INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION A. V. Dicey Part 12 PARTIII THE CONNECTION BETWEEN THE LAW OF THE CONSTITUTION AND THE CONVENTIONS OF THE CONSTITUTION Chapter XIV NATURE OF CONVENTIONS OF CONSTITUTION Questions remaining to be answered.

PARTIII
THE CONNECTION BETWEEN
THE LAW OF THE CONSTITUTION
AND THE CONVENTIONS OF
THE CONSTITUTION
Chapter XIV
NATURE OF CONVENTIONS OF CONSTITUTION
Questions remaining to be answered.
/
n an earlier part of this work¹ stress was laid upon the essential distinction between the "law of the constitution," which, consisting (as it does) of rules enforced or recognised by the Courts, makes up a body of "laws" in the proper sense of that term, and the "conventions of the constitution," which consisting (as they do) of customs, practices, maxims, or precepts which are not enforced or recognised by the Courts, make up a body not of laws, but of constitutional or political ethics; and it was further urged that the law, not the morality of the constitution, forms the proper subject of legal study.² In accordance with this view, the reader's attention has been hitherto exclusively directed to the meaning and applications of two principles which pervade the law of the constitution, namely, the Sovereignty of Parliament³ and the Rule of Law.⁴
But a lawyer cannot master even the legal side of the English constitution without paying some attention to the nature of those constitutional understandings which necessarily engross the attention of historians or of statesmen. He ought to ascertain, at any rate, how, if at all, the law of the constitution is connected with the conventions of the constitution; and a lawyer who undertakes this task
1 See pp. cxl-cxlvi, ante.
2 See pp. odv-odvi, ante.
3 See Part I.
4 See Part II.
will soon find that in so doing he is only following one stage farther the path on which we have already entered, and is on the road to discover the last and most striking instance of that supremacy of the law which gives to the English polity the whole of its peculiar colour.
My aim therefore throughout the remainder of this book is to define, or ascertain, the relation or connection between the legal and the conventional elements in the constitution, and to point out the way in which a just appreciation of this connection throws light upon several subordinate questions or problems of constitutional law.
This end will be attained if an answer is found to each of two questions: What is the nature of the conventions or understandings of the constitution? What is the force or (in the language of jurisprudence) the "sanction" by which is enforced obedience to the conventions of the constitution? These answers will themselves throw light on the subordinate matters to which I have made reference.
The salient characteristics, the outward aspects so to speak, of the understandings which make up the constitutional morality of modern England, can hardly be better described than in the words of Mr. Freeman:
We now have a whole system of political morality, a whole code of precepts for the guidance of public men, which will not be found in any page of either the statute or the common law, but which are in practice held hardly less sacred than any principle embodied in the Great Charter or in the Petition of Right. In short, by the side of our written Law, there has grown up an unwritten or conventional Constitution. When an Englishman speaks of the conduct of a public man being constitutional or unconstitutional, he means something wholly different from what he means by conduct being legal or illegal. A famous vote of the House of Commons, passed on the motion of a great statesman, once declared that the then Ministers of the Crown did not possess the confidence of the House of Commons, and that their continuance in office was therefore at variance with the spirit of the constitution. The truth of such a position, according to the traditional principles on which public men have acted for some generations, cannot be disputed; but it would be in vain to seek for any trace of such doctrines in any page of our written Law. The proposer of that motion did not mean to charge the existing Ministry with any illegal act, with any act which could be made the subject either of a prosecution in a lower court or of impeachment in the High Court of Parliament itself. He did not mean that they, Ministers of the Crown, appointed during the pleasure of the Crown, committed any
Nature of constitutional understandings.
Examples of constitutional understandings.
breach of the Law of which the Law could take cognisance, by retaining possession of their offices till such time as the Crown should think good to dismiss them from those offices. What he meant was that the general course of their policy was one which to a majority of the House of Commons did not seem to be wise or beneficial to the nation, and that therefore, according to a conventional code as well understood and as effectual as the written Law itself, they were bound to resign offices of which the House of Commons no longer held them to be worthy.⁵
The one exception which can be taken to this picture of our conventional constitution is the contrast drawn in it between the "written law" and the "unwritten constitution"; the true opposition, as already pointed out, is between laws properly so called, whether written or unwritten, and understandings, or practices, which, though commonly observed, are not laws in any true sense of that word at all. But this inaccuracy is hardly more than verbal, and we may gladly accept Mr. Freeman's words as a starting-point whence to inquire into the nature or common quality of the maxims which make up our body of constitutional morality.
The following are examples⁶ of the precepts to which Mr. Freeman refers, and belong to the code by which public life in England is (or is supposed to be) governed. "A Ministry which is outvoted in the House of Commons is in many cases bound to retire from office." "A Cabinet, when outvoted on any vital question, may appeal once to the country by means of a dissolution." "If an appeal to the electors goes against the Ministry they are bound to retire from office, and have no right to dissolve Parliament a second time." "The Cabinet are responsible to Parliament as a body, for the general conduct of affairs." "They are further responsible to an extent, not however very definitely fixed, for the appointments made by any of their number, or to speak in more accurate language, made by the Crown under the advice of any member of the Cabinet." "The party who for the time being command a majority in the House of Commons, have (in general) a right to have their leaders placed in office." "The most influential of these leaders ought (generally speaking) to be the Premier, or
5 Freeman, Growth of the English Constitution (ist ed.), pp. 109, no.
6 See, for further examples, pp. odii, cxliii, ante.
head of the Cabinet." There are precepts referring to the position and formation of the Cabinet. It is, however, easy to find constitutional maxims dealing with other topics. "Treaties can be made without the necessity for any Act of Parliament; but the Crown, or in reality the Ministry representing the Crown, ought not to make any treaty which will not command the approbation of Parliament." "The foreign policy of the country, the proclamation of war, and the making of peace ought to be left in the hands of the Crown, or in truth of the Crown's servants. But in foreign as in domestic affairs, the wish of the two Houses of Parliament or (when they differ) of the House of Commons ought to be followed." "The action of any Ministry would be highly unconstitutional if it should involve the proclamation of war, or the making of peace, in defiance of the wishes of the House." "If there is a difference of opinion between the House of Lords and the House of Commons, the House of Lords ought, at some point, not definitely fixed, to give way, and should the Peers not yield, and the House of Commons continue to enjoy the confidence of the country, it becomes the duty of the Crown, or of its responsible advisers, to create or to threaten to create enough new Peers to override the opposition of the House of Lords, and thus restore harmony between the two branches of the legislature."⁷ 'Tarliament ought to be summoned for the despatch of business at least once in every year." "If a sudden emergency arise, e.g. through the outbreak of an insurrection, or an invasion by a foreign power, the Ministry ought, if they require additional authority, at once to have Parliament convened and obtain any powers which they may need for the protection of the country. Meanwhile Ministers ought to take every step, even at the peril of breaking the law, which is necessary either for restoring order or for repelling attack, and (if the law of the land is violated) must rely for protection on Parliament passing an Act of Indemnity."
These rules (which I have purposely expressed in a lax and popular manner)^ and a lot more of the same kind, make up the constitutional | fnofaGty jof the day. They are all constantly acted upon, and, since they cannot be enforced by any Court of law, have no claim to be
7 See however Hearn, Government of England (2nd ed.), p. 178.
Constitutional conventions are mainly rules for governing exercise ofprerog-ative.
considered laws. They are multifarious, differing, as it might at first sight appear, from each other not only in importance but in general character and scope. They will be found however, on careful examination, to possess one common quality or property; they are all, or at any rate most of them, rules for determining the mode in which the discretionary powers of the Crown (or of the Ministers as servants of the Crown) ought to be exercised; and this characteristic will be found on examination to be the trait common not only to all the rules already enumerated, but to by far the greater part (though not quite to the whole) of the conventions of the constitution. This matter, however, requires for its proper understanding some further explanation.
The discretionary powers of the government mean every kind of action which can legally be taken by the Crown, or by its servants, without the necessity for applying to Parliament for new statutory authority. Thus no statute is required to enable the Crown to dissolve or to convoke Parliament, to make peace or war, to create new Peers, to dismiss a Minister from office or to appoint his successor. The doing of all these things lies legally at any rate within the discretion of the Crown; they belong therefore to the discretionary authority of the government. This authority may no doubt originate in Parliamentary enactments, and, in a limited number of cases, actually does so originate. Thus the Naturalization Act, 1870, gives to a Secretary of State the right under certain circumstances to convert an alien into a naturalized British subject; and the Extradition Act, 1870, enables a Secretary of State (under conditions provided by the Act) to override the ordinary law of the land and hand over a foreigner to his own government for trial. With the exercise, however, of such discretion as is conferred on the Crown or its servants by Parliamentary enactments we need hardly concern ourselves. The mode in which such discretion is to be exercised is, or may be, more or less dearly defined by the Act itself, and is often so closely limited as in reality to become the subject of legal decision, and thus pass from the domain of constitutional morality into that of law properly so called. The discretionary authority of the Crown originates generally, not in Act of Parliament, but in the "prerogative" — a term which has caused more
perplexity to students than any other expression referring to the constitution. The "prerogative" appears to be both historically and as a matter of actual fact nothing else than the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown. The King was originally in truth what he still is in name, "the sovereign," or, if not strictly the "sovereign" in the sense in which jurists use that word, at any rate by far the most powerful part of the sovereign power. In 1791 the House of Commons compelled the government of the day, a good deal against the will of Ministers, to put on trial Mr. Reeves, the learned author of the History of English Law, for the expression of opinions meant to exalt the prerogative of the Crown at the expense of the authority of the House of Commons. Among other statements for the publication of which he was indicted, was a lengthy comparison of the Crown to the trunk, and the other parts of the constitution to the branches and leaves of a great tree. This comparison was made with the object of drawing from it the conclusion that the Crown was the source of all legal power, and that while to destroy the authority of the Crown was to cut down the noble oak under the cover of which Englishmen sought refuge from the storms of Jacobinism, the House of Commons and other institutions were but branches and leaves which might be lopped off without serious damage to the tree.⁸ The publication of Mr. Reeves's theories during a period of popular excitement may have been injudicious. But a jury, one is happy to know, found that it was not seditious; for his views undoubtedly rested on a sound basis of historical fact.
The power of the Crown was in truth anterior to that of the House of Commons. From the time of the Norman Conquest down to the Revolution of 1688, the Crown possessed in reality many of the attributes of sovereignty. The prerogative is the name for the remaining portion of the Crown's original authority, and is therefore, as already pointed out, the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power, be in fact exercised by the King himself or by his Ministers. Every act which
8 See 2.6 St. Tr. 530-534.
the executive government can lawfully do without the authority of the Act of Parliament is done in virtue of this prerogative. If therefore we omit from view (as we conveniently may do) powers conferred on the Crown or its servants by Parliamentary enactments, as for example under an Alien Act, we may use the term "prerogative" as equivalent to the discretionary authority of the executive, and then lay down that the conventions of the constitution are in the main precepts for determining the mode and spirit in which the prerogative is to be exercised, or (what is really the same thing) for fixing the manner in which any transaction which can legally be done in virtue of the Royal prerogative (such as the making of war or the declaration of peace) ought to be carried out. This statement holds good, it should be noted, of all the discretionary powers exercised by the executive, otherwise than under statutory authority; it applies to acts really done by the King himself in accordance with his personal wishes, to transactions (which are of more frequent occurrence than modern constitutionalists are disposed to admit) in which both the King and his Ministers take a real part, and also to that large and constantly increasing number of proceedings which, though carried out in the King's name, are in truth wholly the acts of the Ministry. The conventions of the constitution are in short rules intended to regulate the exercise of the whole of the remaining discretionary powers of the Crown, whether these powers are exercised by the King himself or by the Ministry. That this is so may be seen by the ease and the technical correctness with which such conventions may be expressed in the form of regulations in reference to the exercise of the prerogative. Thus, to say that a Cabinet when outvoted on any vital question are bound in general to retire from office, is equivalent to the assertion, that the prerogative of the Crown to dismiss its servants at the will of the King must be exercised in accordance with the wish of the Houses of Parliament; the statement that Ministers ought not to make any treaty which will not command the approbation of the Houses of Parliament, means that the prerogative of the Crown in regard to the making of treaties — what the Americans call the "treaty-making power" — ought not to be exercised in opposition to the will of Parliament. So, again, the rule that Parliament must
meet at least once a year, is in fact the rule that the Crown's legal right or prerogative to call Parliament together at the King's pleasure must be so exercised that Parliament meet once a year.
This analysis of constitutional understandings is open to the one valid criticism, that, though true as far as it goes, it is obviously incomplete; for there are some few constitutional customs or habits which have no reference to the exercise of the royal power. Such, for example, is the understanding — a very vague one at best — that in case of a permanent conflict between the will of the House of Commons and the will of the House of Lords the Peers must at some point give way to the Lower House. Such, again, is, or at any rate was, the practice by which the judicial functions of the House of Lords are discharged solely by the Law Lords, or the understanding under which Divorce Acts were treated as judicial and not as legislative proceedings. Habits such as these are at bottom customs or rules meant to determine the mode in which one or other or both of the Houses of Parliament shall exercise their discretionary powers, or, to use the historical term, their "privileges." The very use of the word "privilege" is almost enough to show us how to embrace all the conventions of the constitution under one general head. Between "prerogative" and "privilege" there exists a dose analogy: the one is the historical name for the discretionary authority of the Crown; the other is the historical name for the discretionary authority of each House of Parliament. Understandings then which regulate the exercise of the prerogative determine, or are meant to determine, the way in which one member of the sovereign body, namely the Crown, should exercise its discretionary authority; understandings which regulate the exercise of privilege determine, or are meant to determine, the way in which the other members of the sovereign body should each exercise their discretionary authority. The result follows, that the conventions of the constitution, looked at as a whole, are customs, or understandings, as to the mode in which the several members of the sovereign legislative body, which, as it will be remembered, is the "King in Parliament,"⁹ should each exercise their
9 Seep. 3,ante.
Aim of constitutional understandings.
discretionary authority, whether it be termed the prerogative of the Crown or the privileges of Parliament. Since, however, by far the most numerous and important of our constitutional understandings refer at bottom to the exercise of the prerogative, it will conduce to brevity and clearness if we treat the conventions of the constitution, as rules or customs determining the mode in which the discretionary power of the executive, or in technical language the prerogative, ought (i.e. is expected by the nation) to be employed.
Having ascertained that the conventions of the constitution are (in the main) rules for determining the exercise of the prerogative, we may carry our analysis of their character a step farther. They have all one ultimate object. Their end is to secure that Parliament, or the Cabinet which is indirectly appointed by Parliament, shall in the long run give effect to the will of that power which in modern England is the true political sovereign of the State — the majority of the electors or (to use popular though not quite accurate language) the nation.
At this point comes into view the full importance of the distinction already insisted upon¹⁰ between "legal" sovereignty and "political" sovereignty. Parliament is, from a merely legal point of view, the absolute sovereign of the British Empire, since every Act of Parliament is binding on every Court throughout the British dominions, and no rule, whether of morality or of law, which contravenes an Act of Parliament binds any Court throughout the realm. But if Parliament be in the eye of the law a supreme legislature, the essence of representative government is, that the legislature should represent or give effect to the will of the political sovereign, i.e. of the electoral body, or of the nation. That the conduct of the different parts of the legislature should be determined by rules meant to secure harmony between the action of the legislative sovereign and the wishes of the political sovereign, must appear probable from general considerations. If the true ruler or political sovereign of England were, as was once the case, the King, legislation might be carried out in accordance with the King's will by one of two methods. The Crown might itself legislate, by royal proclamations, or decrees; or some other body,
10 See pp. 2.6 — 29, ante.
such as a Council of State or Parliament itself, might be allowed to legislate as long as this body conformed to the will of the Crown. If the first plan were adopted, there would be no room or need for constitutional conventions. If the second plan were adopted, the proceedings of the legislative body must inevitably be governed by some rules meant to make certain that the Acts of the legislature should not contravene the will of the Crown. The electorate is in fact the sovereign of England. It is a body which does not, and from its nature hardly can, itself legislate, and which, owing chiefly to historical causes, has left in existence a theoretically supreme legislature. The result of this state of things would naturally be that the conduct of the legislature, which (ex hypothesi) cannot be governed by laws, should be regulated by understandings of which the object is to secure the conformity of Parliament to the will of the nation. And this is what has actually occurred. The conventions of the constitution now consist of customs which (whatever their historical origin) are at the present day maintained for the sake of ensuring the supremacy of the House of Commons, and ultimately, through the elective House of Commons, of the nation. Our modern code of constitutional morality secures, though in a roundabout way, what is called abroad the "sovereignty of the people."
That this is so becomes apparent if we examine into the effect of one or two among the leading articles of this code. The rule that the powers of the Crown must be exercised through Ministers who are members of one or other House of Parliament and who "command the confidence of the House of Commons," really means, that the elective portion of the legislature in effect, though by an indirect process, appoints the executive government; and, further, that the Crown, or the Ministry, must ultimately carry out, or at any rate not contravene, the wishes of the House of Commons. But as the process of representation is nothing else than a mode by which the will of the representative body or House of Commons is made to coincide with the will of the nation, it follows that a rule which gives the appointment and control of the government mainly to the House of Commons is at bottom a rule which gives the election and ultimate control of the executive to the nation. The same thing holds good of the under-
Rules as to dissolution of Parliament.
standing, or habit, in accordance with which the House of Lords are expected in every serious political controversy to give way at some point or other to the will of the House of Commons as expressing the deliberate resolve of the nation, or of that further custom which, though of comparatively recent growth, forms an essential article of modern constitutional ethics, by which, in case the Peers should finally refuse to acquiesce in the decision of the Lower House, the Crown is expected to nullify the resistance of the Lords by the creation of new Peerages.¹¹ How, it may be said, is the "point" to be fixed at which, in case of a conflict between the two Houses, the Lords must give way, or the Crown ought to use its prerogative in the creation of new Peers? The question is worth raising, because the answer throws great light upon the nature and aim of the articles which make up our conventional code. This reply is, that the point at which the Lords must yield or the Crown intervene is properly determined by anything which conclusively shows that the House of Commons represents on the matter in dispute the deliberate decision of the nation. The truth of this reply will hardly be questioned, but to admit that the deliberate decision of the electorate is decisive, is in fact to concede that the understandings as to the action of the House of Lords and of the Crown are, what we have found them to be, rules meant to ensure the ultimate supremacy of the true political sovereign, or, in other words, of the electoral body.¹²
By far the most striking example of the real sense attaching to a whole mass of constitutional conventions is found in a particular instance, which appears at first sight to present a marked exception to the general principles of constitutional morality. A Ministry placed in a minority by a vote of the Commons have, in accordance with received doctrines, a right to demand a dissolution of Parliament. On the other hand, there are certainly combinations of circumstances under which the Crown has a right to dismiss a Ministry who command a Parliamentary majority, and to dissolve the Parliament by which the Ministry are supported. The prerogative, in short, of dis-
11 Mr. Hearn denies, as it seems to me on inadequate grounds, the existence of this rule or understanding. See Hearn, Government of England (2nd ed.), p. 178.
12 Compare Bagehot, English Constitution, pp. 25 — 27.
solution may constitutionally be so employed as to override the will of the representative body, or, as it is popularly called, "The People's House of Parliament." This looks at first sight like saying that in certain cases the prerogative can be so used as to set at nought the will of the nation. But in reality it is far otherwise. The discretionary power of the Crown occasionally may be, and according to constitutional precedents sometimes ought to be, used to strip an existing House of Commons of its authority. But the reason why the House can in accordance with the constitution be deprived of power and of existence is that an occasion has arisen on which there is fair reason to suppose that the opinion of the House is not the opinion of the electors. A dissolution is in its essence an appeal from the legal to the political sovereign. A dissolution is allowable, or necessary, whenever the wishes of the legislature are, or may fairly be presumed to be, different from the wishes of the nation.
This is the doctrine established by the celebrated contests of 1784 and of 1834. In each instance the King dismissed a Ministry which commanded the confidence of the House of Commons. In each case there was an appeal to the country by means of a dissolution. In 1784 the appeal resulted in a decisive verdict in favour of Pitt and his colleagues, who had been brought into office by the King against the will of the House of Commons. In 1834 the appeal led to a verdict equally decisive against Peel and Wellington, who also had been called to office by the Crown against the wishes of the House. The essential point to notice is that these contests each in effect admit the principle that it is the verdict of the political sovereign which ultimately determines the right or (what in politics is much the same thing) the power of a Cabinet to retain office, namely, the nation.
Much discussion, oratorical and literary, has been expended on the question whether the dissolution of 1784 or the dissolution of 1834 was constitutional.¹³ To a certain extent the dispute is verbal, and depends upon the meaning of the word "constitutional." If we mean by it "legal," no human being can dispute that George the Third and his son could without any breach of law dissolve Parliament. If we
13 See Appendix, Note VII., The Meaning of an Unconstitutional Law.
mean "usual," no one can deny that each monarch took a very unusual step in dismissing a Ministry which commanded a majority in the House of Commons. If by "constitutional" we mean "in conformity with the fundamental principles of the constitution," we must without hesitation pronounce the conduct of George the Third constitutional, i.e. in conformity with the principles of the constitution as they are now understood. He believed that the nation did not approve of the policy pursued by the House of Commons. He was right in this belief. No modern constitutionalist will dispute that the authority of the House of Commons is derived from its representing the will of the nation, and that the chief object of a dissolution is to ascertain that the will of Parliament coincides with the will of the nation. George the Third then made use of the prerogative of dissolution for the very purpose for which it exists. His conduct, therefore, on the modern theory of the constitution, was, as far as the dissolution went, in the strictest sense constitutional. But it is doubtful whether in 1784 the King's conduct was not in reality an innovation, though a salutary one, on the then prevailing doctrine. Any one who studies the questions connected with the name of John Wilkes, or the disputes between England and the American colonies, will see that George the Third and the great majority of George the Third's statesmen maintained up to 1784 a view of Parliamentary sovereignty which made Parliament in the strictest sense the sovereign power. To this theory Fox clung, both in his youth as a Tory and in his later life as a Whig. The greatness of Chatham and of his son lay in their perceiving that behind the Crown, behind the Revolution Families, behind Parliament itself, lay what Chatham calls the "great public," and what we should call the nation, and that on the will of the nation depended the authority of Parliament. In 1784 George the Third was led by the exigencies of the moment to adopt the attitude of Chatham and Pitt. He appealed (oddly enough) from the sovereignty of Parliament, of which he had always been the ardent champion, to that sovereignty of the people which he never ceased to hold in abhorrence. Whether this appeal be termed constitutional or revolutionary is now of little moment; it affirmed decisively the fundamental principle of our existing constitution that not Parliament but the nation is,
politically speaking, the supreme power in the State. On this very ground the so-called "penal" dissolution was consistently enough denounced by Burke, who at all periods of his career was opposed to democratic innovation, and far less consistently by Fox, who blended in his political creed doctrines of absolute Parliamentary sovereignty with the essentially inconsistent dogma of the sovereignty of the people.
Of William the Fourth's action it is hard to speak with decision. The dissolution of 1834 was, from a constitutional point of view, a mistake; it was justified (if at all) by the King's belief that the House of Commons did not represent the will of the nation. The belief itself turned out erroneous, but the large minority obtained by Peel, and the rapid decline in the influence of the Whigs, proved that, though the King had formed a wrong estimate of public sentiment, he was not without reasonable ground for believing that Parliament had ceased to represent the opinion of the nation. Now if it be constitutionally right for the Crown to appeal from Parliament to the electors when the House of Commons has in reality ceased to represent its constituents, there is great difficulty in maintaining that a dissolution is unconstitutional simply because the electors do, when appealed to, support the opinions of their representatives. Admit that the electors are the political sovereign of the State, and the result appears naturally to follow, that an appeal to them by means of a dissolution is constitutional, whenever there is valid and reasonable ground for supposing that their Parliamentary representatives have ceased to represent their wishes. The constitutionality therefore of the dissolution in 1834 turns at bottom upon the still disputable question of fact, whether the King and his advisers had reasonable ground for supposing that the reformed House of Commons had lost the confidence of the nation. Whatever may be the answer given by historians to this inquiry, the precedents of 1784 and 1834 are decisive; they determine the principle on which the prerogative of dissolution ought to be exercised, and show that in modern times the rules as to the dissolution of Parliament are, like other conventions of the constitution, intended to secure the ultimate supremacy of the electorate as the
Relation of righl of dissolution to Parliamentary sovereignty.
true political sovereign of the State; that, in short, the validity of constitutional maxims is subordinate and subservient to the fundamental principle of popular sovereignty.
The necessity for dissolutions stands in dose connection with the existence of Parliamentary sovereignty. Where, as in the United States, no legislative assembly is a sovereign power, the right of dissolution may be dispensed with; the constitution provides security that no change of vital importance can be effected without an appeal to the people; and the change in the character of a legislative body by the re-election of the whole or of part thereof at stated periods makes it certain that in the long run the sentiment of the legislature will harmonise with the feeling of the public. Where Parliament is supreme, some further security for such harmony is necessary, and this security is given by the right of dissolution, which enables the Crown or the Ministry to appeal from the legislature to the nation. The security indeed is not absolutely complete. Crown, Cabinet, and Parliament may conceivably favour constitutional innovations which do not approve themselves to the electors. The Septennial Act could hardly have been passed in England, the Act of Union with Ireland would not, it is often asserted, have been passed by the Irish Parliament, if, in either instance, a legal revolution had been necessarily preceded by an appeal to the electorate. Here, as elsewhere, the constitutionalism of America proves of a more rigid type than the constitutionalism of England. Still, under the conditions of modern political life, the understandings which exist with us as to the right of dissolution afford nearly, if not quite, as much security for sympathy between the action of the legislature and the will of the people, as do the limitations placed on legislative power by the constitutions of American States. In this instance, as in others, the principles explicitly stated in the various constitutions of the States, and in the Federal Constitution itself, are impliedly involved in the working of English political institutions. The right of dissolution is the right of appeal to the people, and thus underlies all those constitutional conventions which, in one way or another, are intended to produce harmony between the legal and the political sovereign power.
Chapter XV
THE SANCTION BY WHICH THE
CONVENTIONS OF THE CONSTITUTION
ARE ENFORCED
T 1 That is the sanction by which obedience to the conventions of
I/ \/ the constitution is at bottom enforced?
r V This is by far the most perplexing of the speculative questions suggested by a study of constitutional law. Let us bear in mind the dictum of Paley, that it is often far harder to make men see the existence of a difficulty, than to make them, when once the difficulty is perceived, understand its explanation, and in the first place try to make dear to ourselves what is the precise nature of a puzzle of which most students dimly recognise the existence.
Constitutional understandings are admittedly not laws; they are not (that is to say) rules which will be enforced by the Courts. If a Premier were to retain office after a vote of censure passed by the House of Commons, if he were (as did Lord Palmerston under like circumstances) to dissolve, or strictly speaking to get the Crown to dissolve, Parliament, but, unlike Lord Palmerston, were to be again censured by the newly elected House of Commons, and then, after all this had taken place, were still to remain at the head of the government, — no one could deny that such a Prime Minister had acted unconstitutionally. Yet no Court of law would take notice of his conduct. Suppose, again, that on the passing by both Houses of an important bill, the King should refuse his assent to the measure, or (in popular language) put his "veto" on it. Here there would be a
Partial answer, that constitutional understandings often disobeyed.
gross violation of usage, but the matter could not by any proceeding known to English law be brought before the judges. Take another instance. Suppose that Parliament were for more than a year not summoned for the despatch of business. This would be a course of proceeding of the most unconstitutional character. Yet there is no Court in the land before which one could go with the complaint that Parliament had not been assembled.^a Still the conventional rules of the constitution, though not laws, are, as it is constantly asserted, nearly if not quite as binding as laws. They are, or appear to be, respected quite as much as most statutory enactments, and more than many. The puzzle is to see what is the force which habitually compels obedience to rules which have not behind them the coercive power of the Courts.
The difficulty of the problem before us cannot indeed be got rid of, but may be shifted and a good deal lessened, by observing that the invariableness of the obedience to constitutional understandings is itself more or less fictitious. The special articles of the conventional code are in fact often disobeyed. A Minister sometimes refuses to retire when, as his opponents allege, he ought constitutionally to resign office; not many years have passed since the Opposition of the day argued, if not convincingly yet with a good deal of plausibility, that the Ministry had violated a rule embodied in the Bill of Rights; in 1784 the House of Commons maintained, not only by argument but by repeated votes, that Pitt had deliberately defied more than one constitutional precept, and the Whigs of 1834 brought a like charge against Wellington and Peel. Nor is it doubtful that any one who searches through the pages of Hansard will find other instances in which constitutional maxims of long standing and high repute have been set at nought. The uncertain character of the deference paid to the conventions of the constitution is concealed under the current phraseology, which treats the successful violation of a constitutional rule as a proof that the maxim was not in reality part of the constitution. If a habit or precept which can be set at nought is thereby shown
i See 4 Edward III. c. 14; 16 Car. II. c. i; and i Will. & Mary, Sess. 2, c. 2. Compare these with the repealed 16 Car. I. c. i, which would have made the assembling of Parliament a matter of law.
not to be a portion of constitutional morality, it naturally follows that no true constitutional rule is ever disobeyed.
Yet, though the obedience supposed to be rendered to the separate understandings or maxims of public life is to a certain extent fictitious, the assertion that they have nearly the force of law is not without meaning. Some few of the conventions of the constitution are rigorously obeyed. Parliament, for example, is summoned year by year with as much regularity as though its annual meeting were provided for by a law of nature; and (what is of more consequence) though particular understandings are of uncertain obligation, neither the Crown nor any servant of the Crown ever refuses obedience to the grand principle which, as we have seen, underlies all the conventional precepts of the constitution, namely, that government must be carried on in accordance with the will of the House of Commons, and ultimately with the will of the nation as expressed through that House. This principle is not a law; it is not to be found in the statute-book, nor is it a maxim of the common law; it will not be enforced by any ordinary judicial body. Why then has the principle itself, as also have certain conventions or understandings which are closely connected with it, the force of law? This, when the matter is reduced to its simplest form, is the puzzle with which we have to deal. It sorely needs a solution. Many writers, however, of authority, chiefly because they do not approach the constitution from its legal side, hardly recognise the full force of the difficulty which requires to be disposed of. They either pass it by, or else apparently acquiesce in one of two answers, each of which contains an element of truth, but neither of which fully removes the perplexities of any inquirer who is determined not to be put off with mere words.
A reply more often suggested than formulated in so many words, is that obedience to the conventions of the constitution is ultimately enforced by the fear of impeachment.
If this view were tenable, these conventions, it should be remarked, would not be "understandings" at all, but "laws" in the truest sense of that term, and their sole peculiarity would lie in their being laws the breach of which could be punished only by one extraordinary tribunal, namely, the High Court of Parliament.
Power of
public
opinion.
But though it may well be conceded — and the fact is one of great importance — that the habit of obedience to the constitution was originally generated and confirmed by impeachments, yet there are insuperable difficulties to entertaining the belief that the dread of the Tower and the block exerts any appreciable influence over the conduct of modern statesmen. No impeachment for violations of the constitution (since for the present purpose we may leave out of account such proceedings as those taken against Lord Macdesfield, Warren Hastings, and Lord Melville) has occurred for more than a century and a half. The process, which is supposed to ensure the retirement from office of a modern Prime Minister, when placed in a hopeless minority, is, and has long been, obsolete. The arm by which attacks on freedom were once repelled has grown rusty by disuse; it is laid aside among the antiquities of the constitution, nor will it ever, we may anticipate, be drawn again from its scabbard. For, in truth, impeachment, as a means for enforcing the observance of constitutional morality, always laboured under one grave defect. The possibility of its use suggested, if it did not stimulate, one most important violation of political usage; a Minister who dreaded impeachment would, since Parliament was the only Court before which he could be impeached, naturally advise the Crown not to convene Parliament. There is something like a contradiction in terms in saying that a Minister is compelled to advise the meeting of Parliament by the dread of impeachment if Parliament should assemble. If the fear of Parliamentary punishment were the only difficulty in the way of violating the constitution, we may be sure that a bold party leader would, at the present day, as has been done in former centuries, sometimes suggest that Parliament should not meet.
A second and current answer to the question under consideration is, that obedience to the conventional precepts of the constitution is ensured by the force of public opinion]
Now that this assertion-is in one sense true, stands past dispute. The nation expects that Parliament shall be convened annually; the nation expects that a Minister who cannot retain the confidence of the House of Commons, shall give up his place, and no Premier even dreams of disappointing these expectations. The assertion, therefore,
that public opinion gives validity to the received precepts for the conduct of public life is true. Its defect is that, if taken without further explanation, it amounts to little else than a re-statement of the very problem which it is meant to solve. For the question to be answered is, at bottom, Why is it that public opinion is, apparently at least, a sufficient sanction to compel obedience to the conventions of the constitution? and it is no answer to this inquiry to say that these conventions are enforced by public opinion. Let it also be noted that many rules of conduct which are fully supported by the opinion of the public are violated every day of the year. Public opinion enjoins the performance of promises and condemns the commission of crimes, but the settled conviction of the nation that promises ought to be kept does not hinder merchants from going into the Gazette, nor does the universal execration of the villain who sheds man's blood prevent the commission of murders. That public opinion does to a certain extent check extravagance and criminality is of course true, but the operation of opinion is in this case assisted by the law, or in the last resort by the physical power at the disposal of the state. The limited effect of public opinion when aided by the police hardly explains the immense effect of opinion in enforcing rules which may be violated without any risk of the offender being brought before the Courts. To contend that the understandings of the constitution derive their coercive power solely from the approval of the public, is very like maintaining the kindred doctrine that the conventions of international law are kept alive solely by moral force. Every one, except a few dreamers, perceives that the respect paid to international morality is due in great measure, not to moral force, but to the physical force in the shape of armies and navies, by which the commands of general opinion are in many cases supported; and it is difficult not to suspect that, in England at least, the conventions of the constitution are supported and enforced by something beyond or in addition to the public approval.
What then is this "something"? My answer is, that it is nothing else than the force of the law. The dread of impeachment may have established, and public opinion certainly adds influence to, the prevailing dogmas of political ethics. But the sanction which constrains
Explanation.
Yearly meeting of Parliament.
the boldest political adventurer to obey the fundamental principles of the constitution and the conventions in which these principles are expressed, is in fact that the breach of these principles and of these conventions will almost immediately bring the offender into conflict with the Courts and the law of the land. i
This is the true answer to the inquiry which I have raised, but it is an answer which undoubtedly requires both explanation and defence.
The meaning of the statement that the received precepts of the constitution are supported by the law of the land, and the grounds on which that statement is based, can be most easily made apparent by considering what would be the legal results which would inevitably ensue from the violation of some indisputable constitutional maxim.
No rule is better established than that Parliament must assemble at least once a year. This maxim, as before pointed out, is certainly not derived from the common law, and is not based upon any statutory enactment. Now suppose that Parliament were prorogued once and again for more than a year, so that for two years no Parliament sat at Westminster. Here we have a distinct breach of a constitutional practice or understanding, but we have no violation of law. What, however, would be the consequences which would ensue? They would be, speaking generally, that any Ministry who at the present day sanctioned or tolerated this violation of the constitution, and every person connected with the government, would immediately come into conflict with the law of the land.
A moment's reflection shows that this would be so. The Army (Annual) Act would in the first place expire. Hence the Army Act, on which the discipline of the army depends, would cease to be in force.² But thereupon all means of controlling the army without a breach of law would cease to exist. Either the army must be discharged, in which case the means of maintaining law and order would come to an end, or the army must be kept up and discipline must be maintained without legal authority for its maintenance. If
2 In popular, though inaccurate language, "the Mutiny Act would expire." See note 26, p. 198, ante.
this alternative were adopted, every person, from the Commander-in-chief downwards, who took part in the control of the army, and indeed every soldier who carried out the commands of his superiors, would find that not a day passed without his committing or sanctioning acts which would render him liable to stand as a criminal in the dock. Then, again, though most of the taxes would still come into the Exchequer, large portions of the revenue would cease to be legally due and could not be legally collected, whilst every official, who acted as collector, would expose himself to actions or prosecutions. The part, moreover, of the revenue which came in, could not be legally applied to the purposes of the government. If the Ministry laid hold of the revenue they would find it difficult to avoid breaches of definite laws which would compel them to appear before the Courts. Suppose however that the Cabinet were willing to defy the law. Their criminal daring would not suffice for its purpose; they could not get hold of the revenue without the connivance or aid of a large number of persons, some of them indeed officials, but some of them, such as the Comptroller General, the Governors of the Bank of England, and the like, unconnected with the administration. None of these officials, it should be noted, could receive from the government or the Crown any protection against legal liability; and any person, e.g. the Commander-in-chief, or the colonel of a regiment, who employed force to carry out the policy of the government would be exposed to resistance supported by the Courts. For the law (it should always be borne in mind) operates in two different ways. It inflicts penalties and punishment upon law-breakers, and (what is of equal consequence) it enables law-respecting citizens to refuse obedience to illegal commands. It legalises passive resistance. The efficacy of such legal opposition is immensely increased by the non-existence in England of anything resembling the droit administratif of France,³ or of that wide discretionary authority which is possessed by every continental government. The result is, that an administration which attempted to dispense with the annual meeting of Parliament could not ensure the obedience even of its own officials, and, unless prepared distinctly to
3 See chap, xii., ante.
Resignation of Ministry which has lost confidence of the House of Commons.
violate the undoubted law of the land, would find itself not only opposed but helpless.
The rule, therefore, that Parliament must meet once a year, though in strictness a constitutional convention which is not a law and will not be enforced by the Courts, turns out nevertheless to be an understanding which cannot be neglected without involving hundreds of persons, many of whom are by no means specially amenable to government influence, in distinct acts of illegality cognisable by the tribunals of the country. This convention therefore of the constitution is in reality based upon, and secured by, the law of the land.
This no doubt is a particularly plain case. I have examined it fully, both because it is a particularly plain instance, and because the full understanding of it affords the clue which guides us to the principle on which really rests such coercive force as is possessed by the conventions of the constitution.
To see that this is so let us consider for a moment the effect of disobedience by the government to one of the most purely conventional among the maxims of constitutional morality, — the rule, that is to say, that a Ministry ought to retire on a vote that they no longer possess the confidence of the House of Commons. Suppose that a Ministry, after the passing of such a vote, were to act at the present day as Pitt acted in 1783, and hold office in the face of the censure passed by the House. There would dearly be a prima fade breach of constitutional ethics. What must ensue is dear. If the Ministry wished to keep within the constitution they would announce their intention of appealing to the constituencies, and the House would probably assist in hurrying on a dissolution. All breach of law would be avoided, but the reason of this would be that the conduct of the Cabinet would not be a breach of constitutional morality; for the true rule of the constitution admittedly is, not that a Ministry cannot keep office when censured by the House of Commons, but that under such circumstances a Ministry ought not to remain in office unless they can by an appeal to the country obtain the election of a House which will support the government. Suppose then that, under the circumstances I have imagined, the Ministry either would not recommend a dissolution of Parliament, or, having dissolved Parliament and being
again censured by the newly elected House of Commons, would not resign office. It would, under this state of things, be as clear as day that the understandings of the constitution had been violated. It is however equally clear that the House would have in their own hands the means of ultimately forcing the Ministry either to respect the constitution or to violate the law. Sooner or later the moment would come for passing the Army (Annual) Act or the Appropriation Act, and the House by refusing to pass either of these enactments would involve the Ministry in all the inextricable embarrassments which (as I have already pointed out) immediately follow upon the omission to convene Parliament for more than a year. The breach, therefore, of a purely conventional rule, of a maxim utterly unknown and indeed opposed to the theory of English law, ultimately entails upon those who break it direct conflict with the undoubted law of the land. We have then a right to assert that the force which in the last resort compels obedience to constitutional morality is nothing else than the power of the law itself. The conventions of the constitution are not laws, but, in so far as they really possess binding force, derive their sanction from the fact that whoever breaks them must finally break the law and incur the penalties of a law-breaker.
It is worth while to consider one or two objections which may be urged with more or less plausibility against the doctrine that the obligatory force of constitutional morality is derived from the law itself.
The government, it is sometimes suggested, may by the use of actual force carry through a coup d'etat and defy the law of the land.
This suggestion is true, but is quite irrelevant. No constitution can be absolutely safe from revolution or from a coup d'etat; but to show that the laws may be defied by violence does not touch or invalidate the statement that the understandings of the constitution are based upon the law. They have certainly no more force than the law itself. A Minister who, like the French President in 1851, could override the law could of course overthrow the constitution. The theory propounded aims only at proving that when constitutional understandings have nearly the force of law they derive their power from the fact that they cannot be broken without a breach of law. No one is con-
Parliament has never refused to pass Mutiny Act.
cerned to show, what indeed never can be shown, that the law can never be defied, or the constitution never be overthrown.
It should further be observed that the admitted sovereignty of Parliament tends to prevent violent attacks on the constitution. Revolutionists or conspirators generally believe themselves to be supported by the majority of the nation, and, when they succeed, this belief is in general well founded. But in modern England, a party, however violent, who count on the sympathy of the people, can accomplish by obtaining a Parliamentary majority all that could be gained by the success of a revolution. When a spirit of reaction or of innovation prevails throughout the country, a reactionary or revolutionary policy is enforced by Parliament without any party needing to make use of violence. The oppressive legislation of the Restoration in the seventeenth century, and the anti-revolutionary legislation of the Tories from the outbreak of the Revolution till the end of George the Third's reign, saved the constitution from attack. A change of spirit averted a change of form; the flexibility of the constitution proved its strength.
If the maintenance of political morality, it may with some plausibility be asked, really depends on the right of Parliament to refuse to pass laws such as the Army (Annual) Act, which are necessary for the maintenance of order, and indeed for the very existence of society, how does it happen that no English Parliament has ever employed this extreme method of enforcing obedience to the constitution?
The true answer to the objection thus raised appears to be that the observance of the main and the most essential of all constitutional rules, the rule, that is to say, requiring the annual meeting of Parliament, is ensured, without any necessity for Parliamentary action, by the temporary character of the Mutiny Act, and that the power of Parliament to compel obedience to its wishes by refusing to pass the Act is so complete that the mere existence of the power has made its use unnecessary. In matter of fact, no Ministry has since the Revolution of 1689 ever defied the House of Commons, unless the Cabinet could confide in the support of the country, or, in other words, could count on the election of a House which would support the policy of the government. To this we must add, that in the rare instances in
which a Minister has defied the House, the refusal to pass the Mutiny Act has been threatened or contemplated. Pitt's victory over the Coalition is constantly cited as a proof that Parliament cannot refuse to grant supplies or to pass an Act necessary for the discipline of the army. Yet any one who studies with care the great "Case of the Coalition" will see that it does not support the dogma for which it is quoted. Fox and his friends did threaten and did intend to press to the very utmost all the legal powers of the House of Commons. They failed to carry out their intention solely because they at last perceived that the majority of the House did not represent the will of the country. What the "leading case" shows is, that the Cabinet, when supported by the Crown, and therefore possessing the power of dissolution, can defy the will of a House of Commons if the House is not supported by the electors. Here we come round to the fundamental dogma of modern constitutionalism; the legal sovereignty of Parliament is subordinate to the political sovereignty of the nation. This the conclusion in reality established by the events of 1784. Pitt overrode the customs, because he adhered to the principles, of the constitution. He broke through the received constitutional understandings without damage to his power or reputation; he might in all probability have in case of necessity broken the law itself with impunity. For had the Coalition pressed their legal rights to an extreme length, the new Parliament of 1784 would in all likelihood have passed an Act of Indemnity for illegalities necessitated, or excused, by the attempt of an unpopular faction to drive from power a Minister supported by the Crown, by the Peers, and by the nation. However this may be, the celebrated conflict between Pitt and Fox lends no countenance to the idea that a House of Commons supported by the country would not enforce the morality of the constitution by placing before any Minister who defied its precepts the alternative of resignation or revolution.⁴
4 It is further not the case that the idea of refusing supplies is unknown to modern statesmen. In 1868 such refusal was threatened in order to force an early dissolution of Parliament; in 1886 the dissolution took place before the supplies were fully granted, and the supplies granted were granted for only a limited period.
Subordinate inquiries.
Why has impeachment gone out of
Why are constitutional understandings variable?
A dear perception of the true relation between the conventions of the constitution and the law of the land supplies an answer to more than one subordinate question which has perplexed students and commentators.
How is it that the ancient methods of enforcing Parliamentary authority, such as impeachment, the formal refusal of supplies, and the like, have fallen into disuse?
The answer is, that they are disused because ultimate obedience to the underlying principle of all modern constitutionalism, which is nothing else than the principle of obedience to the will of the nation as expressed through Parliament, is so closely bound up with the law of the land that it can hardly be violated without a breach of the ordinary law. Hence the extraordinary remedies, which were once necessary for enforcing the deliberate will of the nation, having become unnecessary, have fallen into desuetude. If they are not altogether abolished, the cause lies partly in the conservatism of the English people, and partly in the valid consideration that crimes may still be occasionally committed for which the ordinary law of the land hardly affords due punishment, and which therefore may well be dealt with by the High Court of Parliament.
Why is it that the understandings of the constitution have about them a singular element of vagueness and variability?
Why is it, to take definite instances of this uncertainty and change-ableness, that no one can define with absolute precision the circumstances under which a Prime Minister ought to retire from office? Why is it that no one can fix the exact point at which resistance of the House of Lords to the will of the House of Commons becomes unconstitutional? and how does it happen that the Peers could at one time arrest legislation in a way which now would be generally held to involve a distinct breach of constitutional morality? What is the reason why no one can describe with precision the limits to the influence on the conduct of public affairs which may rightly be exerted by the reigning monarch? and how does it happen that George the Third and even George the Fourth each made his personal will or caprice tell on the policy of the nation in a very different way and degree
Withdrawal >f con-idence b' iouse Commons.
:eby sof
from that in which Queen Victoria ever attempted to exercise personal influence over matters of State?
The answer in general terms to these and the like inquiries is, that the one essential principle of the constitution is obedience by all persons to the deliberately expressed will of the House of Commons in the first instance, and ultimately to the will of the nation as expressed through Parliament. The conventional code of political morality is, as already pointed out, merely a body of maxims meant to secure respect for this principle. Of these maxims some indeed — such, for example, as the rule that Parliament must be convoked at least once a year — are so closely connected with the respect due to Parliamentary or national authority, that they will never be neglected by any one who is not prepared to play the part of a revolutionist; such rules have received the undoubted stamp of national approval, and their observance is secured by the fact that whoever breaks or aids in breaking them will almost immediately find himself involved in a breach of law. Other constitutional maxims stand in a very different position. Their maintenance up to a certain point tends to secure the supremacy of Parliament, but they are themselves vague, and no one can say to what extent the will of Parliament or the nation requires their rigid observance; they therefore obtain only a varying and indefinite amount of obedience.
Thus the rule that a Ministry who have lost the confidence of the House of Commons should retire from office is plain enough, and any permanent neglect of the spirit of this rule would be absolutely inconsistent with Parliamentary government, and would finally involve the Minister who broke the rule in acts of undoubted illegality. But when you come to inquire what are the signs by which you are to know that the House has withdrawn its confidence from a Ministry, — whether, for example, the defeat of an important Ministerial measure or the smallness of a Ministerial majority is a certain proof that a Ministry ought to retire, — you ask a question which admits of no absolute reply.⁵ All that can be said is, that a
5 See Hearn, Government of England, chap, ix., for an attempt to determine the circumstances under which a Ministry ought or ought not to keep office. See debate in House of Commons of 24th July 1905, for consideration of, and reference to, precedents with regard
When House of Lords should
gve way to Dmmons.
Cabinet ought not to continue in power (subject, of course, to the one exception on which I have before dwelt)⁶ after the expression by the House of Commons of a wish for the Cabinet's retirement. Of course, therefore, a Minister or a Ministry must resign if the House passes a vote of want of confidence. There are, however, a hundred signs of Parliamentary disapproval which, according to circumstances, either may or may not be a sufficient notice that a Minister ought to give up office. The essential thing is that the Ministry should obey the House as representing the nation. But the question whether the House of Commons has or has not indirectly intimated its will that a Cabinet should give up office is not a matter as to which any definite principle can be laid down. The difficulty which now exists, in settling the point at which a Premier and his colleagues are bound to hold that they have lost the confidence of the House, is exactly analogous to the difficulty which often perplexed statesmen of the last century, of determining the point at which a Minister was bound to hold he had lost the then essential confidence of the King. The ridiculous efforts of the Duke of Newcastle to remain at the head of the Treasury, in spite of the broadest hints from Lord Bute that the time had come for resignation, are exactly analogous to the undignified persistency with which later Cabinets have occasionally dung to office in the face of intimations that the House desired a change of government. As long as a master does not directly dismiss a servant, the question whether the employer's conduct betrays a wish that the servant should give notice must be an inquiry giving rise to doubt and discussion. And if there be sometimes a difficulty in determining what is the will of Parliament, it must often of necessity be still more difficult to determine what is the will of the nation, or, in other words, of the majority of the electors.
The general rule that the House of Lords must in matters of legislation ultimately give way to the House of Commons is one of the best-established maxims of modern constitutional ethics. But if any inquirer asks how the point at which the Peers are to give way is to be
to the duty of a Ministry to retire from office when they have lost the confidence of the House of Commons. — Parl. Deb. 4th ser. vol. 150, col. 50. 6 See pp. 287-291, ante.
determined, no answer which even approximates to the truth can be given, except the very vague reply that the Upper House must give way whenever it is dearly proved that the will of the House of Commons represents the deliberate will of the nation. The nature of the proof differs under different circumstances.
When once the true state of the case is perceived, it is easy to understand a matter which, on any cut-and-dried theory of the constitution, can only with difficulty be explained, namely, the relation occupied by modern Cabinets towards the House of Lords. It is certain that for more than half a century Ministries have constantly existed which did not command the confidence of the Upper House, and that such Ministries have, without meeting much opposition on the part of the Peers, in the main carried out a policy of which the Peers did not approve. It is also certain that while the Peers have been forced to pass many bills which they disliked, they have often exercised large though very varying control over the course of legislation. Between 1834 and 1840 the Upper House, under the guidance of Lord Lyndhurst, repeatedly and with success opposed Ministerial measures which had passed the House of Commons. For many years Jews were kept out of Parliament simply because the Lords were not prepared to admit them. If you search for the real cause of this state of things, you will find that it was nothing else than the fact, constantly concealed under the misleading rhetoric of party warfare, that on the matters in question the electors were not prepared to support the Cabinet in taking the steps necessary to compel the submission of the House of Lords. On any matter upon which the electors are firmly resolved, a Premier, who is in effect the representative of the House of Commons, has the means of coercion, namely, by the creation of Peers. In a country indeed like England, things are rarely carried to this extreme length. The knowledge that a power can be exercised constantly prevents its being actually put in force. This is so even in private life; most men pay their debts without being driven into Court, but it were absurd to suppose that the possible compulsion of the Courts and the sheriff has not a good deal to do with regularity in the payment of debts. The acquiescence of the Peers in measures which the Peers do not approve arises at bottom from the fact that the
nation, under the present constitution, possesses the power of enforcing, through very cumbersome machinery, the submission of the Peers to the conventional rule that the wishes of the House of Lords must finally give way to the decisions of the House of Commons. But the rule itself is vague, and the degree of obedience which it obtains is varying, because the will of the nation is often not clearly expressed, and further, in this as in other matters, is itself liable to variation. If the smoothness with which the constitutional arrangements of modern England work should, as it often does, conceal from us the force by which the machinery of the constitution is kept working, we may with advantage consult the experience of English colonies. No better example can be given of the methods by which a Representative Chamber attempts in the last resort to compel the obedience of an Upper House than is afforded by the varying phases of the conflict which raged in Victoria during 1878 and 1879 between the two Houses of the Legislature. There the Lower House attempted to enforce upon the Council the passing of measures which the Upper House did not approve, by, in effect, inserting the substance of a rejected bill in the Appropriation Bill. The Council in turn threw out the Appropriation Bill. The Ministry thereupon dismissed officials, magistrates, county court judges, and others, whom they had no longer the means to pay, and attempted to obtain payments out of the Treasury on the strength of resolutions passed solely by the Lower House. At this point, however, the Ministry came into conflict with an Act of Parliament, that is, with the law of the land. The contest continued under different forms until a change in public opinion finally led to the election of a Lower House which could act with the Council. With the result of the contest we are not concerned. Three points, however, should be noticed. The conflict was ultimately terminated in accordance with the expressed will of the electors; each party during its course put in force constitutional powers hardly ever in practice exerted in England; as the Council was elective, the Ministry did not possess any means of producing harmony between the two Houses by increasing the number of the Upper House. It is certain that if the Governor could have nominated members of the Council, the Upper House would have yielded to the will
of the Lower, in the same way in which the Peers always in the last resort bow to the will of the House of Commons.
How is it, again, that all the understandings which are supposed to regulate the personal relation of the Crown to the actual work of government are marked by the utmost vagueness and uncertainty?
The matter is, to a certain extent at any rate, explained by the same train of thought as that which we have followed out in regard to the relation between the House of Lords and the Ministry. The revelations of political memoirs and the observation of modern public life make quite dear two points, both of which are curiously concealed under the mass of antiquated formulas which hide from view the real working of our institutions. The first is, that while every act of State is done in the name of the Crown, the real executive government of England is the Cabinet. The second is, that though the Crown has no real concern in a vast number of the transactions which take place under the Royal name, no one of the King's predecessors, nor, it may be presumed, the King himself, has ever acted upon or affected to act upon the maxim originated by Thiers, that "the King reigns but does not govern." George the Third took a leading part in the work of administration; his two sons, each in different degrees and in different ways, made their personal will and predilections tell on the government of the country. No one really supposes that there is not a sphere, though a vaguely defined sphere, in which the personal will of the King has under the constitution very considerable influence. The strangeness of this state of things is, or rather would be to any one who had not been accustomed from his youth to the mystery and formalism of English constitutionalism, that the rules or customs which regulate the personal action of the Crown are utterly vague and undefined. The reason of this will, however, be obvious to any one who has followed these chapters. The personal influence of the Crown exists, not because acts of State are done formally in the Crown's name, but because neither the legal sovereign power, namely Parliament, nor the political sovereign, namely the nation, wishes that the reigning monarch should be without personal weight in the government of the country. The customs or understandings which regulate or control the exercise of the King's personal influence
The effect of surviving prerogatives of Crown.
are vague and indefinite, both because statesmen feel that the matter is one hardly to be dealt with by precise rules, and because no human being knows how far and to what extent the nation wishes that the voice of the reigning monarch should command attention. All that can be asserted with certainty is, that on this matter the practice of the Crown and the wishes of the nation have from time to time varied. George the Third made no use of the so-called veto which had been used by William the Third; but he more than once insisted upon his will being obeyed in matters of the highest importance. None of his successors have after the manner of George the Third made their personal will decisive as to general measures of policy. In small things as much as in great one can discern a tendency to transfer to the Cabinet powers once actually exercised by the King. The scene between Jeanie Deans and Queen Caroline is a true picture of a scene which might have taken place under George the Second; George the Third's firmness secured the execution of Dr. Dodd. At the present day the right of pardon belongs in fact to the Home Secretary. A modern Jeanie Deans would be referred to the Home Office; the question whether a popular preacher should pay the penalty of his crimes would now, with no great advantage to the country, be answered, not by the King, but by the Cabinet.
What, again, is the real effect produced by the survival of prerogative powers?
Here we must distinguish two different things, namely, the way in which the existence of the prerogative affects the personal influence of the King, and the way in which it affects the power of the executive government.
The fact that all important acts of State are done in the name of the King and in most cases with the cognisance of the King, and that many of these acts, such, for example, as the appointment of judges or the creation of bishops, or the conduct of negotiations with foreign powers and the like, are exempt from the direct control or supervision of Parliament, gives the reigning monarch an opportunity for exercising great influence on the conduct of affairs; and Bagehot has marked out, with his usual subtlety, the mode in which the mere necessity under which Ministers are placed of consulting with and
giving information to the King secures a wide sphere for the exercise of legitimate influence by a constitutional ruler.
But though it were a great error to underrate the extent to which the formal authority of the Crown confers real power upon the King, the far more important matter is to notice the way in which the survival of the prerogative affects the position of the Cabinet. It leaves in the hands of the Premier and his colleagues, large powers which can be exercised, and constantly are exercised, free from Parliamentary control. This is especially the case in all foreign affairs. Parliament may censure a Ministry for misconduct in regard to the foreign policy of the country. But a treaty made by the Crown, or in fact by the Cabinet, is valid without the authority or sanction of Parliament; and it is even open to question whether the treaty-making power of the executive might not in some cases override the law of the land.⁷ However this may be, it is not Parliament, but the Ministry, who direct the diplomacy of the nation, and virtually decide all questions of peace or war. The founders of the American Union showed their full appreciation of the latitude left to the executive government under the English constitution by one of the most remarkable of their innovations upon it. They lodged the treaty-making power in the hands, not of the President, but of the President and the Senate; and further gave to the Senate a right of veto on Presidential appointments to office. These arrangements supply a valuable illustration of the way in which restrictions on the prerogative become restrictions on the discretionary authority of the executive. Were the House of Lords to have conferred upon it by statute the rights of the Senate, the change in our institutions would be described with technical correctness as the limitation of the prerogative of the Crown as regards the making of treaties and of official appointments. But the true effect
7 See the Parlement Beige, 4 P. D. 129; 5 P. D. (C. A.) 197. "Whether the power [of the Crown to compel its subjects to obey the provisions of a treaty] does exist in the case of treaties of peace, and whether if so it exists equally in the case of treaties akin to a treaty of peace, or whether in both or either of these cases interference with private rights can be authorised otherwise than by the legislature, are grave questions upon which their Lordships do not find it necessary to express an opinion." — Walker v. Baird [1892], A. C. 491, 497, judgment of P. C.
of the constitutional innovation would be to place a legal check on the discretionary powers of the Cabinet.
The survival of the prerogative, conferring as it does wide discretionary authority upon the Cabinet, involves a consequence which constantly escapes attention. It immensely increases the authority of the House of Commons, and ultimately of the constituencies by which that House is returned. Ministers must in the exercise of all discretionary powers inevitably obey the predominant authority in the State. When the King was the chief member of the sovereign body, Ministers were in fact no less than in name the King's servants. At periods of our history when the Peers were the most influential body in the country, the conduct of the Ministry represented with more or less fidelity the wishes of the Peerage. Now that the House of Commons has become by far the most important part of the sovereign body, the Ministry in all matters of discretion carry out, or tend to carry out, the will of the House. When however the Cabinet cannot act except by means of legislation, other considerations come into play. A law requires the sanction of the House of Lords. No government can increase its statutory authority without obtaining the sanction of the Upper Chamber. Thus an Act of Parliament when passed represents, not the absolute wishes of the House of Commons, but these wishes as modified by the influence of the House of Lords. The Peers no doubt will in the long run conform to the wishes of the electorate. But the Peers may think that the electors will disapprove of, or at any rate be indifferent to, a bill which meets with the approval of the House of Commons. Hence while every action of the Cabinet which is done in virtue of the prerogative is in fact though not in name under the direct control of the representative chamber, all powers which can be exercised only in virtue of a statute are more or less controlled in their creation by the will of the House of Lords; they are further controlled in their exercise by the interference of the Courts. One example, taken from the history of recent years, illustrates the practical effect of this difference.⁸ In 1872 the Ministry of the
8 On this subject there are remarks worth noting in Stephen's Life ofFawcett, pp. 271, 272.
day carried a bill through the House of Commons abolishing the system of purchase in the army. The bill was rejected by the Lords: the Cabinet then discovered that purchase could be abolished by Royal warrant, i.e. by something very like the exercise of the prerogative.⁹ The system was then and there abolished. The change, it will probably be conceded, met with the approval, not only of the Commons, but of the electors. But it will equally be conceded that had the alteration required statutory authority the system of purchase might have continued in force up to the present day. The existence of the prerogative enabled the Ministry in this particular instance to give immediate effect to the wishes of the electors, and this is the result which, under the circumstances of modern politics, the survival of the prerogative will in every instance produce. The prerogatives of the Crown have become the privileges of the people, and any one who wants to see how widely these privileges may conceivably be stretched as the House of Commons becomes more and more the direct representative of the true sovereign, should weigh well the words in which Bagehot describes the powers which can still legally be exercised by the Crown without consulting Parliament; and should remember that these powers can now be exercised by a Cabinet who are really servants, not of the Crown, but of a representative chamber which in its turn obeys the behests of the electors.
I said in this book that it would very much surprise people if they were only told how many things the Queen could do without consulting Parliament, and it certainly has so proved, for when the Queen abolished purchase in the army by an act of prerogative (after the Lords had rejected the bill for doing so), there was a great and general astonishment.
But this is nothing to what the Queen can by law do without consulting Parliament. Not to mention other things, she could disband the army (by law she cannot engage more than a certain number of men, but she is not obliged to engage any men); she could dismiss all the officers, from the General commanding-in-chief downwards; she could dismiss all the sailors too; she could sell off all our ships-of-war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of
9 Purchase was not abolished by the prerogative in the ordinary legal sense of the term. A statute prohibited the sale of offices except in so far as might be authorised in the case of the army by Royal warrant. When therefore the warrant authorising the sale was cancelled the statute took effect.
Brittany. She could make every citizen in the United Kingdom, male or female, a peer; she could make every parish in the United Kingdom a "university"; she could dismiss most of the civil servants; she could pardon all offenders. In a word, the Queen could by prerogative upset all the action of civil government within the government, could disgrace the nation by a bad war or peace, and could, by disbanding our forces, whether land or sea, leave us defenceless against foreign nations.¹⁰
If government by Parliament is ever transformed into government by the House of Commons, the transformation will, it may be conjectured, be effected by use of the prerogatives of the Crown.
Let us cast back a glance for a moment at the results which we have obtained by surveying the English constitution from its legal side.
The constitution when thus looked at ceases to appear a "sort of maze"; it is seen to consist of two different parts; the one part is made up of understandings, customs, or conventions which, not being enforced by the Courts, are in no true sense of the word laws; the other part is made up of rules which are enforced by the Courts, and which, whether embodied in statutes or not, are laws in the strictest sense of the term, and make up the true law of the constitution.
This law of the constitution is, we have further found, in spite of all appearances to the contrary, the true foundation on which the English polity rests, and it gives in truth even to the conventional element of constitutional law such force as it really possesses.ⁿ
The law of the constitution, again, is in all its branches the result of two guiding principles, which have been gradually worked out by the more or less conscious efforts of generations of English statesmen and lawyers.
The first of these principles is the sovereignty of Parliament, which means in effect the gradual transfer of power from the Crown to a body which has come more and more to represent the nation.¹² This
10 Bagehot, English Constitution, Introd. pp. xxxv. and xxxvi.
11 See pp. 292-302, ante.
12 A few words may be in place as to the method by which this transfer was accomplished. The leaders of the English people in their contests with Royal power never attempted, except in periods of revolutionary violence, to destroy or dissipate the authority of the Crown as head of the State. Their policy, continued through centuries, was to leave the
curious process, by which the personal authority of the King has been turned into the sovereignty of the King in Parliament, has had two effects: it has put an end to the arbitrary powers of the monarch; it has preserved intact and undiminished the supreme authority of the State.
The second of these principles is what I have called the "rule of law," or the supremacy throughout all our institutions of the ordinary law of the land. This rule of law, which means at bottom the right of the Courts to punish any illegal act by whomsoever committed, is of the very essence of English institutions. If the sovereignty of Parliament gives the form, the supremacy of the law of the land determines the substance of our constitution. The English constitution in short, which appears when looked at from one point of view to be a mere collection of practices or customs, turns out, when examined in its legal aspect, to be more truly than any other polity in the world, except the Constitution of the United States,¹³ based on the law of the land.
When we see what are the principles which truly underlie the English polity, we also perceive how rarely they have been followed
power of the King untouched, but to bind down the action of the Crown to recognised modes of procedure which, if observed, would secure first the supremacy of the law, and ultimately the sovereignty of the nation. The King was acknowledged to be supreme judge, but it was early established that he could act judicially only in and through his Courts; the King was recognised as the only legislator, but he could enact no valid law except as King in Parliament; the King held in his hands all the prerogatives of the executive government, but, as was after long struggles determined, he could legally exercise these prereogatives only through Ministers who were members of his Council, and incurred responsibility for his acts. Thus the personal will of the King was gradually identified with and transformed into the lawful and legally expressed will of the Crown. This transformation was based upon the constant use of fictions. It bears on its face that it was the invention of lawyers. If proof of this were wanted, we should find it in the fact that the "Parliaments" of France towards the end of the eighteenth century tried to use against the fully-developed despotism of the French monarchy, fictions recalling the arts by which, at a far earlier period, English constitutionalists had nominally checked the encroachments, while really diminishing the sphere, of the royal prerogative. Legal statesmanship bears everywhere the same character. See Rocquain, L'Esprit Revolutionnaire avant la Revolution.
13 It is well worth notice that the Constitution of the United States, as it actually exists, rests to a very considerable extent on judge-made law. Chief-Justice Marshall, as the "Expounder of the Constitution," may almost be reckoned among the builders if not the founders of the American polity. See for a collection of his judgments on constitutional questions, The Writings of John Marshall, late Chief-Justice of the United States, on the Federal Constitution.
by foreign statesmen who more or less intended to copy the constitution of England. The sovereignty of Parliament is an idea fundamentally inconsistent with the notions which govern the inflexible or rigid constitutions existing in by far the most important of the countries which have adopted any scheme of representative government. The "rule of law" is a conception which in the United States indeed has received a development beyond that which it has reached in England; but it is an idea not so much unknown to as deliberately rejected by the constitution-makers of France, and of other continental countries which have followed French guidance. For the supremacy of the law of the land means in the last resort the right of the judges to control the executive government, whilst the separation des pouvoirs means, as construed by Frenchmen, the right of the government to control the judges. The authority of the Courts of Law as understood in England can therefore hardly coexist with the system of droit administratif as it prevails in France. We may perhaps even go so far as to say that English legalism is hardly consistent with the existence of an official body which bears any true resemblance to what foreigners call "the administration." To say this is not to assert that foreign forms of government are necessarily inferior to the English constitution, or unsuited for a civilised and free people. All that necessarily results from the analysis of our institutions, and a comparison of them with the institutions of foreign countries, is, that the English constitution is still marked, far more deeply than is generally supposed, by peculiar features, and that these peculiar characteristics may be summed up in the combination of Parliamentary Sovereignty with the Rule of Law.
APPENDIX
Note I
RIGIDITY OF FRENCH CONSTITUTIONS
Twelve constitutions¹ have been framed by French constitution-makers since the meeting of the States General in 1789. A survey of the provisions (if any) contained in these constitutions for the revision thereof leads to some interesting results.
First, with but two exceptions, every French constitution has been marked by the characteristic of "rigidity." Frenchmen of all political schools have therefore agreed in the assumption, that the political foundations of the State must be placed beyond the reach of the ordinary legislature, and ought to be changed, if at all, only with considerable difficulty, and generally after such delay as may give the nation time for maturely reflecting over any proposed innovation.
In this respect the Monarchical Constitution of 1791 is noteworthy. That Constitution formed a legislature consisting of one Assembly,
i Viz. (i) The Monarchical Constitution of 1792; (2) the Republican Constitution of 1793; (3) the Republican Constitution of 1795 (Directory), 5 Fruct. An. III.; (4) the Consular Constitution of the Year VIII. (1799); (5) the Imperial Constitution, 1804; (6) the Constitution proclaimed by the Senate and Provisional Government, 1814; (7) the Constitutional Charter, 1814 (Restoration); (8) the Additional Act (Acte Additionnei), 1815, remodelling the Imperial Constitution; (9) the Constitutional Charter of 1830 (Louis Philippe);(io) the Republic of 1848; (11) the Second Imperial Constitution, 1852; (12) the present Republic, 1870-75. See generally Helie, Les Constitutions de la France; and Duguit et Monnier, Les Constitutions de la France (Deuxieme ed.).
It is possible either to lengthen or to shorten the list of French Constitutions according to the view which the person forming the list takes of the extent of the change in the arrangements of a state necessary to form a new constitution.
but did not give this Assembly or Parliament any authority to revise the Constitution. The only body endowed with such authority was an Assembly of Revision (Assemblee de Revision), and the utmost pains were taken to hamper the convening and to limit the action of the Assembly of Revision. The provisions enacted with this object were in substance as follows: — An ordinary Legislative Assembly was elected for two years. No change in the Constitution could take place until three successive Legislative Assemblies should have expressed their wish for a change in some article of the Constitution. On a resolution in favour of such reform having been carried in three successive legislatures or Parliaments, the ensuing Legislative Assembly was to be increased by the addition of 249 members, and this increased Legislature was to constitute an Assembly of Revision.
This Assembly of Revision was tied down, as far as the end could be achieved by the words of the Constitution, to debate on those matters only which were submitted to the consideration of the Assembly by the resolution of the three preceding legislatures. The authority, therefore, of the Assembly was restricted to a partial revision of the Constitution. The moment this revision was finished the 249 additional members were to withdraw, and the Assembly of Revision was thereupon to sink back into the position of an ordinary legislature. If the Constitution of 1791 had continued in existence, no change in its articles could, under any circumstances, have been effected in less than six years. But this drag upon hasty legislation was not, in the eyes of the authors of the Constitution, a sufficient guarantee against inconsiderate innovations.² They specially provided that the two consecutive legislative bodies which were to meet after the proclamation of the Constitution, should have no authority even to propose the reform of any article contained therein. The intended consequence was that for at least ten years (1791-1801) the bases of the French government should remain unchanged and unchangeable.³
2 A resolution was proposed, though not carried, that the articles of the Constitution should be unchangeable for a period of thirty years. Helie, Les Constitutions de la France, p. 302.
3 See Constitution of 1791, Tit. vii.
The Republicans of 1793 agreed with the Constitutionalists of 1791 in placing the foundations of the State outside the limits of ordinary legislation, but adopted in different method of revision. Constitutional changes were under the Constitution of 1793 made dependent, not on the action of the ordinary legislature, but on the will of the people. Upon the demand of a tenth of the primary assemblies in more than half of the Departments of the Republic, the legislature was bound to convoke all the primary assemblies, and submit to them the question of convening a national convention for the revision of the Constitution. The vote of these Assemblies thereupon decided for or against the meeting of a convention, and therefore whether a revision should take place.
Assuming that they decided in favour of a revision, a convention, elected in the same manner as the ordinary legislature, was to be forthwith convened, and to occupy itself as regards the Constitution with those subjects only which should have caused (ont motive) the convention to be assembled. On the expressed wish, in short, of the majority of the citizens, a legislature was to be convoked with a limited authority to reform certain articles of the Constitution.⁴
The Republican and Directorial Constitution again, of 1795, rested, like its predecessors, on the assumption that it was of primary importance to make constitutional changes difficult, and also recognised the danger of again creating a despotic sovereign assembly like the famous, and hated, Convention.
The devices by which it was sought to guard against both sudden innovations, and the tyranny of a constituent assembly, can be understood only by one who remembers that, under the Directorial Constitution, the legislature consisted of two bodies, namely, the Council of Ancients, and the Council of Five Hundred. A proposal for any change in the Constitution was necessarily to proceed from the Council of Ancients, and to be ratified by the Council of Five Hundred. After such a proposal had been duly made and ratified thrice in nine years, at periods distant from each other by at least three years, an Assembly of Revision was to be convoked. This As-
4 Constitution du 5 Fructidor, An. III., articles 336-350, Helie, pp. 436, 463, 464.
sembly constituted what the Americans now term a "constitutional convention." It was a body elected ad hoc, whose meeting did not in any way suspend the authority of the ordinary legislature, or of the Executive. The authority of the Assembly of Revision was further confined to the revision of those articles submitted to its consideration by the legislature. It could in no case sit for more than three months, and had no other duty than to prepare a plan of reform (projet de reforme) for the consideration of the primary Assemblies of the Republic. When once this duty had been performed, the Assembly of Revision was ipso facto dissolved. The Constitution not only carefully provided that the Assembly of Revision should take no part in the government, or in ordinary legislation, but also enacted that until the changes proposed by the Assembly should have been accepted by the people the existing Constitution should remain in force.
The Consular and Imperial Constitutions, all with more or less directness, made changes in the Constitution depend, first, upon a senatus consultum or resolution of the Senate; and, next, on the ratification of the change by a popular vote or plebiscite.⁵ This may be considered the normal Napoleonic system of constitutional reform. It makes all changes dependent on the will of a body, if effect, appointed by the Executive, and makes them subject to the sanction of a popular vote taken in such a manner that the electors can at best only either reject or, as in fact they always have done, affirm the proposals submitted to them by the Executive. No opportunity is given for debate or for amendments of the proposed innovations. We may assume that even under the form of Parliamentary Imperialism sketched out in the Additional Act of 23rd April 1815, the revision of the Constitution was intended to depend on the will of the Senate and the ratification of the people. The Additional Act is, however, in one respect very remarkable. It absolutely prohibits any proposal which should have for its object the Restoration of the Bourbons, the re-establishment of feudal rights, of tithes, or of an established Church (culte privilegie et dominant), or which should in any way re-
5 See Helie, Les Constitutions de la France, pp. 696-698.
voke the sale of the national domains, or, in other words, French landowners. This attempt to place certain principles beyond the influence, not only of ordinary legislation but of constitutional change, recalls to the student of English history the Cromwellian Constitution of 1653, and the determination of the Protector that certain principles should be regarded as "fundamentals" not to be touched by Parliament, nor, as far as would appear, by any other body in the State.
The Republic of 1848 brought again into prominence the distinction between laws changeable by the legislature in its ordinary legislative capacity, and articles of the Constitution changeable only with special difficulty, and by an assembly specially elected for the purpose of revision. The process of change was elaborate. The ordinary legislative body was elected for three years. This body could not itself modify any constitutional article. It could however, in its third year, resolve that a total or partial revision of the Constitution was desirable; such a resolution was invalid unless voted thrice at three sittings, each divided from the other by at least the period of a month, unless 500 members voted, and unless the resolution were affirmed by three-fourths of the votes given.
On the resolution in favour of a constitutional change being duly carried, there was to be elected an assembly of revision. This assembly, elected for three months only, and consisting of a larger number than the ordinary legislature, was bound to occupy itself with the revision for which it was convoked, but might, if necessary, pass ordinary laws. It was therefore intended to be a constituent body superseding the ordinary legislature.⁶
The second Empire revived, in substance, the legislative system of the first, and constitutional changes again became dependent upon a resolution of the Senate, and ratification by a popular vote.⁷
The existing Republic is, in many respects, unlike any preceding polity created by French statesmanship. The articles of the Constitution are to be found, not in one document, but in several constitu-
6 See Constitution, 1848, art. 111.
7 Ibid. 1852, arts. 31, 32; Helie, p. 1170.
tional laws enacted by the National Assembly which met in 1871. These laws however cannot be changed by the ordinary legislature — the Senate and the Chamber of Deputies — acting in its ordinary legislative character. The two Chambers, in order to effect a change in the constitutional manner, must, in the first place, each separately resolve that a revision of the Constitution is desirable. When each have passed this resolution, the two Chambers meet together, and when thus assembled and voting together as a National Assembly, or Congress, have power to change any part, as they have in fact changed some parts, of the constitutional laws.⁸
I have omitted to notice the constitutional Charter of 1814, granted by Louis XVIII., and the Charter of 1830, accepted by Louis Philippe. The omission is intentional. Neither of these documents contains any special enactments for its amendment. An Englishman would infer that the articles of the Charter could be abrogated or amended by the process of ordinary legislation. The inference may be correct. The constitutionalists of 1814 and 1830 meant to found a constitutional monarchy of the English type, and therefore may have meant the Crown and the two Houses to be a sovereign Parliament. The inference however, as already pointed out,⁹ is by no means certain. Louis XVIII. may have meant that the articles of a constitution granted as a charter by the Crown, should be modifiable only at the will of the grantor. Louis Philippe may certainly have wished that the foundations of his system of government should be legally immutable. However this may have been, one thing is dear, namely, that French constitutionalists have, as a rule, held firmly to the view that the foundations of the Constitution ought not to be subject to sudden changes at the will of the ordinary legislature.
Secondly, French statesmen have never fully recognised the inconveniences and the perils which may arise from the excessive rigidity of a constitution. They have hardly perceived that the power of a minority to place a veto for a period of many years on a reform desired by the nation provides an excuse or a reason for revolution.
8 See Constitutional Law, 1855, art. 8.
9 See pp. 62-63, ante.
The authors of the existing Republic have, in this respect, learnt something from experience. They have indeed preserved the distinction between the Constitution and ordinary laws, but they have included but a small number of rules among constitutional articles, and have so facilitated the process of revision as to make the existing chambers all but a sovereign Parliament. Whether this is on the whole a gain or not, is a point on which it were most unwise to pronounce an opinion. All that is here insisted upon is that the present generation of Frenchmen have perceived that a constitution may be too rigid for use or for safety.¹⁰
Thirdly, an English critic smiles at the labour wasted in France on the attempt to make immutable Constitutions which, on the average, have lasted about ten years apiece. The edifice, he reflects, erected by the genius of the first great National Assembly, could not, had it stood, have been legally altered till 1801 — that is, till the date when, after three constitutions had broken down, Bonaparte was erecting a despotic Empire. The Directorial Republic of 1795 could not, if it had lasted, have been modified in the smallest particular till 1804, at which date the Empire was already in full vigour.
But the irony of fate does not convict its victims of folly, and, if we look at the state of the world as it stood when France began her experiments in constitution-making, there was nothing ridiculous in the idea that the fundamental laws of a country ought to be changed but slowly, or in the anticipation that the institutions of France would not require frequent alteration. The framework of the English Constitution had, if we except the Union between England and Scotland, stood, as far as foreigners could observe, unaltered for a century, and if the English Parliament was theoretically able to modify any institution whatever, the Parliaments of George III. were at least as little likely to change any law which could be considered constitutional as a modern Parliament to abolish the Crown. In fact it was not till nearly forty years after the meeting of the States General (1829) that
10 See as to the circumstances which explain the character of the existing Constitution of France, Lowell, Governments and Parties in Continental Europe, i. pp. 7-14, and note that the present constitution has already lasted longer than any constitution which has existed in France since 1789.
any serious modification was made in the form of the government of England. No one in France or in England could a century ago foresee the condition of pacific revolution to which modern Englishmen had become so accustomed as hardly to feel its strangeness. The newly-founded Constitution of the United States showed every sign of stability, and has lasted more than a century without undergoing any material change of form. It was reasonable enough therefore for the men of 1789 to consider that a well-built constitution might stand for a long time without the need of repair.
Fourthly, the errors committed by French constitutionalists have been, if we may judge by the event, in the main, twofold. Frenchmen have always been blind to the fact that a constitution may be undermined by the passing of laws which, without nominally changing its provisions, violate its principles. They have therefore failed to provide any adequate means, such as those adopted by the founders of the United States, for rendering unconstitutional legislation inoperative. They have in the next place, generally, though not invariably, underrated the dangers of convoking a constituent assembly, which, as its meeting suspends the authority of the established legislature and Executive, is likely to become a revolutionary convention.
Fifthly, the Directorial Constitution of 1795 is, from a theoretical point of view, the most interesting among the French experiments in the art of constitution-making. Its authors knew by experience the risks to which revolutionary movements are exposed, and showed much ingenuity in their devices for minimising the perils involved in revisions of the Constitution. In entrusting the task of revision to an assembly elected ad hoc, which met for no other purpose, and which had no authority to interfere with or suspend the action of the established legislative bodies or of the Executive, they formed a true constitutional convention in the American sense of that term,¹¹ and, if we may judge by transatlantic experience, adopted by far the wisest method hitherto invented for introducing changes into a written and rigid constitution. The establishment, again, of the principle that all
11 See the word "Convention" in the American Encyclopaedia of American Science; and Bryce, American Commonwealth, i. (3rd ed.), App. on Constitutional Conventions, p. 667.
amendments voted by the Assembly of Revision must be referred to a popular vote, and could not come into force until accepted by the people, was an anticipation of the Referendum which has now taken firm root in Switzerland, and may, under one shape or another, become in the future a recognised part of all democratic politics. It is worth while to direct the reader's attention to the ingenuity displayed by the constitution-makers of 1795, both because their resourcefulness stands in marked contrast with the want of inventiveness which marks the work of most French constitutionalists, and because the incapacity of the Directorial Government, in the work of administration, has diverted attention from the skill displayed by the founders of the Directorate in some parts of their constitutional creation.
Note II
DIVISION OF POWERS IN FEDERAL STATES
A student who wishes to understand the principles which, under a given system of federalism, determine the division of authority between the nation or the central government on the one hand, and the States on the other, should examine the following points: — first, whether it is the National Government or the States to which belong only "definite" powers, i.e. only the powers definitely assigned to it under the Constitution; secondly, whether the enactments of the Federal legislature can be by any tribunal or other authority nullified or treated as void; thirdly, to what extent the Federal government can control the legislation of the separate States; and fourthly, what is the nature of the body (if such there be) having authority to amend the Constitution.
It is interesting to compare on these points the provisions of five different federal systems.
THE UNITED STATES
\. The powers conferred by the Constitution on the United States are strictly "definite" or defined; the powers left to the separate States
are "indefinite" or undefined. "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."¹² The consequence is that the United States (that is, the National Government) can claim no power not conferred upon the United States either directly or impliedly by the Constitution. Every State in the Union can claim to exercise any power belonging to an independent nation which has not been directly or indirectly taken away from the States by the Constitution.
2. Federal legislation is as much subject to the Constitution as the legislation of the States. An enactment, whether of Congress or of a State legislature, which is opposed to the Constitution, is void, and will be treated as such by the Courts.
3. The Federal government has no power to annul or disallow State legislation. The State Constitutions do not owe their existence to the Federal government, nor do they require its sanction. The Constitution of the United States, however, guarantees to every State a Republican Government, and the Federal government has, it is submitted, the right to put down, or rather is under the duty of putting down, any State Constitution which is not "Republican," whatever be the proper definition of that term.
4. Changes in the Constitution require for their enactment the sanction of three-fourths of the States, and it would appear that constitutionally no State can be deprived of its equal suffrage in the Senate without its consent.¹³
THE SWISS CONFEDERATION
1. The authority of the national government or Federal power is definite, the authority of each of the Cantons is indefinite.¹⁴
2. Federal legislation must be treated as valid by the Courts. But a law passed by the Federal Assembly must, on demand of either 30,000
12 Constitution of United States, Amendment 10.
13 Constitution of United States, art. 5.
14 See Constitution Federale, art. 3.
citizens or of eight Cantons, be referred to a popular vote for approval or rejection. It would appear that the Federal Court can treat as invalid Cantonal laws which violate the Constitution.
3. The Federal authorities have no power of disallowing or annulling a Cantonal law. But the Cantonal Constitutions, and amendments thereto, need the guarantee of the Confederacy. This guarantee will not be given to articles in a Cantonal Constitution which are repugnant to the Federal Constitution, and amendments to a Cantonal Constitution do not, I am informed, come into force until they receive the Federal Guarantee.
4. The Federal Constitution can be revised only by a combined majority of the Swiss people, and of the Swiss Cantons. No amendment of the Constitution can be constitutionally effected which is not approved of by a majority of the Cantons.
THE CANADIAN DOMINION
1. The authority of the Dominion, or Federal, government is indefinite or undefined; the authority of the States or Provinces is definite or defined, and indeed defined within narrow limits.^1S
From a federal point of view this is the fundamental difference between the Constitution of the Dominion on the one hand, and the Constitution of the United States or of Switzerland on the other.
The Dominion Parliament can legislate on all matters not exclusively assigned to the Provincial legislatures. The Provincial or State Legislatures can legislate only on certain matters exclusively assigned to them. Congress, on the other hand, or the Swiss Federal Assembly, can legislate only on certain definite matters assigned to it by the Constitution; the States or Cantons retain all powers exercised by legislation or otherwise not specially taken away from them by the Constitution.
2. The legislation of the Federal, or Dominion, Parliament is as much subject to the Constitution (i.e. the British North America Act, 1867) as the legislation of the Provinces. Any Act passed, either by the
15 See British North America Act, 1867, ss. 91, 92.
Dominion Parliament or by a Provincial Legislature, which is inconsistent with the Constitution is void, and will be treated as void by the Courts.
3. The Dominion Government has authority to disallow the Act passed by a Provincial legislature. This disallowance may be exercised even in respect of Provincial Acts which are constitutional, i.e. within the powers assigned to the Provincial legislatures under the Constitution.¹⁶
4. The Constitution of the Dominion depends on an Imperial statute; it can, therefore, except as provided by the statute itself, be changed only by an Act of the Imperial Parliament. The Parliament of the Dominion cannot, as such, change any part of the Canadian Constitution. It may however, to a limited extent, by its action when combined with that of a Provincial legislature, modify the Constitution for the purpose of producing uniformity of laws in the Provinces of the Dominion.¹⁷
But a Provincial legislature can under the British North America Act, 1867, ^s- 9²' sub-s. i, amend the Constitution of the Province. The law, however, amending the Provincial Constitution is, in common with other Provincial legislation, subject to disallowance by the Dominion government.
THE COMMONWEALTH OF AUSTRALIA
1. The authority of the Federal government is definite; the authority of each of the States, vested in the Parliament thereof, is indefinite.¹⁸
2. Federal legislation (i.e. the legislation of the Commonwealth Parliament) is as much subject to the constitution as the legislation of the State Parliaments. An enactment whether of the Commonwealth Parliament or of a State legislature which is opposed to the Constitu-
16 See British North America Act, 1867, s. 90; and Bourinot, Parliamentary Practice and Procedure, pp. 76-81.
17 British North America Act, 1867, s. 94.
18 Commonwealth Constitution Act, ss. 51, 52, 106, 107.
tion of the Commonwealth, is void and will be treated as such by the Courts.
3. The Federal or Commonwealth government has no power to annul or disallow either directly or indirectly the legislation of a State Parliament.
4. Amendments of the Commonwealth Constitution may be effected by a bill passed by the Commonwealth Parliament, or under some circumstances by one only of the Houses of the Commonwealth Parliament, and approved of by a majority of the voting electors of the Commonwealth, and also by a majority of the States thereof.¹⁹
Note however that (i) many provisions of the Constitution may under the Constitution be changed by an ordinary Act of the Commonwealth Parliament.²⁰
(ii) The Commonwealth Constitution being an Act of the Imperial Parliament may be altered or abolished by an Act of the Imperial Parliament.
THE GERMAN EMPIRE
1. The authority under the Constitution of the Imperial (Federal) power is apparently finite or defined, whilst the authority of the States making up the Federation is indefinite or undefined.
This statement, however, must be understood subject to two limitations: first, the powers assigned to the Imperial government are very large; secondly, the Imperial legislature can change the Constitution.²¹
2. Imperial legislation at any rate, if carried through in a proper form, cannot apparently be "unconstitutional,"²² but it would appear
19 Constitution, s. 128.
20 See e.g. Constitution, ss. 7, 10.
21 See Reichsverfassung, arts. 2. and 78.
22 See on the moot question whether the Reichsgericht and the Courts generally can treat a statute passed by the Diet (Reichstag) as unconstitutional, Lowell, Governments and Parties in Continental Europe, i. pp. 282-284.
that State legislation is void, if it conflicts with the Constitution, or with Imperial legislation.²³
3. Whether the Imperial government has any power of annulling a State law on the ground of unconstitutionality is not very dear, but as far as a foreigner can judge, no such power exists under the Imperial Constitution. The internal constitutional conflicts which may arise within any State may, under certain circumstances, be ultimately determined by Imperial authority.²⁴
4. The Constitution may be changed by the Imperial (Federal) legislature in the way of ordinary legislation. But no law amending the Constitution can be carried, if opposed by fourteen votes in the Federal Council (Bundesrath). This gives in effect a "veto" on constitutional changes to Prussia and to several combinations of other States.
Certain rights, moreover, are reserved to several States which cannot be changed under the Constitution, except with the assent of the State possessing the right.²⁵
23 Reichsverfassung, art. 2; and Labaud, Staatsrecht des Deutschen Reiches, s. 10.
24 Reichsverfassung, art. 76.
25 The South African Union. — The constitution of the South African Union, it has been well said, "is frankly not in any real sense federal." The Act under which it is framed "does not restrict in any substantial manner the Parliament's power to alter the provisions of the Constitution. It is especially laid down in s. 152 that Parliament may by law repeal or alter any of the provisions of the Act, provided that no provision thereof for the operation of which a definite period of time is fixed shall be repealed or altered before the expiration of such period, and also provided that no repeal or alteration of the provisions of the section itself, or of ss. 33 and 34 relative to the numbers of the members of the Legislative Assembly, prior to the expiration of ten years, or until the total number of members of the Assembly has reached 150, whichever occurs later, or of the provisions of s. 35 relative to the qualifications of electors to the House of Assembly, or of s. 137 as to the use of languages, shall be valid, unless the Bill containing the alterations is passed at a joint sitting of the Houses, and at its third reading by not less than two-thirds of the total number of members of both Houses. The section is well worded, as it obviates the possible evasion of its spirit by the alteration of the section itself." Keith, South African Union, Reprinted from the Journal of the Society of Comparative Legislation, pp. 50, 51. See also Brand, The Union of South Africa, especially chap. xi.
Note III
DISTINCTION BETWEEN
A PARLIAMENTARY EXECUTIVE AND A
NON-PARLIAMENTARY EXECUTIVE
Representative government, of one kind or another, exists at this moment in most European countries, as well as in all countries which come within the influence of European ideas; there are few civilised states in which legislative power is not exercised by a wholly, or partially, elective body of a more or less popular or representative character. Representative government, however, does not mean everywhere one and the same thing. It exhibits or tends to exhibit two different forms, or types, which are discriminated from each other by the difference of the relation between the executive and the legislature. Under the one form of representative government the legislature, or, it maybe, the elective portion thereof, appoints and dismisses the executive which under these circumstances is, in general, chosen from among the members of the legislative body. Such an executive may appropriately be termed a "parliamentary executive." Under the other form of representative government the executive, whether it be an Emperor and his Ministers, or a President and his Cabinet, is not appointed by the legislature. Such an executive may appropriately be termed a "non-parliamentary executive." As to this distinction between the two forms of representative government, which, though noticed of recent times by authors of eminence, has hardly been given sufficient prominence in treatises on the theory or the practice of the English constitution, two or three points are worth attention.
First, the distinction affords a new principle for the classification of constitutions, and brings into light new points both of affinity and difference. Thus if the character of polities be tested by the nature of their executives, the constitutions of England, of Belgium, of Italy, and of the existing French Republic, all, it will be found, belong substantially to one and the same class; for under each of these constitutions there exists a parliamentary executive. The constitutions,
on the other hand, of the United States and of the German Empire, as also the constitution of France in the time of the Second Republic, all belong to another and different class, since under each of these constitutions there is to be found a non-parliamentary executive. This method of grouping different forms of representative government is certainly not without its advantages. It is instructive to perceive that the Republican democracy of America and the Imperial government of Germany have at least one important feature in common, which distinguishes them no less from the constitutional monarchy of England than from the democratic Republic of France.
Secondly, the practical power of a legislative body, or parliament, greatly depends upon its ability to appoint and dismiss the executive; the possession of this power is the source of at least half the authority which, at the present day, has accrued to the English House of Commons. The assertion, indeed, would be substantially true that parliamentary government, in the full sense of that term, does not exist, unless, and until, the members of the executive body hold office at the pleasure of parliament, and that, when their tenure of office does depend on the pleasure of parliament, parliamentary government has reached its full development and been transformed into government by parliament. But, though this is so, it is equally true that the distinction between a constitution with a parliamentary executive and a constitution with a non-parliamentary executive does not square with the distinction insisted upon in the body of this work, between a constitution in which there exists a sovereign parliament and a constitution in which there exists a non-sovereign parliament. The English Parliament, it is true, is a sovereign body, and the real English executive — the Cabinet — is in fact, though not in name, a parliamentary executive. But the combination of parliamentary sovereignty with a parliamentary executive is not essential but accidental. The English Parliament has been a sovereign power for centuries, but down at any rate to the Revolution of 1689 the government of England was in the hands of a non-parliamentary executive. So again it is at least maintainable that in Germany the Federal Council (Bundesrath) and the Federal Diet (Reichstag) constitute together a
sovereign legislature.²⁶ But no one with recent events before his eyes can assert that the German Empire is governed by a parliamentary executive. In this matter, as in many others, instruction may be gained from a study of the history of parliamentary government in Ireland. In modern times both the critics and the admirers of the constitution popularly identified with the name of Grattan, which existed from 1782 to 1800, feel that there is something strange and perplexing in the position of the Irish Parliament. The peculiarity of the case, which it is far easier for us to perceive than it was for Grattan and his contemporaries, lies mainly in the fact that, while the Irish Parliament was from 1782 an admittedly sovereign legislature, and whilst it was probably intended by all parties that the Irish Houses of Parliament should, in their legislation for Ireland, be as little checked by the royal veto as were the English Houses of Parliament, yet the Irish executive was as regards the Irish Parliament in no sense a parliamentary executive, for it was in reality appointed and dismissed by the English Ministry. It would be idle to suppose that mere defects in constitutional mechanism would in themselves have caused, or that the most ingenious of constitutional devices would of themselves have averted, the failure of Grattan's attempt to secure the parliamentary independence of Ireland. But a critic of constitutions may, without absurdity, assert that in 1782 the combination of a sovereign parliament with a non-parliamentary executive made it all but certain that Grattan's constitution must either be greatly modified or come to an end. For our present purpose, however, all that need be noted is that this combination, which to modern critics seems a strange one, did in fact exist during the whole period of Irish parliamentary independence. And as the existence of a sovereign parliament does not necessitate the existence of a parliamentary executive, so a parliamentary executive constantly coexists with a non-sovereign parliament. This is exemplified by the constitution of Belgium as of every English colony endowed with representative institutions and responsible government.
26 See the Imperial Constitution, Arts 2 and 78.
The difference again between a parliamentary and a non-parliamentary executive, though it covers, does not correspond with a distinction, strongly insisted on by Bagehot, between Cabinet Government and Presidential Government.²⁷ Cabinet Government, as that term is used by him and by most writers, is one form, and by far the most usual form, of a parliamentary executive, and the Presidential Government of America which Bagehot had in his mind, is one form, though certainly not the only form, of a non-parliamentary executive. But it would be easy to imagine a parliamentary executive which was not a Cabinet, and something of the sort, it may be suggested, actually existed in France during the period when Monsieur Thiers and Marshal MacMahon were each successively elected chief of the executive power by the French National Assembly, ²⁸ and there certainly may exist a non-parliamentary executive which cannot be identified with Presidential government. Such for example is at the present moment the executive of the German Empire. The Emperor is its real head; he is not a President; neither he, nor the Ministers he appoints, are appointed or dismissible by the body which we may designate as the Federal Parliament.
Thirdly, the English constitution as we now know it presents here, as elsewhere, more than one paradox. The Cabinet is, in reality and in fact, a parliamentary executive, for it is in truth chosen, though by a very indirect process, and may be dismissed by the House of Commons, and its members are invariably selected from among the members of one or other House of Parliament. But, in appearance and in name, the Cabinet is now what it originally was, a non-parliamentary executive; every Minister is the servant of the Crown, and is in form appointed and dismissible, not by the House of Commons, not by the Houses of Parliament, but by the King.
It is a matter of curious speculation, whether the English Cabinet may not at this moment be undergoing a gradual and, as yet, scarcely noticed change of character, under which it may be transformed from a parliamentary into a non-parliamentary executive. The possibility of
27 See Bagehot, English Constitution (ed. 1878), pp. 16 and following.
28 See Helie, Les Constitutions de la France, pp. 1360, 1397.
such a change is suggested by the increasing authority of the electorate. Even as it is, a general election may be in effect, though not in name, a popular election of a particular statesman to the Premiership. It is at any rate conceivable that the time may come when, though all the forms of the English constitution remain unchanged, an English Prime Minister will be as truly elected to office by a popular vote as is an American President. It should never be forgotten that the American President is theoretically elected by electors who never exercise any personal choice whatever, and is in fact chosen by citizens who have according to the letter of the constitution no more right to elect a President than an English elector has to elect a Prime Minister.
Fourthly, each kind of executive possesses certain obvious merits and certain obvious defects.
A parliamentary executive, which for the sake of simplicity we may identify with a Cabinet, can hardly come into conflict with the legislature, or, at any rate, with that part of it by which the Cabinet is appointed and kept in power. Cabinet government has saved England from those conflicts between the executive and the legislative power which in the United States have impeded the proper conduct of public affairs, and in France, as in some other countries, have given rise to violence and revolution. A parliamentary Cabinet must from the necessity of the case be intensely sensitive and amenable to the fluctuations of parliamentary opinion, and be anxious, in matters of administration no less than in matters of legislation, to meet the wishes, and even the fancies, of the body to which the Ministry owes its existence. The "flexibility," if not exactly of the constitution yet of our whole English system of government, depends, in practice, quite as much upon the nature of the Cabinet as upon the legal sovereignty of the English Parliament. But Cabinet government is inevitably marked by a defect which is nothing more than the wrong side, so to speak, of its merits. A parliamentary executive must by the law of its nature follow, or tend to follow, the lead of Parliament. Hence under a system of Cabinet government the administration of affairs is apt, in all its details, to reflect not only the permanent will, but also the temporary wishes, or transient passions and fancies, of a parliamentary majority, or of the electors from whose good will the majority
derives its authority. A parliamentary executive, in short, is likely to become the creature of the parliament by which it is created, and to share, though in a modified form, the weaknesses which are inherent in the rule of an elective assembly.
The merits and defects of a non-parliamentary executive are the exact opposite of the merits and defects of a parliamentary executive. Each form of administration is strong where the other is weak, and weak where the other is strong. The strong point of a non-parliamentary executive is its comparative independence. Wherever representative government exists, the head of the administation, be he an Emperor or a President, of course prefers to be on good terms with and to have the support of the legislative body. But the German Emperor need not pay anything like absolute deference to the wishes of the Diet; an American President can, if he chooses, run counter to the opinion of Congress. Either Emperor or President, if he be a man of strong will and decided opinions, can in many respects give effect as head of the executive to his own views of sound policy, even though he may, for the moment, offend not only the legislature but also the electors. Nor can it be denied that the head of a non-parliamentary executive may, in virtue of his independence, occasionally confer great benefits on the nation. Many Germans would now admit that the King of Prussia and Prince Bismarck did, just because the Prussian executive was in fact, whatever the theory of the constitution, a non-parliamentary executive, pursue a policy which, though steadily opposed by the Prussian House of Representatives, laid the foundation of German power. There was at least one occasion, and probably more existed, on which President Lincoln rendered an untold service to the United States by acting, in defiance of the sentiment of the moment, on his own conviction as to the course required by sound policy. But an executive which does not depend for its existence on parliamentary support, dearly may, and sometimes will, come into conflict with parliament. The short history of the second French Republic is, from the election of Louis Napoleon to the Presidency down to the Coup d'Etat of the 2nd of December, little else than the story of the contest between the French executive and the French legislature. This struggle, it may be said, arose from the
peculiar position of Louis Napoleon as being at once the President of the Republic and the representative of the Napoleonic dynasty. But the contest between Andrew Johnson and Congress, to give no other examples, proves that a conflict between a non-parliamentary executive and the legislature may arise where there is no question of claim to a throne, and among a people far more given to respect the law of the land than are the French.
Fifthly, the founders of constitutions have more than once attempted to create a governing body which should combine the characteristics, and exhibit, as it was hoped, the merits without the defects both of a parliamentary and of a non-parliamentary executive. The means used for the attainment of this end have almost of necessity been the formation under one shape or another of an administration which, while created, should not be dismissible, by the legislature. These attempts to construct a semi-parliamentary executive repay careful study, but have not been crowned, in general, with success.
The Directory which from 1795 to 1799 formed the government of the French Republic was, under a very complicated system of choice, elected by the two councils which constituted the legislature or parliament of the Republic. The Directors could not be dismissed by the Councils. Every year one Director at least was to retire from office. "The foresight," it has been well said,
of [the Directorial] Constitution was infinite: it prevented popular violence, the encroachments of power, and provided for all the perils which the different crises of the Revolution had displayed. If any Constitution could have become firmly established at that period [1795], it was the directorial constitution.²⁹
It lasted for four years. Within two years the majority of the Directory and the Councils were at open war. Victory was determined in favour of the Directors by a coup d'etat, followed by the transportation of their opponents in the legislature.
It may be said, and with truth, that the Directorial Constitution never had a fair trial, and that at a time when the forces of reaction
29 Mignet, French Revolution (English Translation) p. 303.
and of revolution were contending for supremacy with alternating success and failure, nothing but the authority of a successful general could have given order, and no power whatever could have given constitutional liberty, to France. In 1875 France was again engaged in the construction of a Republican Constitution. The endeavour was again made to create an executive power which should neither be hostile to, nor yet absolutely dependent upon, the legislature. The outcome of these efforts was the system of Presidential government, which nominally still exists in France. The President of the Republic is elected by the National Assembly, that is, by the Chamber of Deputies and the Senate (or, as we should say in England, by the two Houses of Parliament) sitting together. He holds office for a fixed period of seven years, and is re-eligible; he possesses, nominally at least, considerable powers; he appoints the Ministry or Cabinet, in whose deliberations he, sometimes at least, takes part, and, with the concurrence of the Senate, can dissolve the Chamber of Deputies. The Third French Republic, as we all know, has now lasted for thirty-eight years, and the present Presidential Constitution has been in existence for thirty-three years. There is no reason, one may hope, why the Republic should not endure for an indefinite period; but the interesting endeavour to form a semi-parliamentary executive may already be pronounced a failure. Of the threatened conflict between Marshal MacMahon and the Assembly, dosed by his resignation, we need say nothing; it may in fairness be considered the last effort of reactionists to prevent the foundation of a Republican Commonwealth. The breakdown of the particular experiment with which we are concerned is due to the events which have taken place after MacMahon's retirement from office. The government of France has gradually become a strictly parliamentary executive. Neither President Grevy nor President Carnot attempted to be the real head of the administration. President Faure and President Loubet followed in their steps. Each of these Presidents filled, or tried to fill, the part, not of a President, in the American sense of the word, but of a constitutional King. Nor is this all. As long as the President's tenure of office was in practice independent of the will of the Assembly, the expectation was reasonable that, whenever a statesman of vigour and reputa-
tion was called to the Presidency, the office might acquire a new character, and the President become, as were in a sense both Thiers and MacMahon, the real head of the Republic. But the circumstances of President Grevy's fall, as also of President Casimir Perier's retirement from office, show that the President, like his ministers, holds his office in the last resort by the favour of the Assembly. It may be, and no doubt is, a more difficult matter for the National Assembly to dismiss a President than to change a Ministry. Still the President is in reality dismissible by the legislature. Meanwhile the real executive is the Ministry, and a French Cabinet is, to judge from all appearances, more completely subject than is an English Cabinet to the control of an elective chamber. The plain truth is that the semi-parliamentary executive which the founders of the Republic meant to constitute has turned out a parliamentary executive of a very extreme type.
The statesmen who in 1848 built up the fabric of the Swiss Confederation have, it would seem, succeeded in an achievement which has twice at least baffled the ingenuity of French statesmanship. The Federal Council³⁰ of Switzerland is a Cabinet or Ministry elected, but not dismissible, by each Federal Assembly. For the purpose of the election the National Council and the Council of States sit together. The national Council continues in existence for three years. The Swiss Ministry being elected for three years by each Federal Assembly holds office from the time of its election until the first meeting of the next Federal Assembly. The working of this system is noteworthy. The Swiss Government is elective, but as it is chosen by each Assembly Switzerland thus escapes the turmoil of a presidential election, and each new Assembly begins its existence in harmony with the executive. The Council, it is true, cannot be dismissed by the legislature, and the legislature cannot be dissolved by the Council. But conflicts between the Government and the Assembly are unknown. Switzerland is the most democratic country in Europe, and democracies are supposed, not without reason, to be fickle; yet the Swiss executive power possesses a permanence and stability which
30 As to the character of the Swiss Federal Council, see Lowell, Governments and Parties in Continental Europe, ii. pp. 191-208.
does not characterise any parliamentary Cabinet. An English Ministry, to judge by modern experience, cannot often retain power for more than the duration of one parliament; the Cabinets of Louis Philippe lasted on an average for about three years; under the Republic the lifetime of a French administration is measured by months. The members of the Swiss Ministry, if we may use the term, are elected only for three years; they are however re-eligible, and reelection is not the exception but the rule. The men who make up the administration are rarely changed. You may, it is said, find among them statesmen who have sat in the Council for fifteen or sixteen years consecutively. This permanent tenure of office does not, it would seem, depend upon the possession by particular leaders of extraordinary personal popularity, or of immense political influence; it arises from the fact that under the Swiss system there is no more reason why the Assembly should not re-elect a trusted administrator, than why in England a joint-stock company should not from time to time reappoint a chairman in whom they have confidence. The Swiss Council, indeed, is — as far as a stranger dare form an opinion on a matter of which none but Swiss citizens are competent judges — not a Ministry or a Cabinet in the English sense of the term. It may be described as a Board of Directors appointed to manage the concerns of the Confederation in accordance with the articles of the Constitution and in general deference to the wishes of the Federal Assembly. The business of politics is managed by men of business who transact national affairs, but are not statesmen who, like a Cabinet, are at once the servants and the leaders of a parliamentary majority. This system, one is told by observers who know Switzerland, may well come to an end. The reformers, or innovators, who desire a change in the mode of appointing the Council, wish to place the election thereof in the hands of the citizens. Such a revolution, should it ever be carried out, would, be it noted, create not a parliamentary but a non-parliamentary executive.³¹
yi See Adams, Swiss Confederation, ch. iv.
Note IV
THE RIGHT OF SELF-DEFENCE
How far has an individual a right to defend his person, liberty, or property, against unlawful violence by force, or (if we use the word "self-defence" in a wider sense than that usually assigned to it) what are the principles which, under English law, govern the right of self-defence?³²
The answer to this inquiry is confessedly obscure and indefinite, and does not admit of being given with dogmatic certainty; nor need this uncertainty excite surprise, for the rule which fixes the limit to the right of self-help must, from the nature of things, be a compromise between the necessity, on the one hand, of allowing every citizen to maintain his rights against wrongdoers, and the necessity, on the other hand, of suppressing private warfare. Discourage self-help, and loyal subjects become the slaves of ruffians. Over-stimulate self-assertion, and for the arbitrament of the Courts you substitute the decision of the sword or the revolver.
Let it further be remarked that the right of natural self-defence, even when it is recognised by the law, "does not imply a right of attacking, for instead of attacking one another for injuries past or impending, men need only have recourse to the proper tribunals of justice."³³
A notion is current,³⁴ for which some justification may be found in the loose dicta of lawyers, or the vague language of legal text-books, that a man may lawfully use any amount of force which is necessary,
32 Report of Criminal Code Commission, 1879, pp. 43-46 [C. 2345], Notes A and B; Stephen, Criminal Digest (6th ed.), art. 221; i East, P. C. 271-294; Foster, Discourse II. ss. 2, 3, pp. 270, 271.
33 Stephen, Commentaries (8th ed.), iv. pp. 53, 54.
34 This doctrine is attributed by the Commissioners, who in 1879 reported on the Criminal Code Bill, to Lord St. Leonards. As a matter of criticism it is however open to doubt whether Lord St. Leonards held precisely the dogma ascribed to him. See Criminal Code Bill Commission, Report [C. 2345], p. 44, Note B.
and not more than necessary, for the protection of his legal rights. This notion, however popular, is erroneous. If pushed to its fair consequences, it would at times justify the shooting of trespassers, and would make it legal for a schoolboy, say of nine years old, to stab a hulking bully of eighteen who attempted to pull the child's ears. Some seventy years ago or more a worthy Captain Moir carried this doctrine out in practice to its extreme logical results. His grounds were infested by trespassers. He gave notice that he should fire at any wrongdoer who persisted in the offence. He executed his threat, and, after fair warning, shot a trespasser in the arm. The wounded lad was carefully nursed at the captain's expense. He unexpectedly died of the wound. The captain was put on his trial for murder; he was convicted by the jury, sentenced by the judge, and, on the following Monday, hanged by the hangman. He was, it would seem, a well-meaning man, imbued with too rigid an idea of authority. He perished from ignorance of law. His fate is a warning to theorists who incline to the legal heresy that every right may lawfully be defended by the force necessary for its assertion.
The maintainable theories as to the legitimate use of force necessary for the protection or assertion of a man's rights, or in other words the possible answers to our inquiry, are, it will be found, two, and two only.