INTRODUCTION TO THE STUDY OF THE
LAW OF THE CONSTITUTION
A. V. Dicey
Preface to the First Edition.........................
Preface to the Eighth Edition .......................
Analysis of Introduction..........................
Introduction to the Eighth Edition ....................
Outline of Subject The True Nature of Constitutional Law.................
PART I
The Sovereignty of Parliament
I. The Nature of Parliamentary Sovereignty.............
II. Parliament and non-Sovereign Law-Making Bodies......
III. Parliamentary Sovereignty and Federalism ...........
PART II
The Rule of Law
IV. The Rule of Law: Its Nature and General Applications ....
V. The Right to Personal Freedom....................
VI. The Right to Freedom of Discussion ................
VII. The Right of Public Meeting.....................
VIII. Martial Law...............................
IX. The Army .................................
X. The Revenue................................
XI. The Responsibility of Ministers ...................
XII. Rule of Law compared with Droit Administratif............
XIII. Relation between Parliamentary Sovereignty and the Rule
of Law .....................................
PART III
The Connection Between The Law of the Constitution and the Conventions of the Constitution
XIV. Nature of Conventions of Constitution .................
XV. The Sanction by which the Conventions of the Constitution
are Enforced...................................
APPENDIX
I. Rigidity of French Constitutions.......................
II. Division of Powers in Federal States ....................
III. Distinction between a Parliamentary Executive and a non-Parliamentary Executive ...........................
IV. The Right of Self-Defence..........................
V. Questions Connected with the Right of Public Meeting........
VI. Duty of Soldiers Called upon to Disperse an Unlawful Assembly .
VII. The Meaning of an "Unconstitutional" Law...............
VIII. Swiss Federalism ...............................
IX. Australian Federalism .............................
X. Martial Law in England during Time of War or Insurrection.....
XI. Constitution of the Tribunal des Conflits ..................
XII. Proceedings Against the Crown ......................
XIII. Parliament Act, 1911..............................
Index......:....................................
PREFACE TO THE FIRST EDITION
This book is (as its title imports) an introduction to the study of the law of the constitution; it does not pretend to be even a summary, much less a complete account of constitutional law. It deals only with two or three guiding principles which pervade the modern constitution of England. My object in publishing the work is to provide students with a manual which may impress these leading principles on their minds, and thus may enable them to study with benefit in Blackstone's Commentaries and other treatises of the like nature those legal topics which, taken together, make up the constitutional law of England. In furtherance of this design I have not only emphasised the doctrines (such, for example, as the sovereignty of Parliament) which are the foundation of the existing constitution, but have also constantly illustrated English constitutionalism by comparisons between it and the constitutionalism on the one hand of the United States, and on the other of the French Republic. Whether I have in any measure attained my object must be left to the judgment of my readers. It may perhaps be allowable to remind them that a book consisting of actually delivered lectures must, even though revised for publication, exhibit the characteristics inseparable from oral exposition, and that a treatise on the principles of the law of the constitution differs in its scope and purpose, as well from a constitutional history of England as from works like Bagehot's incomparable
English Constitution, which analyse the practical working of our complicated system of modern Parliamentary government.
If, however, I insist on the fact that my book has a special aim of its own, nothing is further from my intention than to underrate the debt which I owe to the labours of the lawyers and historians who have composed works on the English constitution. Not a page of my lectures could have been written without constant reference to writers such as Blackstone, Hallam, Hearn, Gardiner, or Freeman, whose books are in the hands of every student. To three of these authors in particular I am so deeply indebted that it is a duty no less than a pleasure to make special acknowledgment of the extent of my obligations. Professor Hearn's Government of England has taught me more than any other single work of the way in which the labours of lawyers established in early times the elementary principles which form the basis of the constitution. Mr. Gardiner's History of England has suggested to me the conclusion on which, confirmed as I found it to be by all the information I could collect about French administrative law, stress is frequently laid in the course of the following pages, that the views of the prerogative maintained by Crown lawyers under the Tudors and the Stuarts bear a marked resemblance to the legal and administrative ideas which at the present day under the Third Republic still support the droit administratif of France. To my friend and colleague Mr; Freeman I owe a debt of a somewhat different nature. His Growth of the English Constitution has been to me a model (far easier to admire than to imitate) of the mode in which dry and even abstruse topics may be made the subject of effective and popular exposition. The dear statement which that work contains of the difference between our so-called "written law" and "our conventional constitution," originally led me to seek for an answer to the inquiry, what may be the true source whence constitutional understandings, which are not laws, derive their binding power, whilst the equally vigorous statements contained in the same book of the aspect in which the growth of the constitution presents itself to an historian forced upon my attention the essential difference between the historical and the legal way of regarding our institutions, and compelled me to consider whether the habit of looking too exclusively at the steps
by which the constitution has been developed does not prevent students from paying sufficient attention to the law of the constitution as it now actually exists. The possible weakness at any rate of the historical method as applied to the growth of institutions, is that it may induce men to think so much of the way in which an institution has come to be what it is, that they cease to consider with sufficient care what it is that an institution has become.
A. V. DICEY
All Souls College, Oxford, 1885
PREFACE TO THE EIGHTH EDITION
The body of this work is the eighth edition, or rather a reprint of the seventh edition, of the Law of the Constitution first published in 1885. It is, however, accompanied by a new Introduction. This Introduction is written with two objects. The first object is to trace and comment upon the way in which the main principles of our constitution as expounded by me may have been affected either by changes of law or by changes of the working of the constitution which have occurred during the last thirty years (1884-1914). The second object of this Introduction is to state and analyse the main constitutional ideas which may fairly be called new, either because they have come into existence during the last thirty years, or because (what is much more frequently the case) they have in England during that period begun to exert a new and noticeable influence.
It has been my good fortune to receive in the composition of this Introduction, as in the writing of every book which I have published, untold aid from suggestions made to me by a large number both of English and of foreign friends. To all these helpers I return my most sincere thanks. It is at once a duty and a pleasure to mention my special obligation to two friends, who can both be numbered as high authorities among writers, who have investigated the constitution of England from different points of view. To the friendship of the late Sir William Anson I owe a debt the amount of which it is impossible to exaggerate. He was better acquainted, as his books show, with the
details and the working of the whole constitution of England than any contemporary authority. Since I first endeavoured to lay down the few general principles which in my judgment lie at the basis of our constitution, I have, whilst engaged in that attempt, always enjoyed his sympathy and encouragement, and, especially in the later editions of my work, I have received from him corrections and suggestions given by one who had explored not only the principles but also all the minute rules of our constitutional law and practice. To my friend Professor A. Berriedale Keith I am under obligations of a somewhat different kind. He has become already, by the publication of his Responsible Government in the Dominions, an acknowledged authority on all matters connected with the relation between England and her Colonies. I have enjoyed the great advantage of his having read over the parts of my Introduction which refer to our Colonial Empire. His knowledge of and experience in Colonial affairs has certainly saved me from many errors into which I might otherwise have fallen.
It is fair to all the friends who have aided me that I should state explicitly that for any opinions expressed in this Introduction no one is responsible except myself. The care with which many persons have given me sound information was the more valued by me because I have known that with some of the inferences drawn by me from the facts on which I commented my informants probably did not agree.
A. V. DICEY Oxford, 1914
ANALYSIS OF INTRODUCTION
Aim ...........................................xxxv
The Sovereignty of Parliament........................xxxvi
Possible change in constitution of parliamentary sovereign
(Parliament Act, 1911) ...........................xxxvi
State of things before passing Act ...................xxxviii
Direct effects of Parliament Act......................xxxix
(1) Money Bill — House of Lords no veto .............xxxix
(2) Other public Bills — House of Lords has only suspensive veto................................xl
(3) House of Commons has unlimited legislative power . . . . xli Practical change in area of parliamentary sovereignty
(Relation of the Imperial Parliament to Dominions)........xlii
First question — What is the difference between such
relation in 1884 and 1914? ..........................xlii
Second question — What changes of opinion caused
the change of relation?..............................l
The Rule of Law.....................................lv
Decline in reverence for rule of law......................lv
Comparison between present official law of England and
present droit administratif of France....................lxi
Conventions of the Constitution........................lxvi
First question — What changes?.......................bcvi
Second question — What is the tendency of new
conventions?..................................lxxii
Third question — Does experience of last thirty years
confirm principles laid down as to connection between
conventions and rule of law?.......................lxxv
Development during the last Thirty Years of New
Constitutional Ideas ..............................lxxvi
Two general observations on new constitutional ideas......lxxvi
First observation — Slow growth of political or constitutional
inventiveness .................................lxxvi
Second observation — These new ideas take no account of
one of the ends which good legislation ought to attain .... bcxvii
Criticism of the Four New Constitutional Ideas .............lxxx
Woman Suffrage.................................lxxx
The causes of demand.............................lxxxi
The two main lines of argument and answers ............lxxxi
First argument — Every citizen entitled to vote ...........lxxxi
Second argument — Difference of sex no ground for
difference of political rights.......................bocxii
Proportional representation........................lxxxiv
The three propositions on which argument in favour of
proportional representation is based................lxxxiv
The truth of two first propositions admitted ............lxxxiv
Objections to third proposition .....................lxxxvi
First objection — Complication of system increases power
of wire-pullers................................lxxxvi
Second objection — House of Commons is not mere House
for Debate ..................................boocvii
Third objection — Proportional representation increases
number and evil of parliamentary groups ...........lxxxviii
Federalism ......................................xci
Leading characteristics of federal government ............xciii
Characteristics of federal government in relation to Imperial
Federalism...................................xcviii
First objection — Attempt to form federal constitution for
Empire full of difficulty and peril....................xcix
Second objection — No real necessity for formation of
any new federal constitution for Empire................ciii
Characteristics of federal government in relation to Home
Rule all round (i.e. federalisation of United Kingdom) ...... civ
Vagueness of the ideas which support the policy of
federalisation of United Kingdom (Home Rule all round) . . . . cv
Specific objections to Home Rule all round ...............cvi
First objection — No desire for Federalism in any part of
United Kingdom ................................cvi
Second objection — Federalisation of United Kingdom
does not promote Imperial Federalism ................cvii
Third objection — Such federalisation opposed to whole
history of English constitutionalism ..................cvii
The Referendum.................................cviii
Meaning of referendum............................cviii
Causes for demand for referendum.....................ex
The main argument against the referendum ..............cxi
The main argument in favour of the referendum ..........cxiv
Conclusions .....................................cxvii
INTRODUCTION
AIM
The Law of the Constitution was first published in 1885. The book was based on lectures delivered by me as Vinerian Professor of English Law. The lectures were given and the book written with the sole object of explaining and illustrating three leading characteristics in the existing constitution of England; they are now generally designated as the Sovereignty of Parliament, the Rule of Law, and the Conventions of the Constitution. The book, therefore, dealt with the main features of our constitution as it stood in 1884-85, that is thirty years ago. The work has already gone through seven editions; each successive edition, including the seventh, has been brought up to date, as the expression goes, by amending it so as to embody any change in or affecting the constitution which may have occurred since the last preceding edition. On publishing the eighth and final edition of this treatise I have thought it expedient to pursue a different course. The constant amendment of a book republished in successive editions during thirty years is apt to take from it any such literary merits as it may originally have possessed. Recurring alterations destroy the original tone and spirit of any treatise which has the least claim to belong to the literature of England. The present edition, therefore, of the Law of the Constitution is in substance a reprint of the seventh edition; it is however accompanied by this new Introduction whereof the aim is to compare our constitution as it stood and worked in 1884 with the constitution as it now stands in 1914. It is thus
possible to take a general view of the development of the constitution during a period filled with many changes both of law and of opinion. J My readers are thus enabled to see how far either legislation or constitutional conventions have during the last thirty years extended or (it may be) limited the application of the principles which in 1884 lay at the foundation of our whole constitutional system. This Introduction therefore is in the main a work of historical retrospection. It is impossible, however (nor perhaps would it be desirable were it possible), to prevent a writer's survey of the past from exhibiting or betraying his anticipations of the future.
The topics here dealt with may be thus summed up: — The Sovereignty of Parliament,2 the Rule of Law,3 the Law and the Conventions of the Constitution,4 New Constitutional Ideas,5 General Conclusions.6
SOVEREIGNTY OF PARLIAMENT7
The sovereignty of Parliament is, from a legal point of view, the dominant characteristic of our political institutions. And my readers will remember that Parliament consists of the King, the House of Lords, and the House of Commons acting together. The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that "Parliament" has "the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament,"8 and further that this right or
1 Compare the Introduction to the second edition of Law and Public Opinion in England during the Nineteenth Century.
2 See Part I. Chaps. I.-III.,posf.
3 See Part II. Chaps. IV. -XIII., post.
4 See Part III. Chaps. XIV., XV., post.
5 Seep. lxxvi,post.
6 A student who wishes to understand the statements in the Introduction should read with care that part of the book on which they are a comment; thus the portions of the Introduction referring to the Sovereignty of Parliament ought to be read in connection with Part I. Chapters I.-III., post.
7 See Chaps. I.-III., post.
8 See Chap. I. p. 3, post. Parliament may itself by Act of Parliament either expressly or impliedly give to some subordinate legislature or other body the power to modify or add to
power of Parliament extends to every part of the King's dominions.9 These doctrines appear in the first edition of this work, published in 1885; they have been repeated in each successive edition published up to the present day. Their truth has never been denied. We must now, however, consider whether they are an accurate description of parliamentary sovereignty as it now exists in 1914. And here it should be remarked that parliamentary sovereignty may possibly at least have been modified in two different directions, which ought to be distinguished. It is possible, in the first place, that the constitution or nature of the sovereign power may have undergone a change. If, for example, the King and the Houses of Parliament had passed a law abolishing the House of Lords and leaving supreme legislative power in the hands of the King and of the House of Commons, any one would feel that the sovereign to which parliamentary sovereignty had been transferred was an essentially different sovereign from the King and the two Houses which in 1884 possessed supreme power. It is possible, in the second place, that since 1884 the Imperial Parliament may, if not in theory yet in fact, have ceased as a rule to exercise supreme legislative power in certain countries subject to the authority of the King. Let us consider carefully each of these two possibilities.
POSSIBLE CHANGE IN CONSTITUTION OR
CHARACTER OF THE PARLIAMENTARY SOVEREIGN
(EFFECT OF THE PARLIAMENT ACT, 1911)
The matter under consideration is in substance whether the Parliament Act,10 has transferred legislative authority from the King11 and
a given Act of Parliament. Thus under the Commonwealth Act, 63 & 64 Viet. c. 12, the Imperial Parliament has given to the Parliament of the Australian Commonwealth power to modify many provisions of the Commonwealth Act, and the Imperial Parliament, under the National Insurance Act, 1911, has given power to the Insurance Commissioners and to the Board of Trade to modify some provisions of the Insurance Act.
9 See pp. 47-61, post.
10 See especially the Parliament Act, 1911, ss. 1-3, and Appendix, Note XIII., the Parliament Act.
11 The Parliament Act in no way diminishes the prerogatives of the King as they existed immediately before the passing of that Act, and it is enacted (Parliament Act. s. 6) that "nothing in this Act shall diminish or qualify the existing rights and privileges of the House of Commons."
the two Houses of Parliament to the King and the House of Commons?
The best mode of giving an answer to this question is first to state broadly what were the legislative powers of the House of Lords immediately before the passing of the Parliament Act, i8th August 1911, and next to state the main direct and indubitable effects of that Act on the legislative power of the House of Lords and of the House of Commons respectively.
THE STATE OF THINGS IMMEDIATELY BEFORE THE PASSING OF THE PARLIAMENT ACT
No Act of Parliament of any kind could be passed without the consent thereto both of the House of Lords and of the House of Commons. No doubt the House of Lords did very rarely either alter or reject any Money Bill, and though the Lords have always claimed the right to alter or reject such a Bill, they have only on very special occasions exercised this power. No doubt again their lordships have, at any rate since 1832, acknowledged that they ought to pass any Bill deliberately desired by the nation, and also have admitted the existence of a more or less strong presumption that the House of Commons in general represents the will of the nation, and that the Lords ought, therefore, in general to consent to a Bill passed by the House of Commons, even though their lordships did not approve of the measure. But this presumption may, they have always maintained, be rebutted if any strong ground can be shown for holding that the electors did not really wish such a Bill to become an Act of Parliament. Hence Bill after Bill has been passed by their lordships of which the House of Lords did not in reality approve. It was however absolutely indubitable up to the passing of the Parliament Act that no Act could be passed by Parliament without obtaining the consent of the House of Lords. Nor could any one dispute the legal right or power of the House, by refusing such assent, to veto the passing of any Act of which the House might disapprove. Two considerations, however, must be taken into account. This veto, in the first place, has, at any rate since 1832, been as a rule used by the Lords as a merely suspensive veto. The passing of the Great Reform Act itself was delayed by
their lordships for somewhat less than two years, and it may well be doubted whether they have, since 1832, ever by their legislative veto, delayed legislation really desired by the electors for as much as two years. It must again be remembered that the Lords, of recent years at least, have at times rejected Bills supported by the majority of the House of Commons which, as has been proved by the event, had not received the support of the electors. Hence it cannot be denied that the action of the House of Lords has sometimes protected the authority of the nation.
THE DIRECT EFFECTS OF THE PARLIAMENT ACT12
Such effects can be summed up in popular and intelligible language, rather than with technical precision, as follows:
1. In respect of any Money Bill the Act takes away all legislative power from the House of Lords. The House may discuss such a Bill for a calendar month, but cannot otherwise prevent, beyond a month, the Bill becoming an Act of Parliament.13
2. In respect of any public Bill (which is not a Money Bill),14 the Act takes away from the House of Lords any final veto, but leaves or gives to the House a suspensive veto.ls
This suspensive veto is secured to the House of Lords because under the Parliament Act, s. 2, no such Bill can be passed without the consent of the House which has not fulfilled the following four conditions:
i. That the Bill shall, before it is presented to the King for his assent, be passed by the House of Commons and be rejected by the House of Lords in each of three successive sessions.16
ii. That the Bill shall be sent up to the House of Lords at least one calendar month before the end of each of these sessions.17
12 See as to "indirect effects," p. lxix, post.
13 See Parliament Act, ss. i and 3.
14 Except a Bill for extending the maximum duration of Parliament beyond five years. See Parliament Act, s. 2, sub-s. i.
15 See s. 2.
16 Sees. 2(1).
17 Ibid.
iii. That in respect of such Bill at least two years shall have elapsed between the date of the second reading of the Bill in the House of Commons during the first of those sessions and the date on which it passes the House of Commons in the third of such sessions.18
iv. That the Bill presented to the King for his assent shall be in every material respect identical with the Bill sent up to the House of Lords in the first of the three successive sessions except in so far as it may have been amended by or with the consent of the House of Lords.
The history of the Government of Ireland Act, 1914, popularly, and throughout this Introduction generally, called the Home Rule Bill or Act, affords good illustrations of the peculiar procedure instituted by the Parliament Act. The Home Rule Bill was introduced into the House of Commons during the first of the three successive sessions on April 11, 1912; it passed its second reading in the House of Commons during that session on May 9, 1912; it was rejected by the House of Lords either actually or constructively19 in each of the three successive sessions. It could not then possibly have been presented to the King for his assent till June 9, 1914; it was not so presented to the King till September 18, 1914. On that day, just before the actual prorogation of Parliament in the third session, it received the royal assent without the consent of the House of Lords; it thereby became the Government of Ireland Act, 1914. The Act as assented to by the King was in substance identical with the Bill sent up to the House of Lords in the first of the three sessions on January 16, 1913. But here we come across the difficulty of amending a Bill under the Parliament Act after it had once been sent up in the third session to the House of Lords. By June
18 S. 2 (i) Proviso. Under this enactment the House of Lords may insist upon a delay of at least two years and one calendar month, and a powerful opposition in the House of Commons may lengthen this delay.
19 Constructive rejection arises under the Parliament Act, s. 2, sub-s. 3, which runs as follows: "A Bill shall be deemed to be rejected by the House of Lords if it is not passed by the House of Lords either without amendment or with such amendments only as may be agreed to by both Houses." The Home Rule Bill was actually rejected by the vote of the House of Lords in its first and second session. It was constructively rejected in the third session by the House of Lords simply by the House not passing the Bill during such
1914 it was felt to be desirable to amend the Home Rule Bill in respect of the position of Ulster. On June 23 the Government brought into the House of Lords a Bill which should amend the Home Rule Act which was still a Bill, and it is difficult to find a precedent for thus passing an Act for amending a Bill not yet on the statute-book. The attempt to carry out the Government's proposal came to nothing. On September 18, 1914, the Home Rule Bill became the Home Rule Act (or technically the Government of Ireland Act, 1914) unamended, but on the very day on which the Home Rule Act was finally passed it was in effect amended by a Suspensory Act under which the Government of Ireland Act, 1914, cannot come into force until at any rate twelve months from September 18, and possibly will not come into force until the present war has ended. The Suspensory Act evades or avoids the effect of the Parliament Act, but such escape from the effect of a recently passed statute suggests the necessity for some amendment in the procedure created by the Parliament Act.
3. The House of Commons can without the consent of the House of Lords present to the King for his assent any Bill whatever which has complied with the provisions of the Parliament Act, section 2, or rather which is certified by the Speaker of the House of Commons in the way provided by the Act to have complied with the conditions of the Parliament Act, section 2.
The simple truth is that the Parliament Act has given to the House of Commons, or, in plain language, to the majority thereof, the power of passing any Bill whatever, provided always that the conditions of the Parliament Act, section 2, are complied with. But these provisions do leave to the House of Lords a suspensive veto which may prevent a Bill from becoming an Act of Parliament for a period of certainly more, and possibly a good deal more, than two years.20
20 The Parliament Act leaves the existing rights and privileges of the House of Commons untouched (ibid. sect. 6). No reference whatever is therein made to the so-called "veto" of the King. Its existence is undoubted, but the veto has not been exercised for at least two centuries. The well-known words of Burke, however, should always be borne in mind: "The king's negative to bills," he says, "is one of the most indisputed of the royal prerogatives; and it extends to all cases whatsoever. I am far from certain, that if several laws which I know had fallen under the stroke of that sceptre, the public would have had a very heavy loss. But it is not the propriety of the exercise which is in question. The exercise itself is
In these circumstances it is arguable that the Parliament Act has transformed the sovereignty of Parliament into the sovereignty of the King and the House of Commons. But the better opinion on the whole is that sovereignty still resides in the King and the two Houses of Parliament. The grounds for this opinion are, firstly, that the King and the two Houses acting together can most certainly enact or repeal any law whatever without in any way contravening the Parliament Act; and, secondly, that the House of Lords, while it cannot prevent the House of Commons from, in effect, passing under the Parliament Act any change of the constitution, provided always that the requirements of the Parliament Act are complied with, nevertheless can, as long as that Act remains in force, prohibit the passing of any Act the effectiveness of which depends upon its being passed without delay.
Hence, on the whole, the correct legal statement of the actual condition of things is that sovereignty still resides in Parliament, i.e. in the King and the two Houses acting together, but that the Parliament Act has greatly increased the share of sovereignty possessed by the House of Commons and has greatly diminished the share thereof belonging to the House of Lords.
PRACTICAL CHANGE IN THE AREA OF PARLIAMENTARY SOVEREIGNTY (RELATION OF THE IMPERIAL PARLIAMENT TO THE DOMINIONS21)
The term "Dominions" means and includes the Dominion of Canada, Newfoundland, and Commonwealth of Australia, New
wisely forborne. Its repose may be the preservation of its existence; and its existence may be the means of saving the constitution itself, on an occasion worthy of bringing it forth." — Burke, Letter to the Sheriffs of Bristol, vol. iii., ed. 1808, pp. 180, 181; ed. 1872, vol. ii. p. 28. Experience has confirmed the soundness of Burke's doctrine. The existence of this "negative" has greatly facilitated the development of the present happy relation between England and her self-governing colonies. It has enabled English and colonial statesmanship to create that combination of Imperial unity with something coming near to colonial independence which may ultimately turn out to be the salvation of the British Empire.
21 For this use of the term Dominions see British Nationality & Status of Aliens Act, 1914, 4 & 5 Geo. V. c. 17, ist Schedule. Compare especially as to British colonies with representative and responsible government pp. 47 to 61, post.
The Dominions for the most part consist either of a country which was a self-governing colony, or of countries which were self-governing colonies in 1884. But this statement does
Zealand, and the Union of South Africa. Each of the Dominions is a self-governing colony, i.e. a colony possessed both of a colonial Parliament, or representative legislature, and a responsible government, or in other words, of a government responsible to such legislature. Our subject raises two questions:
First Question
What is the difference between the relation of the Imperial Parliament to a self-governing colony, such, e.g., as New Zealand, in 1884, and the relation of the same Parliament to the Dominion, e.g. of New Zealand, in 1914?
Before attempting a direct answer to this inquiry it is well to point out that in two respects of considerable importance the relation of the Imperial Parliament22 to the self-governing colonies, whether called Dominions or not, has in no respect changed since 1884.
In the first place, the Imperial Parliament still claims in 1914, as it claimed in 1884, the possession of absolute sovereignty throughout every part of the British Empire; and this claim, which certainly extends to every Dominion, would be admitted as sound legal doctrine by any court throughout the Empire which purported to act under
not apply with perfect accuracy to every one of the Dominions. Western Australia, for instance, which is now one of the states of the Commonwealth of Australia, did not obtain responsible government till 1890, and Natal, now a state of the Union of South Africa, did not obtain such government till 1893. The Union of South Africa itself consists to a great extent of states which in 1884, though subject to the suzerainty of the King, were (under the government of the Boers) all but independent countries.
Throughout this Introduction, unless the contrary is expressly stated, or appears from the context, no reference is made to the position either of (i.) the Crown colonies, or (ii.) the three colonies, viz. the Bahamas, Barbadoes, and Bermuda, which possess representative but not responsible government, or (iii.) British India. This Introduction, in short, in so far as it deals with the relation of the Imperial Parliament to the colonies, refers exclusively, or all but exclusively, to the relation between the Imperial Parliament and the five Dominions. 22 This term means what an English writer on our constitution would generally call simply "Parliament," that is the Parliament of the United Kingdom. The term "Imperial Parliament" is, however, a convenient one when we have to deal, as in this Introduction, with the relation between the Parliament of the United Kingdom and the Dominions, every one of which has representative legislatures of their own which are always popularly, and sometimes in Acts of Parliament, termed Parliaments. The term "Imperial Parliament" is used in colonial statutes, e.g., in the Interpretation Act of the Commonwealth of Australia, No. 2 of 1901.
the authority of the King. The constitution indeed of a Dominion in general originates in and depends upon an Act, or Acts, of the Imperial Parliament; and these constitutional statutes are assuredly liable to be changed by the Imperial Parliament.
Parliament, in the second place, had long before 1884 practically admitted the truth of the doctrine in vain pressed upon his contemporaries by Burke,23 when insisting upon the folly of the attempt made by the Parliament of England to exert as much absolute power in Massachusetts as in Middlesex, that a real limit to the exercise of sovereignty is imposed not by the laws of man but by the nature of things, and that it was vain for a parliamentary or any other sovereign to try to exert equal power throughout the whole of an immense Empire. The completeness of this admission is shown by one noteworthy fact: the Imperial Parliament in 1884, and long before 1884, had ceased to impose of its own authority and for the benefit of England any tax upon any British colony.24 The omnipotence, in
23 "Who are you," to quote his words, "that should fret and rage, and bite the chains of nature? Nothing worse happens to you, than does to all nations who have extensive empire; and it happens in all the forms into which empire can be thrown. In large bodies, the circulation of power must be less vigorous at the extremities. Nature has said it. The Turk cannot govern Egypt, and Arabia, and Curdistan, as he governs Thrace; nor has he the same dominion in the Crimea and in Algiers which he has at Brusa and Smyrna. Despotism itself is obliged to truck and huckster. The Sultan gets such obedience as he can. He governs with a loose rein, that he may govern at all; and the whole of the force and vigour of his authority in the centre is derived from a prudent relaxation in all his borders. Spain, in her provinces, is, perhaps, not so well obeyed as you are in yours. She complies too; she submits; she watches times. This is the immutable condition, the eternal law, of extensive and detached empire." — Burke, Conciliation with America, vol. iii. (ed. 1808),
PP- 56, 57-
24 This renunciation by the Imperial Parliament of the right to impose taxes upon a colony, whether a self-governing colony or not, has passed through two stages. Since 1783 taxation imposed by an Imperial Act has always been, even in the case of a Crown colony, imposed for the benefit of the colony, and the proceeds thereof have been paid to the colony. But until the repeal of the Navigation Laws in 1849 Parliament, in support of our whole navigation system, retained the practice of imposing duties on goods imported into the colonies, though the proceeds thereof were paid to the colonies so taxed. Since 1849 no Imperial Act has been passed for the taxation of any colony, and no colony is compelled by the Imperial Parliament to contribute anything in the way of taxation towards the cost of the government of the United Kingdom or towards the defence of the British Empire.
The Imperial Parliament does still impose customs duties upon the Isle of Man. See 3 & 4 Geo. V. c. 18.
short, of Parliament, though theoretically admitted, has been applied in its full effect only to the United Kingdom.
A student may ask what is the good of insisting upon the absolute sovereignty of Parliament in relation to the Dominions when it is admitted that Parliament never gives, outside the United Kingdom, and probably never will give, full effect to this asserted and more or less fictitious omnipotence. The answer to this suggestion is that students who do not bear in mind the claim of Parliament to absolute sovereignty throughout the whole of the British Empire, will never understand the extent to which this sovereign power is on some occasions actually exerted outside the limits of the United Kingdom, nor, though this statement sounds paradoxical, will they understand the limits which, with the full assent, no less of English than of colonial statesmen, are in fact, as regards at any rate the Dominions, imposed upon the actual exercise of the theoretically limitless authority of Parliament. It will be found further that even to the Dominions themselves there is at times some advantage in the admitted authority of the Imperial Parliament to legislate for the whole Empire. In the eyes, at any rate, of thinkers who share the moral convictions prevalent in most civilised states, it must seem a gain that the Imperial Parliament should have been able in 1834 to prohibit the existence of slavery in any country subject to the British Crown, and should be able to-day to forbid throughout the whole Empire the revival of the Slave Trade, or of judicial torture.
Let us now turn to the points wherein the relation of the Imperial Parliament to the self-governing colonies in 1884 differed from the existing relation of the Imperial Parliament to the Dominions in 1914.
The relation of the Imperial Parliament in 1884 to a self-governing colony, e.g. New Zealand.
The Imperial Parliament, under the guidance of English statesmen, certainly admitted in practice thirty years ago that a self-governing colony, such as New Zealand, ought to be allowed in local matters to legislate for itself. Parliament did, however, occasionally legislate for New Zealand or any other self-governing colony. Thus the existing English Bankruptcy Act, 1883, as a matter of fact transferred, as it still transfers, to the trustee in bankruptcy the bankrupt's property, and
even his immovable property situate in any part of the British Empire,2S and a discharge under the English Bankruptcy Act, 1883, was, and still is, a discharge as regards the debts of the bankrupt contracted in any part of the British Empire,26 e.g. in New Zealand or in the Commonwealth of Australia. So again the veto of the Crown was, in one form or another27 in 1884, and even later, used occasionally to prevent colonial legislation which, though approved of by the people of the colony and by the legislature thereof, might be opposed to the moral feeling or convictions of Englishmen. Thus colonial Bills for legalising the marriages between a man and his deceased wife's sister, or between a woman and her deceased husband's brother, were sometimes vetoed by the Crown, or in effect on the advice of ministers supported by the Imperial Parliament. No doubt as time went on the unwillingness of English statesmen to interfere, by means of the royal veto or otherwise, with colonial legislation which affected only the internal government of a self-governing colony, increased. But such interference was not unknown. There was further, in 1884, an appeal in every colony from the judgments of the Supreme Court thereof to the English Privy Council. And a British Government would in 1884 have felt itself at liberty to interfere with the executive action of a colonial Cabinet when such action was inconsistent with English ideas of justice. It was also in 1884 a dear principle of English administration that English colonists should neither directly nor indirectly take part in negotiating treaties with foreign powers. Nor had either England or the self-governing colonies, thirty years ago, realised the general advantage of those conferences now becoming a regular part of English public life, at which English ministers and colonial ministers could confer upon questions of colonial policy, and could thus practically acknowledge the interest of the colonies in everything which concerned the welfare of the whole Empire. Neither certainly did English statesmen in 1884 contemplate the pos-
25 See Dicey, Conflict of Laws (and ed.), pp. 329-333-
26 Ibid., p. 441, and Ellis v. McHenry (1871), L. R. 6, C. P. 228, 234-236; but contrast New Zealand Loan, etc, Co. v. Morrison [1898], A. C. 349, died Conflict of Laws, p. 342.
27 See pp. 56-61, post.
sibility of a colony standing neutral during a war between England
and a foreign power.
The relation of the Imperial Parliament in 1914 to a Dominion.28 This relation may now, it is submitted, be roughly summed up in
the following rules:
Rulei
In regard to any matter which directly affects Imperial interests the Imperial Parliament will (though with constantly increasing caution) pass laws which apply to a Dominion and otherwise exercise sovereign power in such a Dominion.
But this rule applies almost exclusively to matters which directly and indubitably affect Imperial interests.29
Rule 2
Parliament does not concede to any Dominion or to the legislature thereof the right —
a. to repeal [except by virtue of an Act of the Imperial Parliament] any Act of the Imperial Parliament applying to a Dominion;
b. to make of its own authority a treaty with any foreign power;
c. to stand neutral in the event of a war between the King and any foreign power, or, in general, to receive any benefit from a foreign power which is not offered by such power to the whole of the British Empire.30
It must be noted that under these two rules the Imperial Parliament does retain, and sometimes exerts the right to legislate in regard to matters which may greatly concern the prosperity of a Dominion, and also does in some respects seriously curtail both the legislative power of a Dominion Parliament and the executive power of a Dominion Cabinet. As long, in short, as the present state of things continues, the Imperial Parliament, to the extent I have laid down, still treats any Dominion as on matters of Imperial concern subordinate to the sovereignty of the Imperial Parliament.
28 See as to meaning of Dominion, pp. xlii-xliii, note 21, ante.
29 See Keith, Responsible Government in the Dominions, p. 1316.
30 Ibid. pp. 1119-1122.
Rule}
The Imperial Parliament now admits and acts upon the admission, that any one of the Dominions has acquired a moral right to as much independence, at any rate in regard to matters occurring within the territory of such Dominion, as can from the nature of things be conceded to any country which still forms part of the British Empire.
Take the following illustration of the extent of such internal independence:
Parliament does not (except at the wish of a Dominion) legislate with respect to matters which merely concern the internal interests of such Dominion, e.g. New Zealand.31
The legislature of any Dominion has within the territorial limits of such Dominion power to legislate in regard to any matter which solely concerns the internal interest of such Dominion.
The power of the Crown, i.e. of the British ministry, to veto or disallow in any way32 any Bill passed by the legislature of a Dominion, e.g. New Zealand, is now most sparingly exercised, and will hardly be used unless the Bill directly interferes with Imperial interests or is as regards the colonial legislature ultra vires. Thus the Crown, or in other words a British ministry, will now not veto or disallow any Bill passed by the legislature of a Dominion on the ground that such Bill is indirectly opposed to the interests of the United Kingdom, or contradicts legal principles generally upheld in England, e.g. the principle of free trade.
The British Government will not interfere with the executive action of the Government (e.g. of New Zealand) in the giving or the withholding of pardon for crime, in regard to transactions taking place wholly within the territory of New Zealand.33
Any Dominion has now a full and admitted right to raise military or naval forces for its own defence. And the policy of England is in the main to withdraw the English Army from the Dominions and to encourage any Dominion to provide for its own defence and to raise
31 See Keith, Responsible Government in the Dominions, pp. 1316-1328.
32 See pp. 56-57, post.
33 See Keith, Responsible Government in the Dominions, p. 1583.
for itself a Navy, and thereby contribute to the defensive power of the British Empire.
The Imperial Government is now ready at the wish of a Dominion to exclude from its constitution, either partially or wholly, the right of appeal from the decision of the Supreme Court of such Dominion to the Privy Council.34
The Imperial Government also is now ready at the wish of a Dominion to grant to such Dominion the power to amend by law the constitution thereof though created under an Act of the Imperial Parliament.35
Rule 4
The habit has now grown up that conferences should be held from time to time in England, at which shall be present the Premier of England and the Premier of each Dominion, for consultation and discussion on all matters concerning the interest and the policy of the Empire, and that such conferences should be from time to time held may now, it is submitted, be considered a moral right of each Dominion.
These conferences, which were quite unthought of thirty years ago, and which did not receive their present form until the year 1907, mark in a very striking manner a gradual and therefore the more important change in the relations between England and the self-governing colonies.
The answer then to the question before us36 as to the difference between the relation of England (or in strictness of the Imperial Parliament) to the self-governing colonies37 in 1884 and her relation to the Dominions in 1914 can thus be summed up: At the former period England conceded to the self-governing colonies as much of independence as was necessary to give to such colonies the real management in their internal or local affairs. But English statesmen at that
34 See Commonwealth of Australia Constitution, s. 74; South Africa Act, 1909, s. 106.
35 See especially South Africa Act, 1909, s. 106.
36 See first question, p. xliii, ante.
37 The difference between the expression "self-governing colonies" and "Dominions" is worth noticing. The first is appropriate to 1884, the second is appropriate to 1914-
date did intend to retain for the Imperial Parliament, and the Imperial Government as representing such Parliament, a real and effective control over the action of the ministry and the legislature of each self-governing colony in so far as that control was not palpably inconsistent with independence as regards the management of strictly local affairs. In 1914 the colonial policy of England is to grant to every Dominion absolute, unfettered, complete local autonomy,38 in so far as such perfect self-government by a Dominion does not dearly interfere with loyalty of the Dominion to the Empire. The two relations of England to the self-governing colonies — now called Dominions — are, it may be objected, simply one and the same relation described in somewhat different language. The objection is plausible, but not sound. My effort has been to describe two different ways of looking at one and the same relation, and the results of this difference of view are of practical consequence. In 1884 it was admitted, as it is to-day, that the self-governing colonies must have rights of self-government. But in 1884 the exercise of self-government on the part of any colony was regarded as subordinate to real control by the English Parliament and Crown of colonial legislation which might be opposed to English interests or to English ideals of political prudence. In 1914 the self-government, e.g., of New Zealand means absolute, unfettered, complete autonomy, without consulting English ideas of expediency or even of moral duty. The one limit to this complete independence in regard to local government is that it is confined to really local matters and does not trench upon loyalty to the Empire. The independence of the Dominion, in short, means nowadays as much of independence as is compatible with each Dominion remaining part of the Empire.
Second Question
What are the changes of opinion which have led up to the altered relation between England and the Dominions?39
In the early Victorian era [and even in the mid-Victorian era] there were two rough-and-ready solutions for what was regarded, with some impa-
38 See Minutes of Proceedings of Imperial Conference, 1911 [Cd. 5745], p. 22.
39 See Law and Opinion, pp. 450-457.
tience, by the British statesmen of that day as the "Colonial problem." The one was centralisation — the government, that is, except in relatively trivial matters, of all the outlying parts of the Empire from an office in Downing Street. The other was disintegration — the acquiescence in, perhaps the encouragement of, a process of successive "hivings off" by which, without the hazards or embitterments of coercion, each community, as it grew to political manhood, would follow the example of the American Colonies, and start an independent and sovereign existence of its own. After 70 years' experience of Imperial evolution, it may be said with confidence that neither of these theories commands the faintest support to-day, either at home or in any part of our self-governing Empire. We were saved from their adoption — some people would say by the favour of Providence — or (to adopt a more flattering hypothesis) by the political instinct of our race. And just in proportion as centralisation was seen to be increasingly absurd, so has disintegration been felt to be increasingly impossible. Whether in the United Kingdom, or in any one of the great communities which you represent, we each of us are, and we each of us intend to remain, master in our own household. This is, here at home and throughout the Dominions, the life-blood of our polity. It is the articulus stantis aut cadentis Imperil.40
These words are a true statement of patent facts, but it will on examination be found that the change during recent years in English opinion, and also in colonial opinion, with regard to the relation between England and the Dominions presents rather more comlexity than at first sight may be apparent41 to a casual reader of Mr. As-quith's address. Up to the last quarter of the nineteenth century, and even as late as 1884, many Englishmen, including a considerable number of our older statemen, held that the solution of the colonial problem was to be found wholly in the willingness of England to permit and even to promote the separation from the Empire of any self-governing colony which desired independence, provided that this separation should take place without engendering any bad feeling between England and her so-called dependencies. No doubt there existed, at any rate till the middle of the nineteenth century, a limited body of experienced officials who held that our colonial system, as long as it was maintained, implied the active control by
40 Minutes of Proceedings of the Imperial Conference, 1911 [Cd. 5745]. Opening address of the President (Mr. Asquith), p. 22. Compare "Message of King to Governments and Peoples of the Self-governing Dominions," Times, Sept. 10, 1914.
41 Compare Dicey, Law and Opinion, pp. 450 — 457.
England of colonial affairs. But such men in many cases doubted whether the maintenance of the Colonial Empire was of real benefit to England, and thought that on the whole, with respect at any rate to any self-governing colony, the course of prudence was to leave things alone until it should have become manifest to every one that the hour for friendly separation had struck. The self-governing colonies, on the other hand, up at any rate till 1884, just because they were more and more left alone and free to manage their own affairs, though they occasionally resented the interference of the English Government with colonial legislation, were on the whole contented with things as they stood. They certainly did not display any marked desire to secede from the Empire. Still less, however, did they show any active wish to take part in controlling the policy of the Empire, or to share the cost of Imperial defence. Honest belief in the principle of laissez faire produced its natural and, as far as it went, beneficial result. It removed causes of discontent; it prevented the rise of ill-will between England and her self-governing colonies. But it did not of itself produce any kind of Imperial patriotism. The change which a student has to note is an alteration of feeling, which did not become very obvious till near the dose of the nineteenth century. This was the growth (to use a current expression) of Imperialism. But this term, like all popular phrases, is from its very vagueness certain to mislead those who use it, unless its meaning be defined with some care. In regard to the British Empire it ought to be used as a term neither of praise nor of blame, but as the name for an idea which, in so far as it is true, is of considerable importance. This idea is that the British Empire is an institution well worth maintaining, and this not on mere grounds of sentiment but for definite and assignable reasons. Upon England and upon every country subject to the King of England the British Empire confers at least two benefits: It secures permanent peace among the inhabitants of the largest of existing states; it again secures, or ought to secure, to the whole of this vast community absolute protection against foreign attack. The resources of the Empire are, it is felt, practically inexhaustible; the creation of a fleet supported by revenues and also by armies drawn from every country subject to the King of England should, provided England herself
stands properly armed, render invasion of the British Empire by any of the great military powers of Europe an impossibility. But then the hugeness of the Empire and the strength of the Empire, if it remains united, are enough to show that the different countries which are parts of the Imperial system would, if they each stood alone, be easily assailable by any state or combination of states which had the command of large military and naval armaments. Neither England, in short, nor any of her self-governing Dominions can fail to see that the dissolution of the Empire might take from both the mother country and the most powerful of the Dominions the means necessary for maintaining liberty and independence. Loyalty to the Empire, typified by loyalty to the King, is in short a sentiment developed by the whole course of recent history. It is a feeling or conviction which places the relation of England and the Dominions in a new light. It amply accounts for the extraordinary difference between the colonial policy accepted both by England and by the self-governing colonies in 1850, and even (to a great extent) in 1884, and the colonial policy acceptable both to England and to her all but independent Dominions in 1914. English statesmen on the one hand now proffer to, and almost force upon, each Dominion every liberty compatible with the maintenance of the Empire; but then English statesmen no longer regard with philosophic calm the dawn of the day when any one of the Dominions may desire to secede from the Empire. The Dominions, on the other hand, have no longer any reason to fear and do not desire any interference with colonial affairs either by the legislation of the Imperial Parliament or by the administrative action of officials at Downing Street who are the servants of the Imperial Parliament. But then statesmen of the Dominions show a willingness to share the cost of the defence of the Empire, and at the same time express at each of the great Conferences, with more and more plainness, the desire that the Dominions should take a more active part in the determination of Imperial policy. It is not my object, at any rate at this part of this Introduction, to consider how far it may be possible to give satisfaction to the desires of rational Imperialists, and still less ought any man of sense to express any confident opinion as to how far the sentiment of Imperialism may in the course of time increase in force
or suffer diminution. My immediate aim is to show that this new Imperialism is the natural result of historical circumstances. It is well, however, to bear in mind several considerations which Englishmen of to-day are apt to overlook. The friendly Imperialism which finds expression in the Imperial Conferences is itself the admirable fruit of the old policy of laissez faire. The system of leaving the self-governing colonies alone first appeased discontent, and next allowed the growth of friendliness which has made it possible for the English inhabitants, and even in some cases the foreign inhabitants, of the Dominions to recognise the benefits which the Empire confers upon the Dominions, and for Englishmen at home to see that the Dominions may contribute to the safety of England and to the prosperity of the whole Empire.42 But we must at the same time recognise that the policy of friendly indifference to secession from the Empire, which nominally, at any rate, was favoured by many English statesmen during the nineteenth century, has come to an end. The war in South Africa was in reality a war waged not only by England but also by the Dominions to prevent secession; the concession further to the South African Union of the full rights of a Dominion is no more inconsistent with resistance to secession than was the restoration to the Southern States of the American Commonwealth of their full right to existence as States of the United States. It must, lastly, be noted, that while the inhabitants of England and of the Dominions express at each Conference their honest pleasure in Imperial unity, the growth of Imperialism already causes to many patriotic men one disappointment. Events suggest that it may turn out difficult, or even impossible, to establish throughout the Empire that equal citizenship of all British subjects which exists in the United Kingdom and which Englishmen in the middle of the nineteenth century hoped to see established throughout the length and breadth of the Empire.43
42 As they now [1914] are contributing.
43 The kind of equality among British subjects which Englishmen, whether wisely or not, hoped to establish throughout the whole Empire is best seen by considering the sort of equality which actually exists and has for many years existed in England. Speaking broadly, every British subject has in England at the present day the same political rights as every natural-born Englishman, e.g. an Englishman born in England and the son of English
THE RULE OF LAW44
The rule of law, as described in this treatise, remains to this day a distinctive characteristic of the English constitution. In England no man can be made to suffer punishment or to pay damages for any conduct not definitely forbidden by law; every man's legal rights or liabilities are almost invariably determined by the ordinary Courts of the realm, and each man's individual rights are far less the result of our constitution than the basis on which that consitution is founded.
The principles laid down in this treatise with regard to the rule of law and to the nature of droit administratif need little change. My object in this Introduction is first to note a singular decline among modern Englishmen in their respect or reverence for the rule of law, and secondly, to call attention to certain changes in the droit administratif of France.45
DECLINE IN REVERENCE FOR RULE OF LAW
The ancient veneration for the rule of law has in England suffered during the last thirty years a marked decline. The truth of this assertion is proved by actual legislation, by the existence among some classes of a certain distrust both of the law and of the judges, and by a marked tendency towards the use of lawless methods for the attainment of social or political ends.
parents settled in England. Thus a British subject, whatever be the place of his birth, or the race to which he belongs, or I may now add the religion which he professes, has, with the rarest possible exceptions, the same right to settle or to trade in England which is possessed by a natural-born Englishman. He has further exactly the same political rights. He can, if he satisfies the requirements of the English electoral law, vote for a member of Parliament; he can, if he commends himself to an English constituency, take his seat as a member of Parliament. There is no law which forbids any British subject, wherever he be born, or to whatever race he belongs, to become a member of the English Cabinet or a Prime Minister. Of course it will be said that it is extremely improbable that the offices I have mentioned will, in fact, be filled by men who are not in reality Englishmen by race. This remark to a certain extent is true, though it is not wholly true. But the possession of theoretically equal political rights does certainly give in England, or rather to be strictly accurate in the United Kingdom, to every British subject an equality which some British subjects do not possess in some of the Dominions.
44 See Part II., and especially Chap. IV., post.
45 See Chap. XII. post.
Legislation
Recent Acts have given judicial or quasi-judicial authority to officials46 who stand more or less in connection with, and therefore may be influenced by, the government of the day, and hence have in some cases excluded, and in others indirectly diminished, the authority of the law Courts. This tendency to diminish the sphere of the rule of law is shown, for instance, in the judicial powers conferred upon the Education Commissioners by the Education Act, 1902,47 on various officials by the National Insurance Acts, 1911 and 1913,48 and on the Commissioners of Inland Revenue and other officials by the Finance Act, 1910.49 It is also shown by the Parliament Act, 1911, s. 3, which enacts that "any certificate of the Speaker of the House of Commons given under this Act shall be conclusive for all purposes and shall not be questioned in any Court of law." This enactment, if strictly construed, would protect any Speaker who, either from partisanship or to promote some personal interest of his own, signed a certificate which was notoriously false from being liable to punishment by any Court of law whatever.50 No doubt the House of Commons has been historically jealous of any judicial interference with persons acting under the authority of the House, and has on more than one occasion claimed in a sense to be above the law of the land. All that can be said is that such claims have rarely been of advantage or credit to the House, and that the present time is hardly the proper season for the curtailment by the House of legitimate judicial power. It must, however, in fairness be noted that the invasion of the rule of law by imposing judicial functions upon officials is due, in part, to the whole current of legislative opinion in favour of extending the sphere of the State's authority. The inevitable result of thus immensely increasing
46 See generally on this point Muir, Peers and Bureaucrats, especially pp. 1-94.
47 See sect. 7, andR. v. Board of Education (Swansea Case) [1910], 2 K.B. 167; Board of Education v. Rice [1911], A. C. 179.
48 See National Insurance Act, 1911, ss. 66, 67, 88 (i), and generally Law and Opinion (2nd ed.), pp. 41-43.
49 See especially sect. 2, sub-s. 3, ss. 33 and 96.
50 Would this enactment protect the Speaker against an impeachment for giving a certificate which he knew to be false?
the duties of the Government is that State officials must more and more undertake to manage a mass of public business, e.g., to give one example only, the public education of the majority of the citizens. But Courts are from the nature of things unsuited for the transaction of business. The primary duty of a judge is to act in accordance with the strict rules of law. He must shun, above all things, any injustice to individuals. The well-worn and often absurdly misapplied adage that "it is better that ten criminals should escape conviction than that one innocent man should without cause be found guilty of crime" does after all remind us that the first duty of a judge is not to punish crime but to punish it without doing injustice. A man of business, whether employed by a private firm or working in a public office, must make it his main object to see that the business in which he is concerned is efficiently carried out. He could not do this if tied down by the rules which rightly check the action of a judge. The official must act on evidence which, though strong, may not be at all conclusive. The official must often act with severity towards subordinates whose stupidity, and not their voluntary wrong-doing, gives cause for dismissal. A judge, on the other hand, is far more concerned with seeing that the law is strictly carried out than in showing consideration to individuals. "That hard cases make bad law" is proverbial; the transaction of business, in short, is a very different thing from the giving of judgments: The more multifarious therefore become the affairs handed over to the management of civil servants the greater will be always the temptation, and often the necessity, extending to the discretionary powers given to officials, and thus preventing law Courts from intervening in matters not suited for legal decision.
Distrust of Judges and of Courts
If the House of Commons deliberately excludes the intervention of any law Court in matters which the House may deem (with very dubious truth) to concern the House alone, we can scarcely wonder that artisans should have no love for judicial decisions. In plain truth, while every man of at all respectable instincts desires what he considers justice for himself and for the class to which he belongs, almost all men desire something more than, and different from, justice for
themselves and against their neighbours. This is inevitably the case with persons such as the members of trade unions, who are trying, with a good deal of success, to enforce trade rules which often arouse the censure of the public, and sometimes come into absolute conflict with the law of the land. The blackleg may be, and one may suspect often is, a mean fellow who, to put money into his own pocket, breaks rules which his fellow-workers hold to be just and beneficial to the trade generally. He, for example, has no objection, if properly paid for it, to work with men who are not members of any union. The blackleg, however, all but invariably keeps within the law of the land, and proposes to do nothing which violates any principle established by common law or any enactment to be found in the Statute Book. The trade unionists whom he offends know perfectly well that the blackleg is in the eye of the law no wrong-doer; they therefore feel that the Courts are his protectors, and that, somehow or other, trade unions must be protected against the intervention of judges. Hence the invention of that self-contradictory idea of "peaceful picketing," which is no more capable of real existence than would be "peaceful war" or "unoppressive oppression"; hence, too, that triumph of legalised wrong-doing sanctioned by the fourth section of the Trade Disputes Act,511906. It is however by no means to be supposed that artisans are the only class accustomed to decry a judge or the legislature when the one gives a judgment or the other passes a law opposed to the moral convictions of a particular part of the community.
Lawlessness
Till a time well within the memory of persons now living, it would have been very difficult to find any body of men or women who did not admit that, broadly speaking, a breach of the law of the land was also an act of immorality. No doubt at all times there have existed, as at the present day, a large number of habitual law-breakers, but though a cheat, a pickpocket, or a burglar does constantly break the law, there is no reason to surmise that cheats, pickpockets, or burglars maintain the doctrine that law-breaking is itself a praiseworthy
51 See Law and Opinion, pp. xliv-xlvi, and compare the Trade Union Act, 1913, ibid. p. xlviii.
or a moral act. Within the last thirty years, however, there has grown up in England, and indeed in many other civilised countries, a new doctrine as to lawlessness. This novel phenomenon, which perplexes moralists and statesmen, is that large classes of otherwise respectable persons now hold the belief and act on the conviction that it is not only allowable, but even highly praiseworthy, to break the law of the land if the law-breaker is pursuing some end which to him or to her seems to be just and desirable. This view is not confined to any one class. Many of the English clergy (a class of men well entitled to respect) have themselves shown no great hesitation in thwarting and breaking laws which they held to be opposed to the law of the Church. Passive resisters do not scruple to resist taxes imposed for some object which they condemn. Conscientious objectors are doing a good deal to render ineffective the vaccination laws. The militant suffragettes glorify lawlessness; the nobleness of their aim justifies in their eyes the hopeless and perverse illegality of the means by which they hope to obtain votes for women.
Whence arises this zeal for lawlessness? The following reflections afford an answer, though only a partial answer, to this perplexing inquiry:
In England democratic government has already given votes, if not precisely supreme power, to citizens who, partly because of the fairness and the regularity with which the law has been enforced for generations in Great Britain, hardly perceive the risk and ruin involved in a departure from the rule of law. Democratic sentiment, further, if not democratic principle, demands that law should on the whole correspond with public opinion; but when a large body of citizens not only are opposed to some law but question the moral right of the state to impose or maintain a given law, our honest democrat feels deeply perplexed how to act. He does not know in effect how to deal with lawlessness which is based upon a fundamental difference of public opinion.52 For such difference makes it impossible that on a given topic the law should be in reality in accordance with public opinion. Thus many Englishmen have long felt a moral
52 See especially Lowell, Public Opinion and Popular Government, chap. iii.
difficulty in resisting the claim of a nationality to become an independent nation, even though the concession of such a demand may threaten the ruin of a powerful state and be opposed to the wishes of the majority of the citizens thereof. So the undoubted fact that a large number of Englishwomen desire parliamentary votes seems, in the eyes of many excellent persons, to give to Englishwomen a natural right to vote for members of Parliament. In each instance, and in many other cases which will occur to any intelligent reader, English democrats entertain a considerable difficulty in opposing claims with which they might possibly on grounds of expediency or of common sense have no particular sympathy. The perplexity of such men arises from the idea that, at any rate under a democratic government, any law is unjust which is opposed to the real or deliberate conviction of a large number of citizens. But such a conviction is almost certain to beget, on the part of persons suffering under what they deem to be an unjust law, the belief, delusive though it often is, that any kind of injustice may under a democratic government be rightly opposed by the use of force. The time has come when the fact ought to be generally admitted that the amount of government, that is of coercion, of individuals or classes by the state, which is necessary to the welfare or even to the existence of a civilised community, cannot permanently co-exist with the effective belief that deference to public opinion is in all cases the sole or the necessary basis of a democracy. The justification of lawlessness is also, in England at any rate, suggested if not caused by the misdevelopment of party government. The rule of a party cannot be permanently identified with the authority of the nation or with the dictates of patriotism. This fact has in recent days become so patent that eminent thinkers are to be found who certainly use language which implies that the authority or the sovereignty of the nation, or even the conception of the national will, is a sort of political or metaphysical fiction which wise men will do well to discard. Happily, crises arise from time to time in the history of any great state when, because national existence or national independence is at stake, the mass of a whole people feel that the authority of the nation is the one patent and the one certain political fact. To these causes of lawlessness honesty compels the addition of one cause
which loyal citizens are most anxious not to bring into prominence. No sensible man can refuse to admit that crises occasionally, though very rarely, arise when armed rebellion against unjust and oppressive laws may be morally justifiable. This admission must certainly be made by any reasoner who sympathises with the principles inherited by modern Liberals from the Whigs of 1688. But this concession is often misconstrued; it is taken sometimes to mean that no man ought to be blamed or punished for rebellion if only he believes that he suffers from injustice and is not pursuing any private interest of his own.
COMPARISON BETWEEN THE PRESENT OFFICIAL LAW OF ENGLAND AND THE PRESENT DROIT ADMINISTRATE OF FRANCE53
The last thirty years, and especially the fourteen years which have elapsed since the beginning of the twentieth century, show a very noticeable though comparatively slight approximation towards one another of what may be called the official law of England and the droit administratif of France. The extension given in the England of to-day to the duties and to the authority of state officials, or the growth, of our bureaucracy,54 to use the expression of an able writer, has, as one would naturally expect, produced in the law governing our bureaucrats some features which faintly recall some of the characteristics which mark the droit administratif of France. Our civil servants, indeed, are as yet not in any serious degree put beyond the control of the law Courts, but in certain instances, and notably with regard to many questions arising under the National Insurance Act, 1911, something very like judicial powers have been given to officials closely connected with the Government.55 And it may not be an exaggeration to say that in some directions the law of England is being "officialised," if the expression may be allowed, by statutes passed under the influence of socialistic ideas. It is even more certain that the droit administratif of France is year by year becoming more and more judirialised. The Conseil d'Etat, or, as we might term it, the Council, is
53 See Chap. XII., especially pp. 242-267, post; Law and Opinion, pp. xxxii-liii.
54 Muir, Peers and Bureaucrats.
55 SeeLawand Opinion, pp. xxxix-xliii.
(as all readers of my seventh edition of this work will know) the great administrative Court of France, and the whole relation between the judicial Courts and the Council still depends, as it has depended now for many years, upon the constitution of the Conflict Court,56 which contains members drawn in equal numbers from the Council of State and from the Court of Cassation. It would be idle to suppose that the decisions of the Council itself when dealing with questions of administrative law do not now very nearly approach to, if indeed they are not in strictness, judicial decisions. The Council, at any rate when acting in a judicial character, cannot now be presided over by the Minister of Justice who is a member of the Cabinet.57 Still it would be a grave mistake if the recognition of the growth of official law in England and the gradual judicialisation of the Council as an administrative tribunal led any Englishman to suppose that there exists in England as yet any true administrative tribunals or any real administrative law. No doubt the utmost care has been taken in France58 to give high authority to the Council as an administrative tribunal and also to the Conflict Court. Still the members of the Council do not hold their position by anything like as certain a tenure as do the judges of die High Court in England, or as do the judges (if we may use English expressions) of the French common law Courts. A member of the Council is very rarely dismissed, but he still is dismissible. It must be noted further that the Minister of Justice is still the legal President of the Conflict Court, though he does not generally preside over it. When, however, the members of the Conflict Court are equally divided as to the decision of any case, the Minister of Justice does preside and give his casting vote. It is indeed said that such a case, which must almost necessarily be a difficult and probably an important one, is in truth again heard before the Minister of Justice and in effect is decided by him. A foreigner without practical acquaintance with the French legal system would be rash indeed were he to
56 As to the constitution of this Court see p. 239 and Appendix, Note XI. pp. 416-417, post.
57 See Poincare, How France is Governed, Trans. B. Midi. (T. Fisher Unwin, 1913), p. 272.
58 Administrative law has in some other continental countries, e.g. in Germany, been far less judicialised than in France.
form or express an assured opinion as to the extent to which the decisions of the Council or the Conflict Court are practically independent of the wishes and the opinions of the Ministry of the day. Hesitation by a foreign critic is the more becoming, because it is certain, that Frenchmen equally competent to form an opinion would differ in their answer to the inquiry, whether the Council and the Conflict Court ought to be still more completely judicialised. The constitution of the Council of State and of the Conflict Court may suggest to a foreign critic that while neither of these bodies may be greatly influenced by the Ministry of the day, they are more likely to represent official or governmental opinion than are any of our English tribunals. It must further always be remembered that under the French Republic, as under every French government, a kind of authority attaches to the Government and to the whole body of officials in the service of the state (fonctionnaires) such as is hardly possessed by the servants of the Crown in England,59 and especially that proceedings for the enforcement of the criminal law are in France wholly under the control of the Government. The high repute of the Council and, as it seems to a foreigner, the popularity of administrative law, is apparently shown by the success with which the Council has of recent years extended the doctrine that the state ought to compensate persons who suffer damage not only from the errors or faults, e.g. negligence, of officials, but also for cases in which the law is so carried out that it inflicts special damage upon individuals, that is damage beyond what is borne by their neighbours.60 The authority again of the Council is seen in the wide extension it has given to the principle that any act done by an official which is not justified by law will, on its illegality being proved, be declared a nullity by the Council. It ought to be noted that this extension of the liability of the state must, it would seem, in practice be a new protection for officials; for if the state admits its own liability to pay compensation for damage suf-
59 Note, for instance, the absence of any law like the Habeas Corpus Act and the wide and arbitrary powers still left to the police under the head of the regime de police; Duguit, Traite de Droit Constitutionnel, ii. pp. 24-26, 33-45, and also the protection still extended in some instances to officials acting under the orders of their superior.
60 See pp. 262-264, post.
fered by individuals through the conduct of the state's servants, this admission must induce persons who have suffered wrong to forego any remedy which they may have possessed against, say, a postman or a policeman, personally, and enforce their claim not against the immediate wrong-doer but against the state itself.
One singular fact closely connected with the influence in France of droit administratif deserves the notice of Englishmen. In the treatises on the constitutional law of France produced by writers entitled to high respect will be found the advocacy of a new form of decentralisation termed decentralisation par service,61 which seems to mean the giving to different departments of civil servants a certain kind of independence, e.g. leaving the administration of the Post Office to the body of public servants responsible for the management of the postal system. This body would, subject of course to supervision by the state, manage the office in accordance with their own knowledge and judgment; would, as far as I understand the proposal, be allowed to share in the gains affected by good management; and would, out of the revenue of the Post Office, make good the compensation due to persons who suffered by the negligence or misconduct of the officials. On the other hand, the officials would, because they were servants of the state who had undertaken certain duties to the state, be forbidden either to organise a strike or in any way to interrupt the working of the Post Office. It is a little difficult to see why this proposal should be called "decentralisation," for that term has hitherto borne a very different meaning. To an Englishman the course of proceeding proposed is extremely perplexing; it however is from one or two points of view instructive. This so-called decentralisation looks as if it were a revival under a new shape of the traditional French belief in the merit of administration. This reappearance of an ancient creed possibly shows that French thinkers who have lost all enthusiasm for parliamentary government look for great benefits to France from opening there a new sphere for administrative capacity. It certainly shows that Frenchmen of intelligence are turning their thoughts towards a question which perplexes the thinkers or legis-
61 Duguit, Traite de Droit Constitutional, i. pp. 460-467.
lators of other countries. How far is it possible for officials, e.g. railway servants and others who undertake duties on the due performance of which the prosperity of a country depends, to be allowed to cease working whenever by so doing they see the possibility of obtaining a rise in the wages paid them? My readers may think that this examination into the recent development of French droit administratif digresses too far from the subject which we have in hand. This criticism is, it is submitted, unsound, for the present condition of droit administratif in France suggests more than one reflection which is strictly germane to our subject. It shows that the slightly increasing likeness between the official law of England and the droit administratif of France must not conceal the fact that droit administratif still contains ideas foreign to English convictions with regard to the rule of law, and especially with regard to the supremacy of the ordinary law Courts. It shows also the possible appearance in France of new ideas, such as the conception of the so-called decentralisation par service which are hardly reconcilable with the rule of law as understood in England. It shows further that the circumstances of the day have already forced upon France, as they are forcing upon England, a question to which Englishmen have not yet found a satisfactory reply, namely, how far civil servants or others who have undertaken to perform services on the due fulfilment of which the prosperity of the whole country depends, can be allowed to use the position which they occupy for the purpose of obtaining by a strike or by active political agitation concessions from and at the expense of the state. Nor when once this sort of question is raised is it possible absolutely to reject the idea that England might gain something by way of example from the experience of France. Is it certain that the increasing power of civil servants, or, to use Mr. Muir's expression, of "bureaucrats," may not be properly met by the extension of official law?62 France has with undoubted wisdom more or less judicialised her highest administrative tribunal, and made it to a great extent independent of the Government of the day. It is at least conceivable that modern England would be benefited by the extension of official law. Nor is it quite certain that the
62 Consider the Official Secrets Acts.
ordinary law Courts are in all cases the best body for adjudicating upon the offences or the errors of civil servants. It may require consideration whether some body of men who combined official experience with legal knowledge and who were entirely independent of the Government of the day, might not enforce official law with more effectiveness than any Division of the High Court.
CONVENTIONS OF THE CONSTITUTION63 Three different points deserve consideration. They may be summed up under the following questions and the answers thereto:
FIRST QUESTION
Have there been during the last thirty years notable changes in the conventions of the constitution?
ANSWER
Important alterations have most certainly taken place; these may, for the most part, be brought under two different heads which for the sake of clearness should be distinguished from each other, namely, first, new rules or customs which still continue to be mere constitutional understandings or conventions, and, secondly, understandings or conventions which have since 1884 either been converted into laws or are closely connected with changes of law.64 These may appropriately be termed "enacted conventions."
MERE CONVENTIONS
These have arisen, without any change in the law of the land, because they meet the wants of a new time. Examples of such acknowledged understandings are not hard to discover. In 1868 a Conservative Ministry in office suffered an undoubted defeat at a general election. Mr. Disraeli at once resigned office without waiting for even the meeting of Parliament. The same course was pursued by Mr.
63 See Chaps. XIV. and XV. post.
64 See especially the indirect effects of the Parliament Act, p. li, post.
Gladstone, then Prime Minister, in 1874, and again, in his turn, by Disraeli (then Lord Beaconsfield) in 1880, and by Gladstone in 1886. These resignations, following as they each did on the result of a general election, distinctly reversed the leading precedent set by Peel in 1834. The Conservative Ministry of which he was the head, though admittedly defeated in the general election, did not resign until they suffered actual defeat in the newly-elected House of Commons. It may be added, that on the particular occasion the Conservatives gained both influence and prestige by the ability with which Peel, though in a minority, resisted in Parliament the attempt to compel his resignation from office; for during this parliamentary battle he was able to bring home to the electors the knowledge that the Conservative minority, though defeated at the election, had gained thereby a great accession of strength. Peel also was able to show that while he and his followers were prepared to resist any further changes in the constitution, they fully accepted the Reform Act of 1832, and, while utterly rejecting a policy of reaction, were ready to give the country the benefits of enlightened administration. The new convention, which all but compels a Ministry defeated at a general election to resign office, is, on the face of it, an acknowledgment that the electorate constitutes politically the true sovereign power.65 It also tends to convert a general election into a decision that a particular party shall hold office for the duration of the newly-elected Parliament and, in some instances, into the election of a particular statesman as Prime Minister for that period.66 This new convention is the sign of many minor political or constitutional changes, such, for example, as the introduction of the habit, quite unknown not only to statesmen as far removed from us as Pitt, but to Peel, to Lord John Russell, or to Lord Palmerston, of constantly addressing, not only when out of office but also when in office, speeches to some body of electors and hence to the whole country.
65 See as to the possible distinction between "legal" and "political" sovereignty, pp. 27- 29, post.
66 It is certain that at the general election of 1880 the Liberal electors who gained a victory meant that Lord Beaconsfield should resign office and that Mr. Gladstone should be appointed Prime Minister.
Another change in political habits or conventions unconnected with any legal innovation or alteration has received little attention because of its gradual growth and of its vagueness, but yet deserves notice on account of its inherent importance. It is now the established habit of any reigning king or queen to share and give expression to the moral feelings of British subjects. This expression of the desire on the part of English royalty to be in sympathy with the humane, the generous, and the patriotic feelings of the British people is a matter of recent growth. It may fairly be attributed to Queen Victoria as an original and a noble contribution towards national and Imperial statesmanship. This royal expression of sympathetic feeling, though not unknown to, was rarely practised by George III. or the sons who succeeded him on the throne.67 It belongs to, but has survived, the Victorian age. It has indeed received since the death of Victoria a wider extension than was possible during a great part of her long reign. On such a matter vagueness of statement is the best mode of enforcing a political fact of immense weight but incapable of precise definition. At the moment when the United Kingdom is conducting its first great Imperial war it is on many grounds of importance to remember that the King is the typical and the only recognised representative of the whole Empire.68
Another example of new political conventions is found in the rules of procedure adopted by the House of Commons since 1881 with a view to checking obstruction, and generally of lessening the means possessed by a minority for delaying debates in the House of Commons. These rules increase the possibility of carrying through the House in a comparatively short time Bills opposed by a considerable number of members. That the various devices popularly known as the Closure, the Guillotine, and the Kangaroo have enabled one Government after another, when supported by a disciplined majority, to accomplish an amount of legislation which, but for these de-
67 As the King's speech when addressing the House of Parliament became more and more, and was known to have become, the utterance rather of ministerial than of royal opinion, the necessity inevitably arose of the monarch's finding some means for expressing his personal sympathy with the joy, and, above all, with the sorrow, of his people.
68 See p. cviii, note 107, post.
vices could not have been passed through the House of Commons, is indisputable. Whether the price paid for this result, in the way of curtailment and discussion, has been too high, is a question which we are not called upon to consider. All that need here be said is that such rules of procedure are not in strictness laws but in reality are customs or agreements assented to by the House of Commons.69
ENACTED CONVENTIONS
By this term is meant a political understanding or convention which has by Act of Parliament received the force of law70 or may arise from a change of law. The best examples of such enacted conventions71 are to be found in some of the more or less indirect effects72 of the Parliament Act, 1911.
1. The Parliament Act in regard to the relation in legislative matters between the House of Lords and the House of Commons goes some way towards establishing in England a written or, more accurately speaking, an enacted constitution, instead of an unwritten or, more accurately speaking, an unenacted constitution.73
2. The Act greatly restrains, if it does not absolutely abolish, the use of the royal prerogative to create peers for the purpose of "swamping the House of Lords" in order to force through the House a Bill rejected by the majority of the peers. Such exercise of the prerogative has never but once, namely under Queen Anne in 1712, actually taken place. The certainty, however, that William IV. would use his prerogative to overcome the resistance of the House of Lords
69 As to the essential difference between the laws and the conventions of the constitution, see pp. cxl-cxlvi, post.
70 See Provisional Collection of Taxes Act, 1913.
71 A critic may indeed say, and with truth, that a convention converted by statute into a law is in strictness not a convention at all but a part of the law of the constitution. This I will not deny; but such an enacted convention may indirectly so affect the working of conventional understandings or arrangements that its indirect effects are conveniently considered when dealing with the conventions of the constitution.
72 For the direct effects of the Act see p. xxxix, ante.
73 See as to this distinction, p. cxliii, post, and note especially Parliament Act, s. I, sub-ss. 2, 3, which give a statutable definition of a Money Bill, and also contain a special provision as to the mode of determining whether a Bill is a Money Bill.
in 1832, carried the great Reform Act. The certainty that George V. would use the same prerogative carried the Parliament Act, 1911. In each case the argument which told with the King in favour of an unlimited creation of peers was that the constitution supplied no other means than this exceptional use or abuse of the royal prerogative for compelling the Lords to obey the will of the country. The Parliament Act deprives this argument of its force. Any king who should in future be urged by Ministers to swamp the House of Lords will be able to answer: "If the people really desire the passing of a Bill rejected by the House of Lords, you can certainly in about two years turn it into an Act of Parliament without the consent of the Lords."74 The Parliament Act cuts away then the sole ground which in 1832 or in 1911 could justify or even suggest the swamping of the House of Lords.
3. Under the Parliament Act it may probably become the custom that each Parliament shall endure for its full legal duration, i.e. for nearly the whole of five years. For a student of the Act must bear in mind two or three known facts. A House of Commons the majority whereof perceive that their popularity is on the wane will for that very reason be opposed to a dissolution; for until it occurs such majority can carry any legislation it desires, and a dissolution may destroy this power. The payment to all unofficial M.P.s of a salary of £400 a year may induce many M.P.s who belong to a Parliamentary minority to acquiesce easily enough in the duration of a Parliament which secures to each of them a comfortable income. Between the Revolution of 1688 and the year 1784 few, if any, dissolutions took place from any other cause than either the death of a king, which does not now dissolve a Parliament, or the lapse of time under the Septennial Act, and during that period the Whigs, and notably Burke, denied the constitutional right of the King to dissolve Parliament at his pleasure; the dissolution of 1784 was denounced as a "penal dissolution." The Parliament of the French Republic sits for four years, but it can be dissolved at any time by the President with
74 See the Parliament Act, s. 7, "Five years shall be substituted for seven years as the time fixed for the maximum duration of Parliament under the Septennial Act, 1715."
the consent of the Senate. This power has been employed but once during the last thirty-seven years, and this single use of the presidential prerogative gives a precedent which no French statesman is tempted to follow. It is highly probable, therefore, that the direct appeal from the House of Commons to the electorate by a sudden dissolution may henceforward become in England almost obsolete. Yet this power of a Premier conscious of his own popularity, to destroy the House of Commons which put him in office, and to appeal from the House to the nation, has been treated by Bagehot as one of the features in which the constitution of England excels the constitution of the United States.
4. The Parliament Act enables a majority of the House of Commons to resist or overrule the will of the electors or, in other words, of the nation. That this may be the actual effect of the Act does not admit of dispute. That the Home Rule Bill was strenuously opposed by a large number of the electorate is certain. That this Bill was hated by a powerful minority of Irishmen is also certain. That the rejection of a Home Rule Bill has twice within thirty years met with the approval of the electors is an admitted historical fact. But that the widespread demand for an appeal to the people has received no attention from the majority of the House of Commons is also certain. No impartial observer can therefore deny the possibility that a fundamental change in our constitution may be carried out against the will of the nation.
5. The Act may deeply affect the position and the character of the Speaker of the House of Commons. It has hitherto been the special glory of the House of Commons that the Speaker who presides over the debates of the House, though elected by a party, has for at least a century and more tried, and generally tried with success, to be the representative and guide of the whole House and not to be either the leader or the servant of a party. The most eminent of Speakers have always been men who aimed at maintaining something like a judicial and therefore impartial character. In this effort they have obtained a success unattained, it is believed, in any other country except England. The recognition of this moral triumph is seen in the constitutional practice, almost, one may now say, the constitutional rule, that
a member once placed in the Speaker's chair shall continue to be re-elected at the commencement of each successive Parliament irrespective of the political character of each successive House of Commons. Thus Speakers elected by a Liberal majority have continued to occupy their office though the House of Commons be elected in which a Conservative majority predominates, whilst, on the other hand, a Speaker elected by a Conservative House of Commons has held the Speakership with public approval when the House of Commons exhibits a Liberal majority and is guided by a Cabinet of Liberals. The Parliament Act greatly increases the authority of the Speaker with respect to Bills to be passed under that Act. No Bill can be so passed unless he shall have time after time certified in writing under his hand, and signed by him that the provisions of the Parliament Act have been strictly followed. This is a matter referred to his own knowledge and conscience. There may dearly arise cases in which a fair difference of opinion may exist on the question whether the Speaker can honestly give the required certificate. Is it not certain that a party which has a majority in the House of Commons will henceforth desire to have a Speaker who may share the opinions of such party? This does not mean that a body of English gentlemen will wish to be presided over by a rogue; what it does mean is that they will come to desire a Speaker who is not a judge but is an honest partisan. The Parliament Act is a menace to the judicial character of the Speaker. In the Congress of the United States the Speaker of the House of Representatives is a man of character and of vigour, but he is an avowed partisan and may almost be called the parliamentary leader of the party which is supported by a majority in the House of Representatives.
SECOND QUESTION What is the general tendency of these new conventions?
ANSWER
It assuredly is to increase the power of any party which possesses a parliamentary majority, i.e., a majority, however got together, of the House of Commons, and, finally, to place the control of legislation,
and indeed the whole government of the country, in the hands of the Cabinet which is in England at once the only instrument through which a dominant party can exercise its power, and the only body in the state which can lead and control the parliamentary majority of which the Cabinet is the organ. That the rigidity and the strength of the party system, or (to use an American expression) of the Machine, has continued with every successive generation to increase in England, is the conviction of the men who have most thoroughly analysed English political institutions as they now exist and work.75
Almost everything tends in one and the same direction. The leaders in Parliament each now control their own party mechanism. At any given moment the actual Cabinet consists of the men who lead the party which holds office. The leading members of the Opposition lead the party which wishes to obtain office. Party warfare in England is, in short, conducted by leading parliamentarians who constitute the actual Cabinet or the expected Cabinet. The electors, indeed, are nominally supreme; they can at a general election transfer the government of the country from one party to another. It may be maintained with much plausibility that under the quinquennial Parliament created by the Parliament Act the British electorate will each five years do little else than elect the party or the Premier by whom the country shall be governed for five years. In Parliament a Cabinet which can command a steadfast, even though not a very large majority, finds little check upon its powers. A greater number of M.P.s than fifty years ago deliver speeches in the House of Commons. But in spite of or perhaps because of this facile eloquence, the authority of individual M.P.s who neither sit in the Cabinet nor lead the Opposition, has suffered diminution. During the Palmerstonian era, at any rate, a few of such men each possessed an authority inside and outside the House which is hardly claimed by any member now-a-days who neither has nor is expected to obtain a seat in any Cabinet.
75 See Lowell, Government of England, partii. chaps, xxiv-xxxvii.; Low, The Governance of England, chaps, i. to vii. Ramsay Muir, in his essay on Bureaucracy (see Peers and Bureaucrats, pp. 1-94), would apparently agree with Mr. Lowell and Mr. Low, though he maintains that power tends at present under the English constitution to fall from the hands of the parliamentary Cabinet into the hands of the permanent civil servants.
Any observer whose political recollections stretch back to the time of the Crimean War, that is sixty years ago, will remember occasions on which the words of Roebuck, of Roundell Palmer, of Cobden, and above all, at certain crises of Bright, might be, and indeed were, of a weight which no Government, or for that matter no Opposition, could treat as a trifle. Legislation again is now the business, one might almost say the exclusive business, of the Cabinet. Few if any, as far as an outsider can judge, are the occasions on which a private member not supported by the Ministry of the day, can carry any Bill through Parliament. Any M.P. may address the House, but the Prime Minister can greatly curtail the opportunity for discussing legislation when he deems discussion inopportune. The spectacle of the House of Commons which neither claims nor practices real freedom of discussion, and has no assured means of obtaining from a Ministry in power answers to questions which vitally concern the interest of the nation, is not precisely from a constitutional point of view, edifying or reassuring. But the plain truth is that the power which has fallen into the hands of the Cabinet may be all but necessary for the conduct of popular government in England under our existing constitution. There exists cause for uneasiness. It is at least arguable that important changes in the conventions, if not in the law, of the constitution may be urgently needed; but the reason for alarm is not that the English executive is too strong, for weak government generally means bad administration, but that our English executive is, as a general rule, becoming more and more the representative of a party rather than the guide of the country. No fair-minded man will, especially at this moment, dispute that the passion for national independence may transform a government of partisans into a government bent on securing the honour and the safety of the nation. But this fact, though it is of immense moment, ought not to conceal from us the inherent tendency of the party system to confer upon partisanship authority which ought to be the exclusive property of the nation.76
76 Several recent occurrences show the occasional appearance of ideas or practices which may mitigate rather than increase the rigidity of the party system. In re Sir Stuart Samuel [1913], A. C. 514, shows that under the Judicial Committee Act, 1833, s. 4, a question of law on which depends the right of a Member of Parliament to sit in Parliament may be referred
THIRD QUESTION
Does the experience of the last thirty years confirm the doctrine laid down in this treatise that the sanction which enforces obedience to the conventions of the constitution is to be found in the close connection between these conventions and the rule of law?77
ANSWER
The doctrine I have maintained may be thus at once illustrated and explained. The reason why every Parliament keeps in force the Mutiny Act or why a year never elapses without a Parliament being summoned to Westminster, is simply that any neglect of these conventional rules would entail upon every person in office the risk, we might say the necessity, of breaking the law of the land. If the law governing the army which is in effect an annual Act, were not passed annually, the discipline of the army would without constant breaches of law become impossible. If a year were to elapse without a Parliament being summoned to Westminster a good number of taxes would cease to be paid, and it would be impossible legally to deal with such parts of the revenue as were paid into the Imperial exchequer. Now it so happens that recent experience fully shows the inconvenience and danger of either violating a constitutional convention or of breaking the law because custom had authorised a course of action which rested on no legal basis. The House of Lords, in order to
to the Privy Council and be adequately and impartially dealt with by a body of eminent lawyers. The thought suggests itself that other questions affecting the conduct and the character of M.P.s which cannot be impartially investigated by any Committee of the House of Commons might be referred to the same high tribunal. The public statement, again, of Lord Kitchener that he took office in no way as a partisan, but simply as a general whose duty it was to provide for the carrying on of a war in which the welfare and honour of the nation is concerned set a precedent which might be followed in other spheres than that of military affairs. Is it of itself incredible that a Foreign Secretary of genius might without any loss of character retain office for years both in Liberal and in Conservative Cabinets? Is there any thing absurd in supposing that a Lord Chancellor respected for his legal eminence and for his judgment might serve the country as the highest of our judges and give his legal knowledge to Cabinets constituted of men with whose politics he did not agree? The English people would gain rather than lose by a check being placed on the constantly increasing power of the party system. 77 See pp. 296 — 302, post.
compel a dissolution of Parliament in 1909, rejected the Budget. Their Lordships acted within what was then their legal right, yet they caused thereby great inconvenience, which, however, was remedied by the election of a new Parliament. For years the income tax had been collected in virtue not of an Act but of a resolution of the House of Commons passed long before the income tax for the coming year came into existence. An ingenious person wishing to place difficulties in the way of the Government's proceedings claimed repayment of the sum already deducted by the Bank of England from such part of his income as was paid to him through the Bank. The bold plaintiff at once recovered the amount of a tax levied without legal authority. No better demonstration of the power of the rule of law could be found than is given by the triumph of Mr. Gibson Bowles.78
DEVELOPMENT DURING THE LAST THIRTY YEARS OF NEW CONSTITUTIONAL IDEAS
These ideas are (i) Woman Suffrage, (2) Proportional Representation, (3) Federalism, (4) The Referendum.
TWO GENERAL OBSERVATIONS
The brief criticism of each of these new ideas which alone in this Introduction it is possible to give, will be facilitated by attending to two general observations which apply more or less to each of the four proposed reforms or innovations.
First Observation
Political inventiveness has in general fallen far short of the originality displayed in other fields than politics by the citizens of progressive or civilised States. The immense importance attached by modern thinkers to representative government is partly accounted for by its being almost the sole constitutional discovery or invention unknown to the citizens of Athens or of Rome.79 It is well also to note that
78 Bowles v. Bank of England [1913], I Ch. 57.
79 It is hardly an exaggeration to say that there exist very few other modern political conceptions (except the idea of representative government) which were not criticised by
neither representative government nor Roman Imperialism, nor indeed most of the important constitutional changes which the world has witnessed, can be strictly described as an invention or a discovery. When they did not result from imitation they have generally grown rather than been made; each was the production of men who were not aiming at giving effect to any novel political ideal, but were trying to meet in practice the difficulties and wants of their time. In no part of English history is the tardy development of new constitutional ideas more noteworthy or more paradoxical than during the whole Victorian era (1837 to 1902). It was an age full of intellectual activity and achievement; it was an age rich in works of imagination and of science; it was an age which extended in every direction the field of historical knowledge; but it was an age which added little to the world's scanty store of political or constitutional ideas. The same remark in one sense applies to the years which have passed since the opening of the twentieth century. What I have ventured to term new constitutional ideas are for the most part not original; their novelty consists in the new interest which during the last fourteen years they have come to command.
Second Observation
These new ideas take very little, one might almost say no account, of one of the ends which good legislation ought, if possible, to attain. But this observation requires explanatory comment.
Under every form of popular government, and certainly under the more or less democratic constitution now existing in England, legislation must always aim at the attainment of at least two different ends, which, though both of importance, are entirely distinct from one another. One of these ends is the passing or the maintaining of good or wise laws, that is laws which, if carried out, would really promote the happiness or welfare of a given country, and therefore which are desirable in themselves and are in conformity with the nature of
the genius of Aristotle. Note however that the immense administrative system known as the Roman Empire lay beyond, or at any rate outside, the conceptions of any Greek philosopher.
things. That such legislation is a thing to be desired, no sane man can dispute. If, for example, the freedom of trade facilitates the acquisition of good and cheap food by the people of England, and does not produce any grave counterbalancing evil, no man of ordinary sense would deny that the repeal of the corn laws was an act of wise legislation. If vaccination banishes small-pox from the country and does not produce any tremendous counterbalancing evil, the public opinion even of Leicester would hold that a law enforcing vaccination is a wise law. The second of these two different ends is to ensure that no law should be passed or maintained in a given country, e.g. in England, which is condemned by the public opinion of the English people. That this where possible is desirable will be admitted by every thoughtful man. A law utterly opposed to the wishes and feelings entertained by the inhabitants of a country, a rule which every one dislikes and no one will obey, is a nullity, or in truth no law at all; and, even in cases where, owing to the power of the monarch who enacts a law opposed to the wishes of his subjects, such a law can to a certain extent be enforced, the evils of the enforcement may far overbalance the good effects of legislation in itself wise. This thought fully justifies an English Government in tolerating throughout India institutions, such as caste, supported by Indian opinion though condemned by the public opinion and probably by the wise opinion of England. The same line of thought explained, palliated, and may even have justified the hesitation of English statesmen to prohibit suttee. Most persons, then, will acknowledge that sound legislation should be in conformity with the nature of things, or, to express the matter shortly, be "wise," and also be in conformity with the demands of public opinion, or, in other words, be "popular," or at any rate not unpopular. But there are few Englishmen who sufficiently realise that both of these two ends cannot always be attained, and that it very rarely happens that they are each equally attainable. Yet the history of English legislation abounds with illustrations of the difficulty on which it is necessary here to insist. Thus the Reform Act, 1832,80 is in the judgment of most English historians and thinkers a
80 SeeJ. R. M. Butler, The Passing of the Great Reform Bill (Longmans, Green & Co., 1914). This is an excellent piece of historical narrative and inquiry.
wise law; it also was at the time of its enactment a popular law. The Whigs probably underrated the amount and the strength of the opposition to the Act raised by Tories, but that the passing of the Reform Act was hailed with general favour is one of the best attested facts of modern history. The Act of Union passed in 1707 was proved by its results to be one of the wisest Acts ever placed on the statute-book. It conferred great benefits upon the inhabitants both of England and of Scotland. It created Great Britain and gave to the united country the power to resist in one age the threatened predominance of Louis XTV., and in another age to withstand and overthrow the tremendous power of Napoleon. The complete success of the Act is sufficiently proved by the absence in 1832 of any demand by either Whigs, Tories, or Radicals for its repeal. But the Act of Union, when passed, was unpopular in Scotland, and did not command any decided popularity among the electors of England. The New Poor Law of 1834 saved the country districts from ruin; its passing was the wisest and the most patriotic achievement of the Whigs, but the Act itself was unpopular and hated by the country labourers on whom it conferred the most real benefit. Within two years from the passing of the Reform Act it robbed reformers of a popularity which they had hoped might be lasting. Indeed the wisdom of legislation has little to do with its popularity. Now all the ideas which are most dear to constitutional reformers or innovators in 1914 lead to schemes of more or less merit for giving full expression in the matter of legislation to public opinion, i.e. for ensuring that any law passed by Parliament shall be popular, or at lowest not unpopular. But these schemes make in general little provision for increasing the chance that legislation shall also be wise, or in other words that it shall increase the real welfare of the country. The singular superstition embodied in the maxim vox populi vox Dei has experienced in this miscalled scientific age an unexpected revival. This renewed faith in the pre-eminent wisdom of the people has probably acquired new force from its congeniality with democratic sentiment. May we not conjecture that the new life given to a popular error is in part and indirectly due to the decline in the influence of utilitarianism? Faith in the voice of the people is closely connected with the doctrine of "natural rights." This dogma of natural rights was in England contemned and confuted by
Bentham and his disciples.81 The declining influence of the utilitarian school appears therefore to give new strength to this doctrine. People forget that the dogma of natural rights was confuted not only by Benthamites but by powerful thinkers of the eighteenth and of the nineteenth century who had no sympathy with utilitarianism.
CRITICISM OF EACH OF THE FOUR NEW CONSTITUTIONAL IDEAS82
Woman Suffrage
The claim for women of the right to vote for members of Parliament, or, as now urged, to be placed in a position of absolute political equality with men, is no new demand. It was made in England before the end of the eighteenth century,83 but no systematic, or at any rate noticeable, movement to obtain for Englishwomen the right to vote for members of Parliament can be carried back much earlier than 1866-67, when it was supported in the House of Commons by J. S. Mill.
Let my readers consider for a moment first the causes which have added strength to a movement which is 1866 attracted comparatively little public attention, and next the main lines of argument or of feeling which really tell on the one hand with the advocates and on the other with the opponents of the claim to votes for women.84
The Causes
These may be thus summarised. Since the beginning of the nineteenth century the number in the United Kingdom of self-supporting
81 See Law and Opinion, pp. 309, 171, 172.
82 It would be impossible, and it is not my aim in this Introduction, to state or even summarise all the arguments for or against each of these ideas; my sole object is to bring into light the leading thoughts or feelings which underlie the advocacy of, or the opposition to, each of these new ideas. See p. lxxiv-lxxv, ante.
83 See the Vindication of the Rights of Women, by Mary Wollstonecraft, published 1792. Little was heard about such rights during the great French Revolution. There is no reason to suppose that Madame Roland ever claimed parliamentary votes for herself or for her sex.
84 For an examination of all the main arguments alleged on either side see Dicey, Letters to a Friend on Votes for Women.
and also of unmarried women has greatly increased; and this class has by success in literature, as well as in other fields, acquired year by year greater influence. In the United Kingdom there exists among the actual population an excess of women over men, and this excess is increased by the emigration of Englishmen to our colonies and elsewhere. The low rate of payment received by women as compared with men, for services of any kind in which men and women enter into competition, has excited much notice. The spreading belief, or, as it used to be considered, the delusion, that wages can be raised by legislation, has naturally suggested the inference that want of a parliamentary vote inflicts severe pecuniary loss upon women. The extension of the power of the state and the enormous outgrowth of social legislation results in the daily enactment of laws which affect the very matters in which every woman has a personal interest. In an era of peace and of social reform the electors themselves constantly claim the sympathy and the active co-operation of women on behalf of causes which are treated, at any rate by partisans, as raising grave moral or religious controversy. Hence the agitation in favour of Woman Suffrage often commends itself to ministers of religion and notably to the English clergy, who believe, whether rightly or not, that the political power of women would practically add to the authority in the political world of the Church of England. These circumstances, and others which may be suggested by the memory or the ingenuity of my readers, are enough to explain the prominence and weight acquired for the movement in favour of giving the parliamentary franchise to women.
The Main Lines of Argument
These may be brought under two heads; they are most dearly and briefly exhibited if under each head is stated the argument of the Suffragist and the answer or reasoning in reply of the Anti-Suffragist. First Argument
Every citizen, or, as the point is generally put, every person who pays taxes under the law of the United Kingdom, is entitled as a matter of right to a vote for a member of Parliament. Hence the obvious conclusion that as every Englishwoman pays taxes under the
law of the United Kingdom, every Englishwoman is at any rate prima
facie entitled to a vote.
Answer
This line of reasoning proves too much. It inevitably leads to the conclusion that any form of popular government ought to be based on the existence of strictly universal suffrage. An extreme suffragette will say that this result is not a reductio ad absurdum. But there are thousands of sensible Englishmen and Englishwomen who, while they doubt the advisability of introducing into England even manhood suffrage, refuse to admit the cogency of reasoning which leads to the result that every Englishman and Englishwoman of full age must have a right to vote for a member of Parliament. But the full strength of an anti-suffragist's reply cannot be shown by any man who does not go a little further into the nature of things. A fair-minded man prepared to do this will, in the first place, admit that many democratic formulas, e.g. the dictum that "liability to taxation involves the right to representation," do verbally cover a woman's claim to a parliamentary vote. His true answer is that many so-called democratic principles, as also many so-called conservative principles, are in reality not principles at all but war-cries, or shibboleths which may contain a good deal of temporary or relative truth but are mixed up with a vast amount of error. The idea, he will ultimately say, that the possession of a vote is a personal right is a delusion. It is in truth the obligation to discharge a public duty, and whether this miscalled right should be conferred upon or withheld from Englishwomen can be decided only by determining whether their possession of the parliamentary vote will conduce to the welfare of England. Second Argument
The difference of sex presents no apparent or necessary reason for denying to Englishwomen the same political rights as are conferred upon Englishmen. It is found by experience, as suffragists will add, that some women have in many ways even greater capacity for the exercise of government than have some men. This argument may best be put in its full strength if it be placed, as it often is, in the form of a question: Was it reasonable that Florence Nightingale should not
have possessed the right to vote for a member of Parliament when even in her day her footman or her coachman, if he had happened to be a ten-pound householder, or a forty-shilling freeholder, might have exercised a right denied to a lady who, as appears from her biography, possessed many statesmanlike qualities, who did in fact in some lines of action exert more political power than most M.P.s, and who always exercised power disinterestedly, and generally exercised it with admitted benefit to the country? There is not the remotest doubt that the argument involved in this inquiry (in whatever form it is stated) seems to many women, to a great number of parliamentary electors, and also to a considerable number of M.P.s, to afford an unanswerable and conclusive reason in favour of giving parliamentary votes to women. Answer
The claim of parliamentary votes for women as now put forward in England is in reality a claim for the absolute political equality of the two sexes. Whether its advocates are conscious of the fact or not, it is a demand on behalf of women for seats in Parliament and in the Cabinet. It means that Englishwomen should share the jury box and should sit on the judicial bench. It treats as insignificant for most purposes that difference of sex which, after all, disguise the matter as you will, is one of the most fundamental and far-reaching differences which can distinguish one body of human beings from another. It is idle to repeat again and again reasoning which, for the last thirty years and more, has been pressed upon the attention of every English reader and elector. One thing is certain: the real strength (and it is great) of the whole conservative argument against the demand of votes for women lies in the fact that this line of reasoning, on the face thereof, conforms to the nature of things. The anti-suffragists can re-echo the words of Burke whilst adapting them to a controversy unknown to him and practically unknown to his age:
The principles that guide us, in public and in private, as they are not of our devising, but moulded into the nature and the essence of things, will endure with the sun and moon — long, very long after whig and tory, Stuart and Brunswick [suffragist, suffragette, and anti-suffragist], and all such misera-
ble bubbles and playthings of the hour, are vanished from existence and from memory.85
Proportional Representation86
The case in favour of the introduction of proportional representation into England rests on the truth of three propositions.
First Proposition
The House of Commons often fails to represent with precision or accuracy the state of opinion e.g. as to woman suffrage, existing among the electorate of England. In other words, the House of Commons often fails to be, as it is sometimes expressed, "the mirror of the national mind," or to exactly reflect the will of the electors.
Second Proposition
It is quite possible by some system of proportional representation to frame a House of Commons which would reflect much more than at present the opinion of the nation, or, in other words, of the electorate.
Third Proposition
It is pre-eminently desirable that every opinion bona fide existing among the electors should be represented in the House of Commons in as nearly as possible the same proportion in which it exists among the electors, or, to use popular language, among the nation.
Now of these three propositions the substantial truth of the first and second must, in my judgment, be admitted. No one can doubt the possibility, and even the high probability, that, for example, the cause of woman suffrage may, at the present moment, obtain more than half the votes of the House of Commons while it would not obtain as many as half the votes of the electorate. Nor again is it at all inconceivable that at some other period the cause of woman suffrage
85 Burke, Correspondence, i. pp. 332, 333.
86 See Humphreys, Proportional Representation; J. Fischer Williams, Proportional Representation and Bntish Politics; Lowell, Public Opinion and Popular Government, pp. 122-124.
should, while receiving the support of half the electorate, fail to obtain the votes of half the House of Commons. No one, in the second place, can, I think, with reason dispute that, among the numerous plans for proportional representation thrust upon the attention of the public, some one, and probably several, would tend to make the House of Commons a more complete mirror of what is called the mind of the nation than the House is at present; and this concession, it may with advantage be noted, does not involve the belief that under any system of popular government whatever, a representative body can be created which at every moment will absolutely and with complete accuracy reflect the opinions held by various classes of the people of England. Now my belief in the substantial truth of the first and the second of our three propositions makes it needless for me, at any rate for the purpose of this Introduction, to consider the reservations with which their absolute accuracy ought to be assumed. For the sake of argument, at any rate, I treat them as true. My essential objection to the system of proportional representation consists in my grave doubt as to the truth of the third of the above three propositions, namely, that it is desirable that any opinion existing among any large body of electors should be represented in the House of Commons as nearly as possible in the same proportion in which it exists among such electors.
Before, however, any attempt is made to state the specific objections which in my judgment lie against the introduction of proportional representation into the parliamentary constitution of England, it is essential to discriminate between two different ideas which are confused together under the one demand for proportional representation. The one of these ideas is the desirability that every opinion entertained by a substantial body of Englishmen should obtain utterance in the House of Commons, or, to use a vulgar but effective piece of political slang, "be voiced by" some member or members of that House. Thus it has been laid down by the leader of the Liberal party that
it was infinitely to the advantage of the House of Commons, if it was to be a real reflection and mirror of the national mind, that there should be no strain
of opinion honestly entertained by any substantial body of the King's subjects which should not find there representation and speech.87
To this doctrine any person who has been influenced by the teaching of Locke, Bentham, and Mil will find it easy to assent, for it is well known that in any country, and especially in any country where popular government exists, the thoughts, even the bad or the foolish thoughts, of the people should be known to the national legislature. An extreme example will best show my meaning. If among the people of any land the hatred of the Jews or of Judaism should exist, it would certainly be desirable that this odious prejudice should find some exponent or advocate in the Parliament of such country, for the knowledge of popular errors or delusions may well be essential to the carrying out of just government or wise administration. Ignorance is never in truth the source of wisdom or of justice. The other idea or meaning attached by Proportionalists to proportional representation is that every influential opinion should not only find utterance in the House of Commons, but, further, and above all, be represented in the House of Commons by the same proportionate number of votes which it obtains from the voters at an election. Thus the eminent man who advocated the desirability of every opinion obtaining a hearing in the House of Commons, used on another occasion the following words: "It is an essential and integral feature of our policy that we shall go forward with the task of making the House of Commons not only the mouthpiece but the mirror of the national mind."88 Now the doctrine of proportional representation thus interpreted is a dogma to which a fair-minded man may well refuse his assent. It is by no means obviously true; it is open to the following (among other) objections that admit of dear statement. Objections to the Third Proposition
First Objection The more complicated any system of popular election is made, the more power is thrown into the hands of election
87 See Mr. Asquith's speech at St. Andrews, Feb. 19, 1906, cited by J. Fischer Williams, Proportional Representation, p. 17.
88 Mr. Asquith at Burnley, Dec. 5, 1910, cited by J. Fischer Williams, Proportional Representation, p. 17.
agents or wire-pullers. This of itself increases the power and lowers the character of the party machine; but the greatest political danger with which England is now threatened is the inordinate influence of party mechanism. This objection was long ago insisted upon by Bagehot.89 It explains, if it does not wholly justify, John Bright's denunciation of fancy franchises.
Second Objection The House of Commons is no mere debating society. It is an assembly entrusted with great though indirect executive authority; it is, or ought to be, concerned with the appointment and the criticism of the Cabinet. Grant, for the sake of argument, that every influential opinion should in the House of Commons gain a hearing. This result would be obtained if two men, or only one man, were to be found in the House who could ensure a hearing whenever he spoke in favour of some peculiar opinion. The argument for woman suffrage was never stated with more force in Parliament than when John Mill represented Westminster. The reasons in its favour would not, as far as argument went, have commanded more attention if a hundred members had been present who shared Mill's opinions but were not endowed with his logical power and his lucidity of expression. But where a body of men such as constitute the House of Commons are at all concerned with government, unity of action is of more consequence than variety of opinion. The idea, indeed, of representation may be, and often is, carried much too far. A Cabinet which represented all shades of opinion would be a Ministry which could not act at all. No one really supposes that a Government could in ordinary circumstances be formed in which two opposite parties balanced one another. Nor can it often be desirable that an opinion held by, say, a third of a ministerial party should necessarily be represented by a third of the Cabinet. It may well be doubted whether even on commissions appointed partly, at any rate, for the purpose of inquiry, it is at all desirable that distinctly opposite views should obtain recognition. The Commission which laid down the leading lines of Poor Law Reform in 1834 rendered an immense service to England. Would there have been any real advantage in plac-
89 Bagehot, English Constitution, pp. 148-159.
ing on that Commission men who condemned any change in the existing poor law?
Third Objection Proportional representation, just because it aims at the representation of opinions rather than of persons, tends to promote the existence in the House of Commons of numerous party groups and also fosters the admitted evil of log-rolling. The working of English parliamentary government has owed half of its success to the existence of two leading and opposed parties, and of two such parties only. Using somewhat antiquated but still intelligible terms, let me call them by the name of Tories and Whigs.90 These two parties have, if one may speak in very broad terms, tended, the one to uphold the rule of the well-born, the well-to-do, and therefore, on the whole, of the more educated members of the community; the other has promoted the power of numbers, and has therefore aimed at increasing the political authority of the comparatively poor, that is, of the comparatively ignorant. Each tendency has obviously some good and some bad effects. If, for a moment, one may adopt modern expressions while divesting them of any implied blame or praise, one may say that Conservatism and Liberalism each play their part in promoting the welfare of any country where popular government exists. Now, that the existence of two leading parties, and of two such parties only, in England has favoured the development of English constitutionalism is past denial. It is also certain that during the nineteenth century there has been a notable tendency in English public life to produce in the House of Commons separate groups or parties which stood more or less apart from Tories and Whigs, and were all but wholly devoted to the attainment of some one definite change or reform. The Repealers, as led by O'Connell, and still more the Free Traders, as led by Cobden91 are early examples of such
90 I choose these old expressions which have been in use, at any rate from 1689 till the present day, because they make it easier to keep somewhat apart from the burning controversies of 1914.
91 Cobden would have supported any Premier, whether a Tory or a Whig, who undertook to repeal the Corn Laws. O'Connell would have supported any Premier who had pledged himself to repeal the Act of Union with Ireland; but O'Connell's position was peculiar. He took an active interest in English politics, he was a Benthamite Liberal; and during a part of his career acted in alliance with the Whigs.
groups. These groups avowedly held the success of the cause for which they fought of greater consequence than the maintenance in office either of Tories or of Whigs. Even in 1845 they had perplexed the working of our constitution; they had gone far to limit the operation of the very valuable rule that a party, which persuades Parliament to adopt the party's policy, should be prepared to take office and carry that policy into effect. The Free Traders, in fact, give the best, if not the earliest, example of an English group organised to enforce the adoption by the English parliament of an opinion, doctrine, or theory to which that group was devoted. Now an observer of the course of events during the last sixty years will at once note the increasing number of such groups in the House of Commons. To-day we have Ministerialists and Unionists (corresponding roughly with the old Whigs and Tories), we have also Irish Nationalists and the Labour Party. These parties have each separate organisations. But one can easily observe the existence of smaller bodies each devoted to its own movement or cause, such, for example, as the temperance reformers, as the advocates of woman suffrage, or as the members who hold that the question of the day is the disestablishment of the Church. This state of things already invalidates our constitutional customs. Nor is it easy to doubt that any fair system of proportional representation must increase the number of groups existing in Parliament, for the very object of Proportionalists is to ensure that every opinion which exists among an appreciable number of British electors shall have an amount of votes in Parliament proportionate to the number of votes it obtains among the electors. If, for example, a tenth of the electors should be anti-vaccinators, the anti-vaccinators ought, under a perfect scheme of representation, to command sixty-seven votes in the House of Commons. Sixty-seven anti-vaccinators who might accidentally obtain seats in the House of Commons, e.g. as Conservatives or Liberals, would, be it noted, constitute a very different body from sixty-seven members sent to the House of Commons to represent the cause of anti-vaccination. The difference is this: In the first case each anti-vaccinator would often perceive that there were matters of more pressing importance than anti-vaccination; but the sixty-seven men elected under a system of proportional represen-
tation to obtain the total repeal of the vaccination laws would, one may almost say must, make that repeal the one dominant object of their parliamentary action. That the multiplication of groups might weaken the whole system of our parliamentary government is a probable conjecture. That proportional representation might tend to extend the vicious system of log-rolling is all but demonstrable. Let me suppose the sixty-seven anti-vaccinators to be already in existence; let me suppose, as would probably be the case, that they are elected because of their firm faith in anti-vaccination, and that, both from their position and from their creed, they feel that to destroy the vaccination laws is the supreme object at which every good man should aim. They will soon find that their sixty-seven votes, though of high importance, are not enough to save the country. The course which these patriots must follow is obvious. They are comparatively indifferent about Home Rule, about Disestablishment, about the objects of the Labour Party. Let them promise their support to each of the groups advocating each of these objects in return for the help in repealing legislation which originates, say our anti-vaccinators, in the delusions of Jenner. A political miracle will have been performed. A majority in favour of anti-vaccination will have been obtained; the voice of fanatics will have defeated the common sense of the nation. Let me, as an illustration of my contention, recall to public attention a forgotten fact. Some forty years ago the Claimant, now barely remembered as Arthur Orton, was a popular hero. His condemnation to imprisonment for fourteen or fifteen years excited much indignation. He obtained one representative, and one representative only, of his grievances in the House of Commons. Under a properly organised system of proportional representation, combined with our present household suffrage, he might well have obtained twenty. Does any one doubt that these twenty votes would have weighed with the Whips of any party in power? Is it at all certain that the Claimant might not, thus supported, have obtained a mitigation of his punishment, if not a re-trial of his case? This is an extreme illustration of popular folly. For this very reason it is a good test of a logical theory. I do not contend that proportional representation cannot
be defended by weighty considerations; my contention is that it is open to some grave objections which have not received an adequate
answer.92
Federalism93
In 1884 the peculiarities and the merits of federal government had not attracted the attention of the English public. Here and there a statesman whose mind was turned towards the relation of England and her colonies had perceived that some of the self-governing colonies might with advantage adopt federal constitutions. In 1867 Parliament had readily assented to the creation of the Canadian Dominion and thereby transformed the colonies possessed by England on the continent of America into a federal state. In truth it may be said that the success of the Northern States of the American Commonwealth in the War of Secession had, for the first time, impressed upon Englishmen the belief that a democratic and a federal state might come with success through a civil war, carried on against states which asserted their right to secede from the Republic of which they were a part. Still in 1884 hardly a statesman whose name carried weight with Englishmen advocated the formation of a federal system as a remedy for the defects, whatever they were, of the English constitution, or as the means for uniting the widely scattered countries which make up the British Empire. Walter Bagehot was in his day, as he still is, the most eminent of modern English constitutionalists. He compared the constitution of England with the constitution of the United States. But the result of such comparison was, in almost every case, to illustrate some hitherto unnoted merit of the English constitution which was not to be found in the constitution of the great American Repub-
92 Proportional representation was in Mill's day known as minority representation. The change of name is not without significance. In 1870 the demand for minority representation was put forward mainly as the means for obtaining a hearing for intelligent minorities whose whisper might easily be drowned by the shouts of an unintelligent majority. In 1914 minority representation is recommended mainly as the means of ensuring that the true voice of the nation shall be heard. It was once considered a check upon democracy; it is now supported as the best method for giving effect to the true will of the democracy.
93 Compare especially as to federal government, Chap. III. p. 73, post.
lie. Sir Henry Maine was in his time the most brilliant of the writers who had incidentally turned their thoughts towards constitutional problems. Maine's Popular Government, published in 1885, expressed his admiration for the rigidity or the conservatism of American federalism. But he never hinted at the conviction, which he probably never entertained, that either the United Kingdom or the British Empire would gain by transformation into a federal state. Thirty years ago the nature of federalism had received in England very inadequate investigation.94 In this, as in other matters, 1914 strangely contrasts with 1884. The notion is now current that federalism contains the solution of every constitutional problem which perplexes British statesmanship. Why not, we are told, draw closer the bonds which maintain peace and goodwill between the United Kingdom and all her colonies, by constructing a new and grand Imperial federation governed by a truly Imperial Parliament, which shall represent every state, including England, which is subject to the government of the King? Why not, we are asked, establish a permanent reconciliation between England and Ireland by the conversion of the United Kingdom into a federalised kingdom whereof England, Scotland, Ireland, and Wales, and, for aught I know, the Channel Islands and the Isle of Man, shall form separate states? This new constitutional idea of the inherent excellence of federalism is a new faith or delusion which deserves examination. My purpose, therefore, is to consider two different matters — namely, first, the general characteristics of federalism; secondly, the bearing of these characteristics on the proposal popularly known as Imperial federalism, for including England95 and the five self-governing colonies in a federal constitution, and also the proposal (popularly known as Home Rule all round) for federalising the United Kingdom.
94 In Chap. III., post, federalism was analysed (1885) as illustrating, by way of contrast, that sovereignty of the English Parliament which makes England one of the best examples of a unitary state.
95 In treating of Imperial federalism, as often in other parts of this book, I purposely and frequently, in accordance with popular language, use "England" as equivalent to the United Kingdom.
Leading Characteristics of Federal Government911
Federalism is a natural constitution for a body of states which desire union and do not desire unity. Take as countries which exhibit this state of feeling the United States, the English federated colonies, the Swiss Confederation, and the German Empire, and contrast with this special condition of opinion the deliberate rejection by all Italian patriots of federalism, which in the case of Italy presented many apparent advantages, and the failure of union between Sweden and Norway to produce any desire for unity or even for a continued political connection, though these Scandinavian lands differ little from each other in race, in religion, in language, or in their common interest to maintain their independence against neighbouring and powerful countries.
The physical contiguity, further, of countries which are to form a confederated state is certainly a favourable, and possibly a necessary, condition for the success of federal government.
The success of federal government is greatly favoured by, if it does not absolutely require, approximate equality in the wealth, in the population, and in the historical position of the different countries which make up a confederation. The reason for this is pretty obvious. The idea which lies at the bottom of federalism is that each of the separate states should have approximately equal political rights and should thereby be able to maintain the "limited independence" (if the term may be used) meant to be secured by the terms of federal union. Hence the provision contained in the constitution of the United States under which two Senators, and no more, are given to each state, though one be as populous, as large, and as wealthy as is New York, and another be as small in area and contain as few citizens as Rhode Island. Bagehot, indeed, points out that the equal power in the Senate of a small state and of a large state is from some points of view an evil. It is, however, an arrangement obviously congenial to
96 See especially Chap. III. p. 73, post. It is worth observing that the substance of this chapter was published before the production by Gladstone of his first Home Rule Bill for Ireland.
federal sentiment. If one state of a federation greatly exceed in its numbers and in its resources the power of each of the other states, and still more if such "dominant partner," to use a current expression, greatly exceed the whole of the other Confederated States in population and in wealth, the confederacy will be threatened with two dangers. The dominant partner may exercise an authority almost inconsistent with federal equality. But, on the other hand, the other states, if they should possess under the constitution rights equal to the rights or the political power left to the dominant partner, may easily combine to increase unduly the burdens, in the way of taxation or otherwise, imposed upon the one most powerful state.
Federalism, when successful, has generally been a stage towards unitary government. In other words, federalism tends to pass into nationalism. This has certainly been the result of the two most successful of federal experiments. The United States, at any rate as they now exist, have been well described as a nation concealed under the form of a federation. The same expression might with considerable truth be applied to Switzerland. Never was there a country in which it seemed more difficult to produce national unity. The Swiss cantons are divided by difference of race, by difference of language, by difference of religion. These distinctions till nearly the middle of the nineteenth century produced a kind of disunion among the Swiss people which in 1914 seems almost incredible. They forbade the existence of a common coinage; they allowed any one canton to protect the financial interest of its citizens against competition by the inhabitants of every other canton. In 1847 me Sonderbund threatened to destroy the very idea of Swiss unity, Swiss nationality, and Swiss independence. Patriots had indeed for generations perceived that the federal union of Switzerland afforded the one possible guarantee for the continued existence of their country. But attempt after attempt to secure the unity of Switzerland had ended in failure. The victory of the Swiss federalists in the Sonderbund war gave new life to Switzerland: this was the one indubitable success directly due to the movements of 1847-48. It is indeed happy that the victory of the federal armies took place before the fall of the French Monarchy, and that the Revolution of February, combined with other movements
which distracted Europe, left the Swiss free to manage their own affairs in their own way. Swiss patriotism and moderation met with their reward. Switzerland became master of her own fate. Each step in the subsequent progress of the new federal state has been a step along the path leading from confederate union to national unity.
A federal constitution is, as compared with a unitary constitution, a weak form of government. Few were the thinkers who in 1884 would have denied the truth of this proposition. In 1914 language is constantly used which implies that a federal government is in itself superior to a unitary constitution such as that of France or of England. Yet the comparative weakness of federalism is no accident. A true federal government is based on the division of powers. It means the constant effort of statesmanship to balance one state of the confederacy against another. No one can rate more highly than myself the success with which a complicated system is worked by the members of the Swiss Council or, to use expressions familiar to Englishmen, by the Swiss Cabinet. Yet everywhere throughout Swiss arrangements you may observe the desire to keep up a sort of balance of advantages between different states. The members of the Council are seven in number; each member must, of necessity, belong to a different canton. The federal Parliament meets at Bern; the federal Court sits at Lausanne in the canton of Vaud; the federal university is allotted to a third canton, namely Zurich. Now rules or practices of this kind must inevitably restrict the power of bringing into a Swiss Cabinet all the best political talent to be found in Switzerland. Such a system applied to an English or to a French Cabinet would be found almost unworkable. Federalism again would mean, in any country where English ideas prevail, the predominance of legalism or, in other words, a general willingness to yield to the authority of the law courts. Nothing is more remarkable, and in the eyes of any impartial critic more praiseworthy, than the reverence paid on the whole by American opinion to the Supreme Court of the United States. Nor must one forget that the respect paid to the opinion of their own judges, even when deciding questions on which political feeling runs high, is, on the whole, characteristic of the citizens of each particular state. The Supreme Court, e.g., of Massachusetts may be called upon
to determine in effect whether a law passed by the legislature of Massachusetts is, or is not, constitutional; and the decision of the Court will certainly meet with obedience. Now, what it is necessary to insist upon is that this legalism which fosters and supports the rule of law is not equally displayed in every country. No French court has ever definitely pronounced a law passed by the French legislature invalid, nor, it is said, has any Belgian court ever pronounced invalid a law passed by the Belgian Parliament. Whether English electors are now strongly disposed to confide to the decision of judges questions which excite strong political feeling is doubtful. Yet — and this is no insignificant matter — under every federal system there must almost of necessity exist some body of persons who can decide whether the terms of the federal compact have been observed. But if this power be placed in the hands of the Executive, the law will, it may be feared, be made subservient to the will of any political party which is for the moment supreme. If it be placed in the hands of judges, who profess and probably desire to practise judicial impartiality, it may be very difficult to ensure general respect for any decision which contradicts the interests and the principles of a dominant party. Federalism, lastly, creates divided allegiance. This is the most serious and the most inevitable of the weaknesses attaching to a form of government under which loyalty to a citizen's native state may conflict with his loyalty to the whole federated nation. Englishmen, Scotsmen, and Irishmen have always, as soldiers, been true to the common flag. The whole history of the Sonderbund in Switzerland and of Secession in the United States bears witness to the agonised perplexity of the noblest among soldiers when called upon to choose between loyalty to their country and loyalty to their canton or state. One example of this difficulty is amply sufficient for my purpose. General Scott and General Lee alike had been trained as officers of the American Army; each was a Virginian; each of them was determined from the outbreak of the Civil War to follow the dictates of his own conscience; each was placed in a position as painful as could be occupied by a soldier of bravery and honour; each was a victim of that double allegiance which is all but inherent in federalism. General Scott fol-
lowed the impulse of loyalty to the Union. General Lee felt that as a matter of duty he must obey the sentiment of loyalty to Virginia.
In any estimate of the strength or the weakness of federal government it is absolutely necessary not to confound, though the confusion is a very common one, federalism with nationalism. A truly federal government is the denial of national independence to every state of the federation. No single state of the American Commonwealth is a separate nation; no state, it may be added, e.g. the State of New York, has anything like as much of local independence as is possessed by New Zealand or by any other of the five Dominions.97 There is of course a sense, and a very real sense, in which national tradition and national feeling may be cultivated in a state which forms part of a confederacy. The French inhabitants of Quebec are Frenchmen to the core. But their loyalty to the British Empire is certain. One indisputable source of their Imperial loyalty is that the break-up of the Empire might, as things now stand, result to Canada in union with the United States. But Frenchmen would with more difficulty maintain their French character if Quebec became a state of the Union and ceased to be a province of the Dominion. In truth national character in one sense of that term has less necessary connection than Englishmen generally suppose with political arrangements. It would be simple folly to assert that Sir Walter Scott did not share the sentiment of Scottish nationalism; yet the influence of Scott's genius throughout Europe was favoured by, and in a sense was the fruit of, the union with England. But the aspiration and the effort towards actual national independence is at least as inconsistent with the conditions of a federal as with the conditions of a unitary government. Any one will see that this is so who considers how patent would have been the folly of the attempt to establish a confederacy which should have left Italy a state of the Austrian Empire. Nor does historical experience countenance the idea that federalism, which may certainly be a step towards closer national unity, can be used as a method for gradually bringing political unity to an end.
97 As to meaning of "Dominions" see p. xlii, note 21, ante.
The Characteristics of Federal Government in Relation to Imperial Federalism
Many Englishmen of to-day advocate the building up of some grand federal constitution which would include the United Kingdom (or, to use popular language, England) and at any rate the five Dominions. This splendid vision of the advantages to be obtained by increased unity of action between England and her self-governing colonies is suggested by obvious and important facts. The wisdom of every step which may increase the reciprocal goodwill, strong as it now is, of England and her Dominions is proved by the success of each Imperial Conference. It is perfectly plain already, and will become every day plainer both to Englishmen and to the inhabitants of the British Empire outside England, that the existence of the Empire ought to secure both England and her colonies against even the possibility of attack by any foreign power. It to-day in reality secures the maintenance of internal peace and order in every country inhabited by British subjects. It is further most desirable, it may probably become in no long time an absolute necessity, that every country throughout the Empire should contribute in due measure to the cost of Imperial defence. To this it should be added that the material advantages accruing to millions of British subjects from the Imperial power of England may more and more tend to produce that growth of loyalty and goodwill towards the Empire which in 1914 is a characteristic and splendid feature both of England and of her colonies. Any man may feel pride in an Imperial patriotism grounded on the legitimate belief that the Empire built up by England furthers the prosperity and the happiness of the whole body of British subjects.98
98 "But this Empire of ours is distinguished from [other Empires] by special and dominating characteristics. From the external point of view it is made up of countries which are not geographically conterminous or even contiguous, which present every variety of climate, soil, people, and religion, and, even in those communities which have attained to complete self-government, and which are represented in this room to-day, does not draw its unifying and cohesive force solely from identity of race or of language. Yet you have here a political organisation which, by its mere existence, rules out the possibility of war between populations numbering something like a third of the human race. There is, as there must be among communities so differently situated and circumstanced, a vast variety of constitutional methods, and of social and political institutions and ideals. But to speak for a moment for that part of the Empire which is represented here to-day, what is it that we have in common, which amidst every diversity of external and material conditions, makes us and
But, when every admission which the most ardent of Imperialists can ask for, is made of the benefits conferred in every quarter of the world upon the inhabitants of different countries, by the existence of England's Imperial power, it is quite possible for a calm observer to doubt whether the so-called federalisation of the British Empire is an object which ought to be aimed at by the statesmen either of England or of the Dominions. The objections to the creed of federalism, in so far as it means the building up of a federal constitution for the Empire, or rather for England and her Dominions, may be summed up in the statement that this belief in a new-fangled federalism is at bottom a delusion, and a delusion perilous not only to England but to the whole British Empire. But this general statement may be best justified by the working out of two criticisms.
First: The attempt to form a federal constitution for the Empire is at this moment full of peril to England, to the Dominions, and, it may well be, to the maintenance of the British Empire. The task imposed upon British and upon colonial statesmanship is one of infinite difficulty. As we all know, the creation of the United States was for the thirteen independent colonies a matter of absolute necessity. But the highest statesmanship of the ablest leaders whom a country ever possessed was hardly sufficient for the transformation of thirteen different states into one confederated nation. Even among countries differing little in race, religion, and history, it was found all but impossible to reconcile the existence of state rights with the creation of a strong central and national power. If any one considers the infinite diversity of the
keeps us one? There are two things in the self-governing British Empire which are unique in the history of great political aggregations. The first is the reign of Law: wherever the King's writ runs, it is the symbol and messenger not of an arbitrary authority, but of rights shared by every citizen, and capable of being asserted and made effective by the tribunals of the land. The second is the combination of local autonomy — absolute, unfettered, complete — with loyalty to a common head, co-operation, spontaneous and unforced, for common interests and purposes, and, I may add, a common trusteeship, whether it be in India or in the Crown Colonies, or in the Protectorates, or within our own borders, of the interests and fortunes of fellow-subjects who have not yet attained, or perhaps in some cases may never attain, to the full stature of self-government." — See speech of the Right Hon. H. H. Asquith (President of the Conference), Minutes of Proceedings of the Imperial Conference, 1911 [Cd. 5745], p. 22.
countries which make up the British Empire, if he reflects that they are occupied by different races whose customs and whose civilisation are the product of absolutely different histories, that the different countries of the Empire are in no case contiguous, and in many instances are separated from England and from each other by seas extending over thousands of miles, he will rather wonder at the boldness of the dreams entertained by the votaries of federal Imperialism, than believe that the hopes of federalising the Empire are likely to meet with fulfilment. I shall be reminded, however, and with truth, that Imperial federalism, as planned by even its most sanguine advocates, means something very different from the attempt to frame a constitution of which the United Kingdom, the Dominions, the Crown colonies, and British India shall constitute different states. Our Imperialists really aim, and the fact must be constantly borne in mind, at federalising the relation not between England and the rest of the Empire, but between England and the five self-governing Dominions. But then this admission, while it does away with some of the difficulties besetting the policy which is miscalled Imperial federalism, raises a whole body of difficult and all but unanswerable questions. Take a few of the inquiries to which sanguine reformers, who talk with easy confidence of federalism being the solution of all the most pressing constitutional problems, must find a reply. What is to be the relation between the new federated state (consisting of England and the five Dominions) and British India? Will the millions who inhabit India readily obey a new and strange sovereign, or will the states of the new confederacy agree that the rest of the Empire shall be ruled by the Parliament and Government of England alone? Is the whole expense of Imperial defence to be borne by the federated states, or will the new federation of its own authority impose taxes upon India and the Crown colonies for the advantage of the federated state? Is it certain, after all, that the mutual goodwill entertained between England and the Dominions really points towards federalism? No doubt England and the states represented at the Imperial Conferences entertain a genuine and ardent wish that the British Empire should be strong and be able, as against foreigners, and even in resistance to secession, to use all the resources of the whole Empire
for its defence and maintenance. But then each one of the Dominions desires rather the increase than the lessening of its own independence. Is there the remotest sign that, for example, New Zealand, though thoroughly loyal to the Empire, would tolerate interference by any Imperial Parliament or Congress with the internal affairs of New Zealand which even faintly resembled the authority exerted by Congress in New York, or the authority exerted by the Parliament of the Canadian Dominion in Quebec? But if the Dominions would not tolerate the interference with their own affairs by any Parliament, whatever its title, sitting at Westminster, is there the remotest reason to suppose that the existing Imperial Parliament will consent to become a Parliament of the Empire in which England, or rather the United Kingdom, and each of the five Dominions shall be fairly represented? But here we come to a further inquiry, to which our new federalists hardly seem to have given a thought: What are they going to do with the old Imperial Parliament which has, throughout the whole history of England, inherited the traditions and often exerted the reality of sovereign power? Under our new federation is the Imperial Parliament to become a Federal Congress wherein every state is to have due representation? Is this Federal Congress to be for Englishmen the English Parliament, or is there to be in addition to or instead of the ancient Parliament of England a new local English Parliament controlling the affairs of England alone? This question itself is one of unbounded difficulty. It embraces two or three inquiries the answers whereto may trouble the thoughts of theorists, and these replies, if they are ever discovered, may give rise throughout England and the British Empire to infinite discord. Is it not one example of the perplexities involved in any plan of Imperial federalism, and of the intellectual levity with which they are met, that our Federalists never have given a dear and, so to speak, intelligible idea of what is to be under a federal government the real position not of the United Kingdom but of that small country limited in size, but still of immense power, which is specifically known by the august name of England? The traditional feuds of Ireland and the ecclesiastical grievances of Wales, the demand of some further recognition of that Scottish nationality, for which no sensible Englishman shows or
is tempted to show the least disrespect, all deserve and receive exaggerated attention. But England and English interests, just because Englishmen have identified the greatness of England with the prosperity of the United Kingdom and the greatness and good government of the Empire, are for the moment overlooked. I venture to assure all my readers that this forgetfulness of England — and by England I here mean the country known, and famous, as England before the legal creation either of Great Britain or of the United Kingdom — is a fashion opposed both to common sense and to common justice, and, like all opposition to the nature of things, will ultimately come to nothing." The questions I have mentioned are numerous and full of complexity. The present time, we must add, is intensely unfavourable to the creation of a new federalised and Imperial constitution. The Parliament and the Government of the United Kingdom may be chargeable with grave errors: they have fallen into many blunders. But they have never forgotten — they will never, one trusts, forget — that they hold
a common trusteeship, whether it be in India or in the Crown Colonies, or in the Protectorates, or within our own borders, of the interests and fortunes of fellow-subjects who have not yet attained, or perhaps in some cases may never attain, to the full stature of self-government. 10°
Is it credible that, for instance, the peoples of India will see with indifference this trusteeship pass from the hands of an Imperial Parliament (which has more or less learned to think imperially, and in England has maintained the equal political rights of all British subjects) into the hands of a new-made Imperial Congress which will
99 Sir Joseph Ward is an eminent colonial statesman; he is also an ardent Imperialist of the colonial type. In his plan for an Imperial Council, or in other words for an Imperial Parliament representing the United Kingdom, or rather the countries which now make it up, and also the Dominions, he calmly assumes that Englishmen will without difficulty allow the United Kingdom to be broken up into four countries ruled by four local Parliaments. He supposes, that is to say, as a matter of course, that Englishmen will agree to a radical change in the government of England which no sane English Premier would have thought of pressing upon the Parliaments of the self-governing colonies which now constitute the Dominion of Canada or which now constitute the Commonwealth of Australia. See Minutes of Proceedings of the Imperial Conference, 1911 [Cd. 5745], pp. 59-61.
100 See Mr. Asquith's address, cited pp. xcviii-xcix, note 98, ante.
consist in part of representatives of Dominions which, it may be of necessity, cannot give effect to this enlarged conception of British citizenship?101
Second: The unity of the Empire does not require the formation of a federal or of any other brand-new constitution. I yield to no man in my passion for the greatness, the strength, the glory, and the moral unity of the British Empire.1021 am one of the thousands of Englishmen who approved, and still approve, of the war in South Africa because it forbade secession. But I am a student of the British constitution; my unhesitating conviction is that the constitution of the Empire ought to develop, as it is actually developing, in the same way in which grew up the constitution of England.103 The relation between England and the Dominions, and, as far as possible, between England and the colonies which are not as yet self-governing countries, need not be developed by arduous feats of legislation. It should grow under the influence of reasonable understandings and of fair customs. There are, as I have intimated,104 two objects on which every Imperialist should fix his eyes. The one is the contribution by every country within the Empire towards the cost of defending the Empire. The second object is the constant consultation between England and the Dominions. The English taxpayer will not, and ought not to, continue for ever paying the whole cost of Imperial defence. The Dominions cannot for an indefinite period bear the risks of Imperial wars without having a voice in determining if such wars should begin, and when and on what terms they should be brought to an end. Imperial statesmanship is rapidly advancing in the right direction. The system of Imperial Conferences105 and other modes of inter-communication
101 See p. liv, and note 43, ante.
102 See A Fool's Paradise, p. 24.
103 This conviction is strengthened by the facts now daily passing before our eyes (Sept. 1914).
104 See pp. xcviii, xrix, ante; and see ^4 Fool's Paradise, p. 25.
105 Consider the gradual, the most hopeful, and the most successful development of these conferences from 1887 to the last conference in 1911. A sort of conference was held in 1887, and the conferences of 1897 and 1902 were held in connection with some other celebration.
between England and the Dominions will, we may hope, result in regulating both the contribution which the Dominions ought to make towards the defence of the Empire, and the best method for collecting colonial opinion on the policy of any war which may assume an Imperial character. My full belief is that an Imperial constitution based on goodwill and fairness may within a few years come into real existence, before most Englishmen have realised that the essential foundations of Imperial unity have already been firmly laid. The ground of my assurance is that the constitution of the Empire may, like the constitution of England, be found to rest far less on parliamentary statutes than on the growth of gradual and often unnoted customs.
Characteristics of Federal Government in Relation to Home Rule All Round
Advocates of the so-called "federal solution" apparently believe that the United Kingdom as a whole will gain by exchanging our present unitary constitution for some unspecified form of federal government. To an Englishman who still holds, as was universally held by every English statesman till at the very earliest 1880, that the union between England and Scotland was the wisest and most fortunate among the achievements of British statesmanship, there is great difficulty in understanding the new belief that the federalisation of the United Kingdom will confer benefit upon any of the inhabitants of Great Britain.106 A candid critic may be able to account for the existence of a political creed which he does not affect to share.
The first regular conference for no other purpose than consultation was held in 1907, in which the Imperial Conference received by resolution a definite constitution. The conference of 1911 was held under the scheme thus agreed upon in 1907. 106 The omission of reference to the policy of Home Rule for Ireland as embodied in the Government of Ireland Act, 1914, is intentional. The true character and effect of that Act cannot become apparent until some years have passed. The Act itself stands in a position never before occupied by any statute of immense and far-reaching importance. It may not come into operation for an indefinite period. Its very authors contemplate its amendment before it shall begin to operate. The Act is at the moment detested by the Protestants of Ulster, and a binding though ambiguous pledge has been given that the Act will not be forced upon Ulster against her will. The people of Great Britain will insist on this pledge being held sacred. To a constitutionalist the Act at present affords better ground for wonder than for criticism. If any reader should be curious to know my views on Home Rule he will find them in a general form in England's Case against Home Rule, published in 1887; and as applied to the last Home Rule Bill, in A fool's Paradise, published in 1913.
The faith in Home Rule all round has been stimulated, if not mainly created, by the controversy, lasting for thirty years and more, over the policy of Home Rule for Ireland. British Home Rulers have always been anxious to conceal from themselves that the creation of a separate Irish Parliament, and a separate Irish Cabinet depending for its existence on such Parliament, is a real repeal of the Act of Union between Great Britain and Ireland. This refusal to look an obvious fact in the face is facilitated by the use of that most ambiguous phrase, "Home Rule all round." Federalism has, no doubt, during the last thirty, or one may say fifty, years acquired a good deal of new prestige. The prosperity of the United States, the military authority of the German Empire, may by federalists be put down to the credit of federal government, though in matter of fact no two constitutions can, either in their details or in their spirit, bear less real resemblance than the democratic and, on the whole, unmilitary constitution of the United States and the autocratic Imperial and, above all, military government of Germany. Federal government has also turned out to be the form of government suitable for some of the British Dominions. It has been an undoubted success in the Canadian Dominion. It has not been long tried but has not been a failure in the Australian Commonwealth. It may become, Englishmen are inclined to think it is, the best form of government for the states included in the Union of South Africa. Little reflection, however, is required in order to see that none of these federations resemble the constitution of England either in their historical development or in their actual circumstances. Then, too, it is thought that whereas English statesmen find it difficult to regulate the relation between Great Britain and Ireland, the task will become easier if the same statesmen undertake to transform, by some hocus-pocus of political legerdemain, the whole United Kingdom into a federal government consisting of at least four different states. It is supposed, lastly, though the grounds for the supposition are not very evident, that the federalisation of the United Kingdom is necessary for, or conducive to, the development of Imperial federalism.
Federalism, in short, has at present the vague, and therefore the strong and imaginative, charm which has been possessed at one time throughout Europe by the parliamentary constitutionalism of Eng-
land and at another by the revolutionary republicanism of France. It may be well, therefore, to state with some precision why, to one who has studied the characteristics of federal government, it must seem in the highest degree improbable that Home Rule all round, or the federal solution, will be of any benefit whatever to any part of the United Kingdom.
i. There is no trace whatever of the existence of the federal spirit throughout the United Kingdom. In England, which is after all by far the most important part of the kingdom, the idea of federalism has hitherto been totally unknown. Politicians may have talked of it when it happened to suit their party interest, but to the mass of the people the idea of federation has always been, and I venture to assert at this moment is, unknown and all but incomprehensible. Scotsmen sometimes complain that Great Britain is often called England. They sometimes talk as though they were in some mysterious manner precluded from a fair share in the benefits accruing from the unity of Great Britain. To any one who investigates the actual course of British politics, and still more of British social life since the beginning of the nineteenth century, these complaints appear to be utterly groundless. The prejudices which, say, in the time of Dr. Johnson, kept Scotsmen and Englishmen apart, have in reality vanished. To take one example of disappearing differences, we may note that while many leading Englishmen fill in Parliament Scottish seats many Scotsmen fill English seats. What is true is that the course of events, and the way in which the steam-engine and the telegraph bring the world everywhere closer together, are unfavourable to that prominence in any country which at one time was attainable by particular localities, or by small bodies of persons living somewhat apart from the general course of national life. This change has, like all other alterations, its weak side. It is quite possible honestly to regret the time when Edinburgh possessed the most intellectual society to be found in Great Britain or Ireland. It is also possible honestly to wish that Lichfield and Norwich might still have, as they had at the beginning of the nineteenth century, a little and not unfamous literary coterie of their own. There is a sense in which the growth of large states is injurious to the individual life of smaller communities. The Roman Republic
and the Roman Empire did not produce thinkers or writers who did as much for the progress of mankind as was done by the philosophers, the historians, and the poets of Greece, and the fruits of Greek genius were mainly due to the intellectual achievements of Athens during not much more than a century. Ireland is, as regards most of its inhabitants, discontented with the Union. But it is idle to pretend that Ireland has ever desired federalism in the sense in which it was desired by the colonies which originally formed the United States, or by the inhabitants of what are now the provinces of the Canadian Dominion. O'Connell for a very short time exhibited a tendency to substitute federalism for repeal. He discovered his mistake and reverted to repeal, which with his more revolutionary followers meant nationalism. No one who reads the last and the strangest of the biographies of Parnell can doubt that "Ireland a Nation" was the cry which met his own instinctive feeling no less than the wishes of his followers, except in so far as their desires pointed towards a revolutionary change in the tenure of land rather than towards the claim for national independence.
2. There is good reason to fear that the federalisation of the United Kingdom, stimulating as it would the disruptive force of local nationalism, might well arouse a feeling of divided allegiance. This topic is one on which I have no wish to dwell, but it cannot be forgotten by any sensible observer who reflects upon the history of secession in the United States, or of the Sonderbund in Switzerland, or who refuses to forget the preeminently uneasy connection between the different parts of the Austrian Empire and the deliberate determination of Norway to sever at all costs the union with Sweden. Nor is it possible to see how the federalisation of the United Kingdom should facilitate the growth of Imperial federalism.
3. Federalism, as the dissolution of the United Kingdom, is absolutely foreign to the historical and, so to speak, instinctive policy of English constitutionalists. Each successive generation from the reign of Edward I. onwards has laboured to produce that complete political unity which is represented by the absolute sovereignty of the Parliament now sitting at Westminster. Let it be remembered that no constitutional arrangements or fictions could get rid of the fact that Eng-
land would, after as before the establishment of Home Rule all round, continue, in virtue of her resources and her population, the predominant partner throughout the United Kingdom, and the partner on whom sovereignty had been conferred, not by the language of any statute or other document, but by the nature of things. It would be hard indeed to prevent the English Parliament sitting at Westminster from not only claiming but exercising sovereign authority; and to all these difficulties must be added one ominous and significant reflection. To every foreign country, whether it were numbered among our allies or among our rivals, the federalisation of Great Britain would be treated as a proof of the declining power alike of England and of the British Empire.107
The Referendum108
The word Referendum is a foreign expression derived from Switzerland. Thirty years ago it was almost unknown to Englishmen, even though they were interested in political theories. Twenty years ago it was quite unknown to British electors. The word has now obtained popular currency but is often misunderstood. It may be well, therefore, to define, or rather describe, the meaning of the "referendum" as used in this Introduction and as applied to England. The referendum is used by me as meaning the principle that Bills, even
107 Any great change in the form of the constitution of England, e.g. the substitution of an English republic for a limited monarchy, might deeply affect the loyalty of all the British colonies. Can any one be certain that New Zealand or Canada would, at the bidding of the Parliament of the United Kingdom, transer their loyalty from George V. to a President chosen by the electorate of the United Kingdom, and this even though the revolution were carried out with every legal formality including the assent of the King himself, and even though the King were elected the first President of the new Commonwealth? Is it certain that a federated union of England, Ireland, Scotland, and Wales would command in our colonies the respect paid to the present United Kingdom? These questions may well seem strange: they are not unimportant. The King is what the Imperial Parliament has never been, the typical representative of Imperial unity throughout every part of the Empire.
108 Lowell, Public Opinion and Popular Government, partiii. chaps, xi-xv., especially chaps, xii. and xiii. (best thing on the subject); Lowell, Government of England, i. p. 411; "The Referendum and its Critics," by A. V. Dicey, Quarterly Revieiv, No. 423, April 1910; Vie Crisis of Liberalism, by J. A. Hobson; Low, Tlie Governance of England, Intro, p. xvii; "Ought the Referendum to be introduced into England?" by A. V. Dicey, Contemporary Rei'ieu', 1890, and National Review, 1894.
when passed both by the House of Commons and by the House of Lords,109 should not become Acts of Parliament until they have been submitted to the vote of the electors and have received the sanction or approval of the majority of the electors voting on the matter. The referendum is sometimes described, and for general purposes well described, as "the people's veto." This name is a good one; it reminds us that the main use of the referendum is to prevent the passing of any important Act which does not command the sanction of the electors. The expression "veto" reminds us also that those who advocate the introduction of the referendum into England in fact demand that the electors, who are now admittedly the political sovereign of England, should be allowed to play the part in legislation which was really played, and with popular approval, by e.g. Queen Elizabeth at a time when the King or Queen of England was not indeed the absolute sovereign of the country, but was certainly the most important part of the sovereign power, namely Parliament.110 In this Introduction the referendum, or the people's veto, is considered simply with reference to Bills passed by the Houses of Parliament but which have not received the royal assent. The subject is dealt with by no means exhaustively, but with a view in the first place to bring out the causes of the demand in England for the referendum; and in the next place to consider carefully and examine in turn first by far the strongest argument against, and secondly the strongest argument in favour of introducing the referendum into the constitution of England.
109 Andfl fortiori when passed under the Parliament Act, without the consent of the House of Lords.
110 The referendum, it should be noted, can be applied to legislation for different purposes and in different ways. It may, for instance, be applied only to a Bill affecting fundamental changes in the constitution, e.g. to a Bill affecting the existence of the monarchy, or to any Bill which would in popular language be called a Reform Bill, and to such Bill after it has been passed by the two Houses. In this case the object of the referendum would be to ensure that no Act of transcendent importance shall be passed without the undoubted assent of the electors. The referendum may again be applied, as it is applied in the Commonwealth of Australia, for preventing "deadlocks," as they are called, arising from the fact of one House of Parliament having carried repeatedly, and the other having repeatedly rejected, a given Bill.
The Causes
During forty years faith in parliamentary government has suffered an extraordinary decline or, as some would say, a temporary eclipse.in This change is visible in every civilised country. Depreciation of, or contempt for, representative legislatures dearly exists under the parliamentary and republican government of France, under the federal and republican constitution of the Swiss Confederacy, or of the United States, under the essential militarism and the superficial parliamentarism of the German Empire, and even under the monarchical and historical constitutionalism of the British Empire. This condition, whether temporary or permanent, of public opinion greatly puzzles the now small body of surviving constitutionalists old enough to remember the sentiment of the mid-Victorian era, with its prevalent belief that to imitate the forms, or at any rate to adopt the spirit of the English constitution, was the best method whereby to confer upon the people of any civilised country the combined blessings of order and of progress. To explain in any substantial degree the alteration in popular opinion it would be necessary to produce a treatise probably longer and certainly of more profound thought than the book for which I am writing a new Introduction. Yet one or two facts may be noted which, though they do not solve the problem before us, do to some slight extent suggest the line in which its solution must be sought for. Parliamentary government may under favourable circumstances go a great way towards securing such blessings as the prevalence of personal liberty and the free expression of opinion. But neither parliamentary government nor any form of constitution, either which has been invented or may be discovered, will ever of itself remove all or half the sufferings of human beings. Utopias lead to disappointment just because they are Utopias. The very extension of constitutional government has itself led to the frustration of high hopes; for constitutions have by force of imitation been set up in states unsuited to popular government. What is even more important, parliamentary government has by its continued existence betrayed two defects hardly suspected by the Liberals or
111 Compare Law and Opinion (2nd ed.)/ pp- 440-443.
reformers of Europe, or at any rate of England, between 1832 and 1880. We now know for certain that while popular government may be under wise leadership a good machine for simply destroying existing evils, it may turn out a very poor instrument for the construction of new institutions or the realisation of new ideals. We know further that party government, which to many among the wisest of modern constitutionalists appears to be the essence of England's far-famed constitution, inevitably gives rise to partisanship, and at last produces a machine which may well lead to political corruption and may, when this evil is escaped, lead to the strange but acknowledged result that a not unfairly elected legislature may misrepresent the permanent will of the electors. This fact has made much impression on the political opinion both of England and of the United States. The above considerations taken as a whole afford some explanation of a demand for that referendum which, though it originates in Switzerland, flourishes in reality, though not in name, in almost every state of the American Commonwealth.
The Main Argument Against the Referendum
To almost all Englishmen the chief objection to the referendum is so obvious, and seems to many fair-minded men so conclusive, that it ought to be put forward in its full strength and to be carefully examined before the reader is called upon to consider the possible advantages of a great change in our constitution. This objection may be thus stated:
In England the introduction of the referendum means, it is urged, the transfer of political power from knowledge to ignorance. Let us put this point in a concrete form. The 670 members of the House of Commons together with the 600 and odd members of the House of Lords112 contain a far greater proportion of educated men endowed with marked intellectual power and trained in the exercise of some high political virtues than would generally be found among, say, 1270 electors collected merely by chance from an electorate of more man 8,000,000. The truth of this allegation can hardly be disputed; the
112 Strictly, 638 members. See Whitaker's Almanack, 1914, p. 124.
inference is drawn therefrom that to substitute the authority of the electorate for the authority of the House of Commons and the House of Lords is to transfer the government of the country from the rule of intelligence to the rule of ignorance. This line of argument can be put in various shapes. It is, in whatever form it appears, the reasoning on which the most capable censors of the referendum rely. Oddly enough (though the matter admits of explanation) this line of reasoning is adopted at once by a thoughtful conservative, such as Maine, and by revolutionists who wish to force upon England, through the use of authoritative legislation, the ideals of socialism. Maine saw in the referendum a bar to all reasonable reforms. He impresses upon his readers that democracy is not in itself a progressive form of government, and expresses this view in words which deserve quotation and attention:
The delusion that democracy when it has once had all things put under its feet, is a progressive form of government, lies deep in the convictions of a particular political school; but there can be no delusion grosser. ... All that has made England famous, and all that has made England wealthy, has been the work of minorities, sometimes very small ones. It seems to me quite certain that, if for four centuries there had been a very widely extended franchise and a very large electoral body in this country, there would have been no reformation of religion, no change of dynasty, no toleration of Dissent, not even an accurate Calendar. The threshing-machine, the power-loom, the spinning-jenny, and possibly the steam-engine, would have been prohibited. Even in our day, vaccination is in the utmost danger, and we may say generally that the gradual establishment of the masses in power is of the blackest omen for all legislation founded on scientific opinion, which requires tension of mind to understand it, and self-denial to submit to it.113
And he thence practically infers that democracy as it now exists in England would, combined with the referendum, be probably a death-blow to all reasonable reform.114 To Maine, in short, the referendum is the last step in the development of democracy, and his censure of the referendum is part of a powerful attack by an intellec-
113 Maine, Popular Government, pp. 97-98.
114 See ibid. pp. 96-97.
tual conservative on democratic government which he distrusted and abhorred. Now revolutionists who probably think themselves democrats have of recent years attacked the referendum on grounds which might have been suggested by Maine's pages. The referendum, we are told by socialistic writers, will work steadily to the disadvantage of the Liberal Party.115 Would not, we are asked, the anti-reforming press exhaust itself in malignant falsehoods calculated to deceive the people? Such suggestions and others of the same quality may be summed up in an argument which from a socialistic point of view has considerable force. The people, it is said, are too stupid to be entrusted with the referendum; the questions on which the electors are nominally called upon to decide must never be put before them with such clearness that they may understand the true issues submitted to their arbitrament. The party machine, think our new democrats, may be made the instrument for foisting upon the people of England changes which revolutionary radicals or enthusiasts know to be reforms, but which the majority of the electorate, if they understood what was being done, might condemn as revolution or confiscation. The attacks of conservatives and the attacks of socialistic democrats to a certain extent balance one another, but they contain a common element of truth. The referendum is a mere veto. It may indeed often stand in the way of salutary reforms, but it may on the other hand delay or forbid innovations condemned by the weight both of the uneducated and of the educated opinion of England. Thus it is, to say the least, highly probable that, if the demand of votes for women were submitted to the present electorate by means of a referendum, a negative answer would be returned, and an answer of such decision as to check for years the progress or success of the movement in favour of woman suffrage. It must, in short, be admitted that a veto on legislation, whether placed in the hands of the King, or in the hands of the House of Lords, or of the House of Commons, or of the 8,000,000 electors, would necessarily work sometimes well and sometimes ill. It might, for example, in England forbid the enforcement or extension of the vaccination laws; it might forbid the grant of parlia-
115 See Against the Referendum and Quarterly Review, April 1910, No. 423, pp. 551, 552.
mentary votes to Englishwomen; it might have forbidden the passing of the Government of Ireland Act, 1914; it might certainly have forbidden the putting of any tax whatever on the importation of corn into the United Kingdom. Now observe that if you take any person, whether an Englishman or Englishwoman, he or she will probably hold that in some one or more of these instances the referendum would have worked ill, and that in some one or more of these instances it would have worked well. All, therefore, that can be conclusively inferred from the argument against the referendum is that the people's veto, like any other veto, may sometimes be ill, and sometimes be well employed. Still it certainly would be urged by a fair-minded opponent of the referendum that there exists a presumption that the Houses of Parliament acting together will exhibit something more of legislative intelligence than would the mass of the electorate when returning their answer to a question put to them by the referendum. But a reasonable supporter of the referendum, while admitting that such a presumption may exist, will however maintain that it is of very slight weight. The Parliament Act gives unlimited authority to a parliamentary or rather House of Commons majority. The wisdom or experience of the House of Lords is in matters of permanent legislation thereby deprived of all influence. A House of Commons majority acts more and more exclusively under the influence of party interests. It is more than possible that the referendum might, if introduced into England, increase the authority of voters not deeply pledged to the dogmas of any party. The referendum, as I have dealt with it, cannot, be it always borne in mind, enforce any law to which at any rate the House of Commons has not consented. It has the merits as also the weaknesses of a veto. Its strongest recommendation is that it may keep in check the inordinate power now bestowed on the party machine.
The Main Argument in Favour of the Referendum
The referendum is an institution which, if introduced into England, would be strong enough to curb the absolutism of a party possessed of a parliamentary majority. The referendum is also an institution which in England promises some considerable diminution in the most
patent defects of party government. Consider first the strength of the referendum. It lies in the fact that the people's veto is at once a democratic institution, and, owing to its merely negative character, may be a strictly conservative institution. It is democratic, for it is in reality, as also on the face thereof, an appeal to the people. It is conservative since it ensures the maintenance of any law or institution which the majority of the electors effectively wish to preserve. Nor can any one who studies the present condition of English society seriously believe that, under any system whatever, an institution deliberately condemned by the voice of the people can for a long time be kept in existence. The referendum is, in short, merely the dear recognition in its negative form of that sovereignty of the nation of which under a system of popular government every leading statesman admits the existence. But the mere consonance of a given arrangement with some received doctrine, such as "the sovereignty of the people," must with a thoughtful man carry little weight, except in so far as this harmony with prevalent ideas promises permanence to some suggested reform or beneficial institution. Let us then consider next the tendency of the referendum to lessen the evils of the party system. An elected legislature may well misrepresent the will of the nation. This is proved by the constant experience of Switzerland and of each of the States which make up the American Commonwealth. This danger of misrepresenting the will of the nation may exist even in the case of an honest and a fairly-elected legislative body. This misrepresentation is likely or even certain to arise where, as in England, a general election comes more and more to resemble the election of a given man or a given party to hold office for five years. Partisanship must, under such a system, have more weight than patriotism. The issues further to be determined by the electors will year by year become, in the absence of the referendum, more complicated and confused. But in the world of politics confusion naturally begets intrigue, sometimes coming near to fraud. Trust in elected legislative bodies is, as already noted, dying out under every form of popular government. The party machine is regarded with suspicion, and often with detestation, by public-spirited citizens of the United States. Coalitions, log-rolling, and parliamentary intrigue are in Eng-
land diminishing the moral and political faith in the House of Commons. Some means must, many Englishmen believe, be found for the diminution of evils which are under a large electorate the natural, if not the necessary, outcome of our party system. The obvious corrective is to confer upon the people a veto which may restrict the unbounded power of a parliamentary majority. No doubt the referendum must be used with vigilance and with sagacity. Perpetual watchfulness on the part of all honest citizens is the unavoidable price to be paid for the maintenance of sound popular government. The referendum futher will promote or tend to promote among the electors a kind of intellectual honesty which, as our constitution now works, is being rapidly destroyed. For the referendum will make it possible to detach the question, whether a particular law, e.g. a law introducing some system of so-called tariff reform, shall be passed, from the totally different question, whether Mr. A or Mr. B shall be elected for five years Prime Minister of England. Under the referendum an elector may begin to find it possible to vote for or against a given law in accordance with his real view as to its merits or demerits, without being harassed through the knowledge that if he votes against a law which his conscience and his judgment condemns, he will also be voting that A, whom he deems the fittest man in England to be Prime Minister, shall cease to hold office, and that B, whom the elector happens to distrust, shall at once become Prime Minister. And no doubt the referendum, if ever established in England, may have the effect, which it already has in Switzerland, of making it possible that a minister or a Cabinet, supported on the whole by the electorate, shall retain office honestly and openly, though some proposal made by the Prime Minister and his colleagues and assented to by both Houses of Parliament is, through the referendum, condemned by the electorate. These possible results are undoubtedly repulsive to men who see nothing to censure in our party system. But, as I have throughout insisted, the great recommendation of the referendum is that it tends to correct, or at lowest greatly to diminish, the worst and the most patent evils of party government.
No effort has been made by me to exhaust the arguments against or in favour of the referendum. My aim in this Introduction has been
to place before my readers the strongest argument against and also the strongest argument in favour of the introduction of the referendum into the constitution of England. It is certain that no man, who is really satisfied with the working of our party system, will ever look with favour on an institution which aims at correcting the vices of party government. It is probable, if not certain, that any one, who realises the extent to which parliamentary government itself is losing credit from its too close connection with the increasing power of the party machine, will hold with myself that the referendum judiciously used may, at any rate in the case of England, by checking the omnipotence of partisanship, revive faith in that parliamentary government which has been the glory of English constitutional history.
CONCLUSIONS
i. The sovereignty of Parliament is still the fundamental doctrine of English constitutionalists. But the authority of the House of Lords has been gravely diminished, whilst the authority of the House of Commons, or rather of the majority thereof during any one Parliament, has been immensely increased. Now this increased portion of sovereignty can be effectively exercised only by the Cabinet which holds in its hands the guidance of the party machine. And of the party which the parliamentary majority supports, the Premier has become at once the legal head and, if he is a man of ability, the real leader.116 This gradual development of the power of the Cabinet and of the Premier is a change in the working of the English constitution. It is due to at least two interconnected causes. The one is the advance towards democracy resulting from the establishment, 1867 to 1884, of Household Suffrage; the other is the increasing rigidity of the party system. The result of a state of things which is not yet fully recognised inside or outside Parliament is that the Cabinet, under a leader who has fully studied and mastered the arts of modern parliamentary warfare, can defy, on matters of the highest importance, the possible or certain will of the nation. This growth of the authority obtained by
116 Lowell, Government of England, chaps, xxiv-xxvii., and especially i. pp. 441-447; Public Opinion and Popular Government, partii. pp. 57-110.
the men who can control the party machine is the more formidable if we adopt the view propounded by the ablest of the critics of the Government of England, and hold with Lowell that party government has been for generations not the accident or the corruption but, so to speak, the very foundation of our constitutional system.117 The best way to measure the extent of a hardly recognised alteration in the working of parliamentary government in England is to note the way in which a system nominally unchanged worked in the days of Palmerston, i.e. from 1855 to 1865, that is rather less than sixty years ago. He became Premier in 1855. He was in 1857 the most popular of Prime Ministers. After a contest with a coalition of all his opponents, a dissolution of Parliament gave to the old parliamentary hand a large and decisive majority. For once he lost his head. He became for the minute unpopular in the House of Commons. A cry in which there was little of real substance was raised against him amongst the electors. In 1858 he resigned office; in 1859 another dissolution restored to office the favourite of the people. He remained Premier with the support of the vast majority of the electors till his death in 1865. These transactions were natural enough in the Palmerstonian era; they could hardly recur in 1914. Palmerston, as also Gladstone, did not hold power in virtue of the machine. The Parliament Act is the last and greatest triumph of party government.
2. The increasing influence of the party system has in England, and still more throughout the British Empire, singularly coincided with the growth of the moral influence exercisable by the Crown. From the accession of Victoria to the present day the moral force at the disposal of the Crown has increased. The plain truth is that the King of England has at the present day two sources of moral authority of which writers on the constitution hardly take enough account in regard to the future. The King, whoever he be, is the only man throughout the British Empire who stands outside, if not above, the party system. The King is, in lands outside the United Kingdom, the acknowledged, and indeed the sole, representative and centre of the Empire.118
117 See note on preceding page.
118 See p. lxviii, ante.
3. The last quarter of the nineteenth and, still more dearly, the first fourteen years of the twentieth century are, as already pointed out, marked by declining faith in that rule of law which in 1884 was one of the two leading principles of constitutional government as understood in England.
4. The various ideas for the improvement of the constitution which now occupy the minds of reformers or innovators are intended, at any rate, to provide against the unpopularity of legislation, but for the most part are hardly framed with the object of promoting the wisdom of legislation. No doubt some of these schemes may indirectly increase the chance that injudicious legislation may receive a check. Proportional representation may sometimes secure a hearing in the House of Commons for opinions which, though containing a good deal of truth, command little or comparatively little popularity. The referendum, it is hoped, may diminish the admitted and increasing evil of our party system. Still, as I have insisted, the main object aimed at by the advocates of political change is for the most part to ensure that legislation shall be in conformity with popular opinion.119
The conclusions I have enumerated are certainly calculated to excite anxiety in the minds of sensible and patriotic Englishmen. Every citizen of public spirit is forced to put to himself this question: What will be the outcome of the democratic constitutionalism now established and flourishing in England? He is bound to remember that pessimism is as likely to mislead a contemporary critic as optimism. He will find the nearest approach to the answer which his inquiry requires in a sermon or prophecy delivered in 1872 by a constitutionalist who even then perceived possibilities and perils to which forty-two years ago our leading statesmen were for the most part blind. Listen to the words of Walter Bagehot:
In the meantime, our statemen have the greatest opportunities they have had for many years, and likewise the greatest duty. They have to guide the new voters in the exercise of the franchise; to guide them quietly, and without saying what they are doing, but still to guide them. The leading statesmen in a free country have great momentary power. They settle the conver-
119 See pp. lxxvii-lxxx, ante.
sation of mankind. It is they who, by a great speech or two, determine what shall be said and what shall be written for long after. They, in conjunction with their counsellors, settle the programme of their party — the "platform," as the Americans call it, on which they and those associated with them are to take their stand for the political campaign. It is by that programme, by a comparison of the programmes of different statesmen, that the world forms its judgment. The common ordinary mind is quite unfit to fix for itself what political question it shall attend to; it is as much as it can do to judge decently of the questions which drift down to it, and are brought before it; it almost never settles its topics; it can only decide upon the issues of these topics. And in settling what these questions shall be, statesmen have now especially a great responsibility if they raise questions which will excite the lower orders of mankind; if they raise questions on which those orders are likely to be wrong; if they raise questions on which the interest of those orders is not identical with, or is antagonistic to, the whole interest of the State, they will have done the greatest harm they can do. The future of this country depends on the happy working of a delicate experiment, and they will have done all they could to vitiate that experiment. Just when it is desirable that ignorant men, new to politics, should have good issues, and only good issues, put before them, these statesmen will have suggested bad issues. They will have suggested topics which will bind the poor as a class together; topics which will excite them against the rich; topics the discussion of which in the only form in which that discussion reaches their ear will be to make them think that some new law can make them comfortable — that it is the present law which makes them uncomfortable — that Government has at its disposal an inexhaustible fund out of which it can give to those who now want without also creating elsewhere other and greater wants. If the first work of the poor voters is to try to create a "poor man's paradise," as poor men are apt to fancy that Paradise, and as they are apt to think they can create it, the great political trial now beginning will simply fail. The wide gift of the elective franchise will be a great calamity to the whole nation, and to those who gain it as great a calamity as to any. 12°
This is the language of a man of genius, who being dead yet speaketh. Whether the warning which his words certainly contain was unnecessary, or whether his implied prophecy of evU has not already been partially fulfilled or may not at some not distant date obtain more complete fulfilment, are inquiries which must be answered by the candour and the thoughtfulness of my readers. The complete reply must be left to the well-informed and more or less
120 Bagehot, English Constitution (2nd ed.). pp. xvii-xix.
impartial historian, who in 1950 or in 2000 shall sum up the final outcome of democratic government in England. Still it may be allowable to an author writing in 1914, though more than half blinded, as must be every critic of the age in which he lives, by the ignorance and the partialities of his own day, to remember that the present has its teaching no less than the past or the future. National danger is the test of national greatness. War has its lessons which may be more impressive than the lessons, valuable as they always are, of peace. The whole of a kingdom, or rather of an Empire, united for once in spirit, has entered with enthusiasm upon an arduous conflict with a nation possessed of the largest and the most highly trained army which the modern world can produce. This is in itself a matter of grave significance. England and the whole British Empire with her have taken up the sword and thereby have risked the loss of wealth, of prosperity, and even of political existence. And England, with the fervent consent of the people of every land subject to the rule of our King, has thus exchanged the prosperity of peace for the dangers and labours of war, not for the sake of acquiring new territory or of gaining additional military glory, for of these things she has enough and more than enough already, but for the sake of enforcing the plainest rules of international justice and the plainest dictates of common humanity. This is a matter of good omen for the happy development of popular government and for the progress, slow though it be, of mankind along the path of true fortitude and of real righteousness. These facts may rekindle among the youth of England as of France the sense that to be young is very heaven; these facts may console old men whom political disillusion and disappointment which they deem undeserved may have tempted towards despair, and enable them to rejoice with calmness and gravity that they have lived long enough to see the day when the solemn call to the performance of a grave national duty has united every man and every class of our common country in the determination to defy the strength, the delusions, and the arrogance of a militarised nation, and at all costs to secure for the civilised world the triumph of freedom, of humanity, and of justice.
OUTLINE OF SUBJECT
THE TRUE NATURE OF CONSTITUTIONAL LAW
irke writes in 1791:
Great critics have taught us one essential rule. ... It is this, that if ever we should find ourselves disposed not to admire those writers or artists, Livy and Virgil for instance, Raphael or Michael Angelo, whom all the learned had admired, not to follow our own fancies, but to study them until we know how and what we ought to admire; and if we cannot arrive at this combination of admiration with knowledge, rather to believe that we are dull, than that the rest of the world has been imposed on. It is as good a rule, at least, with regard to this admired constitution (of England). We ought to understand it according to our measure; and to venerate where we are not able presently to comprehend. *
Hallam writes in 1818:
No unbiased observer who derives pleasure from the welfare of his species, can fail to consider the long and uninterruptedly increasing prosperity of England as the most beautiful phsenomenon in the history of mankind. Climates more propitious may impart more largely the mere enjoyments of existence; but in no other region have the benefits that political institutions can confer been diffused over so extended a population; nor have any people so well reconciled the discordant elements of wealth, order, and liberty. These advantages are surely not owing to the soil of this island, nor to the latitude in which it is placed; but to the spirit of its laws, from which, through various means, the characteristic independence and industrious-ness of our nation have been derived. The constitution, therefore, of Eng-
i Burke, Works, iii, (1872 ed.), p. 114.
Optimistic view of English constitution.
Modern •lew of onsti-ution.
land must be to inquisitive men of all countries, far more to ourselves, an object of superior interest; distinguished, especially, as it is from all free governments of powerful nations, which history has recorded, by its manifesting, after the lapse of several centuries, not merely no symptom of irretrievable decay, but a more expansive energy.2
These two quotations from authors of equal though of utterly different celebrity, recall with singular fidelity the spirit with which our grandfathers and our fathers looked upon the institutions of their country. The constitution was to them, in the quaint language of George the Third, "the most perfect of human formations";3 it was to them not a mere polity to be compared with the government of any other state, but so to speak a sacred mystery of statesmanship; it "had (as we have all heard from our youth up) not been made but had grown"; it was the fruit not of abstract theory but of that instinct which (it is supposed) has enabled Englishmen, and especially uncivilised Englishmen, to build up sound and lasting institutions, much as bees construct a honeycomb, without undergoing the degradation of understanding the principles on which they raise a fabric more subtlely wrought than any work of conscious art. The constitution was marked by more than one transcendent quality which in the eyes of our fathers raised it far above the imitations, counterfeits, or, parodies, which have been set up during the last hundred years throughout the civilised world; no precise date could be named as the day of its birth; no definite body of persons could claim to be its creators, no one could point to the document which contained its clauses; it was in short a thing by itself, which Englishmen and foreigners alike should "venerate, where they are not able presently to comprehend."
The present generation must of necessity look on the constitution in a spirit different from the sentiment either of 1791 or of 1818. We cannot share the religious enthusiasm of Burke, raised, as it was, to
2 Hallam, Middle Ages (i2th ed.), ii. p. 267. Nothing gives a more vivid idea of English sentiment with regard to the constitution towards the end of the eighteenth century than the satirical picture of national pride to be found in Goldsmith's Citizen of the World, Letter IV.
3 See Stanhope, Life of Pitt, i. App. p. 10.
Special difficulty of commenting on English constitution.
the temper of fanatical adoration by just hatred of those "doctors of the modern school," who, when he wrote, were renewing the rule of barbarism in the form of the reign of terror; we cannot exactly echo the fervent self-complacency of Hallam, natural as it was to an Englishman who saw the institutions of England standing and flourishing, at a time when the attempts of foreign reformers to combine freedom with order had ended in ruin. At the present day students of the constitution wish neither to criticise, nor to venerate, but to understand; and a professor whose duty it is to lecture on constitutional law, must feel that he is called upon to perform the part neither of a critic nor of an apologist, nor of an eulogist, but simply of an expounder; his duty is neither to attack nor to defend the constitution, but simply to explain its laws. He must also feel that, however attractive be the mysteries of the constitution, he has good reason to envy professors who belong to countries such as France, Belgium, or the United States, endowed with constitutions of which the terms are to be found in printed documents, known to all citizens and accessible to every man who is able to read. Whatever may be the advantages of a so-called "unwritten" constitution, its existence imposes special difficulties on teachers bound to expound its provisions. Any one will see that this is so who compares for a moment the position of writers, such as Kent or Story, who commented on the Constitution of America, with the situation of any person who undertakes to give instruction in the constitutional law of England.
When these distinguished jurists delivered, in the form of lectures, commentaries upon the Constitution of the United States, they knew precisely what was the subject of their teaching and what was the proper mode of dealing with it. The theme of their teaching was a definite assignable part of the law of their country; it was recorded in a given document to which all the world had access, namely, "the Constitution of the United States established and ordained by the People of the United States." The articles of this constitution fall indeed far short of perfect logical arrangement, and lack absolute lucidity of expression; but they contain, in a dear and intelligible form, the fundamental law of the Union. This law (be it noted) is made and can only be altered or repealed in a way different from the
method by which other enactments are made or altered; it stands forth, therefore, as a separate subject for study; it deals with the legislature, the executive, and the judiciary, and, by its provisions for its own amendment, indirectly defines the body in which resides the legislative sovereignty of the United States. Story and Kent therefore knew with precision the nature and limits of the department of law on which they intended to comment; they knew also what was the method required for the treatment of their topic. Their task as commentators on the constitution was in kind exactly similar to the task of commenting on any other branch of American jurisprudence. The American lawyer has to ascertain the meaning of the Articles of the Constitution in the same way in which he tries to elicit the meaning of any other enactment. He must be guided by the rules of grammar, by his knowledge of the common law, by the light (occasionally) thrown on American legislation by American history, and by the conclusions to be deduced from a careful study of judicial decisions. The task, in short, which lay before the great American commentators was the explanation of a definite legal document in accordance with the received cannons of legal interpretation. Their work, difficult as it might prove, was work of the kind to which lawyers are accustomed, and could be achieved by the use of ordinary legal methods. Story and Kent indeed were men of extraordinary capacity; so, however, were our own Blackstone, and at least one of Blackstone's editors. If, as is undoubtedly the case, the American jurists have produced commentaries on the constitution of the United States utterly unlike, and, one must in truth add, vastly superior to, any commentaries on the constitutional law of England, their success is partly due to the possession of advantages denied to the English commentator or lecturer. His position is entirely different from that of his American rivals. He may search the statute-book from beginning to end, but he will find no enactment which purports to contain the articles of the constitution; he will not possess any test by which to discriminate laws which are constitutional or fundamental from ordinary enactments; he will discover that the very term "constitutional law," which is not (unless my memory deceives me) ever employed by Black-
Commen-tator seeks help from constitu-t on a I I wyers, mstitu-on.i] his-irians and mstitu-mal theorists.
I. Lawyer's view of constitution. Its unreality. Blackstone.
stone, is of comparatively modern origin; and in short, that before commenting on the law of the constitution he must make up his mind what is the nature and the extent of English constitutional law.4
His natural, his inevitable resource is to recur to writers of authority on the law, the history, or the practice of the constitution. He will find (it must be admitted) no lack of distinguished guides; he may avail himself of the works of lawyers such as Blackstone, of the investigations of historians such as Hallam or Freeman, and of the speculations of philosophical theorists such as Bagehot or Hearn. From each class he may learn much, but for reasons which I am about to lay before you for consideration, he is liable to be led by each class of authors somewhat astray in his attempt to ascertain the field of his labours and the mode of working it; he will find, unless he can obtain some clue to guide his steps, that the whole province of so-called "constitutional law" is a sort of maze in which the wanderer is perplexed by unreality, by antiquarianism, and by conventionalism.
Let us turn first to the lawyers, and as in duty bound to Blackstone.
Of constitutional law as such there is not a word to be found in his Commentaries. The matters which appear to belong to it are dealt with by him in the main under the head Rights of Persons. The Book which is thus entitled treats (inter alia) of the Parliament, of the King and his title, of master and servant, of husband and wife, of parent and child. The arrangement is curious and certainly does not bring into view the true scope or character of constitutional law. This, however, is a trifle. The Book contains much real learning about our system of government. Its true defect is the hopeless confusion both of language and of thought, introduced into the whole subject of constitutional law by Blackstone's habit — common to all the lawyers of his time — of applying old and inapplicable terms to new institu-
4 See this point brought out with great clearness by Monsieur Boutmy, Etudes de Droit Constitutionnel (znd ed.), p. 8, English translation, p. 8. Monsieur Boutmy well points out that the sources of English constitutional law may be considered fourfold, namely — (i) Treaties or Quasi-Treaties, i.e. the Acts of Union; (2) The Common Law; (3) Solemn Agreements (pacts), e.g. the Bill of Rights; (4) Statutes. This mode of division is not exactly that which would be naturally adopted by an English writer, but it calls attention to distinctions often overlooked between the different sources of English constitutional law.
tions, and especially of ascribing in words to a modern and constitutional King the whole, and perhaps more than the whole, of the powers actually possessed and exercised by William the Conqueror. Blackstone writes:
We are next to consider those branches of the royal prerogative, which invest thus our sovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers; in the exertion whereof consists the executive part of the government. This is wisely placed in a single hand by the British constitution, for the sake of unanimity, strength, and dispatch. Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government; and to unite those several wills, and reduce them to one, is a work of more time and delay than the exigencies of state will afford. The King of England is, therefore, not only the chief, but properly the sole, magistrate of the nation; all others acting by commission from, and in due subordination to him; in like manner as, upon the great revolution of the Roman state, all the powers of the ancient magistracy of the commonwealth were concentrated in the new Emperor: so that, as Gravina expresses it, in ejus unius persona veteris reipublicae vis atque majestas per cumulatas magistratuum potestates exprimebatur.5
The language to this passage is impressive; it stands curtailed but in substance unaltered in Stephen's Commentaries. It has but one fault; the statements it contains are the direct opposite of the truth. The executive of England is in fact placed in the hands of a committee called the Cabinet. If there be any one person in whose single hand the power of the State is placed, that one person is not the King but the chairman of the committee, known as the Prime Minister. Nor can it be urged that Blackstone's description of the royal authority was a true account of the powers of the King at the time when Blackstone wrote. George the Third enjoyed far more real authority than has fallen to the share of any of his descendants. But it would be absurd to maintain that the language I have cited painted his true position. The terms used by the commentator were, when he used them, unreal, and known6 to be so. They have become only a little more unreal during the century and more which has since elapsed.
5 Blackstone, Commentaries, i. p. 250.
6 The following passage from Paley's Moral Philosophy, published in 1785, is full of instruction. "In the British, and possibly in all other constitutions, there exists a wide difference
The King is considered in domestic affairs ... as the fountain of justice, and general conservator of the peace of the kingdom. ... He therefore has alone the right of erecting courts of judicature: for, though the constitution of the kingdom hath entrusted him with the whole executive power of the laws, it is impossible, as well as improper, that he should personally carry into execution this great and extensive trust: it is consequently necessary, that courts should be erected to assist him in executing this power; and equally necessary, that if erected, they should be erected by his authority. And hence it is, that all jurisdictions of courts are either mediately or immediately derived from the Crown, their proceedings run generally in the King's name, they pass under his seal, and are executed by his officers.7
Here we are in the midst of unrealities or fictions. Neither the King nor the Executive has anything to do with erecting courts of justice. We should rightly conclude that the whole Cabinet had gone mad if to-morrow's Gazette contained an order in council not authorised by statute erecting a new Court of Appeal. It is worth while here to note what is the true injury to the study of law produced by the tendency of Blackstone, and other less famous constitutionalists, to adhere to unreal expressions. The evil is not merely or mainly that these expressions exaggerate the power of the Crown. For such conventional exaggeration a reader could make allowance, as easily as we do for ceremonious terms of respect or of social courtesy. The harm wrought is, that unreal language obscures or conceals the true extent
between the actual state of the government and the theory. The one results from the other; but still they are different. When we contemplate the theory of the British government, we see the King invested with the most absolute personal impunity; with a power of rejecting laws, which have been resolved upon by both Houses of Parliament; of conferring by his charter, upon any set or succession of men he pleases, the privilege of sending representatives into one House of Parliament, as by his immediate appointment he can place whom he will in the other. What is this, a foreigner might ask, but a more circuitous despotism? Yet, when we turn our attention from the legal existence to the actual exercise of royal authority in England, we see these formidable prerogatives dwindled into mere ceremonies; and in their stead, a sure and commanding influence, of which the constitution, it seems, is totally ignorant, growing out of that enormous patronage, which the increased extent and opulence of the Empire has placed in the disposal of the executive magistrate." — Paley, Moral Philosophy, Book vi. cap. vii. The whole chapter whence this passage is taken repays study. Paley sees far more dearly into the true nature of the then existing constitution than did Blackstone. It is further noticeable that in 1785 the power to create Parliamentary boroughs was still looked upon as in theory an existing prerogative of the Crown. The power of the Crown was still large, and rested in fact upon the possession of enormous patronage. 7 Blackstone, Commentaries, i. p. 267.
Histo-n's view constitu-n. Its tiquarj-ism.
of the powers, both of the King and of the Government. No one, indeed, but a child, fancies that the King sits crowned on his throne at Westminster, and in his own person administers justice to his subjects. But the idea entertained by many educated men that an English King or Queen reigns without taking any part in the government of the country, is not less far from the truth than the notion that Edward VII. ever exercises judicial powers in what are called his Courts. The oddity of the thing is that to most Englishmen the extent of the authority actually exercised by the Crown — and the same remark applies (in a great measure) to the authority exercised by the Prime Minister, and other high officials — is a matter of conjecture. We have all learnt from Blackstone, and writers of the same class, to make such constant use of expressions which we know not to be strictly true to fact, that we cannot say for certain what is the exact relation between the facts of constitutional government and the more or less artificial phraseology under which they are concealed. Thus to say that the King appoints the Ministry is untrue; it is also, of course, untrue to say that he creates courts of justice; but these two untrue statements each bear a very different relation to actual facts. Moreover, of the powers ascribed to the Crown, some are in reality exercised by the Government, whilst others do not in truth belong either to the King or to the Ministry. The general result is that the true position of the Crown as also the true powers of the Government are concealed under the fictitious ascription to the sovereign of political omnipotence, and the reader of, say, the first Book of Blackstone, can hardly discern the facts of law with which it is filled under the unrealities of the language in which these facts find expression.
Let us turn from the formalism of lawyers to the truthfulness of our constitutional historians.
Here a student or professor troubled about the nature of constitutional law finds himself surrounded by a crowd of eminent instructors. He may avail himself of the impartiality of Hallam: he may dive into the exhaustless erudition of the Bishop of Oxford: he will discover infinite parliamentary experience in the pages of Sir Thomas May, and vigorous common sense, combined with polemical research, in Mr. Freeman's Growth of the English Constitution. Let us take this book as an excellent type of historical constitutionalism. The
Growth of the English Constitution is known to every one. Of its recognised merits, of its clearness, of its accuracy, of its force, it were useless and impertinent to say much to students who know, or ought to know, every line of the book from beginning to end. One point, however, deserves especial notice. Mr. Freeman's highest merit is his unrivalled faculty for bringing every matter under discussion to a dear issue. He challenges his readers to assent or deny. If you deny you must show good cause for your denial, and hence may learn fully as much from rational disagreement with our author as from unhesitating assent to his views. Take, then, the Growth of the English Constitution as a first-rate specimen of the mode in which an historian looks at the constitution. What is it that a lawyer, whose object is to acquire the knowledge of law, will learn from its pages? A few citations from the ample and excellent head notes to the first two chapters of the work answer the inquiry. They run thus:
The Landesgemeinden of Uri and Appenzell; their bearing on English Constitutional History; political elements common to the whole Teutonic race; monarchic, aristocratic, and democratic elements to be found from the beginning; the three classes of men, the noble, the common freeman, and the slave; universal prevalence of slavery; the Teutonic institutions common to the whole Aryan family; witness of Homer; description of the German Assemblies by Tacitus; continuity of English institutions; English nationality assumed; Teutonic institutions brought into Britain by the English conquerors; effects of the settlement on the conquerors; probable increase of slavery; Earls and Churls; growth of the kingly power; nature of kingship; special sanctity of the King; immemorial distinction between Kings and Eal-dormen. . . . Gradual growth of the English constitution; new laws seldom called for; importance of precedent; return to early principles in modern legislation; shrinking up of the ancient national Assemblies; constitution of the Witenagemot; the Witenagemot continued in the House of Lords; Gemots after the Norman Conquest; the King's right of summons; Life Peerages; origin of the House of Commons; comparison of English and French national Assemblies; of English and French history generally; course of events influenced by particular men; Simon of Montfort. . . Edward the First; the constitution finally completed under him; nature of later changes; difference between English and continental legislatures.
All this is interesting, erudite, full of historical importance, and thoroughly in its place in a book concerned solely with the "growth"
ontrast ?tween gat and storical ew of jnsti-ition. i
of the constitution; but in regard to English law and the law of the constitution, the Landesgemtinden of Uri, the witness of Homer, the ealdormen, the constitution of the Witenagemot, and a lot more of fascinating matter are mere antiquarianism. Let no one suppose that to say this is to deny the relation between history and law. It were far better, as things now stand, to be charged with heresy, than to fall under the suspicion of lacking historical-mindedness, or of questioning the universal validity of the historical method. What one may assert without incurring the risk of such crushing imputations is, that the kind of constitutional history which consists in researches into the antiquities of English institutions, has no direct bearing on the rules of constitutional law in the sense in which these rules can become the subject of legal comment. Let us eagerly learn all that is known, and still more eagerly all that is not known, about the Witenagemot. But let us remember that antiquarianism is not law, and that the function of a trained lawyer is not to know what the law of England was yesterday, still less what it was centuries ago, or what it ought to be to-morrow, but to know and be able to state what are the principles of law which actually and at the present day exist in England. For this purpose it boots nothing to know the nature of the Landesgemeinden of Uri, or to understand, if it be understandable, the constitution of the Witenagemot. All this is for a lawyer's purposes simple antiquarianism. It throws as much light on the constitution of the United States as upon the constitution of England; that is, it throws from a legal point of view no light upon either the one or the other.
The name of the United States serves well to remind us of the true relation between constitutional historians and legal constitutionalists. They are each concerned with the constitution, but from a different aspect. An historian is primarily occupied with ascertaining the steps by which a constitution has grown to be what it is. He is deeply, sometimes excessively, concerned with the question of "origins." He is but indirectly concerned in ascertaining what are the rules of the constitution in the year 1908. To a lawyer, on the other hand, the primary object of study is the law as it now stands; he is only secondarily occupied with ascertaining how it came into existence. This is absolutely dear if we compare the position of an American historian
with the position of an American jurist. The historian of the American Union would not commence his researches at the year 1789; he would have a good deal to say about Colonial history and about the institutions of England; he might, for aught I know, find himself impelled to go back to the Witenagemot; he would, one may suspect, pause in his researches considerably short of Uri. A lawyer lecturing on the constitution of the United States would, on the other hand, necessarily start from the constitution itself. But he would soon see that the articles of the constitution required a knowledge of the Articles of Confederation; that the opinions of Washington, of Hamilton, and generally of the 'Tathers," as one sometimes hears them called in America, threw light on the meaning of various constitutional articles; and further, that the meaning of the constitution could not be adequately understood by any one who did not take into account the situation of the colonies before the separation from England and the rules of common law, as well as the general conceptions of law and justice inherited by English colonists from their English forefathers. As it is with the American lawyer compared with the American historian, so it is with the English lawyer as compared with the English historian. Hence, even where lawyers are concerned, as they frequently must be, with the development of our institutions, arises a further difference between the historical and the legal view of the constitution. Historians in their devotion to the earliest phases of ascertainable history are infected with a love which, in the eyes of a lawyer, appears inordinate, for the germs of our institutions, and seem to care little about their later developments. Mr. Freeman gives but one-third of his book to anything as modern as the days of the Stuarts. The period of now more than two centuries which has elapsed since what used to be called the "Glorious Revolution," filled as those two centuries are with change and with growth, seems hardly to have attracted the attention of a writer whom lack, not of knowledge, but of will has alone prevented from sketching out the annals of our modern constitution. A lawyer must look at the matter differently. It is from the later annals of England he derives most help in the study of existing law. What we might have obtained from Dr. Stubbs had he not surrendered to the Episcopate gifts which we
hoped were dedicated to the University alone, is now left to conjecture. But, things being as they are, the historian who most nearly meets the wants of lawyers is Mr. Gardiner. The struggles of the seventeenth century, the conflict between James and Coke, Bacon's theory of the prerogative, Charles's effort to substitute the personal will of Charles Stuart for the legal will of the King of England, are all matters which touch not remotely upon the problems of actual law. A knowledge of these things guards us, at any rate, from the illusion, for illusion it must be termed, that modern constitutional freedom has been established by an astounding method of retrogressive progress; that every step towards civilisation has been a step backwards towards the simple wisdom of our uncultured ancestors. The assumption which underlies this view, namely, that there existed among our Saxon forefathers a more or less perfect polity, conceals the truth both of law and of history. To ask how a mass of legal subtleties
would have looked ... in the eyes of a man who had borne his part in the elections of Eadward and of Harold, and who had raised his voice and dashed his arms in the great Assembly which restored Godwine to his lands,8
is to put an inquiry which involves an untenable assumption; it is like asking what a Cherokee Indian would have thought of the claim of George the Third to separate taxation from representation. In each case the question implies that the simplicity of a savage enables him to solve with fairness a problem of which he cannot understand the terms. Civilisation may rise above, but barbarism sinks below the level of legal fictions, and our respectable Saxon ancestors were, as compared, not with ourselves only, but with men so like ourselves as Coke and Hale, respectable barbarians. The supposition, moreover, that the cunning of lawyers has by the invention of legal fictions corrupted the fair simplicity of our original constitution, underrates the statesmanship of lawyers as much as it overrates the merits of early society. The fictions of the Courts have in the hands of lawyers
HI. View of political theorists. Its defect that it deals solely with conventions of constitution.
such as Coke served the cause both of justice and of freedom, and served it when it could have been defended by no other weapons. For there are social conditions under which legal fictions or subtleties afford the sole means of establishing that rule of equal and settled law which is the true basis of English civilisation. Nothing can be more pedantic, nothing more artificial, nothing more unhistorical, than the reasoning by which Coke induced or compelled James to forego the attempt to withdraw cases from the Courts for his Majesty's personal determination.9 But no achievement of sound argument, or stroke of enlightened statesmanship, ever established a rule more essential to the very existence of the constitution than the principle enforced by the obstinacy and the fallacies of the great Chief-Justice. Oddly enough, the notion of an ideal constitution corrupted by the technicalities of lawyers is at bottom a delusion of the legal imagination. The idea of retrogressive progress is merely one form of the appeal to precedent. This appeal has made its appearance at every crisis in the history of England, and indeed no one has stated so forcibly as my friend Mr. Freeman himself the peculiarity of all English efforts to extend the liberties of the country, namely, that these attempts at innovation have always assumed the form of an appeal to preexisting rights. But the appeal to precedent is in the law courts merely a useful fiction by which judicial decision conceals its transformation into judicial legislation; and a fiction is none the less a fiction because it has emerged from the Courts into the field of politics or of history. Here, then, the astuteness of lawyers has imposed upon the simplicity of historians. Formalism and antiquarianism have, so to speak, joined hands; they have united to mislead students in search for the law of the constitution.
Let us turn now to the political theorists.
No better types of such thinkers can be taken than Bagehot and Professor Hearn. No author of modern times (it may be confidently asserted) has done so much to elucidate the intricate workings of English government as Bagehot. His English Constitution is so full of brightness, originality, and wit, that few students notice how full it is
8 See Freeman, Growth of the English Constitution (ist ed.), p. 125.
9 See 12 Rep. 64; Hearn, Government of England (2nd ed.), chap. iii.
also of knowledge, of wisdom, and of insight. The slight touches, for example, by which Bagehot paints the reality of Cabinet government, are so amusing as to make a reader forget that Bagehot was the first author who explained in accordance with actual fact the true nature of the Cabinet and its real relation to the Crown and to Parliament. He is, in short, one of those rare teachers who have explained intricate matters with such complete clearness, as to make the public forget that what is now so dear ever needed explanation. Professor Hearn may perhaps be counted an anticipator of Bagehot. In any case he too has approached English institutions from a new point of view, and has looked at them in a fresh light; he would be universally recognised among us as one of the most distinguished and ingenious exponents of the mysteries of the English constitution, had it not been for the fact that he made his fame as a professor, not in any of the seats of learning in the United Kingdom, but in the University of Melbourne. From both these writers we expect to learn, and do learn much, but, as in the case of Mr. Freeman, though we learn much from our teacher which is of value, we do not learn precisely what as lawyers we are in search of. The truth is that both Bagehot and I Professor Hearn deal and mean to deal mainly with political understandings or conventions and not with rules of law. What is the precise moral influence which might be exerted by a wise constitutional monarch; what are the circumstances under which a Minister is entitled to dissolve Parliament; whether the simultaneous creation of a large number of Peers for a special purpose is constitutionally justifiable; what is the principle on which a Cabinet may allow of open questions — these and the like are the kind of inquiries raised and solved by writers whom, as being occupied with the conventional understandings of the constitution, we may term conventionalists. These inquires are, many of them, great and weighty; but they are not inquiries which will ever be debated in the law courts. If the Premier should advise the creation of five hundred Peers, the Chancery Division would not, we may be sure, grant an injunction to restrain their creation. If he should on a vote of censure decline to resign office, the King's Bench Division would certainly not issue a quo warranto calling upon him to show cause why he continues to be
And conventional view does not explain how conventions enforced.
Is constitutional law really "law" at all?
Prime Minister. As a lawyer, I find these matters too high for me. Their practical solution must be left to the profound wisdom of Members of Parliament; their speculative solution belongs to the province of political theorists.
One suggestion a mere legist may be allowed to make, namely, that the authors who insist upon and explain the conventional character of the understandings which make up a great part of the constitution, leave unexplained the one matter which needs explanation. They give no satisfactory answer to the inquiry how it happens that the understandings of politics are sometimes at least obeyed as rigorously as the commands of law.10 To refer to public opinion and to considerations of expediency is to offer but a very inadequate solution of a really curious problem. Public opinion approves and public expediency requires the observance of contracts, yet contracts are not always observed, and would (presumably) be broken more often than they are did not the law punish their breach, or compel their performance. Meanwhile it is certain that understandings are not laws, and that no system of conventionalism will explain the whole nature of constitutional law, if indeed "constitutional law" be in strictness law at all.
For at this point a doubt occurs to one's mind which must more than once have haunted students of the constitution. Is it possible that so-called "constitutional law" is in reality a cross between history and custom which does not properly deserve the name of law at all, and certainly does not belong to the province of a professor called upon to learn or to teach nothing but the true indubitable law of England? Can it be that a dark saying of Tocqueville's, "the English constitution has no real existence" (die n'existepoint11), contains the truth of the whole matter? In this case lawyers would gladly surrender a domain to which they can establish no valid title. The one half of it should, as belonging to history, go over to our historical professors. The other half should, as belonging to conventions which illustrate the growth of law, be transferred either to my friend the Corpus
10 See further on this point, Part III. post.
11 Tocqueville, CEuvres Completes, i. 166, 167.
Professor of Jurisprudence, because it is his vocation to deal with the oddities or the outlying portions of legal science, or to my friend the Chichele Professor of International Law, because he being a teacher of law which is not law, and being accustomed to expound those rules of public ethics which are miscalled international law, will find himself at home in expounding political ethics which, on the hypothesis under consideration, are miscalled constitutional law.
Before, however, admitting the truth of the supposition that "constitutional law" is in no sense law at all, it will be well to examine a little further into the precise meaning which we attach to the term constitutional law, and then consider how far it is a fit subject for legal exposition.
Constitutional law, as the term is used in England, appears to include all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state.12 Hence it includes (among other things) all rules which define the members of the sovereign power, all rules which regulate the relation of such members to each other, or which determine the mode in which the sovereign power, or the members thereof, exercise their authority. Its rules prescribe the order of succession to the throne, regulate the prerogatives of the chief magistrate, determine the form of the legislature and its mode of election. These rules also deal with Ministers, with their responsibility, with their spheres of action, define the territory over which the sovereignty of the state extends and settle who are to be deemed subjects or citizens. Observe the use of the word "rules," not "laws." This employment of terms is intentional. Its object is to call attention to the fact that the rules which make up constitutional law, as the term is used in England, include two sets of principles or maxims of a totally distinct character.
The one set of rules are in the strictest sense "laws," since they are rules which (whether written or unwritten, whether enacted by stat-
12 Compare Holland, Jurisprudence (loth ed.), pp. 138, 139, and 359-363. "By the constitution of a country is meant so much of its law as relates to the designation and form of the legislature; the rights and functions of the several parts of the legislative body; the construction, office, and jurisdiction of courts of justice. The constitution is one principal division, section, or title of the code of public laws, distinguished from the rest only by the superior importance of the subject of which it treats." — Paley, Moral Philosophy, Book vi. chap. vii.
(ii.) Rules which are not laws — conventions of the constitution
Examples of rules belonging to law of constitution.
ute or derived from the mass of custom, tradition, or judge-made maxims known as the Common Law) are enforced by the Courts; these rules constitute "constitutional law" in the proper sense of that term, and may for the sake of distinction be called collectively "the law of the constitution."
The other set of rules consist of conventions, understandings, habits, or practices which, though they may regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials, are not in reality laws at all since they are not enforced by the Courts. This portion of constitutional law may, for the sake of distinction, be termed the "conventions of the constitution," or constitutional morality.
To put the same thing in a somewhat different shape, "constitutional law," as the expression is used in England, both by the public and by authoritative writers, consists of two elements. The one element, here called the "law of the constitution," is a body of undoubted law; the other element, here called the "conventions of the constitution," consists of maxims or practices which, though they regulate the ordinary conduct of the Crown, of Ministers, and of other persons under the constitution, are not in strictness laws at all. The contrast between the law of the constitution and the conventions of the constitution may be most easily seen from examples.
To the law of the constitution belong the following rules:
"The King can do no wrong." This maxim, as now interpreted by the Courts, means, in the first place, that by no proceeding known to the law can the King be made personally responsible for any act done by him; if (to give an absurd example) the King were himself to shoot the Premier through the head, no court in England could take cognisance of the act. The maxim means, in the second place, that no one can plead the orders of the Crown or indeed of any superior officer in defence of any act not otherwise justifiable by law; this principle in both its applications is (be it noted) a law and a law of the constitution, but it is not a written law. "There is no power in the Crown to dispense with the obligation to obey a law;" this negation or abolition of the dispensing power now depends upon the Bill of Rights; it is a law of the Constitution and a written law. "Some person is legally responsible for every act done by the Crown." This responsibility of
onsists
:wo ferent dsof es.
Rules
ich are
e
'5 — law
he con-
ution.
Ministers appears in foreign countries as a formal part of the constitution; in England it results from the combined action of several legal principles, namely, first, the maxim that the King can do no wrong; secondly, the refusal of the Courts to recognise any act as done by the Crown, which is not done in a particular form, a form in general involving the affixing of a particular seal by a Minister, or the counter-signature or something equivalent to the counter-signature of a Minister; thirdly, the principle that the Minister who affixes a particular seal, or countersigns his signature, is responsible for the act which he, so to speak, endorses;13 this again is part of the constitution and a law, but it is not a written law. So again the right to personal liberty, the right of public meeting, and many other rights, are part of the law of the constitution, though most of these rights are consequences of the more general law or principle that no man can be punished except for direct breaches of law (i.e. crimes) proved in the way provided by law (i.e. before the Courts of the realm).
To the conventions of the constitution belong the following maxims:
"The King must assent to, or (as it is inaccurately expressed) cannot Veto'14 any bill passed by the two Houses of Parliament"; "the House of Lords does not originate any money bill"; "when the House of Lords acts as a Court of Appeal, no peer who is not a law lord takes part in the decisions of the House"; "Ministers resign office when they have ceased to command the confidence of the House of Commons"; "a bill must be read a certain number of times before passing through the House of Commons." These maxims are distinguished from each other by many differences;15 under a new or written con-
13 Compare Hearn, Government of England (2nd ed.), chap. iv.
14 As to the meaning of "veto," see Hearn, Government of England (2nd ed.), pp. 51, 60, 61, 63, 548, and the article on the word Veto in the last edition of the Encyclopaedia Britannica, by Professor Orelli.
15 Some of these maxims are never violated, and are universally admitted to be inviolable. Others, on the other hand, have nothing but a slight amount of custom in their favour, and are of disputable validity. The main distinction between different classes of conventional rules may, it is conceived, be thus stated: Some of these rules could not be violated without bringing to a stop the course of orderly and pacific government; others might be violated without any other consequence than that of exposing the Minister or other person by whom they were broken to blame or unpopularity.
Distinction between laws and conventions not the same as difference between written and unwritten law.
stitution some of them probably would and some of them would not take the form of actual laws. Under the English constitution they have one point in common: they are none of them "laws" in the true sense of that word, for if any or all of them were broken, no court would take notice of their violation.
It is to be regretted that these maxims must be called "conventional," for the word suggests a notion of insignificance or unreality. This, however, is the last idea which any teacher would wish to convey to his hearers. Of constitutional conventions or practices some are as important as any laws, though some may be trivial, as may also be the case with a genuine law. My object, however, is to contrast, not shams with realities, but the legal element with the conventional element of so-called "constitutional law."
This distinction differs essentially, it should be noted, from the distinction between "written law" (or statute law) and "unwritten law" (or common law). There are laws of the constitution, as, for example, the Bill of Rights, the Act of Settlement, and Habeas Corpus Acts, which are "written law," found in the statute-books — in other words, are statutory enactments. There are other most important laws of the constitution (several of which have already been mentioned) which are "unwritten" laws, that is, not statutory enactments. Some further of the laws of the constitution, such, for example, as the law regulating the descent of the Crown, which were at one time unwritten or common law, have now become written or
This difference will at bottom be found to depend upon the degree of directness with which the violation of a given constitutional maxim brings the wrongdoer into conflict with the law of the land. Thus a Ministry under whose advice Parliament were not summoned to meet for more than a year would, owing to the lapse of the Mutiny Act, etc., become through their agents engaged in a conflict with the Courts. The violation of a convention of the constitution would in this case lead to revolutionary or reactionary violence. The rule, on the other hand, that a Bill must be read a given number of times before it is passed is, though a well-established constitutional principle, a convention which might be disregarded without bringing the Government into conflict with the ordinary law. A Ministry who induced the House of Commons to pass an Act, e.g. suspending the Habeas Corpus Act, after one reading, or who induced the House to alter their rules as to the number of times a Bill should be read, would in no way be exposed to a contest with the ordinary tribunals. Ministers who, after Supplies were voted and the Mutiny Act passed, should prorogue the House and keep office for months after the Government had ceased to retain the confidence of the Commons, might or might not incur grave unpopularity, but would not necessarily commit a breach of law. See further Part III. post.
imples
ules
ichbe-
gto
iven-
is of the
.sti-
on.
statute law. The conventions of the constitution, on the other hand, cannot be recorded in the statute-book, though they may be formally reduced to writing. Thus the whole of our parliamentary procedure is nothing but a mass of conventional law; it is, however, recorded in written or printed rules. The distinction, in short, between written and unwritten law does not in any sense square with the distinction between the law of the constitution (constitutional law properly so called) and the conventions of the constitution. This latter is the distinction on which we should fix our whole attention, for it is of vital importance, and elucidates the whole subject of constitutional law. It is further a difference which may exist in countries which have a written or statutory constitution.16 In the United States the legal powers of the President, the Senate, the mode of electing the President, and the like, are, as far as the law is concerned, regulated wholly by the law of the constitution. But side by side with the law have grown up certain stringent conventional rules, which, though they would not be noticed by any court, have in practice nearly the force of lawJSfoPresident has everjbeen re-elected more than once: the popular approval of this conventional limit (of which the constitution knows nothing) on a President's re-eligibility proved a fatal bar to General Grant's third candidature. Constitutional understandings have entirely changed the position of the Presidential electors. They were by the founders of the constitution intended to be what their name denotes, the persons who chose or selected the President; the chief officer, in short, of the Republic was, according to the law, to be appointed under a system of double election. This intention has failed; the "electors" have become a mere means of voting for a
16 The conventional element in the constitution of the United States is far larger than most Englishmen suppose. See on this subject Wilson, Congressional Government, and Bryce (3rd ed.), American Commonwealth, chaps, xxxiv. and xxxv. It may be asserted without much exaggeration that the conventional element in the constitution of the United States is now as large as in the English constitution. Under the American system, however, the line between "conventional rules" and "laws" is drawn with a precision hardly possible in England.
Under the constitution of the existing French Republic, constitutional conventions or understandings exert a considerable amount of influence. They considerably limit, for instance, the actual exercise of the large powers conferred by the letter of the constitution on the President. See Chardon, L'Administration de la France — Les Fonctionnaires, pp. 79-105.
Constitutional law as subject of legal study means solely law of constitution.
particular candidate; they are no more than so many ballots cast for the Republican or for the Democratic nominee. The understanding that an elector is not really to elect, has now become so firmly established, that for him to exercise his legal power of choice is considered a breach of political honour too gross to be committed by the most unscrupulous of politicians. Public difficulties, not to say dangers, might have been averted if, in the contest between Mr. Hayes and Mr. Tilden, a few Republican electors had felt themselves at liberty to vote for the Democratic candidate. Not a single man among them changed his side. The power of an elector to elect is as completely abolished by constitutional understandings in America as is the royal right of dissent from bills passed by both Houses by the same force in England. Under a written, therefore, as under an unwritten constitution, we find in full existence the distinction between the law and the conventions of the constitution.
Upon this difference I have insisted at possibly needless length, because it lies at the very root of the matter under discussion. Once grasp the ambiguity latent in the expression "constitutional law," and everything connected with the subject falls so completely into its right place that a lawyer, called upon to teach or to study constitutional law as a branch of the law of England, can hardly fail to see dearly the character and scope of his subject.
With conventions or understandings he has no direct concern. They vary from generation to generation, almost from year to year. Whether a Ministry defeated at the polling booths ought to retire on the day when the result of the election is known, or may more properly retain office until after a defeat in Parliament, is or may be a question of practical importance. The opinions on this point which prevail today differ (it is said) from the opinions or understandings which prevailed thirty years back, and are possibly different from the opinions or understanding which may prevail ten years hence. Weighty precedents and high authority are cited on either side of this knotty question; the dicta or practice of Russell and Peel may be balanced off against the dicta or practice of Beaconsfield and Gladstone. The subject, however, is not one of law but of politics, and need trouble no lawyer or the class of any professor of law. If he is
iwof institu-?n can be :pounded ce any her
anch of iglish w.
concerned with it at all, he is so only in so far as he may be called upon t0 show what is the connection (if any there be) between the conventions of the constitution and the law of the constitution.
This the true constitutional law is his only real concern. His proper function is to show what are the legal rules (i.e. rules recognised by the Courts) which are to be found in the several parts of the constitution. Of such rules or laws he will easily discover more than enough. The rules determining the legal position of the Crown, the legal rights of the Crown's Ministers, the constitution of the House of Lords, the constitution of the House of Commons, the laws which govern the established Church, the laws which determine the position of the non-established Churches, the laws which regulate the army, — these and a hundred other laws form part of the law of the constitution, and are as truly part of the law of the land as the articles of the Constitution of the United States form part of the law of the Union.
The duty, in short, of an English professor of law is to state what are the laws which form part of the constitution, to arrange them in their order, to explain their meaning, and to exhibit where possible their logical connection. He ought to expound the unwritten or partly unwritten constitution of England, in the same manner in which Story and Kent have expounded the written law of the American constitution. The task has its special perplexities, but the difficulties which beset the topic are the same in kind, though not in degree, as those which are to be found in every branch of the law of England. You are called upon to deal partly with statute law, partly with judge-made law; you are forced to rely on Parliamentary enactments and also on judicial decisions, on authoritative dicta, and in many cases on mere inferences drawn from judicial doctrines; it is often difficult to discriminate between prevalent custom and acknowledged right. This is true of the endeavour to expound the law of the constitution; all this is true also in a measure of any attempt to explain our law of contract, our law of torts, or our law of real property.
Moreover, teachers of constitutional law enjoy at this moment one invaluable advantage. Their topic has, of recent years,17 become of
17 This treatise was originally published in 1885. Since that date legal decisions and public discussion have thrown light upon several matters of constitutional law, such, for example, as the limits to the right of public meeting and the nature of martial law.
immediate interest and of pressing importance. These years have brought into the foreground new constitutional questions, and have afforded in many instances the answers thereto. The series of actions connected with the name of Mr. Bradlaugh18 has done as much to dear away the obscurity which envelops many parts of our public law as was done in the eighteenth century by the series of actions connected with the name of John Wilkes. The law of maintenance has been rediscovered; the law of blasphemy has received new elucidation. Everybody now knows the character of a penal action. It is now possible to define with precision the relation between the House of Commons and the Courts of the land; the legal character and solemnity of an oath has been made patent to all the world, or at any rate to all those persons who choose to read the Law Reports. Meanwhile circumstances with which Mr. Bradlaugh had no connection have forced upon public attention all the various problems connected with the right of public meeting. Is such a right known to the law? What are the limits within which it may be exercised? What is the true definition of an "unlawful assembly"? How far may citizens lawfully assembled assert their right of meeting by the use of force? What are the limits within which the English constitution recognises the right of self-defence? These are questions some of which have been raised and all of which may any day be raised before the Courts. They are inquiries which touch the very root of our public law. To find the true reply to them is a matter of importance to every citizen. While these inquiries require an answer the study of the law of the constitution must remain a matter of pressing interest. The fact, however, that the provisions of this law are often embodied in cases which have gained notoriety and excite keen feelings of political partisanship may foster a serious misconception. Unintelligent students may infer that the law of the constitution is to be gathered only from famous judgments which embalm the results of grand constitutional or political conflicts. This is not so. Scores of unnoticed cases, such as the Parlement Beige,19 or Thomas v. The Queen,20 touch upon or decide principles of constitu-
18 Written 1885. See for Bradlaugh's political career, Diet. Nat. Biog., Supplement, vol. i. p. 248.
19 4 P. D. 129; 5 P. D. 197. Compare Walker v. Baird [1892], A. C. 491, 497.
20 L. R.,ioQ. B. 31.
tional law. Indeed every action against a constable or collector of revenue enforces the greatest of all such principles, namely, that obedience to administrative orders is no defence to an action or prosecution for acts done in excess of legal authority. The true law of the constitution is in short to be gathered from the sources whence we collect the law of England in respect to any other topic, and forms as interesting and as distinct, though not as well explored, a field for legal study or legal exposition as any which can be found. The subject is one which has not yet been fully mapped out. Teachers and pupils alike therefore suffer from the inconvenience as they enjoy the interest of exploring a province of law which has not yet been entirely reduced to order.21
This inconvenience has one great compensation. We are compelled to search for the guidance of first principles, and as we look for a due through the mazes of a perplexed topic, three such guiding principles gradually become apparent. They are, first, the legislative sovereignty of Parliament;22 secondly, the universal rule or supremacy throughout the constitution of ordinary law;23 and thirdly (though here we tread on more doubtful and speculative ground), the dependence in the last resort of the conventions upon the law of the constitution.24 To examine, to elucidate, to test these three principles, forms, at any rate (whatever be the result of the investigation), a suitable introduction to the study of the law of the constitution.
21 Since these words were written, Sir William Anson's admirable Law and Custom of the Constitution has gone far to provide a complete scheme of English constitutional law.
22 See Part I. post.
23 See Part II. post.
24 See Part III. post.
PARTI THE SOVEREIGNTY OF PARLIAMENT
Chapter I
THE NATURE OF PARLIAMENTARY SOVEREIGNTY
The sovereignty of Parliament is (from a legal point of view) the dominant characteristic of our political institutions. My aim in this chapter is, in the first place, to explain the nature of Parliamentary sovereignty and to show that its existence is a legal fact, fully recognised by the law of England; in the next place, to prove that none of the alleged legal limitations on the sovereignty of Parliament have any existence; and, lastly, to state and meet certain speculative difficulties which hinder the ready admission of the doctrine that Parliament is, under the British constitution, an absolutely sovereign legislature.
NATURE OF PARLIAMENTARY SOVEREIGNTY
Parliament means, in the mouth of a lawyer (though the word has - often a different sense in ordinary conversation), the King, the House of Lords, and the House of Commons; these three bodies acting together may be aptly described as the "King in Parliament," and constitute Parliament.1
The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus denned has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of
i Conf. Blackstone, Commentaries, i. p. 153.
Aim of chapter.
Nature of Parliamentary Sovereignty.
England as having a right to override or set aside the legislation of Parliament.
A law may, for our present purpose, be defined as "any rule which will be enforced by the Courts." The principle then of Parliamentary sovereignty may, looked at from its positive side, be thus described: Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies an existing law, will be obeyed by the Courts. The same principle, looked at from its negative side, may be thus stated: There is no person or body of persons who can, under the English constitution, make rules which override or derogate from an Act of Parliament, or which (to express the same thing in other words) will be enforced by the Courts in contravention of an Act of Parliament. Some apparent exceptions to this rule no doubt suggest themselves. But these apparent exceptions, as where, for example, the Judges of the High Court of Justice make rules of court repealing Parliamentary enactments, are resolvable into cases in which Parliament either directly or indirectly sanctions subordinate legislation. This is not the place for entering into any details as to the nature of judicial legislation;2 the matter is mentioned here only in order to remove an obvious difficulty which might present itself to some students. It will be necessary in the course of these lectures to say a good deal more about Parliamentary sovereignty, but for the present the above rough description of its nature may suffice. The important thing is to make dear that the doctrine of Parliamentary sovereignty is, both on its positive and on its negative side, fully recognised by the law of England.
Unlimited Legislative Authority of Parliament
The classical passage on this subject is the following extract from Blackstone's Commentaries: — Sir Edward Coke,3 says:
The power and jurisdiction of Parliament is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.
2 The reader who wishes for fuller information on the nature of judge-made law will find what he wants in Dicey's Law and Public Opinion in England, App. Note iv. p. 481, and in Sir Frederick Pollock's Essays in Jurisprudence and Ethics, p. 237.
3 Fourth Institute, p. 36.
Historical examples of Parliamentary sovereignty.
And of this high court, he adds, it may be truly said, "Si antiquitatem species, est vetustissima; si dignitatem, est honomtissima; si jurisdictionem, est capacissima." It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new-model the succession to the Crown; as was done in the reign of Henry VIII, and William III. It can alter the established religion of the land; as was done in a variety of instances, in the reigns of king Henry VIII, and his three children. It can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what the Parliament doth, no authority upon earth can undo. So that it is a matter most essential to the liberties of this kingdom, that such members be delegated to this important trust, as are most eminent for their probity, their fortitude, and their knowledge; for it was a known apophthegm of the great lord treasurer Burleigh, "that England could never be ruined but by a Parliament": and, as Sir Matthew Hale observes, this being the highest and greatest court over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should any way fall upon it, the subjects of this kingdom are left without all manner of remedy. To the same purpose the president Montesquieu, though I trust too hastily, presages; that as Rome, Sparta, and Carthage have lost their liberty and perished, so the constitution of England will in time lose its liberty, will perish: it will perish whenever the legislative power shall become more corrupt than the executive.4
De Lolme has summed up the matter in a grotesque expression which has become almost proverbial. "It is a fundamental principle with English lawyers, that Parliament can do everything but make a woman a man, and a man a woman."
This supreme legislative authority of Parliament is shown historically in a large number of instances.
4 Blackstone, Commentaries, i. pp. 160, 161. Compare as to sovereignty of Parliament, De Republica Anglorum; A Discourse on the Commonwealth of England, by Sir Thomas Smith, edited by L. Alston, Book ii, chap. i. p. 148. The book was originally published in 1583.
The descent of the Crown was varied and finally fixed under the Act of Settlement, 12 & 13 William III., c. 2; the King occupies the throne under a Parliamentary tide; his claim to reign depends upon and is the result of a statute. This is a proposition which, at the present day, no one is inclined either to maintain or to dispute; but a glance at the statute-book shows that not much more than two hundred years ago Parliament had to insist strenuously upon the principle of its own lawful supremacy. The first section of 6 Anne, c. 7, enacts (inter alia),
That if any person or persons shall maliciously, advisedly, and directly by writing or printing maintain and affirm that our sovereign lady the Queen that now is, is not the lawful and rightful Queen of these realms, or that the pretended Prince of Wales, who now styles himself King of Great Britain, or King of England, by the name of James the Third, or King of Scotland, by the name of James the Eighth, hath any right or title to the Crown of these realms, or that any other person or persons hath or have any right or title to the same, otherwise than according to an Act of Parliament made in England in the first year of the reign of their late Majesties King William and Queen Mary, of ever blessed and glorious memory, intituled, An Act declaring the rights and liberties of the subject, and settling the succession of the Crown; and one other Act made in England in the twelfth year of the reign of his said late Majesty King William the Third, intituled, An Act for the further limitation of the Crown, and better securing the rights and liberties of the subject; and the Acts lately made in England and Scotland mutually for the union of the two kingdoms; or that the Kings or Queens of this realm, with and by the authority of Parliament, are not able to make laws and statutes of sufficient force and validity to limit and bind the Crown, and the descent, limitation, inheritance, and government thereof; every such person or persons shall be guilty of high treason, and being thereof lawfully convicted, shall be adjudged traitors, and shall suffer pains of death, and all losses and forfeitures as in cases of high treason.5
The Acts of Union (to one of which Blackstone calls attention) afford a remarkable example of the exertion of Parliamentary authority. But there is no single statute which is more significant either as to the theory or as to the practical working of the constitution than the Septennial Act.6 The circumstances of its enactment and the nature of the Act itself merit therefore special attention.
56 Anne, c. 41 (otherwise 6 Anne, c. 7), sec. i. This enactment is still in force. 6 i George I. st. 2, c. 38.
Septennial Act.
In 1716 the duration of Parliament was under an Act of 1694 limited to three years, and a general election could not be deferred beyond 1717. The King and the Ministry were convinced (and with reason) that an appeal to the electors, many of whom were Jacobites, might be perilous not only to the Ministry but to the tranquillity of the state. The Parliament then sitting, therefore, was induced by the Ministry to pass the Septennial Act by which the legal duration of parliament was extended from three to seven years, and the powers of the then existing House of Commons were in effect prolonged for four years beyond the time for which the House was elected. This was a much stronger proceeding than passing say an Act which enabled future Parliaments to continue in existence without the necessity for a general election during seven instead of during three years. The statute was justified by considerations of statesmanship and expediency. This justification of the Septennial Act must seem to every sensible man so ample that it is with some surprise that one reads in writers so fair and judicious as Hallam or Lord Stanhope attempts to minimise the importance of this supreme display of legislative authority. Hal-lam writes:
Nothing can be more extravagant than what is sometimes confidently pretended by the ignorant, that the legislature exceeded its rights by this enactment; or, if that cannot legally be advanced, that it at least violated the trust of the people, and broke in upon the ancient constitution.
This remark he bases on the ground that
the law for triennial Parliaments was of little more than twenty years' continuance. It was an experiment, which, as was argued, had proved unsuccessful; it was subject, like every other law, to be repealed entirely, or to be modified at discretion.7
Lord Stanhope says:
We may . . . cast aside the foolish idea that the Parliament overstepped its legitimate authority in prolonging its existence; an idea which was indeed urged by party-spirit at the time, and which may still sometimes pass current
7 Hallam, Constitutional History of England, iii. (187260!.), p. 236.
stitu-al im-ance of :ennial
in harangues to heated multitudes, but which has been treated with utter contempt by the best constitutional writers.8
These remarks miss the real point of the attack on the Septennial Act, and also conceal the constitutional importance of the statute. The thirty-one peers who protested against the Bill because (among other grounds)
it is agreed, that the House of Commons must be chosen by the people, and when so chosen, they are truly the representatives of the people, which they cannot be so properly said to be, when continued for a longer time than that for which they were chosen; for after that time they are chosen by the Parliament, and not the people, who are thereby deprived of the only remedy which they have against those, who either do not understand, or through corruption, do wilfully betray the trust reposed in them; which remedy is, to choose better men in their places,9
hit exactly the theoretical objection to it. The peculiarity of the Act was not that it changed the legal duration of Parliament or repealed the Triennial Act; the mere passing of a Septennial Act in 1716 was not and would never have been thought to be anything more startling or open to graver censure than the passing of a Triennial Act in 1694. What was startling was that an existing Parliament of its own authority prolonged its own legal existence. Nor can the argument used by Priestley,10 and in effect by the protesting Peers
that Septennial Parliaments were at first a direct usurpation of the rights of the people; for by the same authority that one Parliament prolonged their own power to seven years, they might have continued it to twice seven, or like the Parliament of 1641 have made it perpetual
be treated as a blunder grounded simply on the "ignorant assumption" that the Septennial Act prolonged the original duration of Parliament.ai The contention of Priestley and others was in substance that members elected to serve for three years were constitutionally so
8 Lord Mahon, History of England, i. p. 302.
9 Thorold Rogers, Protests oftheLords, i. p. 218.
10 See Priestley on Government (1771), p. 20.
11 Hallam, Constitutional History, iii. (1872 ed.), p. 236(0.).
Interference of Parliament with private rights.
far at least the delegates or agents of their constituents that they could not, without an inroad on the constitution, extend their own authority beyond the period for which it was conferred upon them by their principals, i.e. the electors. There are countries, and notably the United States, where an Act like the Septennial Act would be held legally invalid; no modern English Parliament would for the sake of keeping a government or party in office venture to pass say a Decennial Act and thus prolong its own duration; the contention therefore that Walpole and his followers in passing the Septennial Act violated the understandings of the constitution has on the face of it nothing absurd. Parliament made a legal though unprecedented use of its powers. To under-rate this exertion of authority is to deprive the Septennial Act of its true constitutional importance. That Act proves to demonstration that in a legal point of view Parliament is neither the agent of the electors nor in any sense a trustee for its constituents. It is legally the sovereign legislative power in the state, and the Septennial Act is at once the result and the standing proof of such Parliamentary sovereignty.
Hitherto we have looked at Parliament as legally omnipotent in regard to public rights. Let us now consider the position of Parliament in regard to those private rights which are in civilised states justly held specially secure or sacred. Coke (it should be noted) particularly chooses interference with private rights as specimens of Parliamentary authority.
Yet some examples are desired. Daughters and heirs apparent of a man or woman, may by Act of Parliament inherit during the life of the ancestor.
It may adjudge an infant, or minor, of full age.
To attaint a man of treason after his death.
To naturalise a mere alien, and make him a subject born. It may bastard a child that by law is legitimate, viz. begotten by an adulterer, the husband being within the four seas.
To legitimate one that is illegitimate, and born before marriage absolutely. And to legitimate secundum quid, but not simpliciter.12
Coke is judicious in his choice of instances. Interference with public rights is at bottom a less striking exhibition of absolute power than
12 Coke, Fourth Institute, p. 36.
is the interference with the far more important rights of individuals; a ruler who might think nothing of overthrowing the constitution of his country, would in all probability hesitate a long time before he touched the property or interfered with the contracts of private persons. Parliament, however, habitually interferes, for the public advantage, with private rights. Indeed such interference has now (greatly to the benefit of the community) become so much a matter of course as hardly to excite remark, and few persons reflect what a sign this interference is of the supremacy of Parliament. The statute-book teems with Acts under which Parliament gives privileges or rights to particular persons or imposes particular duties or liabilities upon other persons. This is of course the case with every railway Act, but no one will realise the full action, generally the very beneficial action of Parliamentary sovereignty, who does not look through a volume or two of what are called Local and Private Acts. These Acts are just as much Acts of Parliament as any Statute of the Realm. They deal with every kind of topic, as with railways, harbours, docks, the settlement of private estates, and the like. To these you should add Acts such as those which declare valid marriages which, owing to some mistake of form or otherwise, have not been properly celebrated, and Acts, common enough at one time but now rarely passed, for the divorce of married persons.
One further class of statutes deserve in this connection more notice than they have received — these are Acts of Indemnity.
An Act of Indemnity is a statute, the object of which is to make legal transactions which when they took place were illegal, or to free individuals to whom the statute applies from liability for having broken the law; enactments of this kind were annually passed with almost unbroken regularity for more than a century (1727-1828) to free Dissenters from penalties, for having accepted municipal offices without duly qualifying themselves by taking the sacrament according to the rites of the Church of England. To the subject of Acts of Indemnity, however, we shall return in a later chapter.13 The point to be now noted is that such enactments being as it were the legalisation
13 See Chap. V. post.
No other competing legislative authority.
The King.
Statute of Proclamations.
of illegality are the highest exertion and crowning proof of sovereign power.
So far of the sovereignty of Parliament from its positive side: let us now look at the same doctrine from its negative aspect.
The Absence of Any Competing Legislative Power
The King, each House of Parliament, the Constituencies, and the Law Courts, either have at one time claimed, or might appear to claim, independent legislative power. It will be found, however, on examination that the claim can in none of these cases be made good.
The King Legislative authority originally resided in the King in Council,14 and even after the commencement of Parliamentary legislation there existed side by side with it a system of royal legislation under the form of Ordinances,1S and (at a later period) of Proclamations.
These had much the force of law, and in the year 1539 the Act 31 Henry VIII., c. 8, formally empowered the Crown to legislate by means of proclamations. This statute is so short and so noteworthy that it may well be quoted in extenso.
The King for the time being, with the advice of his Council, or the more part of them, may set forth proclamations under such penalities and pains as to him and them shall seem necessary, which shall be observed as though they were made by Act of Parliament; but this shall not be prejudicial to any person's inheritance, offices, liberties, goods, chattels, or life; and whosoever shall willingly offend any article contained in the said proclamations, shall pay such forfeitures, or be so long imprisoned, as shall be expressed in the said proclamations; and if any offending will depart the realm, to the intent he will not answer his said offence, he shall be adjudged a traitor.16
This enactment marks the highest point of legal authority ever reached by the Crown, and, probably because of its inconsistency with the whole tenor of English law, was repealed in the reign of Edward the Sixth. It is curious to notice how revolutionary would
14 See Stubbs, Constitutional History, i. pp. 126-128, and ii. pp. 245-247.
15 Stubbs, ibid. ii. chap. xv.
16 31 Henry VIII., c. 8.
have been the results of the statute had it remained in force. It must have been followed by two consequences. An English king would have become nearly as despotic as a French monarch. The statute would further have established a distinction between "laws" properly so called as being made by the legislature and "ordinances" having the force of law, though not in strictness laws as being rather decrees of the executive power than Acts of the legislature. This distinction exists in one form or another in most continental states, and is not without great practical utility. In foreign countries the legislature generally confines itself to laying down general principles of legislation, and leaves them with great advantage to the public to be supplemented by decrees or regulations which are the work of the executive. The cumbersomeness and prolixity of English statute law is due in no small measure to futile endeavours of Parliament to work out the details of large legislative changes. This evil has become so apparent that in modern times Acts of Parliament constantly contain provisions empowering the Privy Council, the judges, or some other body, to make rules under the Act for the determination of details which cannot be settled by Parliament. But this is only an awkward mitigation17 of an acknowledged evil, and the substance no less than the form of the law would, it is probable, be a good deal improved if the executive government of England could, like that of France, by means of decrees, ordinances, or proclamations having the force of law, work out the detailed application of the general principles embodied in the Acts of the legislature.18 In this, as in some other instances, restrictions wisely placed by our forefathers on the growth
17 A critic has objected to the words "awkward mitigation of an acknowledged evil" on the ground that they condemn in England a system which as it exists abroad is referred to as being not without great practical utility. The expression objected to is, however, justifiable. Under the English system elaborate and detailed statutes are passed, and the power to make rules under the statute, e.g. by order in council or otherwise, is introduced only in cases where it is obvious that to embody the rules in the statute is either highly inexpedient or practically impossible. Under the foreign, and especially the French system, the form of laws, or in other words, of statutes, is permanently affected by the knowledge of legislators and draftsmen that any law will be supplemented by decrees. English statutes attempt, and with very little success, to provide for the detailed execution of the laws enacted therein. Foreign laws are, what every law ought to be, statements of general principles.
18 See Duguit, Manuel de Droit Public Francois — Droit Constitutionnel, ss. 140, 141.
of royal power, are at the present day the cause of unnecessary restraints on the action of the executive government. For the repeal of 31 Henry VIII., c. 8, rendered governmental legislation, with all its defects and merits, impossible, and left to proclamations only such weight as they might possess at common law. The exact extent of this authority was indeed for some time doubtful. In 1610, however, a solemn opinion or protest of the judges19 established the modern doctrine that royal proclamations have in no sense the force of law; they serve to call the attention of the public to the law, but they cannot of themselves impose upon any man any legal obligation or duty not imposed by common law or by Act of Parliament. In 1766 Lord Chatham attempted to prohibit by force of proclamation the exportation of wheat, and the Act of Indemnity (7 George III., c. 7), passed in consequence of this attempt, may be considered the final legislative disposal of any claim on the part of the Crown to make law by force of proclamation.
The main instances20 where, in modern times, proclamations or orders in council are of any effect are cases either where, at common law, a proclamation is the regular mode, not of legislation, but of
19 See Coke, 12 Rep. p. 74; and Gardiner, History of England, ii. pp. 104, 105.
20 In rare instances, which are survivals from the time when the King of England was the true "sovereign" in the technical sense of that term, the Crown exercises legislative functions in virtue of the prerogative. Thus the Crown can legislate, by proclamations or orders in council, for a newly conquered country (Campbell v. Hall, Cowp. 204), and has claimed the right, though the validity thereof is doubtful, to legislate for the Channel Islands by orders in council. In the Matter of the States of Jersey, 9 Moore P. C., n. s. 184, 262. See Stephen, Commentaries (8th ed.), i. pp. 100-102. "The Channel Islands indeed claim to have conquered England, and are the sole fragments of the dukedom of Normandy which still continue attached to the British Crown. For this reason, in these islands alone of all British possessions does any doubt arise as to whether an Act of the imperial Parliament is of its own force binding law. In practice, when an Act is intended to apply to them, a section is inserted authorising the King in Council to issue an Order for the application of the Act to these islands, and requiring the registration of that Order in the islands, and the Order in Council is made by the King and registered by the States accordingly." Sir H. Jenkyns, British Rule and Jurisdiction beyond the Seas, p. 37. But whatever doubt may arise in the Channel Islands, every English lawyer knows that any English court will hold that an Act of Parliament dearly intended to apply to the Channel Islands is in force there proprio vigore, whether registered by the States or not.
As to the legislative power of the Crown in Colonies which are not self-governing, see further British Rule and Jurisdiction beyond the Seas, p. 95.
announcing the executive will of the King, as when Parliament is summoned by proclamation, or else where orders in council have authority given to them by Act of Parliament.
Resolutions of Either House of Parliament The House of Commons, at any rate, has from time to time appeared to claim for resolutions of the House, something like legal authority. That this pretension cannot be supported is certain, but there exists some difficulty in defining with precision the exact effect which the Courts concede to a resolution of either House.
Two points are, however, well established, s First, the resolution of neither House is a law.
This is the substantial result of the case of Stockdale v. Hansard.21 The gist of the decision in that case is that a libellous document did not cease to be a libel because it was published by the order of the House of Commons, or because the House subsequently resolved that the power of publishing the report which contained it, was an essential incident to the constitutional functions of Parliament.
Secondly, each House of Parliament has complete control over its own proceedings, and also has the right to protect itself by committing for contempt any person who commits any injury against, or offers any affront to the House, and no Court of law will inquire into the mode in which either House exercises the powers which it by law possesses.22
The practical difficulty lies in the reconciliation of the first with the second of these propositions, and is best met by following out the analogy suggested by Mr. Justice Stephen, between a resolution of the House of Commons, and the decision of a Court from which there is no appeal.
I do not say that the resolution of the House is the judgment of a Court not subject to our revision; but it has much in common with such a judgment. The House of Commons is not a Court of Justice; but the effect of its privilege to regulate its own internal concerns, practically invests it with a judicial
21 9 A. &E. i.
22 See Stockdale v.Hansard, 9 A. &E. i; Case of Sheriff of Middlesex, iiA. & E. zyy, Burdett v. Abbot, 14 East, i, 111, 131; Bradlaugh v. Gossett, 12 Q. B. D. 272.
Law as to effect of resolutions of either House.
character when it has to apply to particular cases the provisions of Acts of Parliament. We must presume that it discharges this function properly, and with due regard to the laws, in the making of which it has so great a share. If its determination is not in accordance with law, this resembles the case of an error by a judge whose decision is not subject to appeal. There is nothing startling in the recognition of the fact that such an error is possible. If, for instance, a jury in a criminal case give a perverse verdict, the law has provided no remedy. The maxim that there is no wrong without a remedy, does not mean, as it is sometimes supposed, that there is a legal remedy for every moral or political wrong. If this were its meaning, it would be manifestly untrue. There is no legal remedy for the breach of a solemn promise not under seal, and made without consideration; nor for many kinds of verbal slander, though each may involve utter ruin; nor for oppressive legislation, though it may reduce men practically to slavery; nor for the worst damage to person and property inflicted by the most unjust and cruel war. The maxim means only that legal wrong and legal remedy are correlative terms; and it would be more intelligibly and correctly stated, if it were reversed, so as to stand, "Where there is no legal remedy, there is no legal wrong."23
The law therefore stands thus. Either House of Parliament has the fullest power over its own proceedings, and can, like a Court, commit for contempt any person who, in the judgment of the House, is guilty of insult or affront to the House. The Case of the Sheriff of Middlesex24 carries this right to the very farthest point. The Sheriff was imprisoned for contempt under a warrant issued by the Speaker. Every one knew that the alleged contempt was nothing else than obedience by the Sheriff to the judgment of the Court of Queen's Bench in the case of Stockdale v. Hansard, and that the Sheriff was imprisoned by the House because under such judgment he took the goods of the defendant Hansard in execution. Yet when the Sheriff was brought by Habeas Corpus before the Queen's Bench the Judges held that they could not inquire what were the contempts for which the Sheriff was committed by the House. The Courts, in other words, do not claim any right to protect their own officials from being imprisoned by the House of Commons for alleged contempt of the House, even though the so-called contempt is nothing else than an act of obedience to the Courts. A declaration or resolution of either House, on the other
23 Bradlaugh v. Gossett, 12 Q. B. D. 271, 285.
24 11 A. &E. 273.
uses of liament.
.olurions
ither
jse.
hand, is not in any sense a law. Suppose that X were by order of the House of Commons to assault A out of the House, irrespective of any act done in the House, and not under a warrant committing A for contempt; or suppose that X were to commit some offence by which he incurred a fine under some Act of Parliament, and that such fine were recoverable by A as a common informer. No resolution of the House of Commons ordering or approving of X's act could be pleaded by X as a legal defence to proceedings, either civil or criminal, against him.25 If proof of this were wanted it would be afforded by the Act 3 & 4 Viet. c. 9. The object of this Act, passed in consequence of the controversy connected with the case of Stockdale v. Hansard, is to give summary protection to persons employed in the publication of Parliamentary papers, which are, it should be noted, papers published by the order of one or other of the Houses of Parliament. The necessity for such an Act is the dearest proof that an order of the House is not of itself a legal defence for the publication of matters which would otherwise be libellous. The House of Commons
by invoking the authority of the whole Legislature to give validity to the plea they had vainly set up in the action [of Stockdale v. Hansard], and by not appealing against the judgment of the Court of Queen's Bench, had, in effect, admitted the correctness of that judgment and affirmed the great principle on which it was founded, viz. that no single branch of the Legislature can, by an assertion of its alleged privileges, alter, suspend, or supersede any known law of the land, or bar the resort of any Englishman to any remedy, or his exercise and enjoyment of any right, by that law established.26
25 Conf. Attorney -General v. Bradlaugh, 14 Q. B. D. (C. A.), 667.
2.6 Arnould, Memoir of Lord Denman, ii. p. 70. Nothing is harder to define than the extent of the indefinite powers or rights possessed by either House of Parliament under the head of privilege or law and custom of Parliament. The powers exercised by the Houses, and especially in practice by the House of Commons, make a near approach to an authority above that of the ordinary la w of the land. Parliamentary privilege has from the nature of things never been the subject of precise legal definition. One or two points are worth notice as being dearly established.
i. Ether House of Parliament may commit for contempt, and the Courts will not go behind the committal and inquire into the facts constituting the alleged contempt. Hence either House may commit to prison for contempt any person whom the House think guilty of contempt.
The Constituencies
The Vote of the Parliamentary Electors Expressions are constantly used in the course of political discussions which imply that the body of persons entitled to choose members of Parliament possess under the English constitution some kind of legislative authority. Such language is, as we shall see, not without a real meaning;27 it points to the important consideration that the wishes of the constituencies influence the action of Parliament. But any expressions which attribute to Parliamentary electors a legal part in the process of law-making are quite inconsistent with the view taken by the law of the position of an elector. The sole legal right of electors under the English constitution is to elect members of Parliament. Electors have no legal means of initiating, of sanctioning, or of repealing the legislation of Parliament. No Court will consider for a moment the argument that a law is invalid as being opposed to the opinion of the electorate; their opinion can be legally expressed through Parliament, and through Parliament alone. This is not a necessary incident of representative government. In Switzerland no change can be introduced in the constitution28 which has not been submitted for approval or disapproval to all male citizens who have attained their majority; and even an ordinary law which does not involve a change in the constitution may, after it has been passed by the Federal Assembly, be submitted
2. The House of Lords have power to commit an offender to prison for a specified term, even beyond the duration of the session (May, Parliamentary Practice (nth ed.), pp. 91, 92). But the House of Commons do not commit for a definite period, and prisoners committed by the House are, if not sooner discharged, released from their confinement on a prorogation. If they were held longer in custody they would be discharged by the Courts upon a writ of Habeas Corpus (May, Parliamentary Practice, chap. iii.).
3. A libel upon either House of Parliament or upon a member thereof, in his character of a member, has been often treated as a contempt. (Ibid.)
4. The Houses and all the members thereof have all the privileges as to freedom of speech, etc., necessary for the performance of their duties. (See generally May's Parliamentary Practice, chap, iii.) Compare as to Parliamentary privilege Shaftesbury's Case, 6 St. Tr. 1269; Flower's Case, 8 T. R. 314; Ashby v. White, i Sm. L. Cas. (gth ed.), 268; Wilkes's Case, 19 St. Tr. 1153; Burdett v. Colman, 14 East, 163; Rex v. Creevy, i M. & S. 273; Clarke v. Bradlaugh, 7 Q. B. D. 38, 8. App. Cas. 354; The Attorney-General v. Bradlaugh, 14 Q. B. D. 667.
27 See pp. 27-30, post.
28 Constitution Federale de la Confederation Swisse, Arts. 118-121; see Adams, The Swiss Confederation, chap. vi.
on the demand of a certain number of citizens to a popular vote, and is annulled if a vote is not obtained in its favour.29
The Law Courts A large proportion of English law is in reality made by the judges, and whoever wishes to understand the nature and the extent of judicial legislation in England, should read Pollock's admirable essay on the Science of Case Law.30 The topic is too wide a one to be considered at any length in these lectures. All that we need note is that the adhesion by our judges to precedent, that is, their habit of deciding one case in accordance with the principle, or supposed principle, which governed a former case, leads inevitably to the gradual formation by the Courts of fixed rules for decision, which are in effect laws. This judicial legislation might appear, at first sight, inconsistent with the supremacy of Parliament. But this is not so. English judges do not claim or exercise any power to repeal a Statute, whilst Acts of Parliament may override and constantly do override the law of the judges. Judicial legislation is, in short, subordinate legislation, carried on with the assent and subject to the supervision of Parliament.
ALLEGED LEGAL LIMITATIONS ON THE LEGISLATIVE SOVEREIGNTY OF PARLIAMENT
All that can be urged as to the speculative difficulties of placing any limits whatever on sovereignty has been admirably stated by Austin and by Professor Holland.31 With these difficulties we have, at this moment, no concern. Nor is it necessary to examine whether it be or be not true, that there must necessarily be found in every state some person, or combination of persons, which, according to the constitution, whatever be its form, can legally change every law, and there-
29 Constitution Federale de la Confederation Swisse, Art. 89.
30 Pollock, Essays in jurisprudence and Ethics, p. 237, and see Dicey, Law and Opinion in England (2nd ed.)/ pp. 361, 483.
31 See Austin, Jurisprudence, i. (4th ed.), pp- 270-274, and Holland, Jurisprudence (loth ed.), pp. 47-52 and 359-363. The nature of sovereignty is also stated with brevity and clearness in Lewis, Use and Abuse of Political Terms, pp. 37 — 53. Compare, fora different view, Bryce, Studies in History and Jurisprudence, ii., Essay ix., Obedience; and Essay x., The Nature of Sovereignty.
fore constitutes the legally supreme power in the state. Our whole business is now to carry a step further the proof that, under the English constitution, Parliament does constitute such a supreme legislative authority or sovereign power as, according to Austin and other jurists, must exist in every civilised state, and for that purpose to examine into the validity of the various suggestions, which have from time to time been made, as to the possible limitations on Parliamentary authority, and to show that none of them are countenanced by English law.
The suggested limitations are three in number.32
first, Acts of Parliament, it has been asserted, are invalid if they are opposed to the principles of morality or to the doctrines of international law. Parliament, it is in effect asserted, cannot make a law opposed to the dictates of private or public morality. Thus Blackstone lays down in so many words that the
law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original;33
and expressions are sometimes used by modern judges which imply that the Courts might refuse to enforce statutes going beyond the proper limits (internationally speaking) of Parliamentary authority.34 But to words such as those of Blackstone, and to the obiter dicta of the Bench, we must give a very qualified interpretation. There is no legal basis for the theory that judges, as exponents of morality, may overrule Acts of Parliament. Language which might seem to imply this
32 Another limitation has been suggested more or less distinctly by judges such as Coke (12 Rep. 76; and Hearn, Government of England (and ed.), pp. 48, 49); an Act of Parliament cannot (it has been intimated) overrule the principles of the common law. This doctrine once had a real meaning (see Maine, Early History of Institutions, pp. 381, 382), but it has never received systematic judicial sanction and is now obsolete. See Colonial Laws Validity Act, 1865, 28 & 29 Viet. c. 63.
33 Blackstone, Commentaries, i. p. 40; and see Hearn, Government of England (2nd ed.), pp. 48, 49-
34 See Ex parte Blain, 12 Ch. D. (C. A.), 522, 531, judgment of Cotton, L. J.
ie 311 rts.
leged illations.
Moral law.
•erogative.
amounts in reality to nothing more than the assertion that the judges, when attempting to ascertain what is the meaning to be affixed to an Act of Parliament, will presume that Parliament did not intend to violate35 the ordinary rules of morality, or the principles of international law, and will therefore, whenever possible, give such an interpretation to a statutory enactment as may be consistent with the doctrines both of private and of international morality. A modern judge would never listen to a barrister who argued that an Act of Parliament was invalid because it was immoral, or because it went beyond the limits of Parliamentary authority. The plain truth is that our tribunals uniformly act on the principle that a law alleged to be a bad law is ex hypothesi a law, and therefore entitled to obedience by the Courts.
Secondly, doctrines have at times36 been maintained which went very near to denying the right of Parliament to touch the Prerogative.
In the time of the Stuarts37 the doctrine was maintained, not only by the King, but by lawyers and statesmen who, like Bacon, favoured the increase of royal authority, that the Crown possessed under the name of the "prerogative" a reserve, so to speak, of wide and indefinite rights and powers, and that this prerogative or residue of sovereign power was superior to the ordinary law of the land. This doctrine combined with the deduction from it that the Crown could suspend the operation of statutes, or at any rate grant dispensation from obedience to them, certainly suggested the notion that the high powers of the prerogative were to a certain extent beyond the reach of Parliamentary enactment. We need not, however, now enter into the political controversies of another age. All that need be noticed is that though certain powers — as, for example, the right of making treaties — are now left by law in the hands of the Crown, and are exercised in fact by the executive government, no modern lawyer would maintain that these powers or any other branch of royal au-
35 See Colquhoun v. Brooks, 21Q. B. D. (C. A.), 52; and compare the language of Lord Esher, PP- 57- 58/ with the judgment of Fry, L. ]., ibid. pp. 61. 62.
36 See Stubbs, Constitutional History, ii. pp. 239, 486, 513-515.
37 Gardiner, History, iii. pp. 1-5; compare, as to Bacon's view of the prerogative, Francis Bacon, by Edwin A. Abbott, pp. 140, 260, 279.
Preceding Acts of Parliament.
The Acts of Union.
thority could not be regulated or abolished by Act of Parliament, or, what is the same thing, that the judges might legally treat as invalid a statute, say, regulating the mode in which treaties are to be made, or making the assent or the Houses of Parliament necessary to the validity of a treaty.38
Thirdly, language has occasionally been used in Acts of Parliament which implies that one Parliament can make laws which cannot be touched by any subsequent Parliament, and that therefore the legislative authority of an existing Parliament may be limited by the enactments of its predecessors.39
That Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their successors is certain, but the endeavour has always ended in failure. Of statutes intended to arrest the possible course of future legislation, the most noteworthy are the Acts which embody the treaties of Union with Scotland40 and Ireland.41 The legislators who passed these Acts assuredly intended to give to certain portions of them more than the ordinary effect of statutes. Yet the history of legislation in respect of these very
38 Compare the parliamentary practice in accordance with which the consent or recommendation of the Crown is required to the introduction of bills touching the prerogative or the interests of the Crown.
39 This doctrine was known to be erroneous by Bacon. "The principal law that was made this Parliament was a law of a strange nature, rather just than legal, and more magnanimous than provident. This law did ordain, That no person that did assist in arms or otherwise the King for the time being, should after be impeached therefor, or attainted either by the course of law or by Act of Parliament; for if any such act of attainder did hap to be made, it should be void and of none effect. . . . But the force and obligation of this law was in itself illusory, as to the latter part of it; (by a precedent Act of Parliament to bind or frustrate a future). For a supreme and absolute power cannot conclude itself, neither can that which is in nature revocable be made fixed; no more than if a man should appoint or declare by his will that if he made any later will it should be void. And for the case of the Act of Parliament, there is a notable precedent of it in King Henry the Eighth's time, who doubting he might die in the minority of his son, provided an Act to pass, That no statute made during the minority of a king should bind him or his successors, except it were confirmed by the king under his great seal at his full age. But the first Act that passed in King Edward the Sixth's time was an Act of repeal of that former Act; at which time nevertheless the King was minor. But things that do not bind may satisfy for the time." Works of Francis Bacon, vi., by Spedding, Ellis, and Heath (1861), pp. 159, 160.
40 The Union with Scotland Act, 1706, 6 Anne, c. 11.
41 The Union with Ireland Act, 1800, 39 & 4oGeo. HI., c. 67.
Acts affords the strongest proof of the futility inherent in every attempt of one sovereign legislature to restrain the action of another equally sovereign body. Thus the Act of Union with Scotland enacts in effect that every professor of a Scotch University shall acknowledge and profess and subscribe the Confession of Faith as his profession of faith, and in substance enacts that this provision shall be a fundamental and essential condition of the treaty of union in all time coming.42 But this very provision has been in its main part repealed by the Universities (Scotland) Act, i853,43 which relieves most professors in the Scotch universities from the necessity of subscribing the Confession of Faith. Nor is this by any means the only inroad made upon the terms of the Act of Union; from one point of view at any rate the Act 10 Anne, c. 12,44 restoring the exercise of lay patronage, was a direct infringement upon the Treaty of Union. The intended unchangeableness, and the real liability of these Acts or treaties to be changed by Parliament, comes out even more strikingly in the history of the Act of Union with Ireland. The fifth Article of that Act runs as follows:
That it be the fifth article of Union, that the Churches of England and Ireland as now by law established, be united into one Protestant episcopal Church, to be called the United Church of England and Ireland; and that the doctrine, worship, discipline, and government of the said United Church shall be and shall remain in full force for ever, as the same are now by law established for the Church of England; and that the continuance and preservation of the said United Church , as the established Church of England and Ireland, shall be deemed and be taken to be an essential and fundamental part of the Union.
That the statesmen who drew and passed this Article meant to bind the action of future Parliaments is apparent from its language. That the attempt has failed of success is apparent to every one who knows the contents of the Irish Church Act, 1869.
One Act, indeed, of the British Parliament might, looked at in the light of history, claim a peculiar sanctity. It is certainly an enactment
42 See 6 Anne, c. 11, art. 25.
43 16 & 17 Viet. c. 89, s. i.
44 Compare Innes, Law of Creeds in Scotland, pp. 118-121.
of which the terms, we may safely predict, will never be repealed and the spirit will never be violated. This Act is the Taxation of Colonies Act, iTyS.45 It provides that Parliament
will not impose any duty, tax, or assessment whatever, payable in any of his Majesty's colonies, provinces, and plantations in North America or the West Indies; except only such duties as it may be expedient to impose for the regulation of commerce; the net produce of such duties to be always paid and applied to and for the use of the colony, province, or plantation, in which the same shall be respectively levied, in such manner as other duties collected by the authority of the respective general courts, or general assemblies, of such colonies, provinces, or plantations, are ordinarily paid and applied.46
This language becomes the more impressive when contrasted with the American Colonies Act, 1/76,47 which, being passed in that year to repeal the Acts imposing the Stamp Duties, carefully avoids any surrender of Parliament's right to tax the colonies. There is no need to dwell on the course of events of which these two Acts are a statutory record. The point calling for attention is that though policy and prudence condemn the repeal of the Taxation of Colonies Act, 1778, or the enactment of any law inconsistent with its spirit, there is under our constitution no legal difficulty in the way of repealing or overriding this Act. If Parliament were tomorrow to impose a tax, say on New Zealand or on the Canadian Dominion, the statute imposing it would be a legally valid enactment. As stated in short by a very judicious writer —
It is certain that a Parliament cannot so bind its successors by the terms of any statute, as to limit the discretion of a future Parliament, and thereby disable the Legislature from entire freedom of action at any future time when it might be needful to invoke the interposition of Parliament to legislate for the public welfare.48
45 18 Geo. III., c. 12.
46 18 Geo. III., c. 12, s. i.
47 6Geo. III., c. 12.
48 Todd, Parliamentary Government in the British Colonies, p. 192. It is a matter of curious, though not uninstructive, speculation to consider why it is that Parliament, though on several occasions passing Acts which were intended to be immutable, has never in reality succeeded in restricting its own legislative authority.
This question may be considered either logically or historically.
:t limit-> right of rliament tax col-ies.
Parliamentary sovereignty is therefore an undoubted legal fact.
It is complete both on its positive and on its negative side. Parliament can legally legislate on any topic whatever which, in the judgment of Parliament, is a fit subject for legislation. There is no power which, under the English constitution, can come into rivalry with the legislative sovereignty of Parliament.
The logical reason why Parliament has failed in its endeavours to enact unchangeable enactments is that a sovereign power cannot, while retaining its sovereign character, restrict its own powers by any particular enactment. An Act, whatever its terms, passed by Parliament might be repealed in a subsequent, or indeed in the same, session, and there would be nothing to make the authority of the repealing Parliament less than the authority of the Parliament by which the statute, intended to be immutable, was enacted. "Limited Sovereignty," in short, is in the case of a Parliamentary as of every other sovereign, a contradiction in terms. Its frequent and convenient use arises from its in reality signifying, and being by any one who uses words with any accuracy understood to signify, that some person, e.g. a king, who was at one time a real sovereign or despot, and who is in name treated as an actual sovereign, has become only a part of the power which is legally supreme or sovereign in a particular state. This, it may be added, is the true position of the king in most constitutional monarchies.
Let the reader, however, note that the impossibility of placing a limit of the exercise of sovereignty does not in any way prohibit either logically, or in matter of fact, the abdication of sovereignty. This is worth observation, because a strange dogma is sometimes put forward that a sovereign power, such as the Parliament of the United Kingdom, can never by its own act divest itself of sovereignty. This position is, however, clearly untenable. An autocrat, such as the Russian Czar, can undoubtedly abdicate; but sovereignty or the possession of supreme power in a state, whether it be in the hands of a Czar or of a Parliament, is always one and the same quality. If the Czar can abdicate, so can a Parliament. To argue or imply that because sovereignty is not limitable (which is true) it cannot be surrendered (which is palpably untrue) involves the confusion of two distinct ideas. It is like arguing that because no man can, while he lives, give up, do what he will, his freedom of volition, so no man can commit suicide. A sovereign power can divest itself of authority in two ways, and (it is submitted) in two ways only. It may simply put an end to its own existence. Parliament could extinguish itself by legally dissoving itself and leaving no means whereby a subsequent Parliament could be legally summoned. (See Bryce, American Commonwealth, i, (3rd ed.), p. 242, note i.) A step nearly approaching to this was taken by the Barebones Parliament when, in 1653, it resigned its power into the hands of Cromwell. A sovereign again may transfer sovereign authority to another person or body of persons. The Parliament of England went very near doing this when, in 1539, the Crown was empowered to legislate by proclamation; and though the fact is often overlooked, the Parliaments both of England and of Scotland did, at the time of the Union, each transfer sovereign power to a new sovereign body, namely, the Parliament of Great Britain. This Parliament, however, just because it acquired the full authority of the two legislatures by which it was constituted, became in its turn a legally supreme or sovereign legislature, authorised therefore, though contrary perhaps to the intention of its creators, to modify or
No one of the limitations alleged to be imposed by law on the absolute authority of Parliament has any real existence, or receives any countenance, either from the statute-book or from the practice of the Courts.
This doctrine of the legislative supremacy of Parliament is the very keystone of the law of the constitution. But it is, we must admit, a dogma which does not always find ready acceptance, and it is well worth while to note and examine the difficulties which impede the admission of its truth.
abrogate the Act of Union by which it was constituted. If indeed the Act of Union had left alive the Parliaments of England and of Scotland, though for one purpose only, namely, to modify when necessary the Act of Union, and had conferred upon the Parliament of Great Britain authority to pass any law whatever which did not infringe upon or repeal the Act of Union, then the Act of Union would have been a fundamental law unchangeable legally by the British Parliament: but in this case the Parliament of Great Britain would have been, not a sovereign, but a subordinate, legislature, and the ultimate sovereign body, in the technical sense of that term, would have been the two Parliaments of England and of Scotland respectively. The statesmen of these two countries saw fit to constitute a new sovereign Parliament, and every attempt to tie the hands of such a body necessarily breaks down, on the logical and practical impossibility of combining absolute legislative authority with restrictions on that authority which, if valid, would make it cease to be absolute.
The historical reason why Parliament has never succeeded in passing immutable laws, or in other words, has always retained its character of a supreme legislature, lies deep in the history of the English people and in the peculiar development of the English constitution. England has, at any rate since the Norman Conquest, been always governed by an absolute legislator. This lawgiver was originally the Crown, and the peculiarity of the process by which the English constitution has been developed lies in the fact that the legislative authority of the Crown has never been curtailed, but has been transferred from the Crown acting alone (or rather in Council) to the Crown acting first together with, and then in subordination to, the Houses of Parliament. Hence Parliament, or in technical terms the King in Parliament, has become — it would perhaps be better to say has always remained — a supreme legislature. It is well worth notice that on the one occasion when English reformers broke from the regular course of English historical development, they framed a written constitution, anticipating in many respects the constitutionalism of the United States, and placed the constitution beyond the control of the ordinary legislature. It is quite dear that, under the Instrument of Government of 1653, Cromwell intended certain fundamentals to be beyond the reach of Parliament. It may be worth observing that the constitution of 1653 placed the Executive beyond the control of the legislature. The Protector under it occupied a position which may well be compared either with that of the American President or of the German Emperor. See Harrison, Cromwell, pp. 194-203. For a view of sovereignty which, though differing to a certain extent from the view put forward in this work, is full of interest and instruction, my readers are referred to Professor Sidgwick's Elements of Politics, ch. xxxi. "Sovereignty and Order."
faculties to Par-mentary vereignty
DIFFICULTIES AS TO THE DOCTRINE OF PARLIAMENTARY SOVEREIGNTY
The reasons why many persons find it hard to accept the doctrine of Parliamentary sovereignty are twofold.
The dogma sounds like a mere application to the British constitution of Austin's theory of sovereignty, and yet intelligent students of Austin must have noticed that Austin's own conclusion as to the persons invested with sovereign power under the British constitution does not agree with the view put forward, on the authority of English lawyers, in these lectures. For while lawyers maintain that sovereignty resides in "Parliament," i.e. in the body constituted by the King, the House of Lords, and the House of Commons, Austin holds49 that the sovereign power is vested in the King, the House of Lords, and the Commons or the electors.
Every one, again, knows as a matter of common sense that, whatever lawyers may say, the sovereign power of Parliament is not unlimited, and that King, Lords, and Commons united do not possess anything like that "restricted omnipotence" — if the term may be excused — which is the utmost authority ascribable to any human institution. There are many enactments, and these laws not in themselves obviously unwise or tyrannical, which Parliament never would and (to speak plainly) never could pass. If the doctrine of Parliamentary sovereignty involves the attribution of unrestricted power to Parliament, the dogma is no better than a legal fiction, and certainly is not worth the stress here laid upon it.
Both these difficulties are real and reasonable difficulties. They are, it will be found, to a certain extent connected together, and well repay careful consideration.
As to Austin's theory of sovereignty in relation to the British constitution, sovereignty, like many of Austin's conceptions, is a generalisation drawn in the main from English law, just as the ideas
49 See Austin, Jurisprudence, i. (4th ed.), pp. 251-255. Compare Austin's language as to the sovereign body under the constitution of the United States. (Austin, Jurisprudence, i. (4th ed.), p. 268.)
of the economists of Austin's generation are (to a great extent) generalisations suggested by the circumstances of English commerce. In England we are accustomed to the existence of a supreme legislative body, i.e. a body which can make or unmake every law; and which, therefore, cannot be bound by any law. This is, from a legal point of view, the true conception of a sovereign, and the ease with which the theory of absolute sovereignty has been accepted by English jurists is due to the peculiar history of English constitutional law. So far, therefore, from its being true that the sovereignty of Parliament is a deduction from abstract theories of jurisprudence, a critic would come nearer the truth who asserted that Austin's theory of sovereignty is suggested by the position of the English Parliament, just as Austin's analysis of the term "law" is at Bottom an analysis of a typical law, namely, an English criminal statute.
It should, however, be carefully noted that the term "sovereignty," as long as it is accurately employed in the sense in which Austin sometimes50 uses it, is a merely legal conception, and means simply the power of law-making unrestricted by any legal limit. If the term "sovereignty" be thus used, the sovereign power under the English constitution is dearly "Parliament." But the word "sovereignty" is sometimes employed in a political rather than in a strictly legal sense. That body is "politically" sovereign or supreme in a state the will of which is ultimately obeyed by the citizens of the state. In this sense of the word the electors of Great Britain may be said to be, together with the Crown and the Lords, or perhaps, in strict accuracy, independently of the King and the Peers, the body in which sovereign power is vested. For, as things now stand, the will of the electorate, and certainly of the electorate in combination with the Lords and the Crown, is sure ultimately to prevail on all subjects to be determined by the British government. The matter indeed may be carried a little further, and we may assert that the arrangements of the constitution are now such as to ensure that the will of the electors shall by regular and constitutional means always in the end assert itself as the pre-50 Compare Austin, Jurisprudence, i. (4th ed.), p. 268.
Fficulty
m actual
litation
power
Parlia-
'nt.
deism
Austin's
Dry.
dominant influence in the country. But this is a political, not a legal fact. The electors can in the long run51 always enforce their will. But the Courts will take no notice of the will of the electors. The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors. The political sense of the word "sovereignty" is, it is true, fully as important as the legal sense or more so. But the two significations, though intimately connected together, are essentially different, and in some part of his work Austin has apparently confused the one sense with the other. He writes:
Adopting the language of some of the writers who have treated of the British constitution, I commonly suppose that the present parliament, or the parliament for the time being, is possessed of the sovereignty: or I commonly suppose that the King and the Lords, with the members of the Commons' house, form a tripartite body which is sovereign or supreme. But, speaking accurately, the members of the Commons' house are merely trustees for the body by which they are elected and appointed: and, consequently, the sovereignty always resides in the King and the Peers, with the electoral body
yi The working of a constitution is greatly affected by the rate at which the will of the political sovereign can make itself felt. In this matter we may compare the constitutions of the United States, of the Swiss Confederacy, and of the United Kingdom respectively. In each case the people of the country, or to speak more accurately the electorate, are politically sovereign. The action of the people of the United States in changing the Federal Constitution is impeded by many difficulties, and is practically slow; the Federal Constitution has, except after the civil war, not been materially changed during the century which has elapsed since its formation. The Articles of the Swiss Confederation admit of more easy change than the Articles of the United States Constitution, and since 1848 have undergone considerable modification. But though in one point of view the present constitution, revised in 1874, may be considered a new constitution, it does not differ fundamentally from that of 1848. As things now stand, the people of England can change any part of the law of the constitution with extreme rapidity. Theoretically there is no check on the action of Parliament whatever, and it may be conjectured that in practice any change however fundamental would be at once carried through, which was approved of by one House of Commons, and, after a dissolution of Parliament, was supported by the newly elected House. The paradoxical and inaccurate assertion, therefore, that England is more democratically governed than either the United States or Switzerland, contains a certain element of truth; the immediate wishes of a decided majority of the electorate of the United Kingdom can be more rapidly carried into legal effect than can the immediate wishes of a majority among the people either of America or of Switzerland.
of the Commons. That a trust is imposed by the party delegating, and that the party representing engages to discharge the trust, seems to be imported by the correlative expressions delegation and representation. It were absurd to suppose that the delegating empowers the representative party to defeat or abandon any of the purposes for which the latter is appointed: to suppose, for example, that the Commons empower their representatives in parliament to relinquish their share in the sovereignty to the King and the Lords.52
Austin owns that the doctrine here laid down by him is inconsistent with the language used by writers who have treated of the British constitution. It is further absolutely inconsistent with the validity of the Septennial Act. Nothing is more certain than that no English judge ever conceded, or, under the present constitution, can concede, that Parliament is in any legal sense a "trustee"53 for the electors. Of such a feigned "trust" the Courts know nothing. The plain truth is that as a matter of law Parliament is the sovereign power in the state, and that the "supposition" treated by Austin as inaccurate is the correct statement of a legal fact which forms the basis of our whole legislative and judicial system. It is, however, equally true that in a political sense the electors are the most important part of, we may even say are actually, the sovereign power, since their will is under the present constitution sure to obtain ultimate obedience. The language therefore of Austin is as correct in regard to "political" sovereignty as it is erroneous in regard to what we may term "legal" sovereignty. The electors are a part of and the predominant part of the politically sovereign power. But the legally sovereign power is assuredly, as maintained by all the best writers on the constitution, nothing but Parliament.
It may be conjectured that the error of which (from a lawyer's point of view) Austin has been guilty arises from his feeling, as every person must feel who is not the slave to mere words, that Parliament is (as already pointed out54) nothing like an omnipotent body, but that its powers are practically limited in more ways than one. And
52 Austin, Jurisprudence, i. (4th ed.), p. 253.
53 This Austin concedes, but the admission is fatal to the contention that Parliament is not in strictness a sovereign. (See Austin Jurisprudence, i. (4th ed.), pp. 252, 253.)
54 Seep. 26,ante.
Existence of actual limitations to power not inconsistent with sovereignty
External limit.
this limitation Austin expresses, not very happily, by saying that the members of the House of Commons are subject to a trust imposed upon them by the electors. This, however, leads us to our second difficulty, namely, the coexistence of parliamentary sovereignty with the fact of actual limitations on the power of Parliment.
As to the actual limitations on the sovereign power of Parliament, the actual exercise of authority by any sovereign whatever, and notably by Parliament, is bounded or controlled by two limitations. Of these the one is an external, the other is an internal limitation.
The external limit to the real power of a sovereign consists in the possibility or certainty that his subjects, or a large number of them, will disobey or resist his laws.
This limitation exists even under the most despotic monarchies. A Roman Emperor, or a French King during the middle of the eighteenth century, was (as is the Russian Czar at the present day) in strictness a "sovereign" in the legal sense of that term. He had absolute legislative authority. Any law made by him was binding, and there was no power in the empire or kingdom which could annul such law. It may also be true, — though here we are passing from the legal to the political sense of sovereignty, — that the will of an absolute monarch is in general obeyed by the bulk of his subjects. But it would be an error to suppose that the most absolute ruler who ever existed could in reality make or change every law at his pleasure. That this must be so results from considerations which were long ago pointed out by Hume. Force, he teaches, is in one sense always on the side of the governed, and government therefore in a sense always depends upon opinion. He writes:
Nothing appears more surprising to those, who consider human affairs with a philosophical eye, than the easiness with which the many are governed by the few; and the implicit submission, with which men resign their own sentiments and passions to those of their rulers. When we inquire by what means this wonder is effected, we shall find, that, as force is always on the side of the governed, the governors have nothing to support them but opinion. It is, therefore, on opinion only that government is founded; and this maxim extends to the most despotic and most military governments, as well as to the most free and most popular. The Soldan of Egypt, or the Emperor of Rome, might drive his harmless subjects, like brute beasts,
Illustrations 01 external limit on exercise of sovereign power.
against their sentiments and inclination: But he must, at least, have led his mamalukes orprxtorian bands, like men, by their opinion.55
The authority, that is to say, even of a despot, depends upon the readiness of his subjects or of some portion of his subjects to obey his behests; and this readiness to obey must always be in reality limited. This is shown by the most notorious facts of history. None of the early Caesars could at their pleasure have subverted the worship or fundamental institutions of the Roman world, and when Constantine carried through a religious revolution his success was due to the sympathy of a large part of his subjects. The Sultan could not abolish Mahommedanism. Louis the Fourteenth at the height of his power could revoke the Edict of Nantes, but he would have found it impossible to establish the supremacy of Protestantism, and for the same reason which prevented James the Second from establishing the supremacy of Roman Catholicism. The one king was in the strict sense despotic; the other was as powerful as any English monarch. But the might of each was limited by the certainty of popular disobedience or opposition. The unwillingness of subjects to obey may have reference not only to great changes, but even to small matters. The French National Assembly of 1871 was emphatically the sovereign power in France. The majority of its members were (it is said) prepared for a monarchical restoration, but they were not prepared to restore the white flag: the army which would have acquiesced in the return of the Bourbons, would not (it was anticipated) tolerate the sight of an anti-revolutionary symbol: "the chassepots would go off of themselves." Here we see the precise limit to the exercise of legal sovereignty; and what is true of the power of a despot or of the authority of a constituent assembly is specially true of the sovereignty of Parliament; it is limited on every side by the possibility of popular resistance. Parliament might legally establish an Episcopal Church in Scotland; Parliament might legally tax the Colonies; Parliament might without any breach of law change the succession to the throne or abolish the monarchy; but every one knows that in the present state of the world the British Parliament will do none of these things. In
55 Hume, Essays, i. (1875 ed.), pp. 109, no.
Internal
limit. Illus trations.
each case widespread resistance would result from legislation which, though legally valid, is in fact beyond the stretch of Parliamentary power. Nay, more than this, there are things which Parliament has done in other times, and done successfully, which a modern Parliament would not venture to repeat. Parliament would not at the present day prolong by law the duration of an existing House of Commons. Parliament would not without great hesitation deprive of their votes large classes of Parliamentary electors; and, speaking generally, Parliament would not embark on a course of reactionary legislation; persons who honestly blame Catholic Emancipation and lament the disestablishment of the Irish Church do not dream that Parliament could repeal the statutes of 1829 or of 1869. These examples from among a score are enough to show the extent to which the theoretically boundless sovereignty of Parliament is curtailed by the external limit to its exercise.
The internal limit to the exercise of sovereignty arises from the nature of the sovereign power itself. Even a despot exercises his powers in accordance with his character, which is itself moulded by the circumstances under which he lives, including under that head the moral feelings of the time and the society to which he belongs. The Sultan could not if he would change the religion of the Mahom-medan world, but if he could do so it is in the very highest degree improbable that the head of Mahommedanism should wish to overthrow the religion of Mahomet; the internal check on the exercise of the Sultan's power is at least as strong as the external limitation. People sometimes ask the idle question why the Pope does not introduce this or that reform? The true answer is that a revolutionist is not the kind of man who becomes a Pope, and that the man who becomes a Pope has no wish to be a revolutionist. Louis the Fourteenth could not in all probability have established Protestantism as the national religion of France; but to imagine Louis the Fourteenth as wishing to carry out a Protestant reformation is nothing short of imagining him to have been a being quite unlike the Grand Monarque. Here again the internal check works together with the external check, and the influence of the internal limitation is as great in the case of a Parliamentary sovereign as of any other; perhaps it is greater. Parlia-
Limits may not coincide.
ment could not prudently tax the Colonies; but it is hardly conceivable that a modern Parliament, with the history of the eighteenth century before its eyes, should wish to tax the Colonies. The combined influence both of the external and of the internal limitation on legislative sovereignty is admirably stated in Leslie Stephen's Science of Ethics, whose chapter on "Law and Custom" contains one of the best statements to be met with of the limits placed by the nature of things on the theoretical omnipotence of sovereign legislatures.
Lawyers are apt to speak as though the legislature were omnipotent, as they do not require to go beyond its decisions. It is, of course, omnipotent in the sense that it can make whatever laws it pleases, inasmuch as a law means any rule which has been made by the legislature. But from the scientific point of view, the power of the legislature is of course strictly limited. It is limited, so to speak, both from within and from without; from within, because the legislature is the product of a certain social condition, and determined by whatever determines the society; and from without, because the power of imposing laws is dependent upon the instinct of subordination, which is itself limited. If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it.56
Though sovereign power is bounded by an external and an internal limit, neither boundary is very definitely marked, nor need the two precisely coincide. A sovereign may wish to do many things which he either cannot do at all or can do only at great risk of serious resistance, and it is on many accounts worth observation that the exact point at which the external limitation begins to operate, that is, the point at which subjects will offer serious or insuperable resistance to the commands of a ruler whom they generally obey, is never fixed with precision. It would be rash of the Imperial Parliament to abolish the Scotch law Courts, and assimilate the law of Scotland to that of England. But no one can feel sure at what point Scotch resistance to such a change would become serious. Before the War of Secession the sovereign power of the United States could not have abolished slavery without provoking a civil war; after the War of Secession
56 Leslie Stephen, Science of Ethics, p. 143.
the sovereign power abolished slavery and conferred the electoral franchise upon the Blacks without exciting actual resistance.
In reference to the relation between the external and the internal limit to sovereignty, representative government presents a noteworthy peculiarity. It is this. The aim and effect of such government is to produce a coincidence, or at any rate diminish the divergence, between the external and the internal limitations on the exercise of sovereign power. Frederick the Great may have wished to introduce, and may in fact have introduced, changes or reforms opposed to the wishes of his subjects. Louis Napoleon certainly began a policy of free trade which would not be tolerated by an assembly which truly represented French opinion. In these instances neither monarch reached the external limit to his sovereign power, but it might very well have happened that he might have reached it, and have thereby provoked serious resistance on the part of his subjects. There might, in short, have arisen a divergence between the internal and the external check. The existence of such a divergence, or (in other words) of a difference between the permanent wishes of the sovereign, or rather of the King who then constituted a predominant part of the sovereign power, and the permanent wishes of the nation, is traceable in England throughout the whole period beginning with the accession of James the First and ending with the Revolution of 1688. The remedy for this divergence was found in a transference of power from the Crown to the Houses of Parliament; and in placing on the throne rulers who from their position were induced to make their wishes coincide with the will of the nation expressed through the House of Commons; the difference between the will of the sovereign and the will of the nation was terminated by the foundation of a system of real representative government. Where a Parliament truly represents the people, the divergence between the external and the internal limit to the exercise of sovereign power can hardly arise, or if it arises, must soon disappear. Speaking roughly, the permanent wishes of the representative portion of Parliament can hardly in the long run differ from the wishes of the English people, or at any rate of the electors; that which the majority of the House of Commons command, the majority of the English people usually desire. To prevent the divergence between the wishes of the sovereign and the wishes of subjects is in short the
effect, and the only certain effect, of bona fide representative government. For our present purpose there is no need to determine whether this result be good or bad. An enlightened sovereign has more than once carried out reforms in advance of the wishes of his subjects. This is true both of sovereign kings and, though more rarely, of sovereign Parliaments. But the sovereign who has done this, whether King or Parliament, does not in reality represent his subjects.57 All that it is here necessary to insist upon is that the essential property of representative government is to produce coincidence between the wishes of the sovereign and the wishes of the subjects; to make, in short, the two limitations on the exercise of sovereignty absolutely coincident. This, which is true in its measure of all real representative government, applies with special truth to the English House of Commons. Burke writes:
The House of Commons was supposed originally to be no part of the standing government of this country. It was considered as a control, issuing immediately from the people, and speedily to be resolved into the mass from whence it arose. In this respect it was in the higher part of government what juries are in the lower. The capacity of a magistrate being transitory, and that of a citizen permanent, the latter capacity it was hoped would of course preponderate in all discussions, not only between the people and the standing authority of the Crown, but between the people and the fleeting authority of the House of Commons itself. It was hoped that, being of a middle nature between subject and government, they would feel with a more tender and a nearer interest everything that concerned the people, than the other remoter and more permanent parts of legislature.
Whatever alterations time and the necessary accommodation of business may have introduced, this character can never be sustained, unless the House of Commons shall be made to bear some stamp of the actual disposition of the people at large. It would (among public misfortunes) be an evil more natural and tolerable, that the House of Commons should be infected with every epidemical phrensy of the people, as this would indicate some consanguinity, some sympathy of nature with their constituents, than that they should in all cases be wholly untouched by the opinions and feelings of the people out of doors. By this want of sympathy they would cease to be a House of Commons.58
57 Compare Law and Opinion in England, pp. 4, 5.
58 Burke, Works, ii. (1808 ed.), pp. 287, 288. See further in reference to Parliamentary sovereignty, App. Note III., Distinction between a Parliamentary Executive and a Non-Parliamentary Executive.
Chapter II
PARLIAMENT AND NON-SOVEREIGN LAW-MAKING BODIES
I
:n my last chapter I dwelt upon the nature of Parliamentary sovereignty; my object in this chapter is to illustrate the characteristics af such sovereignty by comparing the essential features of a sovereign Parliament like that of England with the traits which mark non-sovereign law-making bodies.
CHARACTERISTICS OF SOVEREIGN PARLIAMENT
The characteristics of Parliamentary sovereignty may be deduced from the term itself. But these traits are apt to escape the attention of Englishmen, who have been so accustomed to live under the rule of a supreme legislature, that they almost, without knowing it, assume that all legislative bodies are supreme, and hardly therefore keep clear before their minds the properties of a supreme as contrasted with a non-sovereign law-making body. In this matter foreign observers are, as is natural, clearer-sighted than Englishmen. De Lolme, Gneist, and Tocqueville seize at once upon the sovereignty of Parliament as a salient feature of the English constitution, and recognise the far-reaching effects of this marked peculiarity in our institutions.
Tocqueville writes:
In England, the Parliament has an acknowledged right to modify the constitution; as, therefore, the constitution may undergo perpetual changes,
No law Parliament cannot change.
No distinction between constitutional and ordinary laws.
it does not in reality exist; the Parliament is at once a legislative and a constituent assembly.J
His expressions are wanting in accuracy, and might provoke some criticism, but the description of the English Parliament as at once "a legislative and a constituent assembly" supplies a convenient formula for summing up the fact that Parliament can change any law whatever. Being a "legislative" assembly it can make ordinary laws, being a "constituent" assembly it can make laws which shift the basis of the constitution. The results which ensue from this fact may be brought under three heads.
First, there is no law which Parliament cannot change, or (to put the same thing somewhat differently), fundamental or so-called constitutional laws are under our constitution changed by the same body and in the same manner as other laws, namely, by Parliament acting in its ordinary legislative character.
A Bill for reforming the House of Commons, a Bill for abolishing the House of Lords, a Bill to give London a municipality, a Bill to make valid marriages celebrated by a pretended clergyman, who is found after their celebration not to be in orders, are each equally within the competence of Parliament, they each may be passed in substantially the same manner, they none of them when passed will be, legally speaking, a whit more sacred or immutable than the others, for they each will be neither more nor less than an Act of Parliament, which can be repealed as it has been passed by Parliament, and cannot be annulled by any other power.
Secondly, there is under the English constitution no marked or clear distinction between laws which are not fundamental or constitutional and laws which are fundamental or constitutional. The very language therefore, expressing the difference between a "legislative" assembly which can change ordinary laws and a "constituent" assembly which can change not only ordinary but also constitutional and fundamental laws, has to be borrowed from the political phraseology of foreign countries.
i Tocqueville, i. (translation), p. 96, CEuvres Completes, i. pp. 166, 167.
This absence of any distinction between constitutional and ordinary laws has a dose connection with the non-existence in England of any written or enacted constitutional statute or charter. Tocqueville indeed, in common with other writers, apparently holds the unwritten character of the British constitution to be of its essence: "L'Angleterre n'ayant point de constitution ecrite, qui peut dire qu'on change sa constitution?"2 But here Tocqueville falls into an error, characteristic both of his nation and of the weaker side of his own rare genius. He has treated the form of the constitution as the cause of its substantial qualities, and has inverted the relation of cause and effect. The constitution, he seems to have thought, was changeable because it was not reduced to a written or statutory form. It is far nearer the truth to assert that the constitution has never been reduced to a written or statutory form because each and every part of it is changeable at the will of Parliament. When a country is governed under a constitution which is intended either to be unchangeable or at any rate to be changeable only with special difficulty, the constitution, which is nothing else than the laws which are intended to have a character of permanence or immutability, is necessarily expressed in writing, or, to use English phraseology, is enacted as a statute. Where, on the other hand, every law can be legally changed with equal ease or with equal difficulty, there arises no absolute need for reducing the constitution to a written form, or even for looking upon a definite set of laws as specially making up the constitution. One main reason then why constitutional laws have not in England been recognised under that name, and in many cases have not been reduced to the form of a statutory enactment, is that one law, whatever its importance, can be passed and changed by exactly the same method as every other law. But it is a mistake to think that the whole law of the English constitution might not be reduced to writing and be enacted in the form of a constitutional code. The Belgian constitution indeed comes very near to a written reproduction of the English constitution, and the constitution of England might easily be turned into an Act of Parliament without suffering any material
2 Tocqueville, CEuvres Completes, i. p. 312.
PARLIAMENT AND NON-SOVEREIGN LAW-MAKING BODIES
No person entitled to pronounce Xct of Parliament void.
Flexibility of the constitution.
transformation of character, provided only that the English Parliament retained — what the Belgian Parliament, by the way, does not possess — the unrestricted power of repealing or amending the constitutional code.
Thirdly, there does not exist in any part of the British Empire any person or body of persons, executive, legislative or judicial, which can pronounce void any enactment passed by the British Parliament on the ground of such enactment being opposed to the constitution, or on any ground whatever, except, of course, its being repealed by Parliament.
These then are the three traits of Parliamentary sovereignty as it exists in England: first, the power of the legislature to alter any law, fundamental or otherwise, as freely and in the same manner as other laws; secondly, the absence of any legal distinction between constitutional and other laws; thirdly, the non-existence of any judicial or other authority having the right to nullify an Act of Parliament, or to treat it as void or unconstitutional.
These traits are all exemplifications of the quality which my friend Mr. Bryce has happily denominated the "flexibility"3 of the British constitution. Every part of it can be expanded, curtailed, amended, or abolished, with equal ease. It is the most flexible polity in existence, and is therefore utterly different in character from the "rigid" constitutions (to use another expression of Mr. Bryce's) the whole or some part of which can be changed only by some extra-ordinary method of legislation.
Characteristics of non-sovereign lawmaking bodies.
CHARACTERISTICS OF NON-SOVEREIGN LAW-MAKING BODIES
From the attributes of a sovereign legislature it is possible to infer negatively what are the characteristics all (or some) of which are the marks of a non-sovereign law-making body, and which therefore may be called the marks or notes of legislative subordination.
3 See Bryce, Studies in History and Jurisprudence, i. Essay III., Flexible and Rigid Constitutions.
Relation between Parliamentary sovereignty and an unwritten constitution.
leaning of ;rm "law-laking
ody.
These signs by which you may recognise the subordination of a law-making body are, first, the existence of laws affecting its constitution which such body must obey and cannot change; hence, secondly, the formation of a marked distinction between ordinary laws and fundamental laws; and lastly, the existence of some person or persons, judicial or otherwise, having authority to pronounce upon the validity or constitutionality of laws passed by such law-making body.
Wherever any of these marks of subordination exist with regard to a given law-making body, they prove that it is not a sovereign legislature.
Observe the use of the words 'law-making body."
This term is here employed as an expression which may include under one head4 both municipal bodies, such as railway companies,
4 This inclusion has been made the subject of criticism.
The objections taken to it are apparently threefold.
First, there is, it is said, a certain absurdity in bringing into one class things so different in importance and in dignity as, for example, the Belgian Parliament and an English School-board. This objection rests on a misconception. It would be ridiculous to overlook the profound differences between a powerful legislature and a petty corporation. But there is nothing ridiculous in calling attention to the points which they have in common. The sole matter for consideration is whether the alleged similarity be real. No doubt when features of likeness between things which differ from one another both in appearance and in dignity are pointed out, the immediate result is to produce a sense of amusement, but the apparent absurdity is no proof that the likeness is unreal or undeserving of notice. A man differs from a rat. But this does not make it the less true or the less worth noting that they are both vertebrate animals.
Secondly, the powers of an English corporation, it is urged, can in general only be exercised reasonably, and any exercise of them is invalid which is not reasonable, and this is not true of the laws made, e.g., by the Parliament of a British colony.
The objection admits of more than one reply. It is not universally true that the bye-laws made by a corporation are invalid unless they are reasonable. But let it be assumed for the sake of argument that this restriction is always, as it certainly is often, imposed on the making of bye-laws. This concession does not involve the consequence that bye-laws do not partake of the nature of laws. All that follows from it is a conclusion which nobody questions, namely, that the powers of a non-sovereign law-making body may be restricted in very different degrees.
Thirdly, the bye-laws of a corporation are, it is urged, not laws, because they affect only certain persons, e.g. in the case of a railway company the passengers on the railway, and do not, like the laws of a colonial legislature, affect all persons coming under the jurisdiction of the legislature; or to put the same objection in another shape, the bye-laws of a railway company apply, it is urged, only to persons using the railway, in addition to the general law
school-boards, town councils, and the like, which possess a limited power of making laws, but are not ordinarily called legislatures, and bodies such as the Parliaments of the British Colonies, of Belgium, or of France, which are ordinarily called "legislatures," but are not in reality sovereign bodies.
The reason for grouping together under one name such very different kinds of "law-making" bodies is, that by far the best way of clearing up our ideas as to the nature of assemblies which, to use the foreign formula,5 are "legislative" without being "constituent," and which therefore are not sovereign legislatures, is to analyse the characteristics of societies, such as English railway companies, which possess a certain legislative authority, though the authority is dearly delegated and subject to the obvious control of a superior legislature.
It will conduce to clearness of thought if we divide non-sovereign law-making bodies into the two great classes of obviously subordinate bodies such as corporations, the Council of India, etc., and such legislatures of independent countries as are legislative without being constituent, i.e. are non-sovereign legislative bodies.
The consideration of the position of the non-sovereign legislatures which exist under the complicated form of constitution known as a federal government is best reserved for a separate chapter.6
of the land by which such persons are also bound, whereas the laws, e.g., of the New Zealand Parliament constitute the general law of the colony.
The objection is plausible, but does not really show that the similarity insisted upon between the position of a corporation and, e.g., a colonial legislature is unreal. In either case the laws made, whether by the corporation or by the legislature, apply only to a limited class of persons, and are liable to be overridden by the laws of a superior legislature. Even in the case of a colony so nearly independent as New Zealand, the inhabitants are bound first by the statutes of the Imperial Parliament, and in addition thereto by the Acts of the New Zealand Parliament. The very rules which are bye-laws when made by a corporation would admittedly be laws if made directly by Parliament. Their character cannot be changed by the fact that they are made by the permission of Parliament through a subordinate legislative body. The Council of a borough, which for the present purpose is a better example of my meaning than a railway company, passes in accordance with the powers conferred upon it by Parliament a bye-law prohibiting processions with music on Sunday. The same prohibition if contained in an Act of Parliament would be admittedly a law. It is none the less a law because made by a body which is permitted by Parliament to legislate.
5 See p. 37, ante.
6 See Chap. III., post.
Subordinate Law-making Bodies
Corporations An English railway company is as good an example as can be found of a subordinate law-making body. Such a company is in the strictest sense a law-making society, for it can under the powers of its Act make laws (called bye-laws) for the regulation (inter alia) of travelling upon the railway,7 and can impose a penalty for the breach of such laws, which can be enforced by proceedings in the Courts. The rules therefore or bye-laws made by a company within the powers of its Act are "laws" in the strictest sense of the term, as any person will discover to his own cost who, when he travels by rail from Oxford to Paddington, deliberately violates a bye-law duly made by the Great Western Railway Company.
But though an English railway company is dearly a law-making body, it is clearly a non-sovereign law-making body. Its legislative power bears all the marks of subordination.
First, the company is bound to obey laws and (amongst others) the Act of Parliament creating the company, which it cannot change. This is obvious, and need not be insisted upon.
Secondly, there is the most marked distinction between the Act constituting the company, not a line of which can be changed by the company, and the bye-laws which, within the powers of its Act, the company can both make and change. Here we have on a very small scale the exact difference between constitutional laws which cannot, and ordinary laws which can, be changed by a subordinate legislature, i.e. by the company. The company, if we may apply to it the terms of constitutional law, is not a constituent, but is within certain limits a legislative assembly; and these limits are fixed by the constitution of the company.
Thirdly, the Courts have the right to pronounce, and indeed are bound to pronounce, on the validity of the company's bye-laws; that is, upon the validity, or to use political terms, on the constitutionality of the laws made by the company as a law-making body. Note par-
7 See especially the Companies Clauses Consolidation Act, 1845 (8 & 9 Viet. c. 20), secs. 103, 108 — 111. This Act is always embodied in the special Act constituting the company. Its enactments therefore form part of the constitution of a railway company.
ticularly that it is not the function of any Court or judge to declare void or directly annul a bye-law made by a railway company. The function of the Court is simply, upon any particular case coming before it which depends upon a bye-law made by a railway company, to decide for the purposes of that particular case whether the bye-law is or is not within the powers conferred by Act of Parliament upon the company; that is to say, whether the bye-law is or is not valid, and to give judgment in the particular case according to the Court's view of the validity of the bye-law. It is worth while to examine with some care the mode in which English judges deal with the inquiry whether a particular bye-law is or is not within the powers given to the company by Act of Parliament, for to understand this point goes a good way towards understanding the exact way in which English or American Courts determine the constitutionality of Acts passed by a non-sovereign legislature.
The London and North-Western Railway Company made a bye-law by which
any person travelling without the special permission of some duly authorised servant of the company in a carriage or by a train of a superior class to that for which his ticket was issued is hereby subject to a penalty not exceeding forty shillings, and shall, in addition, be liable to pay his fare according to the class of carriage in which he is travelling from the station where the train originally started, unless he shows that he had no intention to defraud.
X, with the intention of defrauding the company, travelled in a first-class carriage instead of a second-class carriage for which his ticket was issued, and having been charged under the bye-law was convicted in the penalty of ten shillings, and costs. On appeal by X, the Court determined that the bye-law was illegal and void as being repugnant to 8 Viet. c. 20, s. 103, or in effect to the terms of the Act incorporating the company,8 and that therefore X could not be convicted of the offence charged against him.
A bye-law of the South-Eastern Railway Company required that a passenger should deliver up his ticket to a servant of the company when required to do so, and that any person travelling without a
8 Dyson v. L. &N.-W. Ry. Co., /Q. B. D. 32.
ticket or failing or refusing to deliver up his ticket should be required to pay the fare from the station whence the train originally started to the end of his journey. X had a railway ticket enabling him to travel on the South-Eastern Railway. Having to change trains and pass out of the company's station he was asked to show his ticket, and refused to do so, but without any fraudulent intention. He was summoned for a breach of the bye-law, and convicted in the amount of the fare from the station whence the train started. The Queen's Bench Division held the conviction wrong on the ground that the bye-law was for several reasons invalid, as not being authorised by the Act under which it purported to be made.9
Now in these instances, and in other cases where the Courts pronounce upon the validity of a bye-law made by a body (e.g. a railway company or a school-board) having powers to make bye-laws enforceable by penalties, it is natural to say that the Courts pronounce the bye-laws valid or invalid. But this is not strictly the case. What the judges determine is not that a particular bye-law is invalid, for it is not the function of the Courts to repeal or annul the bye-laws made by railway companies, but that in a proceeding to recover a penalty from X for the breach of a bye-law judgment must be given on the basis of the particular bye-law being beyond the powers of the company, and therefore invalid. It may indeed be thought that the distinction between annulling a bye-law and determining a case upon the assumption of such bye-law being void is a distinction without a difference. But this is not so. The distinction is not without importance even when dealing with the question whether X, who is alleged to have broken a bye-law made by a railway company, is liable to pay a fine; it is of first-rate importance when the question before the Courts is one involving considerations of constitutional law, as for example when the Privy Council is called upon, as constantly happens, to determine cases which involve the validity or constitutionality of laws made by the Dominion Parliament or by one of the provincial Parliaments of Canada. The significance, however, of the
9 Saunders v. S.-E. Ry. Co., 5 Q. B. D. 456. Compare Bentham v. Hoyle, 3 Q. B. D. 289, and L. B. & S. C. Ry. Co. v. Watson, 3 C. P. D. 429; 4 C. P. D. (C. A.), 118.
Council of
British
India.
distinction will become more apparent as we proceed with our subject; the matter of consequence now is to notice the nature of the distinction, and to realise that when a Court in deciding a given case considers whether a bye-law is, or is not, valid, the Court does a different thing from affirming or annulling the bye-law itself.
Legislative Council of British India w Laws are made for British India by a Legislative Council having very wide powers of legislation. This Council, or, as it is technically expressed, the "Governor-General in Council," can pass laws as important as any Acts passed by the British Parliament. But the authority of the Council in the way of law-making is as completely subordinate to, and as much dependent upon, Acts of Parliament as is the power of the London and North-Western Railway Company to make bye-laws.
The legislative powers of the Governor-General and his Council arise from definite Parliamentary enactments.ai These Acts constitute what may be termed as regards the Legislative Council the constitution of India. Now observe, that under these Acts the Indian Council is in the strictest sense a non-sovereign legislative body, and this independently of the fact that the laws or regulations made by the Governor-General in Council can be annulled or disallowed by the Crown; and note that the position of the Council exhibits all the marks or notes of legislative subordination.
First, the Council is bound by a large number of rules which cannot be changed by the Indian legislative body itself, and which can be changed by the superior power of the Imperial Parliament.
Secondly, the Acts themselves from which the Council derives its authority cannot be changed by the Council, and hence in regard to the Indian legislative body form a set of constitutional or fundamental laws, which, since they cannot be changed by the Council, stand in marked contrast with the laws or regulations which the Council is
10 See Ilbert, Government of India, pp. 199-216, Digest of Statutory Enactments, ss. 60-69.
11 The Government of India Act, 1833 (3 & 4 Will. IV. c. 85), ss. 45-48, 51, 52; The Indian Councils Act, 1861 (24 & 25 Viet. c. 67), ss. 16-25; The Government of India Act, 1865 (28 & 29 Viet. c. 17).
The Indian Council is in some instances under Acts of Parliament, e.g. 24 & 25 Viet. c. 67; 28 & 29 Viet. c. 17; 32 & 33 Viet. c. 98, empowered to legislate for persons outside India.
empowered to make. These fundamental rules contain, it must be added, a number of specific restrictions on the subjects with regard to which the Council may legislate. Thus the Governor-General in Council has no power of making laws which may affect the authority of Parliament, or any part of the unwritten laws or constitution of the United Kingdom, whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom, or the sovereignty or dominion of the Crown over any part of India.12
Thirdly, the Courts in India (or in any other part of the British Empire) may, when the occasion arises, pronounce upon the validity or constitutionality of laws made by the Indian Council.
The Courts treat Acts passed by the Indian Council precisely in the same way in which the King's Bench Division treats the bye-laws of a railway company. No judge in India or elsewhere ever issues a decree which declares invalid, annuls, or makes void a law or regulation made by the Governor-General in Council. But when any particular case comes before the Courts, whether civil or criminal, in which the rights or liabilities of any party are affected by the legislation of the Indian Council, the Court may have to consider and determine with a view to the particular case whether such legislation was or was not within the legal powers of the Council, which is of course the same thing as adjudicating as regards the particular case in hand upon the validity or constitutionality of the legislation in question. Thus suppose that X is prosecuted for the breach of a law or regulation passed by the Council, and suppose the fact to be established past a doubt that X has broken this law. The Court before which the proceedings take place, which must obviously in the ordinary course of things be an Indian Court, may be called upon to consider whether the regulation which X has broken is within the powers given to the Indian Council by the Acts of Parliament making up the Indian constitution. If the law is within such powers, or, in other words, is constitutional, the Court will by giving judgment against X give full effect to the law, just as effect is given to the bye-law of a railway company by the tribunal before whom an offender is sued pronouncing judgment
12 See 24 & 25 Viet. c. 67. s. 22.
against him for the penalty. If, on the other hand, the Indian Court deem that the regulation is ultra vires or unconstitutional, they will refuse to give effect to it, and treat it as void by giving judgment for the defendant on the basis of the regulation being invalid or having no legal existence. On this point the Empress v. Burah13 is most instructive. The details of the case are immaterial; the noticeable thing is that the High Court held a particular legislative enactment of the Governor-General in Council to be in excess of the authority given to him by the Imperial Parliament and therefore invalid, and on this ground entertained an appeal from two prisoners which, if the enactment had been valid, the Court would admittedly have been incompetent to entertain. The Privy Council, it is true, held on appeal14 that the particular enactment was within the legal powers of the Council and therefore valid, but the duty of the High Court of Calcutta to consider whether the legislation of the Governor-General was or was not constitutional, was not questioned by the Privy Council. To look at the same thing from another point of view, the Courts in India treat the legislation of the Governor-General in Council in a way utterly different from that in which any English Court can treat the Acts of the Imperial Parliament. An Indian tribunal may be called upon to say that an Act passed by the Governor-General need not be obeyed because it is unconstitutional or void. No British Court can give judgment, or ever does give judgment, that an Act of Parliament need not be obeyed because it is unconstitutional. Here, in short, we have the essential difference between subordinate and sovereign legislative power.ls
English Colonies with Representative and Responsible Governments Many English colonies, and notably the Dominion of New Zealand (to which country our attention had best for the sake of clearness be specially directed), possess representative assemblies which occupy a somewhat peculiar position.
13 3 Ind. L. R. (Calcutta Series), p. 63.
14 Reg. v. Burah, 3 App. Cas. 889.
15 See especially Empress v. Burah and Book Singh, 3 Ind. L. R. (Calcutta Series, 1878), 63, 86-89, f°r the judgment of Markby J.
English colonies.
Powers exercised by colonial Parliaments
The Parliament of the Dominion of New Zealand exercises throughout that country16 many of the ordinary powers of a sovereign assembly such as the Parliament of the United Kingdom. It makes and repeals laws, it puts Ministries in power and dismisses them from office, it controls the general policy of the New Zealand Government, and generally makes its will felt in the transaction of affairs after the manner of the Parliament at Westminister. An ordinary observer would, if he looked merely at the everyday proceedings of the New Zealand legislature, find no reason to pronounce it a whit less powerful within its sphere than the Parliament of the United Kingdom. No doubt the assent of the Governor is needed in order to turn colonial Bills into laws: and further investigation would show our inquirer that for the validity of any colonial Act there is required, in addition to the assent of the Governor, the sanction, either express or implied, of the Crown. But these assents are constantly given almost as a matter of course, and may be compared (though not with absolute correctness) to the Crown's so-called "veto" or right of refusing assent to Bills which have passed through the Houses of Parliament.
Yet for all this, when the matter is further looked into, the Dominion Parliament (together with other colonial legislatures) will be found to be a non-sovereign legislative body, and bears decisive marks of legislative subordination. The action of the Dominion Parliament is restrained by laws which it cannot change, and are changeable only by the Imperial Parliament; and further, New Zealand Acts, even when assented to by the Crown, are liable to be treated by the Courts in New Zealand and elsewhere throughout the British dominions as void or unconstitutional, on the ground of their coming
16 No colonial legislature has as such any authority beyond the territorial limits of the colony. This forms a considerable restriction on the powers of a colonial Parliament, and a great part of the imperial legislation for the colonies arises from the Act of a colonial legislature having, unless given extended operation by some imperial statute, no effect beyond the limits of the colony.
In various instances, however, imperial Acts have given extended power of legislation to colonial legislatures. Sometimes the imperial Act authorises a colonial legislature to make laws on a specified subject with extra-territorial operation [e.g. the Merchant Shipping Act, 1894, ss. 478, 735, 736]. Sometimes an Act of the colonial legislature is given the force of law throughout British dominions. (Compare Jenkyns, British Rule and Jurisdiction beyond the Seas, p. 70.)
Colonial Laws Validity Act, 1865.
into conflict with laws of the Imperial Parliament, which the colonial legislature has no authority to touch.17
That this is so becomes apparent the moment we realise the exact relation between colonial and Imperial laws. The matter is worth some little examination, both for its own sake and for the sake of the light it throws on the sovereignty of Parliament.
The charter of colonial legislative independence is the Colonial Laws Validity Act, 1865.18
This statute seems (oddly enough) to have passed through Parliament without discussion; but it permanently defines and extends the authority of colonial legislatures, and its main provisions are of such importance as to deserve verbal citation:
Sec. 2. Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.
3. No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order, or regulation as aforesaid.
4. No colonial law, passed with the concurrence of or assented to by the Governor of any colony, or to be hereafter so passed or assented to, shall be or be deemed to have been void or inoperative, by reason only of any instructions with reference to such law or the subject thereof which may have been given to such Governor by or on behalf of Her Majesty, by any
17 As also upon the ground of their being in strictness ultra vires, i.e. beyond the powers conferred upon the Dominion legislature. This is the ground why a colonial Act is in general void, in so far as it is intended to operate beyond the territory of the colony. "In 1879, the Supreme Court of New Zealand held that the Foreign Offenders Apprehension Act, 1863, of that colony, which authorises the deportation of persons charged with indictable misdemeanours in other colonies, was beyond the competence of the New Zealand legislature, for it involved detention on the high seas, which the legislature could not authorise, as it could legislate only for peace, order, and good government within the limits of the colony." Jenkyns, British Rule and Jurisdiction beyond the Seas, p. 70, citing In re Gleich. Ollivier Bell and Fitzgerald's N. Z. Rep., S. C. p. 39.
18 28 & 29 Viet. c. 63. See on this enactment, Jenkyns, British Rule and Jurisdiction beyond the Seas, pp. 71, 72.
instrument other than the letters-patent or instrument authorising such Governor to concur in passing or to assent to laws for the peace, order, and good government of such colony, even though such instructions may be referred to in such letters-patent or last-mentioned instrument.
5. Every colonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein; and every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters-patent, order in council, or colonial law for the time being in force in the said colony.
The importance, it is true, of the Colonial Laws Validity Act, 1865, may well be either exaggerated or quite possibly underrated. The statute is in one sense less important than it at first sight appears, because the principles laid down therein were, before its passing, more or less assumed, though with some hesitation, to be good law and to govern the validity of colonial legislation. From another point of view the Act is of the highest importance, because it determines, and gives legislative authority to, principles which had never before been accurately defined, and were liable to be treated as open to doubt.19 In any case the terms of the enactment make it now possible to state with precision the limits which bound the legislative authority of a colonial Parliament.
The Dominion Parliament may make laws opposed to the English common law, and such laws (on receiving the required assents) are perfectly valid.
Thus a New Zealand Act which changed the common law rules as to the descent of property, which gave the Governor authority to forbid public meetings, or which abolished trial by jury, might be inexpedient or unjust, but would be a perfectly valid law, and would
19 Up to 1865 the prevalent opinion in England seems to have been that any law seriously opposed to the principles of English law was repugnant to the law of England, and colonial laws were from time to time disallowed solely on the ground of such supposed repugnacy and invalidity.
Acts of colonial
legislature maybe pronounced void by Courts.
be recognised as such by every tribunal throughout the British Empire.20
The Dominion Parliament, on the other hand, cannot make any laws inconsistent with any Act of Parliament, or with any part of an Act of Parliament, intended by the Imperial Parliament to apply to New Zealand.
Suppose, for example, that the Imperial Parliament were to pass an Act providing a special mode of trial in New Zealand for particular classes of offences committed there, no enactment of the colonial Parliament, which provided that such offences should be tried otherwise than as directed by the imperial statute, would be of any legal effect. So again, no New Zealand Act would be valid that legalised the slave trade in the face of the Slave Trade Act, 1824, 5 George IV. c. 113, which prohibits slave trading throughout the British dominions; nor would Acts passed by the Dominion Parliament be valid which repealed, or invalidated, several provisions of the Merchant Shipping Act 1894 meant to apply to the colonies, or which deprived a discharge under the English Bankruptcy Act of the effect which, in virtue of the imperial statute, it has as a release from debts contracted in any part whatever of the British dominions. No colonial legislature, in short, can override imperial legislation which is intended to apply to the colonies. Whether the intention be expressed in so many words, or be apparent only from the general scope and nature of the enactment, is immaterial. Once establish that an imperial law is intended to apply to a given colony, and the consequence follows that any colonial enactment which contravenes that law is invalid and unconstitutional.21
Hence the Courts in the Dominion of New Zealand, as also in the rest of the British Empire, may be called upon to adjudicate upon the validity or constitutionality of any Act of the Dominion Parliament.
20 Assuming, of course, that such Acts are not inconsistent with any imperial statute applying to the colony. (Compare Robinson v. Reynolds, Macassey's N. Z. Rep. p. 562.)
21 See Tarring, Law Relating to the Colonies (2nd ed.), pp. 232-247, for a list of imperial statutes which relate to the colonies in general, and which therefore no colonial legislation can, except under powers given by some Act of the Imperial Parliament, contravene.
For if a New Zealand law really contradicts the provisions of an Act of Parliament extending to New Zealand, no Court throughout the British dominions could legally, it is clear, give effect to the enactment of the Dominion Parliament. This is an inevitable result of the legislative sovereignty exercised by the Imperial Parliament. In the supposed case the Dominion Parliament commands the judges to act in a particular manner, and the Imperial Parliament commands them to act in another manner. Of these two commands the order of the Imperial Parliament is the one which must be obeyed. This is the very meaning of Parliamentary sovereignty. Whenever, therefore, it is alleged that any enactment of the Dominion Parliament is repugnant to the provisions of any Act of the Imperial Parliament extending to the colony, the tribunal before which the objection is raised must pronounce upon the validity or constitutionality of the colonial law.22
The constitution of New Zealand is created by and depends upon the New Zealand Constitution Act, 1852, 15 & 16 Viet. c. 72, and the Acts amending the same. One might therefore expect that the Parliament of the Dominion of New Zealand, which may conveniently be called the New Zealand Parliament, would exhibit that "mark of subordination" which consists in the inability of a legislative body to change fundamental or constitutional laws, or (what is the same thing) in the dearly drawn distinction between ordinary laws which the legislature can change and laws of the constitution which it cannot change, at any rate when acting in its ordinary legislative character. But this anticipation is hardly borne out by an examination into the Acts creating the constitution of New Zealand. A comparison of the Colonial Laws Validity Act, 1865, s. 5, with the New Zealand Constitution Act, as subsequently amended, shows that the New Zealand Parliament can change the articles of the constitution. This power, derived from imperial statutes, is of course in no way inconsistent with the legal sovereignty of the Imperial Parliament.23 One
22 See Powell v. Apollo Candle Co., loApp. Cas. 282; Hodge v. The Queen, 9 App. Cas. 117.
23 The constitutions of some self-governing colonies, e.g. Victoria, certainly show that a Victorian law altering the constitution must in some instances be passed in a manner different from the mode in which other laws are passed. This is a faint recognition of the difference between fundamental and other laws. Compare 18 & 19 Viet. c. 55, Sched. I. s. 60;
Reason of this.
may fairly therefore assert that the New Zealand Parliament, in common with many other colonial legislative assemblies, is, though a "subordinate," at once a legislative and a constituent assembly. It is a "subordinate" assembly24 because its powers are limited by the legislation of the Imperial Parliament; it is a constituent assembly since it can change the articles of the constitution of New Zealand. The authority of the New Zealand Parliament to change the articles of the constitution of New Zealand is from several points of view worth notice.
We have here a decisive proof that there is no necessary connection between the written character and the immutability of a constitution. The New Zealand constitution is to be found in a written document; it is a statutory enactment. Yet the articles of this constitutional statute can be changed by the Parliament which it creates, and changed in the same manner as any other law. This may seem an obvious matter enough, but writers of eminence so often use language which implies or suggests that the character of a law is changed by its being expressed in the form of a statute as to make it worth while noting that a statutory constitution need not be in any sense an immutable
but there appears to have been considerable laxity in regard to observing these constitutional provisions. Seejenks, Government of Victoria, pp. 247-249.
24 It is usually the case that a self-governing colony, such as New Zealand, has the power in one form or another to change the colonial constitution. The extent, however, of this power, and the mode in which it can be exercised, depends upon the terms of the Act of Parliament, or of the charter creating or amending the colonial constitution, and differs in different cases. Thus the Parliament of New Zealand can change almost all, though not quite all, of the articles of the constitution, and can change them in the same manner in which it can change an ordinary colonial law. The Parliament of the Canadian Dominion cannot change the constitution of the Dominion. The Parliament of the Australian Commonwealth, on the other hand, occupies a peculiar position. It can by virtue of the terms of the constitution itself alter, by way of ordinary legislation, certain of the articles of the constitution (see, e.g., Constitution of Commonwealth, ss. 65, 67), whilst it cannot, by way of ordinary legislation, change other articles of the constitution. All the articles, however, of the constitution which cannot be changed by ordinary Parliamentary legislation can — subject, of course, to the sanction of the Crown — be altered or abrogated by the Houses of the Parliament, and a vote of the people of the Commonwealth, as provided by the Constitution of the Commonwealth, s. 128. The point to be specially noted is, that the Imperial Parliament, as a rule, enables a self-governing colony to change the colonial constitution. The exception in the case of Canada is more apparent than real; the Imperial Parliament would no doubt give effect to any change clearly desired by the inhabitants of the Canadian Dominion.
Colonial Parliament may be a "constituent" as well as legislative body.
constitution. The readiness again with which the English Parliament has conceded constituent powers to colonial legislatures shows how little hold is exercised over Englishmen by that distinction between fundamental and non-fundamental laws which runs through almost all the constitutions not only of the Continent but also of America. The explanation appears to be that in England we have long been accustomed to consider Parliament as capable of changing one kind of law with as much ease as another. Hence when English statesmen gave Parliamentary government to the colonies, they almost as a matter of course bestowed upon colonial legislatures authority to deal with every law, whether constitutional or not, which affected the colony, subject of course to the proviso, rather implied than expressed, that this power should not be used in a way inconsistent with the supremacy of the British Parliament. The colonial legislatures, in short, are within their own sphere copies of the Imperial Parliament. They are within their own sphere sovereign bodies; but their freedom of action is controlled by their subordination to the Parliament of the United Kingdom.
The question may naturally be asked how the large amount of colonial liberty conceded to countries like New Zealand has been legally reconciled with Imperial sovereignty?
The inquiry lies a little outside our subject, but is not really foreign to it, and well deserves an answer. Nor is the reply hard to find if we keep in mind the true nature of the difficulty which needs explanation.
The problem is not to determine what are the means by which the English Government keeps the colonies in subjection, or maintains the political sovereignty of the United Kingdom. This is a matter of politics with which this book has no concern.
The question to be answered is how (assuming the law to be obeyed throughout the whole of the British Empire) colonial legislative freedom is made compatible with the legislative sovereignty of Parliament? How are the Imperial Parliament and the colonial legislatures prevented from encroaching on each other's spheres?
No one will think this inquiry needless who remarks that in confederations, such as the United States, or the Canadian Dominion,
Conflicts averted by (i.) supremacy of British Parliament;
(n.) right of veto.
the Courts are constantly occupied in determining the boundaries which divide the legislative authority of the Central Government from that of the State Legislatures.
The assertion may sound paradoxical, but is nevertheless strictly true, that the acknowledged legal supremacy of Parliament is one main cause of the wide power of legislation allowed to colonial assemblies.
The constitutions of the colonies depend directly or indirectly upon imperial statutes. No lawyer questions that Parliament could legally abolish any colonial constitution, or that Parliament can at any moment legislate for the colonies and repeal or override any colonial law whatever. Parliament moreover does from time to time pass Acts affecting the colonies, and the colonial,25 no less than the English, Courts completely admit the principle that a statute of the Imperial Parliament binds any part of the British dominions to which the statute is meant to apply. But when once this is admitted, it becomes obvious that there is little necessity for defining or limiting the sphere of colonial legislation. If an Act of the New Zealand Parliament contravenes an imperial statute, it is for legal purposes void; and if an Act of the New Zealand Parliament, though not infringing upon any statute, is so opposed to the interests of the Empire that it ought not to be passed, the British Parliament may render the Act of no effect by means of an imperial statute.
This course, however, is rarely, if ever, necessary; for Parliament exerts authority over colonial legislation by in effect regulating the use of the Crown's "veto" in regard to colonial Acts. This is a matter which itself needs a little explanation.
The Crown's right to refuse assent to bills which have passed through the Houses of Parliament is practically obsolete.26 The power
25 See Todd, Parliamentary Government, pp. 168-192.
26 This statement has been questioned — see Hearn (2nd ed.), p. 63 — but is, it is submitted, correct. The so-called "veto" has never been employed as regards any public bill since the accession of the House of Hanover. When George the Third wished to stop the passing of Fox's India Bill, he abstained from using the Crown's right to dissent from proposed legislation, but availed himself of his influence in the House of Lords to procure the rejection of the measure. No stronger proof could be given that the right of veto was more than a century ago already obsolete. But the statement that a power is practically obsolete
ow con-cts be-/een im-jrial and lonial <;islation e oided.
of the Crown to negative or veto the bills of colonial legislatures stands on a different footing. It is virtually, though not in name, the right of the Imperial Parliament to limit colonial legislative independence, and is frequently exercised.
This check on colonial legislation is exerted in two different manners.27
How right of "veto" exercised.
does not involve the assertion that it could under no conceivable circumstances be revived. On the whole subject of the veto, and the different senses in which the expression is used, the reader should consult an excellent article by Professor Orelli of Zurich, to be found under the word "Veto" in Encyclopedia Britannica (gth ed.), xxiv. p. 208.
The history of the Royal Veto curiously illustrates the advantage which sometimes arises from keeping alive in theory prerogatives which may seem to be practically obsolete. The Crown's legislative "veto" has certainly long been unused in England, but it has turned out a convenient method of regulating the relation between the United Kingdom and the Colonies. If the right of the King to refuse his assent to a bill which had passed the two Houses of Parliament had been abolished by statute, it would have been difficult, if not impossible, for the King to veto, or disallow, Acts passed by the Parliament of a self-governing colony, e.g. New Zealand. It would, in other words, have been hard to create a parliamentary veto of colonial legislation. Yet the existence of such a veto, which ought to be, and is, sparingly used, helps to hold together the federation known as the British Empire.
27 The mode in which the power to veto colonial legislation is exercised may be best understood from the following extract from the Rules and Regulations printed some years ago by the Colonial Office:
RULES AND REGULATIONS CHAPTER III
§1. Legislative Councils and Assemblies
48. In every colony the Governor has authority either to give or to withhold his assent to laws passed by the other branches or members of the Legislature, and until that assent is given no such law is valid or binding.
49. Laws are in some cases passed with suspending clauses; that is, although assented to by the Governor they do not come into operation or take effect in the colony until they shall have been specially confirmed by Her Majesty, and in other cases Parliament has for the same purpose empowered the Governor to reserve laws for the Crown's assent, instead of himself assenting or refusing his assent to them.
50. Every law which has received the Governor's assent (unless it contains a suspending clause) comes into operation immediately, or at the time specified in the law itself. But the Crown retains power to disallow the law; and if such power be exercised . . . the law ceases to have operation from the date at which such disallowance is published in the colony.
51. In colonies having representative assemblies the disallowance of any law, or the Crown's assent to a reserved bill, is signified by order in council. The confirmation of an Act passed with a suspending clause, is not signified by order in council unless this mode of confirmation is required by the terms of the suspending clause itself, or by some special provision in the constitution of the colony.
The Governor of a colony, say New Zealand, may directly refuse his assent to a bill passed by both Houses of the New Zealand Parliament. In this case the bill is finally lost, just as would be a bill which had been rejected by the colonial council, or as would be a bill passed
52. In Crown colonies the allowance or disallowance of any law is generally signified by despatch.
53. In some cases a period is limited, after the expiration of which local enactments, though not actually disallowed, cease to have the authority of law in the colony, unless before the lapse of that time Her Majesty's confirmation of them shall have been signified there; but the general rule is otherwise.
54. In colonies possessing representative assemblies, laws purport to be made by the Queen or by the Governor on Her Majesty's behalf or sometimes by the Governor alone, omitting any express reference to Her Majesty, with the advice and consent of the council and assembly. They are almost invariably designated as Acts. In colonies not having such assemblies, laws are designated as ordinances, and purport to be made by the Governor, with the advice and consent of the Legislative Council (or in British Guiana of the Court of Policy).
The "veto," it will be perceived, may be exercised by one of two essentially different methods: first, by the refusal of the Governor's assent; secondly, by the exercise of the royal power to disallow laws even when assented to by the Governor. As further, the Governor may reserve bills for the royal consideration, and as colonial laws are sometimes passed containing a clause which suspends their operation until the signification of the royal assent, the check on colonial legislation may be exercised in four different forms —
(1) The refusal of the Governor's assent to a bill.
(2) Reservation of a bill for the consideration of the Crown, and the subsequent lapse of
the bill owing to the royal assent being refused, or not being given within the statutory time.
(3) The insertion in a bill of a clause preventing it from coming into operation until the
signification of the royal assent thereto, and the want of such royal assent.
(4) The disallowance by the Crown of a law passed by the Colonial Parliament with the
assent of the Governor.
The reader should note, however, the essential difference between the three first modes and the fourth mode of checking colonial legislation. Under the three first a proposal law passed by the colonial legislature never comes into operation in the colony. Under the fourth a colonial law which has come into operation in the colony is annulled or disallowed by the Crown from the date of such disallowance. In the case of more than one colony, such disallowance must, under the Constitution Act or letters-patent, be signified within two years. See the British North American Act, 1867, sec. 56. Compare the Australian Constitu-tiqns Act, 1842 (5 & 6 Viet. c. 76), secs. 32, 33; the Australian Constitutions Act, 1850, 13 & 14 Viet. c. 59; and the Victoria Constitution Act, 1855 (18 & 19 Viet. c. 55), sec. 3.
Under the Australian Commonwealth Act the King may disallow an Act assented to by the Governor-General within one year after the Governor-General's assent. (Commonwealth of Australia Constitution Act, sec. 59.)
by the English Houses of Parliament if the Crown were to exert the obsolete prerogative of refusing the royal assent. The Governor, again, may, without refusing his assent, reserve the bill for the consideration of the Crown. In such case the bill does not come into force until it has received the royal assent, which is in effect the assent of the English Ministry, and therefore indirectly of the Imperial Parliament.
The Governor, on the other hand, may, as representing the Crown, give his assent to a New Zealand bill. The bill thereupon comes into force throughout New Zealand. But such a bill, though for a time a valid Act, is not finally made law even in New Zealand, since the Crown may, after the Governor's assent has been given, disallow the colonial Act. The case is thus put by Mr. Todd:
Although a governor as representing the Crown is empowered to give the royal assent to bills, this act is not final and conclusive; the Crown itself having, in point of fact, a second veto. All statutes assented to by the governor of a colony go into force immediately, unless they contain a clause suspending their operation until the issue of a proclamation of approval by the queen in council, or some other specific provision to the contrary; but the governor is required to transmit a copy thereof to the secretary of state for the colonies; and the queen in council may, within two years after the receipt of the same, disallow any such Act."28
The result therefore of this state of things is, that colonial legislation is subject to a real veto on the part of the imperial government, and no bill which the English Ministry think ought for the sake of imperial interests to be negatived can, though passed by the New Zealand or other colonial legislature, come finally into force. The home government is certain to negative or disallow any colonial law which, either in letter or in spirit, is repugnant to Parliamentary legislation, and a large number of Acts can be given which on one ground or another have been either not assented to or disallowed by the Crown. In 1868 the Crown refused assent to a Canadian Act reducing the salary of the Governor-General.29 In 1872 the Crown refused assent to a
28 Todd, Parliamentary Government in the British Colonies, p. 137.
29 Todd, Parliamentary Government in the British Colonies, p. 144.
Canadian Copyright Act because certain parts of it conflicted with imperial legislation. In 1873 a Canadian Act was disallowed as being contrary to the express terms of the British North America Act, 1868; and on similar grounds in 1878 a Canadian Shipping Act was disallowed.30 So again the Crown has at times in effect passed a veto upon Australian Acts for checking Chinese immigration.31 And Acts passed by a colonial legislature, allowing divorce on the ground solely of the husband's adultery or (before the passing of the Deceased Wife's Sister's Marriage Act, 1907, 7 Edward VII. c. 47) legalising marriage with a deceased wife's sister or with a deceased husband's brother, have (though not consistently with the general tenor of our colonial policy) been sometimes disallowed by the Crown, that is, in effect by the home government.
The general answer therefore to the inquiry, how colonial liberty of legislation is made legally reconcilable with imperial sovereignty, is that the complete recognition of the supremacy of Parliament obviates the necessity for carefully limiting the authority of colonial legislatures, and that the home government, who in effect represent Parliament, retain by the use of the Crown's veto the power of preventing the occurrence of conflicts between colonial and imperial laws. To this it must be added that imperial treaties legally bind the colonies, and that the "treaty-making power," to use an American expression, resides in the Crown, and is therefore exercised by the home government in accordance with the wishes of the Houses of Parliament, or more strictly of the House of Commons; whilst the authority to make treaties is, except where expressly allowed by Act of Parliament, not possessed by any colonial government.32
It should, however, be observed that the legislature of a self-governing colony is free to determine whether or not to pass laws necessary for giving effect to a treaty entered into between the impe-
30 Ibid., pp. 147, 150.
31 As regards the Australian colonies such legislation has, I am informed, been heretofore checked in the following manner. Immigration bills have been reserved for the consideration of the Crown, and the assent of the Crown not having been given, have never come into force.
32 See Todd, Parliamentary Government in the British Colonies, pp. 192-218.
rial government and a foreign power; and further, that there might in practice be great difficulty in enforcing within the limits of a colony the terms of a treaty, e.g. as to the extradition of criminals, to which colonial sentiment was opposed. But this does not affect the principle of law that a colony is bound by treaties made by the imperial government, and does not, unless under some special provision of an Act of Parliament, possess authority to make treaties with any foreign power.
Any one who wishes justly to appreciate the nature and the extent of the control exerted by Great Britain over colonial legislation should keep two points carefully in mind. The tendency, in the first place, of the imperial government is as a matter of policy to interfere less and less with the action of the colonies, whether in the way of lawmaking33 or otherwise.34 Colonial Acts, in the second place, even when finally assented to by the Crown, are, as already pointed out, invalid if repugnant to an Act of Parliament applying to the colony. The imperial policy therefore of non-intervention in the local affairs of British dependencies combines with the supreme legislative authority of the Imperial Parliament to render encroachments by the Parliament of the United Kingdom on the sphere of colonial legislation, or
33 Thus the New Zealand Deceased Husband's Brother Act, 1900, No. 72, legalising marriage with a deceased husband's brother, the Immigration Restriction Act, 1901, passed by the Commonwealth Parliament, the Immigrants' Restriction Act, 1907, No. 15, passed by the Transvaal Legislature, have all received the sanction of the Crown. The last enactment illustrates the immensely wide legislative authority which the home government will under some circumstances concede to a colonial Parliament. The Secretary of State for India (Mr. Morley) "regrets that he cannot agree that the Act in question can be regarded as similar to the legislation already sanctioned in other self-governing colonies. . . . Section 2 (4) of the Transvaal Act introduces a principle to which no parallel can be found in previous legislation. This clause . . . will debar from entry into the Transvaal British subjects who would be free to enter into any other colony by proving themselves capable of passing the educational tests laid down for immigrants. It will, for instance, permanently exclude from the Transvaal members of learned professions and graduates of European Universities of Asiatic origin who may in future wish to enter the colony." See Parl. Paper [Cd. 3887], Correspondence relating to Legislation affecting Asiatics in the Transvaal, pp. 52, 53, and compare pp. 31, 32. Seep. ]iv,ante.
34 Except in the case of political treaties, such as the Hague Conventions, the imperial government does not nowadays bind the colonies by treaties, but secures the insertion in treaties of clauses allowing colonies to adhere to a treaty if they desire to do so.
Non-sovereign legislatures ofinde-pendent nations.
France.
by colonial Parliaments on the domain of imperial legislation, of comparatively rare occurrence.35
Foreign Non-sovereign Legislatures
We perceive without difficulty that the Parliaments of even those colonies, such as the Dominion of Canada, or the Australian Commonwealth, which are most nearly independent states, are not in reality sovereign legislatures. This is easily seen, because the sovereign Parliament of the United Kingdom, which legislates for the whole British Empire, is visible in the background, and because the colonies, however large their practical freedom of action, do not act as independent powers in relation to foreign states; the Parliament of a dependency cannot itself be a sovereign body. It is harder for Englishmen to realise that the legislative assembly of an independent nation may not be a sovereign assembly. Our political habits of thought indeed are so based upon the assumption of Parliamentary omnipotence, that the position of a Parliament which represents an independent nation and yet is not itself a sovereign power is apt to appear to us exceptional or anomalous. Yet whoever examines the constitutions of civilised countries will find that the legislative assemblies of great nations are, or have been, in many cases legislative without being constituent bodies. To determine in any given case whether a foreign legislature be a sovereign power or not we must examine the constitution of the state to which it belongs, and ascertain whether the legislature whose position is in question bears any of the marks of subordination. Such an investigation will in many or in most instances show that an apparently sovereign assembly is in reality a non-sovereign law-making body.
France has within the last hundred and thirty years made trial of at least twelve constitutions.36
35 The right of appeal to the Privy Council from the decision of the Courts of the colonies is another link strengthening the connection between the colonies and England.
There have been, however, of recent years a good number of conflicts between imperial and colonial legislation as to matters affecting merchant shipping.
36 Demombynes, Les Constitutions Europeennes, ii. (2nd ed.), pp. 1-5. See Appendix, Note I., Rigidity of French Constitutions.
ilicyof
iperial
ivern-
ent not to
terfere
th action
colonies.
Constitutional monarchy of Louis Philippe.
These various forms of government have, amidst all their differences, possessed in general one common feature. They have most of them been based upon the recognition of an essential distinction between constitutional or "fundamental" laws intended to be either immutable or changeable only with great difficulty, and "ordinary" laws which could be changed by the ordinary legislature in the common course of legislation. Hence under the constitutions which France has from time to time adopted the common Parliament or legislative body has not been a sovereign legislature.
The constitutional monarchy of Louis Philippe, in outward appearance at least, was modelled on the constitutional monarchy of England. In the Charter not a word could be found which expressly limits the legislative authority possessed by the Crown and the two Chambers, and to an Englishman it would seem certainly arguable that under the Orleans dynasty the Parliament was possessed of sovereignty. This, however, was not the view accepted among French lawyers. Tocqueville writes:
The immutability of the Constitution of France is a necessary consequence of the laws of that country. ... As the King, the Peers, and the Deputies all derive their authority from the Constitution, these three powers united cannot alter a law by virtue of which alone they govern. Out of the pale of the Constitution they are nothing; where, then, could they take their stand to effect a change in its provisions? The alternative is clear: either their efforts are powerless against the Charter, which continues to exist in spite of them, in which case they only reign in the name of the Charter; or they succeed in changing the Charter, and then the law by which they existed being annulled, they themselves cease to exist. By destroying the Charter, they destroy themselves. This is much more evident in the laws of 1830 than in those of 1814. In 1814 the royal prerogative took its stand above and beyond the Constitution; but in 1830 it was avowedly created by, and dependent on, the Constitution. A part, therefore, of the French Constitution is immutable, because it is united to the destiny of a family; and the body of the Constitution is equally immutable, because there appear to be no legal means of changing it. These remarks are not applicable to England. That country having no written Constitution, who can assert when its Constitution is changed?37
37 A. de Tocqueville, Democracy in America, ii. (translation), App. pp. 322, 323. CEuvres Completes, i. p. 311.
Republic of 1848.
Present Republic.
Tocqueville's reasoning38 may not carry conviction to an Englishman, but the weakness of his argument is of itself strong evidence of the influence of the hold on French opinion of the doctrine which it is intended to support, namely, that Parliamentary sovereignty was not a recognised part of French constitutionalism. The dogma which is so naturally assented to by Englishmen contradicts that idea of the essential difference between constitutional and other laws which appears to have a firm hold on most foreign statesmen and legislators.
The Republic of 1848 expressly recognised this distinction; no single article of the constitution proclaimed on 4th November 1848 could be changed in the same way as an ordinary law. The legislative assembly sat for three years. In the last year of its existence, and then only, it could by a majority of three-fourths, and not otherwise, convoke a constituent body with authority to modify the constitution. This constituent and sovereign assembly differed in numbers, and otherwise, from the ordinary non-sovereign legislature.
The National Assembly of the French Republic exerts at least as much direct authority as the English Houses of Parliament. The French Chamber of Deputies exercises at least as much influence on the appointment of Ministers, and controls the action of the government, at least as strictly as does our House of Commons. The President, moreover, does not possess even a theoretical right of veto. For all this, however, the French Parliament is not a sovereign assembly, but is bound by the laws of the constitution in a way in which no law binds our Parliament. The articles of the constitution, or "fundamental laws," stand in a totally different position from the ordinary law of the land. Under article 8 of the constitution, no one of these fundamental enactments can be legally changed otherwise than subject to the following provisions:
8. Les Chambres auront le droit, par deliberations separees, prises dans chacune a la majorite absolue des voix, soit spontanement, soit sur la demande du President de la
38 His view is certainly paradoxical. (See Duguit, Manuel de droit Constitutionnel Francais, s. 149, p. 1090.) As a matter of fact one provision of the Charter, namely, art. 23, regulating the appointment of Peers, was changed by the ordinary process of legislation. See Law of agth December 1831, Helie, Les Constitutions de la France, p. 1006.
Republique, de declarer qu'il y a lieu de reviser les lois constitutionnelles. Apres que chacune des deux Chambres aura pris cette resolution, elles se reuniront en Assemblee nationalepourproceder a la revision. — Les deliberations portant revision des lois constitutionnelles, en tout ou en partie, devront etre prises a la majorite absolue des membres composant I'Assemblee nationale.39
Supreme legislative power is therefore under the Republic vested not in the ordinary Parliament of two Chambers, but in a "national assembly," or congress, composed of the Chamber of Deputies and the Senate sitting together.
The various constitutions, in short, of France, which are in this respect fair types of continental polities,40 exhibit, as compared with the expansiveness or "flexibility" of English institutions, that characteristic which may be conveniently described as "rigidity."41
39 Duguit et Monnier, Les Constitutions de la France depuis 1789, pp. 320, 321. A striking example of the difference between English and French constitutionalism is to be found in the division of opinion which exists between French writers of authority on the answer to the inquiry whether the French Chambers, when sitting together, have constitutionally the right to change the constitution. To an Englishman the question seems hardly to admit of discussion, for Art. 8 of the constitutional laws enacts in so many words that these laws may be revised, in the manner therein set forth, by the Chambers when sitting together as a National Assembly. Many French constitutionalists therefore lay down, as would any English lawyer, that the Assembly is a constituent as well as a legislative body, and is endowed with the right to change the constitution (Duguit, Manuel, s. 151; Moreau, Precis elementaire de droit constitutionnel (Paris, 1892), p. 149). But some eminent authorities maintain that this view is erroneous, and that in spite of the words of the constitution the ultimate right of constitutional amendment must be exercised directly by the French people, and that therefore any alteration in the constitutional laws by the Assembly lacks, at any rate, moral validity unless it is ratified by the direct vote of the electors. (See, on the one side, Duguit, Manuel, s. 151; Bard et Robiquet, La Constitution francaise de 1875 (2nd ed.), pp. 374-390, and on the other side, Esmein, Droit Constitutionnel (4th ed.), p. 907; Borgeaud, Etablissement et Rivision des Constitutions, pp. 303-307.)
40 No constitution better merits study in this as in other respects than the constitution of Belgium. Though formed after the English model, it rejects or omits the principle of Parliamentary sovereignty. The ordinary Parliament cannot change anything in the constitution; it is a legislative, not a constituent body; it can declare that there is reason for changing a particular constitutional provision, and having done so is ipso facto dissolved (apres cette declaration les deux chambres sont dissoutes deplein droit). The new Parliament thereupon elected has a right to change the constitutional article which has been declared subject to change (Constitution deLa Belgique, Arts. 131, 71).
41 See Appendix, Note I., Rigidity of French Constitutions.
Flexible constitutions.
Rigid constitutions.
And here it is worth while, with a view to understanding the constitution of our own country, to make perfectly dear to ourselves the distinction already referred to between a "flexible" and a "rigid" constitution.
A "flexible" constitution is one under which every law of every description can legally be changed with the same case and in the same manner by one and the same body. The "flexibility" of our constitution consists in the right of the Crown and the two Houses to modify or repeal any law whatever; they can alter the succession to the Crown or repeal the Acts of Union in the same manner in which they can pass an Act enabling a company to make a new railway from Oxford to London. With us, laws therefore are called constitutional, because they refer to subjects supposed to affect the fundamental institutions of the state, and not because they are legally more sacred or difficult to change than other laws. And as a matter of fact, the meaning of the word "constitutional" is in England so vague that the term "a constitutional law or enactment" is rarely applied to any English statute as giving a definite description of its character.
A "rigid" constitution is one under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner as ordinary laws. The "rigidity" of the constitution, say of Belgium or of France, consists in the absence of any right on the part of the Belgian or French Parliament, when acting in its ordinary capacity, to modify or repeal certain definite laws termed constitutional or fundamental. Under a rigid constitution the term "constitutional" as applied to a law has a perfectly definite sense. It means that a particular enactment belongs to the articles of the constitution, and cannot be legally changed with the same ease and in the same manner as ordinary laws. The articles of the constitution will no doubt generally, though by no means invariably, be found to include all the most important and fundamental laws of the state. But it certainly cannot be asserted that where a constitution is rigid all its articles refer to matters of supreme importance. The rule that the French Parliament must meet at Versailles was at one time one of the constitutional laws of the French Republic. Such an enactment, how-
itinction ween (ible and id con-utions.
ever practically important, would never in virtue of its own character have been termed constitutional; it was constitutional simply because it was included in the articles of the constitution.42
The contrast between the flexibility of the English and the rigidity of almost every foreign constitution suggests two interesting inquiries.
First, does the rigidity of a constitution secure its permanence and invest the fundamental institutions of the state with practical immutability?
To this inquiry historical experience gives an indecisive answer.
In some instances the fact that certain laws or institutions of a state have been marked off as placed beyond the sphere of political controversy, has, apparently, prevented that process of gradual innovation which in England has, within not much more than sixty years, transformed our polity. The constitution of Belgium stood for more than half a century without undergoing, in form at least, any material change whatever. The constitution of the United States has lasted for more than a hundred years, but has not undergone anything like the amount of change which has been experienced by the constitution of England since the death of George the Third.43 But if the inflexibility of constitutional laws has in certain instances checked the gradual and unconscious process of innovation by which the foundations of a commonwealth are undermined, the rigidity of constitutional forms has in other cases provoked revolution. The twelve unchangeable
42 The terms "flexible" and "rigid" (originally suggested by my friend Mr. Bryce) are, it should be remarked, used throughout this work without any connotation either of praise or of blame. The flexibility and expansiveness of the English constitution, or the rigidity and immutability of, e.g., the constitution of the United States, may each be qualities which according to the judgment of different critics deserve either admiration or censure. With such judgments this treatise has no concern. My whole aim is to make clear to my readers the exact difference between a flexible and a rigid constitution. It is not my object to pronounce any opinion on the question whether the flexibility or rigidity of a given polity be a merit or a defect.
43 No doubt the constitution of the United States has in reality, though not in form, changed a good deal since the beginning of last century; but the change has been effected far less by formally enacted constitutional amendments than by the growth of customs or institutions which have modified the working without altering the articles of the constitution.
constitutions of France have each lasted on an average for less than ten years, and have frequently perished by violence. Louis Philippe's monarchy was destroyed within seven years of the time when Tocqueville pointed out that no power existed legally capable of altering the articles of the Charter. In one notorious instance at least — and other examples of the same phenomenon might be produced from the annals of revolutionary France — the immutability of the constitution was the ground or excuse for its violent subversion. The best plea for the Coup d'etat of 1851 was, that while the French people wished for the re-election of the President, the article of the constitution requiring a majority of three-fourths of the legislative assembly in order to alter the law which made the President's reelection impossible, thwarted the will of the sovereign people. Had the Republican Assembly been a sovereign Parliament, Louis Napoleon would have lacked the plea, which seemed to justify, as well as some of the motives which tempted him to commit, the crime of the and of December.
Nor ought the perils in which France was involved by the immutability with which the statesmen of 1848 invested the constitution to be looked upon as exceptional; they arose from a defect which is inherent in every rigid constitution. The endeavour to create laws which cannot be changed is an attempt to hamper the exercise of sovereign power; it therefore tends to bring the letter of the law into conflict with the will of the really supreme power in the state. The majority of French electors were under the constitution the true sovereign of France; but the rule which prevented the legal re-election of the President in effect brought the law of the land into conflict with the will of the majority of the electors, and produced, therefore, as a rigid constitution has a natural tendency to produce, an opposition between the letter of the law and the wishes of the sovereign. If the inflexibility of French constitutions has provoked revolution, the flexibility of English institutions has, once at least, saved them from violent overthrow. To a student, who at this distance of time calmly studies the history of the first Reform Bill, it is apparent, that in 1832 the supreme legislative authority of Parliament enabled the nation to carry through a political revolution under the guise of a legal reform.
ther ity of titu-se-
- per-ence?
The rigidity, in short, of a constitution tends to check gradual innovation; but, just because it impedes change, may, under unfavourable circumstances, occasion or provoke revolution.
Secondly, what are the safeguards which under a rigid constitution can be taken against unconstitutional legislation?
The general answer to our inquiry (which of course can have no application to a country like England, ruled by a sovereign Parliament) is that two methods may be, and have been, adopted by the makers of constitutions, with a view to rendering unconstitutional legislation, either impossible, or inoperative.
Reliance may be placed upon the force of public opinion and upon the ingenious balancing of political powers for restraining the legislature from passing unconstitutional enactments. This system opposes unconstitutional legislation by means of moral sanctions, which resolve themselves into the influence of public sentiment.
Authority, again, may be given to some person or body of persons, and preferably to the Courts, to adjudicate upon the constitutionality of legislative acts, and treat them as void if they are inconsistent with the letter or the spirit of the constitution. This system attempts not so much to prevent unconstitutional legislation as to render it harmless through the intervention of the tribunals, and rests at bottom on the authority of the judges.
This general account of the two methods by which it may be attempted to secure the rigidity of a constitution is hardly intelligible without further illustration. Its meaning may be best understood by a comparison between the different policies in regard to the legislature pursued by two different classes of constitutionalists.
French constitution-makers and their continental followers have, as we have seen, always attached vital importance to the distinction between fundamental and other laws, and therefore have constantly created legislative assemblies which possessed "legislative" without possessing "constituent" powers. French statesmen have therefore been forced to devise means for keeping the ordinary legislature within its appropriate sphere. Their mode of procedure has been marked by a certain uniformity; they have declared on the face of the constitution the exact limits imposed upon the authority of the legis-
lature; they have laid down as articles of the constitution whole bodies of maxims intended to guide and control the course of legislation; they have provided for the creation, by special methods and under special conditions, of a constituent body which alone should be entitled to revise the constitution. They have, in short, directed their attention to restraining the ordinary legislature from attempting any inroad upon the fundamental laws of the state; but they have in general trusted to public sentiment,44 or at any rate to political considerations, for inducing the legislature to respect the restraints imposed on its authority, and have usually omitted to provide machinery for annulling unconstitutional enactments, or for rendering them of no effect.
These traits of French constitutionalism are specially noticeable in the three earliest of French political experiments. The Monarchical constitution of 1791, the Democratic constitution of 1793, the Directorial constitution of 1795 exhibit, under all their diversities, two features in common.45 They each, on the one hand, confine the power of the legislature within very narrow limits indeed; under the Directory, for instance, the legislative body could not itself change any one of the 377 articles of the constitution, and the provisions for creating a constituent assembly were so framed that not the very least alteration in any of these articles could have been carried out within a period of less than nine years.46 None of these constitutions, on the other
44 "Aucun des pouvoirs institues par la constitution n'a le droit de la changer dans son ensemble ni dans ses parties, sauf les reformes qui pourront y etre faites par la voie de la revision, conformement aux dispositions du titre VII. ci-dessus.
"L'Assemblee rationale constituante en remet le depot a la fidelite du Corps legislatif, du Roi et des juges, a la vigilance des peres de famille, aux epouses et aux meres, a 1'affection des jeunes citoyens, au courage de tous les Frangais." — Constitution de 1791, Tit. vii. Art. 8; Duguit et Monnier, Les Constitutions de la France depuis 1789, p. 34.
These are the terms in which the National Assembly entrusts the Constitution of 1791 to the guardianship of the nation. It is just possible, though not likely, that the reference to the judges is intended to contain a hint that the Courts should annul or treat as void unconstitutional laws. Under the Constitution of the Year VIII, the senate had authority to annul unconstitutional laws. But this was rather a veto on what in England we should call Bills than a power to make void laws duly enacted. See Constitution of Year VIII., Tit. ii. Arts. 2.6, 28, Helie, Les Constitutions de la France, p. 579.
45 See Appendix, Note I, Rigidity of French Constitutions.
46 See Constitution of 1795, Tit. xiii. Art. 338, Helie, Les Constitutions de la France, p. 463.
French Revolutionary constitutions.
i tare ;afe-•ds
nstun-:ti tu-il legis-n?
mards ded nti-il con-ion-
hand, contain a hint as to the mode in which a law is to be treated which is alleged to violate the constitution. Their framers indeed hardly seem to have recognised the fact that enactments of the legislature might, without being in so many words opposed to the constitution, yet be of dubious constitutionality, and that some means would be needed for determining whether a given law was or was not in opposition to the principles of the constitution.
These characteristics of the revolutionary constitutions have been repeated in the works of later French constitutionalists. Under the present French Republic there exist a certain number of laws (not it is true a very large number), which the Parliament cannot change; and what is perhaps of more consequence, the so-called Congress47 could at any time increase the number of fundamental laws, and thereby greatly decrease the authority of future Parliaments. The constitution, however, contains no article providing against the possibility of an ordinary Parliament carrying through legislation greatly in excess of its constitutional powers. Any one in fact who bears in mind the respect paid in France from the time of the Revolution onwards to the legislation of de facto governments and the traditions of the French judicature, will assume with confidence that an enactment passed through the Chambers, promulgated by the President, and published in the Bulletin des Lois, will be held valid by every tribunal throughout the Republic.
This curious result therefore ensues. The restrictions placed on the action of the legislature under the French constitution are not in reality laws, since they are not rules which in the last resort will be enforced by the Courts. Their true character is that of maxims of political morality, which derive whatever strength they possess from being formally inscribed in the constitution and from the resulting support of public opinion. What is true of the constitution of France applies with more or less force to other politics which have been formed under the influence of French ideas. The Belgian constitution, for example, restricts the action of the Parliament no less than does
47 The term is used by French writers, but does not appear in the Lois Constitutionnelles, and one would rather gather that the proper title for a so-called Congress is L'Assemblee Nationale.
the Republican constitution of France. But it is at least doubtful whether Belgian constitutionalists have provided any means whatever for invalidating laws which diminish or do away with the rights (e.g. the right of freedom of speech) "guaranteed" to Belgian citizens. The jurists of Belgium maintain, in theory at least, that an Act of Parliament opposed to any article of the constitution ought to be treated by the Courts as void. But during the whole period of Belgian independence, no tribunal, it is said, has ever pronounced judgment upon the constitutionality of an Act of Parliament. This shows, it may be said, that the Parliament has respected the constitution, and certainly affords some evidence that, under favourable circumstances, formal declarations of rights may, from their influence on popular feeling, possess greater weight than is generally attributed to them in England; but it also suggests the notion that in Belgium, as in France, the restrictions on Parliamentary authority are supported mainly by moral or political sentiment, and are at bottom rather constitutional understandings than laws.
To an English critic, indeed, the attitude of continental and especially of revolutionary statesmen towards the ordinary legislature bears an air of paradox. They seem to be almost equally afraid of leaving the authority of the ordinary legislature unfettered, and of taking the steps by which the legislature may be prevented from breaking through the bonds imposed upon its power. The explanation of this apparent inconsistency is to be found in two sentiments which have influenced French constitution-makers from the very outbreak of the Revolution — an over-estimate of the effect to be produced by general declarations of rights, and a settled jealousy of any intervention by the judges in the sphere of politics.48 We shall see, in a later chapter, that the public law of France is still radically influenced by the belief, even now almost universal among Frenchmen, that the law Courts must not be allowed to interfere in any way whatever with matters of state, or indeed with anything affecting the machinery of government.49
48 A. de Tocqueville, CEuvres Completes, i. pp. 167, 168.
49 See Chap. XII.
K3& ubfican
ititu-
thear-5 of
mental rtitu-
;s"?
The authors of the American constitution have, for reasons that will appear in my next chapter, been even more anxious than French statesmen to limit the authority of every legislative body throughout the Republic. They have further shared the faith of continental politicians in the value possessed by general declarations of rights. But they have, unlike French constitution-makers, directed their attention, not so much to preventing Congress and other legislatures from making laws in excess of their powers, as to the invention of means by which the effect of unconstitutional laws may be nullified; and this result they have achieved by making it the duty of every judge throughout the Union to treat as void any enactment which violates the constitution, and thus have given to the restrictions contained in the constitution on the legislative authority either of Congress or the State legislatures the character of real laws, that is, of rules enforced by the Courts. This system, which makes the judges the guardians of the constitution, provides the only adequate safeguard which has hitherto been invented against unconstitutional legislation.
Subject.
Federalism best understood by studying constitution of United States.
Chapter III
PARLIAMENTARY SOVEREIGNTY AND FEDERALISM
My present aim is to illustrate the nature of Parliamentary sovereignty as it exists in England, by a comparison with the system of government known as Federalism as it exists in several parts of the civilised world, and especially in the United States of America.l
There are indeed to be found at the present time three other noteworthy examples of federal government — the Swiss Confederation, the Dominion of Canada, and the German Empire.2 But while from a study of the institutions of each of these states one may draw illustrations which throw light on our subject, it will be best to keep our attention throughout this chapter fixed mainly on the institutions of the great American Republic. And this for two reasons. The Union, in the first place, presents the most completely developed type of federalism. All the features which mark that scheme of government, and above all the control of the legislature by the Courts, are there exhibited in their most salient and perfect form; the Swiss Confederation3, moreover, and the Dominion of Canada, are more or less
1 On the whole subject of American Federalism the reader should consult Mr. Bryce's American Commonwealth, and with a view to matters treated of in this chapter should read with special care vol. i. parti.
2 To these we must now (1908) add the Commonwealth of Australia. (See Appendix, Note IX., Australian Federalism), [and see further the South Africa Act, 1909, 9 Ed. VII. c. 9],
3 Swiss federalism deserves an amount of attention which it has only of recent years begun to receive. The essential feature of the Swiss Commonwealth is that it is a genuine and
feguards
ivided
found-
of
ited
ites.
copied from the American model, whilst the constitution of the German Empire is too full of anomalies, springing both from historical and from temporary causes, to be taken as a fair representative of any known form of government. The Constitution of the United States, in the second place, holds a very peculiar relation towards the institutions of England. In the principle of the distribution of powers which determines its form, the Constitution of the United States is the exact opposite of the English constitution, the very essence of which is, as I hope I have now made dear, the unlimited authority of Parliament. But while the formal differences between the constitution of the American Republic and the constitution of the English monarchy are, looked at from one point of view, immense, the institutions of America are in their spirit little else than a gigantic development of the ideas which lie at the basis of the political and legal institutions of England. The principle, in short, which gives its form to our system of government is (to use a foreign but convenient expression) "unitarianism," or the habitual exercise of supreme legislative authority by one central power, which in the particular case is the British Parliament. The principle which, on the other hand, shapes every part of the American polity, is that distribution of limited, executive, legislative, and judical authority among bodies each co-ordinate with and independent of the other which, we shall in a moment see, is essential to the federal form of government. The contrast therefore between the two polities is seen in its most salient form, and the results of this difference are made all the more visible because in every other respect the institutions of the English people on each side the Atlantic rest upon the same notions of law, of justice, and of the relation between the rights of individuals and the rights of the government, or the state.
We shall best understand the nature of federalism and the points in which a federal constitution stands in contrast with the Parliamentary constitution of England if we note, first, the conditions essential to
Conditions and aim of federalism.
Countries capable of union.
Existence of federal sentiment.
natural democracy, but a democracy based on Continental, and not on Anglo-Saxon, ideas of freedom and of government.
The constitution of the Commonwealth of Australia contains at least one feature apparently suggested by Swiss federalism. See Appendix, Note IX., Australian Federalism.
the existence of a federal state and the aim with which such a state is formed; secondly, the essential features of a federal union; and lastly, certain characteristics of federalism which result from its very nature, and form points of comparison, or contrast, between a federal polity and a system of Parliamentary sovereignty. A federal state requires for its formation two conditions.4 There must exist, in the first place, a body of countries such as the Cantons of Switzerland, the Colonies of America, or the Provinces of Canada, so closely connected by locality, by history, by race, or the like, as to be capable of bearing, in the eyes of their inhabitants, an impress of common nationality. It will also be generally found (if we appeal to experience) that lands which now form part of a federal state were at some stage of their existence bound together by dose alliance or by subjection to a common sovereign. It were going further than facts warrant to assert that this earlier connection is essential to the formation of a federal state. But it is certain that where federalism flourishes it is in general the slowly-matured fruit of some earlier and looser connection.
A second condition absolutely essential to the founding of a federal system is the existence of a very peculiar state of sentiment among the inhabitants of the countries which it is proposed to unite. They must desire union, and must not desire unity. If there be no desire to unite, there is dearly no basis for federalism; the wild scheme entertained (it is said) under the Commonwealth of forming a union between the English Republic and the United Provinces was one of those dreams which may haunt the imagination of politicians but can
4 For United States see Story, Commentaries on the Constitution of the United States (4th ed.), and Bryce, American Commonwealth.
For Canada see the British North America Act, 1867, 30 Viet., c. 3; Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada.
For Switzerland see Constitution Federate de la Confederation Swisse du 29 Mai 1874; Blumer, Handbuch des Schweizerischen Bundesstaatsrechtes; Lowell, Governments and Parties in Continental Europe, ii. chaps, xi.-xiii.; Sir F. O. Adams's Swiss Confederation; and Appendix, Note VIII., Swiss Federalism.
For the Commonwealth of Australia, the Constitution whereof deserves careful examination, the reader should consult Quick and Garran, Annotated Constitution of the Australian Commonwealth; Moore, The Commonwealth of Australia; and Bryce, Studies in History and Jurisprudence, i. Essay VIII., "The Constitution of the Commonwealth of Australia." See further, Appendix, Note IX., Australian Federalism.
never be transformed into fact. If, on the other hand, there be a desire for unity, the wish will naturally find its satisfaction, not under a federal, but under a Unitarian constitution; the experience of England and Scotland in the eighteenth and of the states of Italy in the nineteenth century shows that the sense of common interests, or common national feeling, may be too strong to allow of that combination of union and separation which is the foundation of federalism. The phase of sentiment, in short, which forms a necessary condition for the formation of a federal state is that the people of the proposed state should wish to form for many purposes a single nation, yet should not wish to surrender the individual existence of each man's State or Canton. We may perhaps go a little farther, and say, that a federal government will hardly be formed unless many of the inhabitants of the separate States feel stronger allegiance to their own State than to the federal state represented by the common government. This was certainly the case in America towards the end of the eighteenth century, and in Switzerland at the middle of the nineteenth century. In 1787 a Virginian or a citizen of Massachusetts felt a far stronger attachment to Virginia or to Massachusetts than to the body of the confederated States. In 1848 the citizens of Lucerne felt far keener loyalty to their Canton than to the confederacy, and the same thing, no doubt, held true in a less degree of the men of Berne or of Zurich. The sentiment therefore which creates a federal state is the prevalence throughout the citizens of more or less allied countries of two feelings which are to a certain extent inconsistent — the desire for national unity and the determination to maintain the independence of each man's separate State. The aim of federalism is to give effect as far as possible to both these sentiments.
A federal state is a political contrivance intended to reconcile national unity and power with the maintenance of "state rights." The end aimed at fixes the essential character of federalism. For the method by which Federalism attempts to reconcile the apparently inconsistent claims of national sovereignty and of state sovereignty consists of the formation of a constitution under which the ordinary powers5 of sovereignty are elaborately divided between the common
5 See Appendix, Note II., Division of Powers in Federal States.
Essential characteristics of
federalism. United States.
Supremacy of constitution.
or national government and the separate states. The details of this division vary under every different federal constitution, but the general principle on which it should rest is obvious. Whatever concerns the nation as a whole should be placed under the control of the national government. All matters which are not primarily of common interest should remain in the hands of the several States. The preamble to the Constitution of the United States recites that
We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
The tenth amendment enacts that "the powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people." These two statements, which are reproduced with slight alteration in the constitution of the Swiss Confederation,6 point out the aim and lay down the fundamental idea of federalism.
From the notion that national unity can be reconciled with state independence by a division of powers under a common constitution between the nation on the one hand and the individual States on the other, flow the three leading characteristics of completely developed federalism, — the supremacy of the constitution — the distribution among bodies with limited and co-ordinate authority of the different powers of government — the authority of the Courts to act as interpreters of the constitution.
A federal state derives its existence from the constitution, just as a corporation derives its existence from the grant by which it is created. Hence, every power, executive, legislative, or judicial, whether it belong to the nation or to the individual States, is subordinate to and controlled by the constitution. Neither the President of the United States nor the Houses of Congress, nor the Governor of Massachusetts, nor the Legislature or General Court of Massachusetts, can legally exercise a single power which is inconsistent with the articles
6 Constitution Federate, Preamble, and art. 3.
onse-jences. 'ritten institution
of the Constitution. This doctrine of the supremacy of the constitution is familiar to every American, but in England even trained lawyers find a difficulty in following it out of its legitimate consequences. The difficulty arises from the fact that under the English constitution no principle is recognised which bears any real resemblance to the doctrine (essential to federalism) that the Constitution constitutes the "supreme law of the land."7 In England we have laws which may be called fundamental8 or constitutional because they deal with important principles (as, for example, the descent of the Crown or the terms of union with Scotland) lying at the basis of our institutions, but with us there is no such thing as a supreme law, or law which tests the validity of other laws. There are indeed important statutes, such as the Act embodying the Treaty of Union with Scotland, with which it would be political madness to tamper gratuitously; there are utterly unimportant statutes, such, for example, as the Dentists Act, 1878, which maybe repealed or modified at the pleasure or caprice of Parliament; but neither the Act of Union with Scotland nor the Dentists Act, 1878, has more claim than the other to be considered a supreme law. Each embodies the will of the sovereign legislative power; each can be legally altered or repealed by Parliament; neither tests the validity of the other. Should the Dentists Act, 1878, unfortunately contravene the terms of the Act of Union, the Act of Union would be pro tanto repealed, but no judge would dream of maintaining that the Dentists Act, 1878, was thereby rendered invalid or unconstitutional. The one fundamental dogma of English constitutional law is the absolute legislative sovereignty or despotism of the King in Parliament. But this dogma is incompatible with the existence of a fundamental compact, the provisions of which control every authority existing under the constitution.9
In the supremacy of the constitution are involved three consequences:
7 See Constitution of United States, art. 6, cl. 2.
8 The expression "fundamental laws of England" became current during the controversy as to the payment of ship-money (1635). See Gardiner, History of England, viii. pp. 84, 85.
9 Compare especially Kent, Commentaries, i. pp. 447-449.
Rigid constitution.
The constitution must almost necessarily be a "written" constitution.
The foundations of a federal state are a complicated contract. This compact contains a variety of terms which have been agreed to, and generally after mature deliberation, by the States which make up the confederacy. To base an arrangement of this kind upon understandings or conventions would be certain to generate misunderstandings and disagreements. The articles of the treaty, or in other words of the consitution, must therefore be reduced to writing. The constitution must be a written document, and, if possible, a written document of which the terms are open to no misapprehension. The founders of the American Union left at least one great question unsettled. This gap in the Constitution gave an opening to the dispute which was the plea, if not the justification, for the War of Secession.10
The constitution must be what I have termed a "rigid"11 or "inex-pansive" constitution.
The law of the constitution must be either legally immutable, or else capable of being changed only by some authority above and beyond the ordinary legislative bodies, whether federal or state legislatures, existing under the constitution.
In spite of the doctrine enunciated by some jurists that in every country there must be found some person or body legally capable of changing every institution thereof, it is hard to see why it should be held inconceivable12 that the founders of a polity should have delib-
10 No doubt it is conceivable that a federation might grow up by the force of custom, and under agreements between different States which were not reduced into writing, and it appears to be questionable how far the Achaean League was bound together by anything equivalent to a written constitution. It is, however, in the highest degree improbable, even if it be not practically impossible, that in modern times a federal state could be formed without the framing of some document which, whatever the name by which it is called, would be in reality a written constitution, regulating the rights and duties of the federal government and the States composing the Federation.
11 See pp. 39, 64-66, ante.
12 Eminent American lawyers, whose opinion is entitled to the highest respect, maintain that under the Constitution there exists no person, or body of persons, possessed of legal sovereignty, in the sense given by Austin to that term, and it is difficult to see that this opinion involves any absurdity. Compare Constitution of United States, art. 5. It would appear further that certain rights reserved under the Constitution of the German Empire to
erately omitted to provide any means for lawfully changing its bases. Such an omission would not be unnatural on the part of the authors of a federal union, since one main object of the States entering into the compact is to prevent further encroachments upon their several state rights; and in the fifth article of the United States Constitution may still be read the record of an attempt to give to some of its provisions temporary immutability. The question, however, whether a federal constitution necessarily involves the existence of some ultimate sovereign power authorised to amend or alter its terms is of merely speculative interest, for under existing federal governments the constitution will be found to provide the means for its own improvement. 13 It is, at any rate, certain that whenever the founders of a federal government hold the maintenance of a federal system to be of primary importance, supreme legislative power cannot be safely vested in any ordinary legislature acting under the constitution.14 For so to vest legislative sovereignty would be inconsistent with the aim of federalism, namely, the permanent division between the spheres of the national government and of the several States. If Congress could legally change the Constitution, New York and Massachusetts would have no legal guarantee for the amount of independence reserved to them under the Constitution, and would be as subject to the sovereign power of Congress as is Scotland to the sovereignty of Parliament; the Union would cease to be a federal state, and would become a Unitarian republic. If, on the other hand, the legislature of
particular States cannot under the Constitution be taken away from a State without its assent. (See Reichsverfassung, art. 78.) The truth is that a Federal Constitution partakes of the nature of a treaty, and it is quite conceivable that the authors of the Constitution may intend to provide no constitutional means of changing its terms except the assent of all the parties to the treaty.
13 See e.g. South Africa Act, 1909, s. 152.
14 Under the Constitution of the German Empire the Imperial legislative body can amend the Constitution. But the character of the Federal Council (Bundesrath) gives ample security for the protection of State rights. No change in the Constitution can be effected which is opposed by fourteen votes in the Federal Council. This gives a veto on change to Prussia and to various combinations of some among the other States. The extent to which national sentiment and State patriotism respectively predominate under a federal system may be conjectured from the nature of the authority which has the right to modify the Constitution. See Appendix, Note II., Division of Powers in Federal States.
South Carolina could of its own will amend the Constitution, the authority of the central government would (from a legal point of view) be illusory; the United States would sink from a nation into a collection of independent countries united by the bond of a more or less permanent alliance. Hence the power of amending the Constitution has been placed, so to speak, outside the Constitution, and one may say, with sufficient accuracy for our present purpose, that the legal sovereignty of the United States resides in the States' governments as forming one aggregate body represented by three-fourths of the several States at any time belonging to the Union.1S Now from the necessity for placing ultimate legislative authority in some body outside the Constitution a remarkable consequence ensues. Under a federal as under a Unitarian system there exists a sovereign power, but the sovereign is in a federal state a despot hard to rouse. He is not, like the English Parliament, an ever-wakeful legislator, but a monarch who slumbers and sleeps. The sovereign of the United States has been roused to serious action but once during the course of more than a century. It needed the thunder of the Civil War to break his repose, and it may be doubted whether anything short of impending revolution will ever again arouse him to activity. But a monarch who slumbers for years is like a monarch who does not exist. A federal constitution is capable of change, but for all that a federal constitution is apt to be unchangeable.16
15 "The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendments which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate." — Constitution of United States, art. 5. Compare Austin, i. p. 278, and see Bryce, American Commonwealth, i. (3rd ed.), chap, xxxii., on the Amendment of the Constitution.
16 [Note, however, the ease with which the provisions of the Constitution of the U.S., with regard to the election of Senators by the Legislature and the transference of such election to the people of each State, have been carried through by Amendment xvii., passed in 1913.]
Every legislative assembly existing under a federal constitution is merely17 a subordinate law-making body, whose laws are of the nature of bye-laws, valid whilst within the authority conferred upon it by the constitution, but invalid or unconstitutional if they go beyond the limits of such authority.
There is an apparent absurdity18 in comparing the legislature of the United States to an English railway company or a municipal corporation, but the comparison is just. Congress can, within the limits of its legal powers, pass laws which bind every man throughout the United States. The Great Eastern Railway Company can, in like manner, pass laws which bind every man throughout the British dominions. A law passed by Congress which in in excess of its legal powers, as contravening the Constitution, is invalid; a law passed by the Great Eastern Railway Company in excess of the powers given by Act of Parliament, or, in other words, by the legal constitution of the company, is also invalid; a law passed by Congress is called an "Act" of Congress, and if ultra vires is described as "unconstitutional"; a law passed by the Great Eastern Railway Company is called a "bye-law," and if ultra vires is called, not "unconstitutional," but "invalid." Differences, however, of words must not conceal from us essential similarity in things. Acts of Congress, or of the Legislative Assembly of New York or of Massachusetts, are at bottom simply "bye-laws," depending for their validity upon their being within the powers given to Congress or to the state legislatures by the Constitution. The bye-laws of the Great Eastern Railway Company, imposing fines upon passengers who travel over their line without a ticket, are laws, but they are laws depending for their validity upon their being within the powers conferred upon the Company by Act of Parliament, i.e. by the Company's constitution. Congress and the Great Eastern Railway Company are in truth each of them nothing more than subordinate law-making bodies. Their power differs not in degree, but in kind,
17 This is so in the United States, but it need not necessarily be so. The Federal Legislature may be a sovereign power but may be so constituted that the rights of the States under the Constitution are practically protected. This condition of things exists in the German Empire.
18 Seep. 40, note4,ante.
Distribution of powers.
Division of
powers
carried
in fact
beyond
necessary
limit.
from the authority of the sovereign Parliament of the United Kingdom.19
The distribution of powers is an essential feature of federalism. The object for which a federal state is formed involves a division of authority between the national government and the separate States. The powers given to the nation form in effect so many limitations upon the authority of the separate States, and as it is not intended that the central government should have the opportunity of encroaching upon the rights retained by the States, its sphere of action necessarily becomes the object of rigorous definition. The Constitution, for instance, of the United States delegates special and closely defined powers to the executive, to the legislature, and to the judiciary of the Union, or in effect to the Union itself, whilst it provides that the powers "not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people."20
This is all the amount of division which is essential to a federal constitution. But the principle of definition and limitation of powers harmonises so well with the federal spirit that it is generally carried much farther than is dictated by the mere logic of the constitution. Thus the authority assigned to the United States under the Constitution is not concentrated in any single official or body of officials. The
19 See as to bye-laws made by municipal corporations, and the dependence of their validity upon the powers conferred upon the corporation: Johnson v. Mayor ofCroydon, 16 Q. B. D. 708; Reg. v. Powell, 51L. T. 92; Munro v. Watson, 57 L. T. 366. See Bryce, American Commonwealth, i. (3rd ed.), pp. 244, 245.
20 Constitution of United States, Amendments, art. 10. See provisions of a similar character in the Swiss Constitution, Constitution Federate, art. 3. Compare the Constitution of the Canadian Dominion, British North America Act, 1867, secs. 91, 92.
There exists, however, one marked distinction in principle between the Constitution of the United States and the Constitution of the Canadian Dominion. The Constitution of the United States in substance reserves to the separate States all powers not expressly conferred upon the national government. The Canadian Constitution in substance confers upon the Dominion government all powers not assigned exclusively to the Provinces. In this matter