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.

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patentium quæ communi omnium procerum assensu conclusa est, excepto domino admirallo Angliæ et marchione Dorset.' It was followed by another on the next day, in the case of a steelyard measure, 'conclusa, exceptis comite Salopiæ, dominis Admirallo Angliæ et Cobham.' On the same day (December 15), the Archbishop of Canterbury and seven bishops dissented from the suppression of chantries, in a House of 38, seven bishops being in favour of it, with 23 lords. The minority was here about a fifth. It is scarcely conceivable that the dissent of larger minorities would fail to be recorded. The Parliamentary History is wrong in its dates; earlier records of dissent are to be found. Thus, on December 19, 1545, in a thin house of 26, 'lecta est billa for the amendment of the highway beside Chester, quæ communi omnium procerum consensu expedita est et conclusa, refragantibus comite Sussex et domino Cromwell.' And a Bill concerning hand-guns was passed on December 18, 1545, against the opposition of 6 lords out of 32. Lord Sussex was here again a dissenter. In the earliest case of dissent but one-Rogers seems to think it the earliest -a Bill for the allowance of Sheriffs' expenses was consented to by everyone, 'except Lord Sussex' (April 19, 1542). On the same day, a Bill against disentailing passed with 4 dissentients. The dissent of prelates seems to have been earlier recorded. The Bishop of Durham dissented from a Corporation Lease Bill on March 6, 1541; and this is the first occasion noted.

These records of dissent do not appear to be of the nature of the formal Protest, now recognised as one of the privileges of the Lords, but to be the mere expression of the fact that a small minority persisted in its opposi tion to the last moment. Thorold Rogers, indeed, takes the modern practice of Protest to be an independent institution commencing with the Long Parliament, and introduced because of the secrecy of its proceedings. Of these earlier records of dissent, a few are noted in the reign of Henry VIII. No less than 37 occur in the reign of Edward VI, the largest minority being one of 10-all lay-in a house of 33, on the Bill allowing priests to marry. Twenty-two are entered under Mary I; in one case (May 5, 1554) a Bill for currying leather is passed 'majore procerum numero consentiente,' and another

for leather exported to Calais rejected 'maj. proc. num. dissentiente. In the first few years of Elizabeth's reign there are several instances. Thereafter we find only casual and infrequent references to divisions in the House of Lords until far into the reign of Charles I.* Thus, neither from the records of the House of Commons nor from those of the House of Lords can we be sure that the early Tudor Parliaments habitually regarded any numerical majority, short of an overwhelming one, as decisive. We see occasional majority decisions, but no evidence of a settled practice.

The notion that decision by a bare majority was the well-recognised practice on all questions rests upon a statement by Smith ('De Repub. Anglorum') who states the rule without qualification. Sir T. Smith wrote his treatise in 1562-6, but it was not printed till twenty years afterwards (1583). At the time of its composition he was joint ambassador to France, and had been Dean of Carlisle. His experience of the House of Commons, as a member, dated from 1553, when he was for some months member for Grampound. He was again elected a member (for Liverpool) on January 6, 1559. His own knowledge of the procedure is therefore post-Henrican. But he had earlier opportunities of ascertaining the facts. He was Regius Professor and Vice-Chancellor at Cambridge in 1543; he was persona grata at Court; he was intimately associated with the Protector Somerset ; and in 1547 he became clerk to the Privy Council. A much later occupant of that office has taught us what opportunities it affords of becoming acquainted with the arcana of government. When, therefore, Smith, writing about 1564, affirms that the rule was to take the decision of the majority, we may well believe him. Only he does not tell us what we did not know. From the Commons Journals it is obvious that divisions, though apparently extremely infrequent, were known in the reign of Edward VI. It may safely be surmised that the usage had been in course of formation for

In 1580, and again in 1601, an equality of votes occurred. The question at issue was decided differently on these occasions; which seems to show that no precedents existed, or were known. Had the practice of deferring to a narrow majority been long established, some rule for dealing with cases of equality would surely have been evolved.