hog in its burrow, its head half-way in, half-way out.
But rearranged in their ascending order of relative local self-government the British overseas possessions present a symmetrical series, in itself the fruit of long experience in the government of dependencies. For clearness’ sake we must first set aside, as out of count, the various protected states which are connected with the Empire but not of it. Here belong the Malay States, as distinct from the Crown Colony of the Straits Settlements. Four of these are joined as a federated unit and five others are units in themselves. Britain has the right of suzerainty, meaning a paramount interest in foreign relations and the right of giving protection. The Governor of the Straits Settlements is ex-officio High Commissioner for all of them and there is a British resident as an advisor to each of them. But the people are not subjects of the King. In the great East Indian Island of Borneo the parts called North Borneo and Brunei are protected states. Sarawak in the same island is also a protected state with the added ties of sentiment resulting from its having had British Rajahs (the Brooke family) since 1842. Britain has ‘protected’ it since 1888 and British officers command its constabulary. Egypt is a protected state in respect to British rights connected with the defence of the canal. The Sudan is classed as a protected state jointly controlled by Egypt and Britain. The joint control as already said is theory rather than fact. Britain and France have a joint control over the New Hebrides Islands. At the bottom of the list of the protected states is the little group of islands in the Western Pacific, once called the Friendly, now the Tonga Islands. This is one of the island paradises that gave to the South Seas the colour and the perfume of a land of dreams. Here it is neither too hot nor too cold, too wet nor too dry, and food hangs from the trees. For such a picture read of Anson’s famous voyage of 1740. The Tonga Islands, all bunched together, would only cover a space of 250 square miles. Yet they enjoy a sort of comic opera government with a Queen and a Parliament made up of seven Lords, seven Commoners, seven Ministers and a Speaker. The Tongas are a sovereign state, protected by Great Britain. The natives, 32,000, are all Christians, indeed are six different kinds of Christians, but are not British subjects. The white residents, about 430, are subject to the Tonga courts except for grave offences, removed to the court of the High Commissioner for the Western Pacific. Tonga declared war against Germany in 1939.
The case of the mandated territories assigned by the shadowy authority of the League of Nations has already been discussed.
Of the units of government actually inside the Empire, some of those of lower order are officially called Crown Colonies, and some Protectorates. The division is not a logical one, as far as the form of administration goes, since a Protectorate may have just the same form of rule as a Crown Colony, and both Protectorates and Crown Colonies differ among themselves. But as far as the variation in official title corresponds to an actual difference, it means that the people in a Protectorate, although British subjects, do not come within the scope of a British law unless the law is explicitly made to apply to them. Otherwise they are still under native custom. The Slavery Abolition Act of 1833 terminated British slavery. After that Britons could sing about the flag that ‘never could float o’er a slave’ with all the zeal of new converts whose flag had flown over more slaves on the high seas than those of any two nations combined. But even while they sang, though few of them knew it, there were slaves in Sierra Leone, where slavery, of a domestic type, was not extinguished by law till 1927. Similarly when the later partition of Africa extended British sovereignty over Nigeria, Uganda, Nyasaland, Somaliland and Bechuanaland, they were gathered in as Protectorates. This made it feasible to leave native customary rule as much undisturbed as possible, and even to shut one eye to the existence of things, like the feudal slavery of Nigeria, impossible to abolish all at once, yet repugnant to British moral sense. Experience showed that a native chief would trade his ‘sovereign rights’ for gin and rifles, but not his right to have two wives, to be served by slaves, and to drink the gin and shoot his subjects with the rifles. It has been part of the genius of British government to leave anything alone if you can’t alter it. All our critical historians, from Sir Henry Maine down, have shown us the contrast between the binding force of native custom, the bed-rock on which rests collective life itself, and the arbitrary movement of authority over its surface. A despot of an Indian state could execute a subject at will. What mattered the individual life? But he could not take from the stricken widows of his principality their immemorial right to be burned to death, nor the right of their neighbours and friends to burn them. It is narrated that when the Shah of Persia visited Queen Victoria’s England in the ‘eighties, he proposed to have two of his suite executed in order to see how the British method of hanging worked. The story may not be true, but the application is.
