CHAPTER IV THE CONSTITUTION AND THE GOVERNMENT What Constitution Means in England. Writers on government use the term "constitution" in two widely differing senses. Sometimes they mean by it a written instrument of fundamental law which outlines the structure of a governmental system, defines the powers of the governing bodies and officers, enumerates and guarantees the rights of citizens, and perhaps lays down certain general principles and rules to be observed in carrying on the affairs of state. The document may have been framed by a special, constituent assembly, or drafted by an ordinary legislative body, or promulgated upon the sole authority of a prince or dictator. On the other hand, the writer may employ the term to denote the whole body of laws, customs, and precedents, only partially, or even not at all, committed to writing, which determine the organization and workings of a government. The two usages are equally correct, provided one makes clear which is being followed at any given time. Thus the constitution of the United States is the document drawn up at Philadelphia in 1787 and put into operation in 1789, plus the eighteen amendments adopted in subsequent years; it is this instrument taken in conjunction with a great mass of rules, laws, customs, and interpretations, which lose none of their importance, or even of their binding character, because no mention of them can be found in the fundamental document.1 Upwards of a century ago a scholarly French writer, Alexis de Tocqueville author of a valuable work on democracy in America was led to remark that there is no such thing as an English constitution. As a Frenchman, he was accustomed to or 1 The nature, classes, and modes of growth of constitutions are adequately discussed in J. W. Garner, Introduction to Political Science (New York, 1910), Chap. xii, and W. F. Willoughby, Government of Modern States (New York, 1919), Chaps. vi-vii. 2De la démocratie en Amérique, published at Paris in 1835. "In England," he says, "the Parliament has an acknowledged right to modify the constitution; as, therefore, the constitution may undergo perpetual changes, it does not in reality exist (elle n'existe point); the Parliament is at once a legislative and a constituent assembly." Euvres Complètes, I, 166–167. consider a constitution as being necessarily a document, or at all events a group of documents, framed and adopted at a given time, and by some convention or other special agency, and setting forth in logical array the framework and principles of the government operating under it. In England he could find nothing of this sort; nor can one do so to-day. There is, however, it need hardly be affirmed, an English constitution - one which is at once the oldest and the most influential of all constitutions of our time. It is not contained in any single document, or in a group of documents; a great, although diminishing, portion of it is not in written form at all; it is not the work of any special constitution-framing body or power; far from being adopted at any one time, it is a product of fifteen centuries of political growth, and much of it was never formally "adopted at all. In short, the term "constitution " as applied to England must always be used in the broader sense indicated above. The English constitution is a complex of elements which one could hope to bring together only by examining intensively a thousand years and more of history, by laying hold of a statute here and of a judicial decision there, by taking constant account of the rise and crystallization of political usages, and by probing to their inmost recesses the mechanisms of administration, law-making, taxation, elections, and judicial procedure as they have been, and as they are actually operated before the spectator's eyes. These Component Elements: the Law of the Constitution. elements have been classified in various ways. For purposes of brief enumeration they may be gathered into five main categories. In the first place, there are treaties and other international agreements, which in Great Britain as in the United States, are considered parts of the supreme law of the land. In the second place, there is a group of solemn engagements which have been entered into at times of national crisis between parties representing conflicting political forces. Of such character are the Great Charter, the Petition of Right, and the Bill of Rights. A third and larger category comprises parliamentary statutes of such character and importance as to add to or modify governmental powers or procedure. Statutes of this type obviously include the Habeas Corpus Act of 1679, the Act of Settlement of 1701, the Septennial Act of 1716, Fox's Libel Act of 1792, the Reform Acts of 1832, 1867, and 1884, the Municipal Corporations Act of 1835, the Parliamentary and Municipal Elections Act of 1872, the Local Government Acts of 1888 and 1894, the Parliament Act of 1911, and the Representation of the People Act of 1918. In the fourth place there is the common law, a vast body of legal precept and usage which through the centuries has acquired binding and almost immutable character.1 The first three elements mentioned, i.e., treaties, solemn political engagements, and statutes, exist solely, or almost so, in written form. The rules of the common law, however, have not been reduced to writing, save in so far as they are contained in reports, legal opinions, and, more particularly, formal decisions of the courts, such as those on the rights of jurymen, on the prerogative of the crown, on the privileges of the houses of Parliament and of their members, and on the rights and duties of the police. Component Elements: the Conventions of the Constitution.— Finally, there are those portions of the constitution which have been aptly termed by Professor Dicey " the conventions." 2 The 66 law of the constitution, composed of the four elements that have been enumerated, is at all points, whether written or unwritten, enforceable by the courts; the conventions, although they may, and not seldom do, relate to matters of the most vital importance, are not so enforceable. The conventions consist of understandings, practices, and habits which alone regulate a large proportion of the actual relations and operations of the public authorities. They may somewhere be described in writing, but they do not appear in the statute books or in any instrument which can be made the basis of action in a court of law. For example, it is a convention of the constitution that forbids the king to veto a measure passed by the houses of Parliament. If the sovereign were in these days actually to veto a bill, the political consequences might be serious, but there could be no question of the technical legality of the deed. It is by virtue of a convention, not a law, of the constitution, that ministers resign when they have ceased to command the confidence of the House of Commons; that a bill must be read three times before being finally voted upon; that Parliament is convened annually, and that it consists of two houses. The cabinet, and all that the cabinet, as such, stands for, rests entirely upon convention. Obviously, any one seeking to understand the constitutional system as it is and as it operates must fix his attention upon the conventions quite as intently as upon the positive rules of law.3 1 See p. 207. 2 Introduction to the Study of the Law of the Constitution (8th ed.), Chap. xiv. 3 Convention occupies a large place in most political systems, even in countries which are governed under elaborate written constitutions. Their importance in the government of the United States is familiar. (See Bryce, American Common 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'Administration de la France; les fonctionnaires (Paris, 1908), 79-105. 1 "Flexible and Rigid Constitutions," in Studies in History and Jurisprudence (New York, 1901), 134. 2 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. 3 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.3 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. |