of the chief magistrate becoming insane after accession to his office, is possible in a republic as well as in a monarchy. In considering the possibility of the title to the Crown devolving on an unfit person, it is important to remember that in cases of obvious incapacity, Parliament has interfered to apply a remedy. In the cases of several Kings incapacitated by non-age, Protectors and Regents have been appointed by Parliament to exercise their powers during their minority; in the case of incapacity by mental alienation, the like provision has been made; and in cases where the Sovereign has, by the persuasion of evil counsellors, violated the constitution, Parliament has remedied the evil by punishment of those counsellors, or where that remedy proved insufficient, by declaring the throne vacant, -a course of which several instances have been cited in the preceding pages.

These appear to be the principal considerations affecting the comparison of republican and limited monarchical government. For their full development, and a more exhaustive treatment of the subject, far more space would be required, and a more direct reference to political controversies, than lies within the scope of this book. The arguments here adduced are mere suggestions for a more complete investigation of the subject. One general observation may however be added, with respect to such an investigation. In order to be satisfactory, it should comprise a careful examination of the causes of the decline and fall of great republics and kingdoms, so far as those causes are connected with their forms of government. The consequences, also, of defects in the constitution of the executive body and the legislature respectively, ought to be carefully distinguished. The neglect of this distinction is a common fallacy in the reasoning of those who argue against hereditary monarchy. They assume that all the misgovernment which happens in a kingdom is due to the constitution of the Executive, and not to the Legislature; or else they assume that the defective constitution of the Legislature is the in

evitable consequence of kingly government. Yet there is abundant historical proof of the incorrectness of both assumptions. We find in our own history instances in which the Executive has been able and upright while the Legislature was corrupt: such was the case at the commencement of the reign of William III. We have instances, on the other hand, of a corrupt and arbitrary Executive, nobly resisted by an able and honest Legislature: such was the case during parts of the reigns of James I. and Charles I. It is therefore obviously erroneous to attribute the progress or decline of a nation to the election or non-election of its executive rulers solely, without regarding what is even more important-the proper constitution of the legislature; or to assume, without proof, that the defective constitution of the Legislature is a consequence of the non-elective title of the chief magistrate.

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CHAPTER IV.

ORIGIN AND DISTRIBUTION OF ADMINISTRATIVE

OFFICES.

FOR the reasons given in the first chapter of this Book, the administrative departments to which we shall principally direct attention are those which form essential parts of the constitution; and these departments have, for the most part, their origin by prerogative, and exercise administrative prerogatives of the Crown. The administrative departments which have only statutory, and not prerogative powers, are of comparatively recent origin, and have little importance in our inquiry into the principles of the constitution, except so far as they are connected with the more ancient prerogative offices.

The origin of the administrative departments is often obscure, and their earliest constitution and functions are, in several cases, very indistinctly traceable in historical records. The uncertainty as to these particulars arises partly from the circumstance, probably, that the functions of ancient departments of the State were assumed in contemporary documents to be matters of notoriety; and partly from gradual changes in those functions by the Royal authority or otherwise, without any formal written sanction.

It is to be remembered also, that the separation of the administrative from the other functions of government, is a political refinement not likely to occur in the early history of the constitution. It has been shown, in a former chap

ter, that one important provision of our Constitution for maintaining this separation, is the power given to the Crown of appointing its chief ministers, without the direct control of Parliament; and that, excepting some rare instances, the Houses of Parliament have never claimed a power of nominating the ministers of the executive government (a).

The Norman sovereigns, like their Anglo-Saxon predecessors, were advised in the exercise of their prerogatives by a Select Council regularly attendant on the King, and distinct from the Great Council of the nation, though forming part of it. The functions of the permanent council were partly legislative and partly executive; and it was only by very gradual steps that its legislative power became limited. In its executive capacity also, as we have seen in a previous chapter, it exercised great judicial powers, which continue in part to this day.

The Select Council included, besides other members, the Chief Justiciar, the Chancellor, and the Treasurer, who were members ex officio (b). These three were, under the Norman Kings, the three principal ministers of the Crown for civil affairs, and had both judicial and administrative duties.

The Chief Justiciar was the highest minister of the King, was next in rank to the King, and had general jurisdiction of pleas civil and criminal (c). He had also administrative powers, both in the Select Council and in the Treasury, where he appears to have had some control over the Treasurer himself, and to have taken part in the keeping and management of the revenue (d).

(a) Ante, Book I. Ch. X. ; see p. 242.

Among the exceptional instances, the following may be cited :-In 5 Edw. II. it is resolved in Parliament that the King shall make the Chancellor, Chief Justices, Treasurer, and others, by the advice of Parliament. But in 15 Edw. II. the ordinances of 5 Edw. II. are revoked, and it is enacted that ordinances made concerning the Royal power, or against the estate of the Crown, shall be void. (Parry's ‘Parliaments,' pp. 73, 85.)

(b) 1 Spence, Equitable Jurisdiction,' 329.

(c) 1 Spence, Equitable Jurisdiction,' 78, 100. (d) Madox, 'History of the Exchequer,' ch. 2.

The first of the articles of accusation against Hubert de Burgh, Earl of

The Chancellor, whose office had existed before the Conquest, both in this and in other countries, and who kept the Royal Seal, by which precepts and grants of the Crown were executed, was, in Norman times, usually one of the King's chaplains, and, as we have seen, subordinate to the Chief Justiciar until the jurisdiction of the latter in the Aula Regia was distributed among several separate courts. The Chancellor had, at that time, the care of the Royal Signet in the Exchequer, and appears to have usually kept the Great Seal there until about the time of Richard I. or John, when it is supposed that the separation of the Chancery from the Exchequer took place (a).

For obvious reasons, the fiscal offices were amongst the administrative offices earliest established. In the reign of William I. a separate board and court existed for matters of revenue upon the model of the Exchequer of Normandy; and a Treasurer and other officers were appointed for transacting business relating to the Royal revenue(b). The early treasurers, like the chancellors, were for the most part men of the Church expert in the laws of the realm. For some time after the Conquest, the Chief Justiciar performed many of the duties which afterwards pertained to the Treasurer exclusively, and seems to have monopolized all the chief offices in the State, both judicial and administrative; but, about the reign of Stephen, the offices of Chief Justiciary and Treasurer were separate(c). About the time of King

Kent, in 23 Hen. III., A.D. 1239, required an account from him of all the revenue of the kingdom for fourteen years next following the death of King John, "from which time he took upon him the keeping and management of the same." De Burgh answered that he was at the time in question Justiciar, and that the officers answerable for the profits of the realm were the Treasurer and Chamberlains, and not the Justiciar. (1 State Trials, 14.) (a) Dialogus de Scaccario, cited in Madox's Hist. of the Exchequer. (b) Dialogus de Scaccario, ubi supra.

(c) In Co. Litt. 304 b., among others, the name of a prelate who held the office of Treasurer in the reign of Henry I. is given: "Nigellus, Episcopus Eliensis, Hen. I., thesaurarius in temporibus suis, incomparabilem habuit scaccarii scientiam, et de eâdem scripsit optime."

Nigel was also Treasurer in the reign of Stephen, and appears, from the