The English constitution is indeed, as Lord Bryce has described it," a mass of precedents carried in men's minds or recorded in writing, of dicta of lawyers or statesmen, of customs, usages, understandings, and beliefs bearing upon the methods of government, together with a certain number of statutes, . . . nearly all of them presupposing and mixed up with precedents and customs, and all of them covered with a parasitic growth of legal decisions and political habits, apart from which the statutes would be almost unworkable, or at any rate quite different in their working from what they really are." At no time has an attempt been made to collect and to reduce to writing this stupendous mass of scattered material, and no such attempt is likely ever to be made. "The English," as the French critic Boutmy remarks, "have left the different parts of their constitution where the waves of history have deposited them; they have not attempted to bring them together, to classify or complete them, or to make of it a consistent or coherent whole." 2

Why are the conventions of the constitution so scrupulously observed, notwithstanding their lack of legal force? It is difficult to answer the question to one's entire satisfaction, but two or three considerations go far toward the desired explanation. In the first place, as Dicey points out, a main, if not the ultimate, sanction is the fact that it is not possible to violate important conventions without colliding with the statutes or, at all events, running into overwhelming practical difficulties.3 Thus, unless Parliament renews the Army Act every year, the government would lose all disciplinary authority over the troops; and though most of the revenue is collected and some of it is spent without annual parliamentary authorization, not a penny could be laid out on the army, the navy, or the entire civil service. In short, if the great conventions were ignored, the wheels of government would be stopped. This, however, does not cover the whole case. As Lowell points out, England is not obliged to continue forever holding annual sessions of Parliament because a new mutiny act must be passed and new appropriations made wealth, 3d ed., I, Chaps. xxxiv-xxxv). On the influence of conventions in France see H. Chardon, L'Âdministration de la France; les fonctionnaires (Paris, 1908), 79-105.

"Flexible and Rigid Constitutions," in Studies in History and Jurisprudence (New York, 1901), 134.

Studies in Constitutional Law: France - England — United States, trans. by Dicey (London, 1891), 6. Cf. J. O. Taylor, "A Written Constitution for Britain," in Jurid. Rev., Dec., 1914.

Law of the Constitution, Chap. xv.

E

every twelve months; the omnipotent Parliament could, quite as well as not, pass a permanent army act, grant the annual taxes for a term of years, and charge all ordinary expenses on the Consolidated Fund, from which many charges already are paid without authorization of Parliament in each case.1

The conventions are therefore supported by something more than the realization that to violate them may mean to run counter to the law; the law itself can readily be changed. This additional support is drawn from public opinion, especially opinion among the governing elements. "In the main," says Lowell, "the conventions are observed because they are a code of honor. They are, as it were, the rules of the game, and the single class in the community which has hitherto had the conduct of English public life almost entirely in its own hands is the very class that is peculiarly sensitive to obligation of this kind. Moreover, the very fact that one class rules, by the suffrance of the whole nation, as trustees for the public, makes that class exceedingly careful not to violate the understandings on which the trust is held." 2 The conventions have been worked out through the centuries of conflict and adaptation that make up the story of English political growth; they exist to secure obedience to the will of the House of Commons, and ultimately to the will of the nation; they constitute the means by which, without the jars and strains that would have accompanied direct legal restraints upon the crown, Parliament has drawn under its own control all powers of the sovereign that have not fallen into complete disuse.

Aspects of Continuity and of Change. In view of what has been said, two observations, representing opposite aspects of the same truth, are pertinent. The first is that in respect to the principles and many of the practices of the English constitution it is profoundly true that, in the familiar phrase of Bishop Stubbs, the roots of the present lie deep in the past. The second is that the English constitution is a living organism, so subject to change that any description of it that may be attempted is likely to stand in need of some revision as soon as it is printed. At no time, as the historian Freeman wrote, "has the tie between the present and the past been rent asunder; at no moment have Englishmen sat down to put together a wholly new constitution in obedience to some dazzling theory." 4 On the contrary, each step in the growth of the constitutional 1 Government of England, I, 12. Cf. p. 187 below.

2 Ibid., I, 12-13.

3 Constitutional History of England, I, prefatory note.
4 Growth of the English Constitution, 19.

system has been the natural consequence of some earlier step. Great changes, it is true, have been wrought. To mention but the most obvious illustration, autocratic kingship has been replaced by a parliamentary government based upon a thoroughgoing political democracy. None the less, transitions have as a rule been so gradual, deference to tradition so habitual, and the disposition to cling to ancient names and forms, even when the spirit had changed, so deep-seated, that the constitutional history of England presents an aspect of continuity that cannot be paralleled in any other country of Europe.

The letter of a written constitution may survive through many decades unchanged, as has that of the Italian Statuto of 1848, and as did that of the American constitution between 1804 and 1865. No constitutional system, however, long stands still, and least of all one of the English type, in which there is little of even the formal rigidity that arises from written texts. Having no fixed and orderly shape assigned it originally by some supreme authority, the constitution of the United Kingdom has retained throughout its history a notable flexibility. It is by no means to-day what it was fifty years ago; fifty years hence it will be by no means what it is to-day. In times past changes have sometimes been accompanied by violence, or, at all events, by extraordinary demonstrations of the national will. Nowadays they are introduced through the ordinary and peaceful processes of legislation, of judicial interpretation, and of administrative practice. Sometimes, as in the case of the Parliament Act of 1911 altering the powers of the House of Lords, they are accompanied by heated controversy and wide-spread public agitation. Frequently, however, they represent inevitable and unopposed amplifications of existing law or practice, and are hardly taken note of by the nation at large.

Power of Parliament to Alter the Constitution. In the main, changes are made in the English constitution to-day by act of Parliament. In the United States and in some European countries a sharp distinction is drawn between the powers of constitution framing and amendment and the powers of ordinary legislation. Our Congress may propose a constitutional amendment; but the change can be made only by an affirmative vote of the legislatures of three fourths of the states. In England powers are not thus divided. All are vested alike in Parliament; and so far as the processes of enactment, repeal, and revision

1 An alternative mode of ratification is by conventions, acting affirmatively in three fourths of the states. But this plan has never been followed.

are concerned, there is no difference whatever between a measure affecting the fundamental principles of the governmental system and a statute pertaining to the most petty subject of ordinary law. "Our Parliament," observes Anson, "can make laws protecting wild birds or shell-fish, and with the same procedure could break the connection of Church and State, or give political power to two millions of citizens, and redistribute it among new constituencies." The keystone of the law of the constitution is, indeed, the omnipotence of Parliament in the spheres both of constitution-making and of ordinary legislation. In Parliament is embodied the supreme will of the nation; and although from time to time that will may declare itself in widely varying, and even inconsistent, ways, at any given moment its pronouncements are authoritative and conclusive.

It is true that of late there has been a growing feeling that when fundamental and far-reaching changes are under consideration Parliament ought not to act until after the matter has been put before the people at a general election. It was in deference to this idea that the parliamentary election of December, 1910, was ordered, with the reform of the House of Lords as the one great issue.2 No fixed rule of the kind, however, has established itself, as is evidenced by the enfranchisement of six million women- not to mention other revolutionary changes in the electoral system — accomplished in the Representation of the People Act of 1918 entirely without formal popular mandate; and it remains true not only that the electorate has no legal means by which it can initiate and obtain consideration of constitutional changes, but that it has no way of directly expressing its opinions regarding proposals of this character originated by Parliament, save in the uncertain event of a dissolution, followed by a national election, before a final decision shall have been reached. The English political system, therefore, "furnishes a perfect example where the electorate has not only wholly surrendered to the government the exercise of constituent powers, or, to speak more correctly, has acquiesced in the complete exercise by that body of constituent powers, but has imposed upon that body no obligation to exercise these powers in any manner different from that followed in the enactment of ordinary law." 3

1 Law and Custom of the Constitution (4th ed.), I, 358. See also Dicey, Law of. the Constitution, Chap. i, and F. Pollock, First Book of Jurisprudence for Students of the Common Law (London, 1896), Pt. ii, Chap. iii. 2 See p. 152.

3 Willoughby, Government of Modern States, 123. On the similar situation in France, see p. 384 below. For brief discussions of the general nature of the English

The Unitary System and the Powers of Parliament. From the nature of the constitution as thus outlined flow two or three major characteristics of the English governmental system. The first is the unitary, as opposed to the federal, form. A federal system of government prevails where the political sovereign (whatever it may be in the individual case) has made a distribution of the powers of government among certain agencies, central and divisional, and has done so through the medium of constitutional provisions which neither central nor divisional government has made and which are beyond the power of either to alter or rescind. The important thing is not the territorial distribution of powers, for this is a practical necessity under all forms of government, nor yet the amount or kinds of power distributed, but the fact that the distribution is made by an authority superior to both central and divisional governments. The United States has a federal form of government because the partition of powers between the national government and the state governments is made by the sovereign people, through the national constitution, and cannot be changed by the government at Washington any more than by that at Albany or Harrisburg or Indianapolis. On the other hand, the government of England is unitary, because there is but a single integral government in which all power is concentrated, namely, the government centering at London: a government which has created the counties, boroughs, and other local political areas for its own convenience, which has endowed them, as subordinate districts, with such powers as it chose to bestow, and which is free to alter them in their organization and powers at any time, or even to abolish them altogether.

It follows that the national government, being all-comprehensive, is omnipotent, and that its central, dominating organ, Parliament, knows no legal restriction of power. Every measure of Parliament, of whatever nature and under whatever circumstances enacted, is "constitutional," in the sense that it is legally valid and enforceable. When an Englishman says of a measure that it is unconstitutional he means only that it is inconsistent with a previous enactment, with an established usage, constitution see Lowell, Government of England, I, 1-15; T. F. Moran, Theory and Practice of the English Government (new ed., New York, 1908), Chap. i; J. A. R. Marriott, English Political Institutions (Oxford, 1910), Chaps. i-ii; J. Macy, The English Constitution (New York, 1897), Chaps. i, ix; and S. Low, The Govern ance of England (London, 1904), Chap. i. A suggestive characterization is the Introduction of W. Bagehot, The English Constitution (new ed., Boston, 1873). A more extended analysis is Dicey, Introduction to the Study of the Law of the Constitution, especially the Introduction and Chaps. i, iii, xiii-xv.