I have received from a professor of history in one of our principal universities. He says:

The principle of Magna Carta that the King personally is subject to the law and can be coerced if he breaks it is not the principle of the constitution to-day. Just when and how was the modern principle that the King can do no wrong, coupled with the responsibility of his ministers to the law, substituted for it?

My critics plainly assume that the principle of ministerial responsibility originated outside the line of results derivable from Magna Carta, and one of them believes that it has taken the place in the present constitution of the principle that the king is subject to the law. The question thus raised is a most important one. Ministerial responsibility has played so great a part in the practical operation of the English constitution for more than a century; it seems to the student of the nineteenth century so clearly of the very nature of the constitution and even appears to be its one essential feature; it has had so much to do with making possible the adoption of the constitution more or less completely by all kinds of monarchies, from those that are virtually democratic republics to those that are scarcely modified absolutisms, that certainly no understanding of English constitutional history is complete until the source of that principle and the way in which it entered into the final result are clear.

There can be no doubt that an idea of ministerial responsibility is to be found in the Middle Ages and that it was to a considerable extent realized in fact. In the passage from which I have quoted, Dr. McKechnie enumerates by date the first clumsy experiments which were made in the effort to give institutional expression to the principle that the king may be compelled to keep the law. They were blind gropings after the idea of ministerial responsibility, so vaguely conceived that no one saw a better way than to remove entirely the ministers of the king's appointment, or even to suspend the king's authority itself, and substitute for the time being ministers, or a kind of commission, directly responsible to the great council. Dr. McKechnie has seen clearly enough that modern ministerial responsibility did not grow out of these first instances, but they are by no means the only efforts during the Middle Ages to find some pacific, non-revolutionary method of enforcing royal respect for the law. The rapid growth of parliamentary power between 1310 and 1360, for only the faintest beginning had been made by 1310, introduced a new element into the situation. Not

merely had Parliament in the interval greatly enlarged the body of law which the king was required to observe, but it had so perfected its own organization and won for itself so clearly a definite place in the constitution, that it was prepared to take charge with great efficiency of the enforcement of the king's obligations, in place of the somewhat unorganized and inconsistent baronial opposition.* To my mind it is indispensable to any understanding of the formation of the English constitution to see that although the development of Parliament down to this point was independent of the line of development begun by Magna Carta, what took place shortly after the middle of the fourteenth century was the assumption by Parliament of the supervision of that line of development. What Parliament did in its first efforts to control the ministers of Edward III. was not something new in principle, nor a change of purpose, but it was to employ a new method of putting the old principle into operation. That a great advance was made at this point is beyond doubt, but the advance did not consist in the introduction of any new principle, nor indeed in any clearer perception or better formulation of the old, but in the better method which came into use through the higher organization of the body which assumed charge and the possibility of a more continuous and consistent growth.

5

The method employed from this time on in the coercion of the king was no longer to appoint over him a "committee of his adversaries", but to hold the ministers of the king's own appointment re

3 The body of law to which the king was held subject had undoubtedly been much changed by the decline of feudalism and much enlarged by the development of national life, and especially by the principles referred to above, established in the growth of Parliament's power, but the continued influence of the fundamental principle of Magna Carta was assured by its simplicity and its adaptability to the changing conditions of social advance. See Origin of the English Constitution, pp. 157, 169, note.

4 See Origin, pp. 157-167. With this compare Dr. Gaillard Lapsley in the Eng. Hist. Rev., XXVIII. 124 (1913), in a note on the "Commons and the Statute of York". Dr. Lapsley, I think, dates the beginning of parliamentary supervision somewhat too early. It seems probable that the power of Parliament was too undeveloped before the last years of Edward III. to permit of any continuous guardianship of constitutional principles. The date is more clearly marked by the beginning of impeachment than by any other single fact.

5 Parliament laid the foundation for this assumption early in the fourteenth century in its efforts to obtain financial control, and it is surely not necessary to emphasize the important place given to this control, so far as recognized by the law of that day, in 1215 and in the actual practice of the thirteenth century. Nor is it necessary to point out that this control was definitely restored to the formal tradition of Magna Carta in 1297. It should, however, not be overlooked that upon this restoration was definitely based the first slight step in parlia mentary development in the grants upon conditions at the beginning of the reign of Edward II., and that upon this last was directly founded the whole construction of parliamentary power in the reign of Edward III.

sponsible to Parliament for what they did in carrying out his policy or, if in some cases Parliament appointed, it was not with any special purpose of selecting the leaders of an active opposition. The new method is to be seen in the history of the treasurers during the last years of Edward III.'s reign, in the control of the councils of Richard II.'s minority and of the three Lancastrian reigns, and most perfectly of all in the process of impeachment. But however modern the description may sound which may be given of this new method, it is really distinguished from the modern and identified with the medieval by two most essential characteristics. In the first place it is the king who is coerced and not the ministers. The real executive is the king and the ministers are punished as a means of coercing him. Parliament has as yet no conception of itself as the final authority in determining the policy of the government, or of the ministers as carrying out its policy rather than the king's. In the second place, Parliament holds the ministers to a direct responsibility to itself. It compels them to report to itself, it brings criminal accusations against them, and punishes them with death. The modern indirect responsibility is not thought of. These two differences reveal an impassable gulf between the modern and the medieval forms of ministerial responsibility. The first indicates a vitally important difference of purpose and interpretation, and the second an institutional difference, in the mechanical operation of the principle, which alone would make its derivation from the earlier impossible. Modern ministerial responsibility has nothing in common with medieval beyond the name and the mere idea. Undoubtedly the abstract idea is the same, but constitutional history does not concern itself with abstract ideas, except to note them as

6 If, however, any one is convinced that the modern is derived from the medieval form, it should not be difficult to see its direct connection with Magna Carta. As I have said above, the methods of coercion and control adopted in the last half of the fourteenth century and continued in the fifteenth, rest back for their foundation upon the principles brought into the constitution in 1215. They are merely improved methods of doing the same thing that was attempted in 1258 and 1310. This is true even of impeachment, the medieval expedient which passes on into modern times, for its object was not to transfer the initiative and control of government policy from the king to his ministers; that was an idea still in the far distant future and impossible to the fourteenth century. It was merely a new and improved method of coercing the king. If the modern were derived from the medieval, its origin would be far more conscious and deliberate than it was, and we should be able to discover the stages of change. It may be added that in the fourteenth century also the use of the counsellors of the king's own appointment to curb his caprice, and the making of it difficult for him to appoint any minister of whom the national council did not approve were still in the distant future.

sources of suggestion and impulse. It deals with the institutional forms in which ideas are expressed and the way in which these institutions operate in the daily carrying on of government. In these particulars, in the matter of ministerial responsibility, a great change occurred somewhere between the fifteenth and the nineteenth centuries.8

Not merely in institutional form but in practical result, it is difficult to overstate the importance of this difference. Had the course of English history led to a constitution in which in form and law the ministry was directly responsible to Parliament instead of to the king, not merely would it have been immensely more difficult to reconcile the sovereign to a loss of the substance of power, but the adoption of the constitution by other and reluctant monarchies would have been made a practical impossibility. The compromise feature of the present constitution would have had no existence. The choice which in that case a successful revolution might offer to a sovereign between a formal direct responsibility of all the organs of actual government to the legislative assembly on one side, and an out-and-out republic on the other, would have had no particular significance. The world influence of the English constitution depended for its existence upon the fact that Parliament came to control the actual government indirectly, not directly; that an actual republic was concealed under all the ceremonial and theoretical forms of a continued monarchy.9

7 The influence upon constitutional history of John Locke's attempt to find a philosophical justification for the Revolution of 1688 in his second Treatise on Government was great in both France and America, but this fact does not make Locke's Treatise in itself considered a part of constitutional history.

8 What binds together in this respect the development of the English constitution from its beginning in 1215 to the latest step which has been taken in it, is the effort to find some means of holding the king responsible without the danger of civil war and revolution. It is really this common characteristic, so far as we are not deceived by the mere name, which tempts us to identify medieval with modern ministerial responsibility, not the existence of a true institutional identity, for that is usually assumed without investigation.

9 I have said much on ministerial responsibility as aiding in the spread of the English constitution throughout the world and accounting for its influence. I have no wish to modify these statements, but it must be noticed that they apply rather to the influence of the constitution in the nineteenth century than earlier.. The practical experience of the Continent, especially of France, with absolutism, and the effort which was made by the French philosophers to attack the theoretical foundation of an absolute monarchy, aided by the results reached in England, especially by Locke, in attempting to justify philosophically the revolution of the seventeenth century, gave to the English constitution an influence in the eighteenth century which is derived from the general fact of limited monarchy, with comparatively little reference to the special institutional forms in which the fact was expressed. This is to be seen in the purely theoretical way in which, both in France and America, institutional details were discussed, and even experimented with, with no reference to the experience of England.

To show how the newer form of ministerial responsibility entered the constitution, a brief outline of the middle period of its history is necessary, and this will also show, as I believe, the historical independence of the modern principle of the medieval experiments and its organic relation with the fundamental principle of Magna Carta.

If we go back to the close of the Middle Ages, or better to the beginning of the seventeenth century, for at the close of the Middle Ages proper the accumulation of precedent essential in the final result was not complete, we shall find, as is well known, an impossible constitutional situation. At the accession of James I., there was upon one side a great body of history and precedent in support of the king's claim to govern by his own will. At the same date, there was upon the other side a great body of history and precedent in support of Parliament's claim that the king was bound to regard a certain body of law and custom in his action.10 This situation may be described in other terms which bring out more clearly its relation to our theme. England of the twelfth century was an absolute monarchy with no constitutional limitation except that vaguely implied in the fundamental contract of feudalism, and no machinery for the expression of a will opposed to that of the king except the primitive and ineffective curia regis. The natural development of this absolute monarchy into a final constitution was broken into by Magna Carta which transformed the feudal interpretation of the contract relationship between the king and his barons into a general principle (the king may be compelled to keep the law) capable of far wider application and of expansion without change of substance to fit the needs of the expanding national life. From the date of Magna Carta on to the beginning of the seventeenth century, the two currents of constitutional development thus begun appear alternately upon the surface. The principles of a limited monarchy are

10 In addition there had appeared in the sixteenth century an important development of theory in support of such a claim in the idea of the divine right of the king. Theoretical support for Parliament's position was much less clearly developed at the beginning of the seventeenth century than for the king's, and a most interesting part of the history of that century is the gradual formation of this theory. This comes, I think, to its first full and clear expression in the resolutions of January 4, 1649, justifying the action of the House of Commons in proceeding single-handed with the trial of the king: "That the people are, under God, the original of all just power; that the Commons of England, in Parliament assembled, being chosen by and representing the people, have the supreme power in this nation; that whatsoever is enacted or declared for law by the Commons in Parliament assembled, hath the force of law, and all the people of this nation are concluded thereby, although the consent and concurrence of King or House of Peers be not had thereunto." Gardiner, Great Civil War, IV. 290.