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determination in a private matter, i.e. whether a fraudulent outlaw should continue to sit for Camelford. It was decided that he should. So, on January 21, 1581, after a warm debate, a public fast was appointed in the Temple Church by 115 to 100.* In one case, in 1571, on the question being put regarding the second reading of a Bill to enable non-residents to be elected as burgesses, 'some said Yea, and some Nay, but the greater number seemed to say Yea'; whereupon the debate appears to have commenced again de novo (D'Ewes, 168). That the habit of taking divisions was novel may perhaps be inferred from another incident related by D'Ewes (p. 54). A member declared to the House that the Master of the Rolls' servant had boasted of hearing the Lords say at his master's table that 'If a Bill were brought in for women's wires in their pastes, they [the Commons] would dispute it and go to the question.'†
The jealousy which the Houses of Parliament long showed of any report of their proceedings makes it difficult to say how far these instances were typical. Why, in these sporadic cases, the clerks should lift the curtain and set down the figures, it is difficult to say. It was not until late in the seventeenth century that regular treatises on parliamentary procedure were composed. Scobell then (1656) shows us the modern system of voting by count of heads as in regular force for the determination of every question. It seems, says Redlich (ii, 260), to have been looked upon, at the end of the 16th century, as an unusual and important matter;' and the practical difficulties of division were the subject of complaint. It was the custom that one party should leave the House and be counted outside; they complained that members were afraid to join them, for fear of losing their seats. Sometimes members were subjected to the gentle suasion of a friendly pull. Thus in the close division of March 13, 1601, it was complained that one of the members, who wished to go out with the Nays,
D'Ewes, pp. 282-3. The House being divided, and many arguments being spent pro et con., at length the said matter in question was put to voices, and the better side had the greater number; for there were 115 voices for it, and but 100 against it.'
The servant was committed; but, Parliament being dissolved three weeks later, we hear no more of the incident.
had been held back by another member. Sir Walter Raleigh remarked, like a bold sailor, 'Why, if it please you, it is a small matter to pull one by the sleeve, for so I have done myself sometimes.'
In the obscurity which remains, there seem to be two possible hypotheses open. First, that decisions of the House were long unanimous in theory; that the minority gave way and concurred in the evident sense of the great bulk of the House; that divisions were resorted to but seldom, and in comparatively unimportant matters; but that insensibly they came to be accepted as a simple and efficient, if unsatisfactory, means of arriving at a rapid decision on all matters. This seems to be on the whole the most reasonable theory. Redlich takes a different view, holding that divisions, which he has already admitted to be infrequent and unusual, so late as the sixteenth century, were almost coeval with the existence of the House. 'As soon as we are able to follow the proceedings of the House in detail,' he declares, 'we find the majority principle old-established and uncontested.' But the House has already existed for three hundred years before we are able to follow its proceedings in detail. When we can do so, we find divisions recorded on the rarest occasions, and seldom or never on vital questions.
Redlich supports his theory by the suggestion that, in adopting the majority principle, the Commons imitated the practice of the Magnum Concilium which existed in feudal times. Magna Carta contains a provision that, out of twenty-five guardian barons, the majority present at a duly-summoned meeting can act. The Provisions of Oxford give their twenty-five select nobles a veto on the acts of the Chancellor, exercisable by the 'greinure partie.' But these cases are very far from establishing a general rule. In each case it is a check which is imposed upon the arbitrary action of the executive. The guardian barons under Magna Carta are a committee of check upon the King. Naturally the majority at a meeting can exercise the check. Any single baron of the twenty-five might almost have been entrusted with the power. The twenty-five lords under the Provisions of Oxford are again a committee of check
upon the Chancellor. Naturally it was desired to
remove the necessity for the concurrence of all. These are cases like those familiar to lawyers, when several persons are appointed to act for a certain purpose, such as taking evidence on commission, such powers to be exercisable by any two or more of you.' They have no direct bearing on the history of majority rule.
A much more striking clause of the Provisions of Oxford remains to be noticed. That instrument was a regular written Constitution of the Kingdom, rendered necessary by the misgovernment of Henry III. In many ways it is a surprisingly good and well thought-out document, and may in this respect be put on a level with Cromwell's Instrument of Government. Its one aim was to provide for a distribution of power. It was drawn up by a council of twenty-four-half nominated by the King, and half by the barons on the point of revolt against him. These twenty-four nobles agreed with apparent unanimity to the so-called Provisions of Oxford as a constitutional compromise designed to remove a deadlock. Neither party would consent to be placed in a position of inferiority; consequently the only hope of averting deadlocks lay in reliance on personal character, and in the elimination of party politics by successive elections.
The plan was this. The twelve king's men chose two of the barons' men, while the barons chose two of the king's. Then the four were to elect the king's executive Council of fifteen; and the election required the consent of the majority of the twenty-four. Here, indeed, we have mention of a majority. But who could hope for unanimity in such circumstances? A majority here would mean the conversion of a party foe; the arrangement contains within itself the necessity of compromise. A better constitution has probably never existed in England. It was too good to last, and retired in favour of civil war and foreign invasion. The parliaments (three per annum) for which it provided were to be magnified images of the Council; twelve men of the commonalty (unanimously chosen) and the fifteen councillors selected as above were to compose it. And what the numerical majority of the twenty-seven did, was to be firm and established.' Indeed, their unanimity is indirectly assumed. For it is only to meet the con
tingency that they cannot all be present, that the decree of the majority is made 'ferm et estable.'
Here, then, we have an elaborate compromise system, designed to secure a thorough balancing of interests, such that, to obtain a majority, any decision must be of the nature of a complete compromise. It was an unusual expedient, for which the times were not ripe. Is it too much to say that nothing whatever can be based upon it by way of conjecture as to the ordinary working of the great Council of State? How Redlich can possibly assert that these isolated provisions as to veto, coupled with the extraordinary effort at constitution-making which we have dealt with, 'make it clear that decisions of the Magnum Concilium' (with which they have nothing whatever to do) 'were arrived at by a majority long before representatives of towns and counties were regularly called to a Parliamentum in union with the Magnum Concilium,' it is impossible to understand. McKechnie, in his work on Magna Carta, sees no such connexion. The precedent thus tentatively introduced for the right of a majority to act for the whole was followed only timidly and at long intervals' (p. 552).
We should be sorry, however, to convey the impression that Redlich upholds the modern unlimited range of majority rule. He speaks of the protection of the minority as one of the fundamental principles of parliamentary life' (iii, 181). And, following Jellinek, he admits that, when there exist political feelings of great intensity, such as nationalism or ecclesiasticism, the majority principle must needs begin to lose its moral force. At the same time, and to the same degree, the principle of protection for the minority begins to suffer from decay. There is a total collapse of the system of ideas of representative government, based as it is on understandings and a common loyalty' (iii, 197).
In the House of Lords itself, the direct successor of the Magnum Concilium, we find no trace of the early dominion of a bare majority. Decisions of the Privy Council could, indeed, be taken by a majority, according to rules which received parliamentary sanction in 1429 (Rot. Parl. iv, 343).
'VII. Item, that in all things that owith to pass and be agreed by the said Council, there be six or four at the least
present of the said Council, without the officers, assembled in form of Council and in place appointed therefor... so always that no matter be taken as assented, but at the least there assent thereto four councillors and an officer, whose assent nevertheless shall not suffice but if they make the more party of the number that is then present at the Council.'
Under Art. IX, the removal or penalisation of a councillor or great officer must proceed 'by the assent and advice of the more part' of all the Council. By Art. XIII, the Dukes of Bedford and Gloucester had a suspensive veto; at the next meeting the decision was to be finally concluded in favour of 'the more party in number'; if the numbers were equal, the party of the dukes was to prevail. But these determinations, so arrived at by a majority, were of course administrative and judicial, and in no sense legislative. As we have so often observed, majority decisions are not majority rule. The former are necessary adjuncts to the work of administration; what an adult king could have done alone may well be committed to the majority of the advisers of an infant king.
We find no records of dissents in the Lords prior to the specific instances which are assignable of divisions in the Lower House. A few Lords could not, like a few freeholders or a few commoners, be 'shouted
down.' Their voice could not be overwhelmed in the 'general sense' of the House. It is remarkable, therefore, that we never find a great array of Lords entering protests in early times. This is a clear indication that, where opinion was fairly divided, unanimity was eventually secured by mutual accommodation. The first instance of a protest is said to have occurred in Edward III's time; but it was signed only by the Chancellor and the Treasurer, with some of the judges. It was the protest of an insignificant minority in the Lords, evoked by an invitation to swear on the Cross of Canterbury to observe the statute; which, as it struck at their practices, these high officers were naturally unwilling to do.
The earliest instance of dissent on the part of lay lords being noted in the Lords' Journals is said by the Parliamentary History to be one which occurred on December 14, 1547 (1 Edw. VI). 'Legebatur quædam provisio, annectanda Billæ pro confirmatione literarum Vol. 216.-No. 430.