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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 opposition 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.
some years. Under conditions of secrecy, usage grows in a very short time indeed. The course of business in the Cabinet to-day is a secret; but it is beginning to be openly known that decisions are, at any rate in some cases, taken by something like a vote. A modern Smith might lay this down as a rule; but how long the rule had been in process of formation would remain entirely uncertain. A positive rule laid down, in such circumstances, as true for 1564, concludes nothing as to 1524.
If the practice of deciding the most important matters by a bare majority had indeed been long established, whence was it derived? Not, as we have seen, from the rules in force with regard to corporations, juries, or the assemblies of magnates. A remaining source of imitation might have been the Church. It will be useful to examine the practice of the Church in this matter, as it has been put forward by Redlich as an obvious precedent of which Parliament could readily avail itself. As we have seen, Pollock and Maitland tell us that the Canon Law avoided the fallacy that a bare majority has any natural title to represent the will of the whole body. The 'pars sanior,' with its superior sanity allowed by the superior authority, prevails, though its numbers may sometimes be regarded as an index to its wisdom.
The decrees of the Synod of Elvira (A.D. 305) all commence with the words 'Episcopi universi dixerunt' (Héfélé, 'Conciles,' i, 131). At the better-known Council of Nicæa (A.D. 325), Socrates informs us that there were only five dissentients to the Nicene Creed out of hundreds present. Three of these gave in, and two alone remained to be anathematised. The Council came to a decision as to the date of celebrating Easter; the resolution was not erected into a canon, and Héfélé (p. 320) suggests that this was because it was nothing like unanimous. The fourth canon seems to require the unanimous consent of the comprovincials to the election of a bishop. A very important canon is the sixth: If a person is elected bishop by all, after due consideration and in conformity with the canon, if two or three oppose the election out of a pure spirit of contradiction, the majority shall carry the day' (κρατείτω ἡ τῶν πλειόνων ψῆφος). At the Synod of
Tyre (A.D. 335), which was packed with Eusebians, Athanasius withdrew with his party, saying, 'It is well known that the decrees of one party have not the force of law a good motto for constitutionalists (Apol. c. Arianos,' c. 82). So, at the Synod of Milan (A.D. 355), Eusebius of Vercelli, Dionysius of Milan, and Lucifer of Calaris dissented from the condemnation of Athanasius, pronounced, under pressure from Constantius, by 300 bishops, mainly Western. At the Synod of Rimini (A.D. 359) the Arian party and the Athanasian majority communicated separately with the Emperor; and, under pressure from him, the latter gave way. Twenty out of 320 alone remained irreconcilable to the Imperial compromise. The threat of exile did not move them; the Imperial legate had recourse to entreaties and tears. Their colleagues who had signed, friends and opponents alike, were all detained in the depth of winter at Rimini. Finally the dissentients secured the formal anathematisation of Arius as an integral part of the decision of the Synod (Héfélé, ii, 92). At the simultaneous Eastern Synod of Seleucia, the semi-Arian majority of 150 was faced by a composite minority of some 50 Arians, who also prevailed through Imperial support. In the Council of Chalcedon (A.D. 451) some 600 bishops were present. There was a general subscription of a formula drawn up by Pope Leo. Thirteen bishops from Egypt refused to sign, knowing that life in Egypt would be unendurable were they to do so without the consent of an archbishop of Alexandria. 'A dozen men,' observed the papal legate, 'must not be allowed to render nugatory a synod of six hundred'; but the conclusion drawn was, not that the dozen could be ignored, but that they must be converted. The Fifth and Sixth Ecumenical Councils were unanimous (Héfélé, iv, 164); and so, it seems, were those that followed them in early times.
The first modern instance of anything like a majority in the Councils of the Church was at Pisa in 1409. Two rival popes were deposed; and the Council had to consider whether cardinals appointed by those persons should be admitted to vote in the election of a new one. Some of the French bishops objected, but the majority overcame their opposition-unfortunately we are not told how. We see here traces of the national grouping in Councils
which soon attained expression in the system of voting by nations.' At the Council of Constance in 1414 this method was adopted in order to neutralise the numerical preponderance of the Italian bishops and doctors. But how was it imposed on the Italians? They alone counted nearly half the membership of the Council. Here again we have no clue. It may have been by the threat of secession, or by the personal influence of Charles V. At Pavia in 1423 each nation appointed delegates by the voice of the melior et sanior pars.' In 1424 the president of the French 'nation' had only a majority of nine. At Basel, in 1437, a question arose as to whether a Council to treat of union with the Greek Church should be held in Savoy or in Italy. Majority and minority published different decisions, read them in each other's faces, and sang rival Te Deums (ib. xi, 363). The majority pointed proudly to its numbers, the minority to its reasonableness. The cardinal who had the custody of the seal would not affix it to either resolution. The consequence-after several days' deadlockwas a unanimous reference to two arbitrators and an umpire, the Bishop of Burgos. The majority decree was selected by them for signature. But the Archbishop of Tarentum with four accomplices gained possession of the seal, and sealed the minority decision. The Pope (Eugene) confirmed the minority decree. The Council summoned him to appear before them; but, although they alleged every possible cause of complaint, they do not appear to have taken exception to this act of his. Curiously, they seem to have been unanimous in condemning him; perhaps the minority, whose decree he had 'sealed into authenticity,' had seceded. Meantime, the ambassadors of the minority and the Pope arrived at Constantinople to treat with the Greeks. They said candidly that they were the 'pars minor,' but nevertheless that it was the pars sanior,' and was rapidly increasing. The Greek Emperor accepted their version in preference to that of the delegates of the majority when they in their turn arrived.
The Council of Ferrara, immediately convened by the Pope, came to the striking resolution to adopt a twothirds majority as alone conclusive. Not only so, but the Council sat in three orders-bishops, abbots, and