INTRODUCTION
TO THE STUDY OF THE
LAW OF THE CONSTITUTION

A. V. DICEYINTRODUCTION
TO THE STUDY OF THE
LAW OF THE
CONSTITUTION
A. V. Dicey_S/ES
INDIANAPOLIS

LibertyClassics is a publishing imprint of Liberty Fund, Inc., a foundation establishedencourage study of the ideal of a society of free and responsible individuals.

toThe cuneiform inscription that serves as the design motif for our endpapers is the earliest
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"Foreword" Copyright © _982 by Roger E. Michener. All rights reserved, including theright of reproductionin whole or in part in any form. Brief quotations may be included in areview and all inquiries should be addressed to Liberty Fund, Inc., 7440 North Shadeland,
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Frontispiececourtesy of Professor Richard A. Cosgrove,

University

This LibertyClassics edition is a reprint of the eighth edition publishedThe first edition was issued by the same publisher in _885.
Library of Congress

Cataloging in Publication

Data

Dicey, Albert Venn, _835-_922.
Introduction to the study of the law of theconstitution.
Reprint. Originally published: 8th ed. London:
Macmillan, 1915.
Indudes bibliographical references and index.
1. Great Britain--Constitutionallaw.
I. Title.
KD3989.D53
i982
342.4181--82778
ISBNo-86597-

oo2-

ISBN 0-86597-0o3lo98765432_

53 (pbk.)344.1o2

AACR2

of Arizona.
by Macmillan in _915.

CONTENTS

Publisher's Note ......................................
Foreword by Roger E. Michener...........................
Preface to the First Edition ..............................
Preface to the Eighth Edition ............................
Analysis of Introduction ...............................
Introduction to the Eighth Edition ........................

ix
xi
xxv
xxix
xxxi
xxxv

Outline of Subject
The True Nature of Constitutional Law.....................

cxxv

PART IThe Sovereignty of Parliament
I. The Nature of Parliamentary Sovereignty ....................
II. Parliament and non-Sovereign Law-Making Bodies ............
III. Parliamentary Sovereignty and Federalism .................
PART II

3
36
73

The Rule of Law
W. The Rule of Law: Its Nature and General Applications
V. The Right to Personal Freedom .........................
VI. The Right to Freedom of Discussion .....................
VII. The Right of Public Meeting ..........................
VIII. Martial Law ....................................
IX. The Army ......................................
X. The Revenue .....................................
XI. The Responsibility of Ministers........................

vff.........

lo 7
123
I46
_69
_8o
_88
2o0
2_o

LAWOFTHECONSTITUTION
XII. Rule of Law compared with Droit Administratif ..............
XIII. Relation between Parliamentary Sovereignty and the Ruleof Law .......................................

2_3
268

PART IIIThe Connection Between The Law of the Constitution and theConventions of the Constitution
XIV. Nature of Conventions of Constitution..................
XV. The Sanction by which the Conventions of the Constitution
are Enforced ....................................

277
292

APPENDIX
I. Rigidity of French Constitutions .........................
II. Division of Powers in Federal States.....................
III. Distinction between a Parliamentary Executive and a nonParliamentary Executive .............................
W. The Right of Self-Defence ............................
V. Questions Connected with the Right of Public Meeting .........
VI. Duty of Soldiers Called upon to Disperse an Unlawful AssemblyVII. The Meaning of an "Unconstitutional" Law ................
VIII. Swiss Federalism................................
IX. Australian Federalism ..............................
X. Martial Law in England during Time of War or Insurrection ......
XI. Constitution of the Tribunal des Conflits ...................
XII. Proceedings Against the Crown .......................
XIII. Parliament Act, _91_ ...............................
Index ............................................

v_

317
325
33_
34_
350
. . 368
37_
372
386
396
4_6
4_7
4_8
423

PUBUSHER'S NOTE

t/on was first published in _885 in London by Macmillan
Dicey'sto theStudyof thebyLaw
the Constituand Co. Introduction
New editions
were
issuedthe ofsame
publisher in _886, _889, 1893, _897, _9o2, and _9o8. In each of these
editions, Dicey attempted to reflect such constitutional changes as
he believed had occurred since the previous edition.
When he prepared an eighth edition in _9_4(the eighth edition
was published in x9_5, but Dicey dated his preface in _914), Dicey
left the text as it had been in the seventh edition of _9o8but added
a long introduction in which he discussed both actual changes in
the British Constitution and various changes that were then underdiscussion.
d

In 2939, a ninth edition was prepared under the editorship ofE. C. S. Wade. In this edition, a long introduction by Wade wassubstituted for Dicey's introduction to the eighth edition, andDicey's appendix was omitted in favor of one by Wade. This
edition was reprinted several times.
This LibertyClassics edition is based on the eighth edition, published in _9_5, since this was the last edition that Dicey himself
prepared.

/xFOREWORD

1" 7 ery few jurists ever put forward doctrines of constitutional law_/
which become not merely classic but which remain alive asv
standards. A year after the publication of Albert Venn Dicey's
Law of the Constitution in _885, Gladstone already was reading it aloudin Parliament, citing it as an authority. Half a century later these
doctrines were sfiUregarded so essential and fundamental that a
special inquiry was necessary to determine whether more recent constitutional changes did not infringe on them. The Donoughmore
Committee, whose Report of the Committee on Ministers" Powers appeared in _932, endorsed those principles as a guide to further practice. Now, nearly a century later, Britain in large measure is still on
the Dicey standard and so, too, is the United States. The doctrines,
and even the names by which they are designated, remain part of theequipment of the student of public law. Dicey's analysis of legislative
power and constitutional conventions must still be considered byanyone who desires to deal with the foundations of Anglo-American
constitutional law simply because Dicey analyzed those foundations
and enunciated principles, with a power and clarity never before orsince attained that make those foundations intelligible.
I
Albert Venn Dicey was born 4 February _835 at Claybrook Hall in
Leicestershire, England, and he died in London 7 April _922. He wasx/FOREWORD

the third son of Thomas Edward Dicey, a leading journalist of histime, by his wife Anne Mary, younger daughter of James Stephen,master in chancery. The Venn family name was given to him inhonor of John Venn, the leader of the Clapham Evangelicals, whosedaugher Jane married Sir James Stephen, Mrs. Dicey's brother andthe elder Dicey's dosest friend. The well-known Victorian scholars
and publicists Sir Leslie Stephen and Sir James FitzJames Stephen
were Albert Dicey's cousins. The Venns were linked by marriage tothe Wedgwoods and the Darwins. Through the marriage of his parents Albert Dicey was born into what Lord Annan has called theVictorian intellectual aristocracy.
Even though Albert Dicey's parents had wed in _814, just before
the final defeat of Napoleon at Waterloo, there were no children bornof the marriage until _83_.His parents, for reasons never publidy
disdosed by them or their children, took the step, somewhat unusual
for a middle class family, of educating their children at home; but
Dicey in an "Autobiographical Fragment" surmisedthat among Whigs and especially among Whigs who, as was the case withmy parents, combined a firm belief in the political principles of the Whig
party with an equally firm belief in the best and most tolerant Evangelicism
in matters of religion, there had grown up a suspicion that the public school
system of England was marked by some very strong defects which thesalutary influence of education at home might easily correct.

The results of this tuition at home were in every way fortunate.
His father had graduated from Trinity College, Cambridge as asenior wrangler in mathematics in _8n, whereupon he assumed full
editorial control of the Northampton Mercury, one of the oldest newspapers in the country and the basis of the family's publishing business. His mother was gifted in languages. Besides training him in
English composition, she taught him Greek and Latin as well as
French and German, which was unusual even at that time and in thatcircle of austere devotion to intellectual things. Dicey recounts a story
about his mother that bears retelling: it reveals something of his
mother's intellectual power and influence as well as conveying an
insight into Dicey's extreme modesty.
xffFOREWORD
My mother had been reading with me [in 1848] the First Book of the Iliad. She
dined on that evening at a house of good friends, among whom, naturally
enough, an expression from that book, which we had noticed in the morning, was cited in Greek. My mother told me, when she came home, heramusement at hearing the words quoted, over which we had puzzled ourselves. But she added at once, "of course I did not let anyone perceive that I
understood what the words meant."

An obstetrical error at the time of Dicey's premature birth left him
with a muscular weakness that he bore all his life. The severity of thedisorder is hard to judge, but at times it was so marked that he could
not write at all; most of his life he could not write without taking
frequent pauses. The affliction was severe enough to make him
something of a physical oddity and to raise the question whether hewould be strong enough to leave home before the age of seventeen,
when he was sent to King's College School in London.
In 2854, after two years at King's College School, Dicey matriculated at Balliol College, Oxford, where he became a pupil of Benjamin
Jowett. Under Jowett's personal supervision, which was kind but
stringent, Dicey flourished and received a first dass in classical moderations in 2856 and in literae humaniores in 2858. His own intellectual
fervor and the reforming spirit of Jowett led Dicey, encouraged bythis academic distinction, to join with other Balliol men, under theleadership of John Nichol, to form a literary society--the Old Mortality Society. This society, which has attracted considerable scholarlyinterest because of the later fame of many of its members, was aforum in which serious undergraduates
could sharpen their intellects
on questions that might lie outside their normal course of study bypresenting papers which were followed by rigorous discussion.
Membership and activity in the Old Mortality Society was especially
important for Dicey because it gave him self-confidence in public
speaking, at which, by all accounts, he became a master. In 2859 he
was elected president of the Oxford Union. Although the presentations and discussions of the Old Mortality were academic, theoretical,
and speculative, removed from the conditions of the real world, itbears mention that from time to time, particularly at the prodding ofT.H. Green, the society did take up contemporary questions, politix_

FOREWORD

cal, social, and religious. According to Lord Bryce the discussions inthis "quite remarkable" body were conducted openly and freely, devoid of dogmatism, because everyone "assumed individualism as
obviously and absolutely right."
Dicey went down from Oxford in 1861to read law in London. He
left with an excellent degree, a fellowship at Trinity College, which herelinquished upon his marriage in _872, a circle of friends, who remained dose until death, and his first book, The Privy Council, winnerof the Arnold Prize Essay in 186o, ready for publication. He returned
to Oxford in 1883, when he began his intellectually productive period.
The intervening years were spent in legal practice, having been called
to the bar in _863 as a member of the Inner Temple. His accomplishments led in 1876 to his appointment as junior counsel to theCommissioners of the Inland Revenue. Although he did handle some
important briefs, the political career for which he hoped did notmaterialize. It also became dear before long that because of his physical weakness he could not realistically expect elevation to the bench.
During this time Dicey married, began his scholarly writing, andtravelled, with some frequency outside of England.
It was from these travels that he gained the knowledge to lay thefoundation for the pioneering character of the Law of the Constitution
in the field of comparative constitutional law. Dicey's extraordinarily
accurate knowledge of continental constitutions was initiated in thecourse of his travels to Belgium, France, Switzerland, and Germany;
the regimes of these countries excited him as examples of constitutional governments different from but similar to Britain. Indeed,
Dicey's genius as a constitutional lawyer came from his ability todraw sharp distinctions between very similar but fundamentallydifferent constitutional arrangements. Much of his understanding
for these subtle but profound differences came from first-handobservations.
In 187ohe made a voyage to America with Bryce who used theopportunity to gather much of the material for The American Commonwealth, which he published in _888. These travellers seemed bent
on learning everything possible about the United States, and throughtheir Oxford friends and family contacts met an impressive number of

X/VFOREWORD

prominent Americans. Dicey made a frill record of these experiencesin his diary.
Above all, the travellers wanted to understand the American constitution; Dicey's diary abounds in jottings regarding the legal profession, the administration of justice, politics, and constitutional arrangements in the United States. Dicey attended the Democratic
Convention at Rochester in _87oand was able to see at dose range themachine politics of which he was not an unqualified admirer. He
wrote: "America is in theory the purest of Democracies, yet there areperhaps very few countries where there is less scope for independent
political action, at least by individuals.'" Systematic party discipline,
he thought, "violates the essential principles of Democracy, for itvery much limits the control over their Government exercised by thepeople, and it sacrifices the public service to purely individual interests. The evil is very apparent in England and will become more so."Many of the observations about American politics and institutions in
his diary showed his strong capacity for comparative analysis. In theopinion of his friend and former pupil, Robert Rait, the American
tour very decidedly marked Dicey's later work in comparative andconstitutional law. It gave him a basis for comparison, and it influenced his subsequent attitude to American constitutional problems.
On at least two occasions Dicey wrote to Bryce that the Law of theConstitution would not have been written but for this journey.
Dicey admired the United States greatly. It proved popular government possible; it drew on a tradition of voluntary action, and it
seemed to confirm his liberal principles. The United States andFrance were the examples he drew most frequently on to contrast byillustration with the principles of the British constitution. America
expanded his imagination about the structure and formation of comparable but different legal institutions.
The academic study of modern society through the study of politics
and history was one of the achievements of the movement to reform
university education. Dicey admired this reform when he was still anundergraduate; when he became Vinerian professor in 1882hebrought the spirit of those reformers to bear on the field of his responsibilities.

xv

FOREWORD

The Vinerian Professorship had been established in Oxford in 1758
on a bequest of Charles Viner. Its first incumbent was Sir William
Blackstone, author of the Commentaries on the Laws of England. Whilelaw, principaUy canon law, had most certainly been studied for a longtime at Oxford-- the Regius Professorship had been established by
Henry VIII-- the Vinerian Professorship was the first academic post
created specifically for the study of English law. After the auspicious
beginning in Blackstone's lectures, the subsequent Vinerian professors were uniformly undistinguished. They paid little attention toteaching; some had written unremarkable commentaries; mostseemed uninterested in the post.
Not only did Dicey's considerable practice at the bar and his position as counsel to the Commissioners of the Inland Revenue help his
election to the Vinerian Professorship, but also his writings, The Privy
Council (_861),his Treatise on the Rules for the Selection of the Parties to an
Action (187o), and The Law of Domicil as a Branch of the Law of England(1879)had given him a considerable reputation as a legal writer. In
1896, he published his Digest of the Lazoof England with Reference to theConflict of Laws, which was an expansion of The Law of Domicil and is
the most celebrated of his strictly legal works. The Conflict of Laws,
which has been periodically brought up to date, remains today astandard work. In the words of his Vinerian successor, William
Geldart, this work "not only reduced to order one of the most intricate
and technical branches of law.., but exerted a potent influence on its
development."
Dicey held the Vinerian Professorship for twenty-seven years. His
term of service is often referred to as the second founding. By thetime of his resignation in 19o9 Dicey had transformed the Vinerianchair into one of the most important posts in the world for the teaching of law. In a tribute, Sir William Holdsworth, the ninth Vinerian
Professor and the author of The History of English Law in sixteen
volumes, wrote:
Dicey will hold in the history of the legal literature of the nineteenth century
a place not unlike that which Blackstone holds in the history of the legal
literature of the eighteenth century. Both have written books which havebeen accepted by their contemporaries
as books of authority; and...
Dicey's

xv/

FOREWORD
work has contributed largely to the fulfilment of Blackstone's prophecy ofthe effects of a scientific study of English law at a university both upon thelaw, and upon the teaching of law .... In his works on the Law of theConstitution and Law and Opinion in England he has done for English publiclaw and for the legal history of the nineteenth century all, and in somerespects more than all, that Blackstone did for the public law and the legal
history of the eighteenth century.

The first of the books to which Holdsworth

referred, the Introduc-tion to the Study of the Law of the Constitution, was originally publishedin _885, two years after Dicey moved back to Oxford. It was a revisionof his first Oxford lectures and based on many years of study andreflection. In it, he conceived of the legal and political elements ofconstitutional law in a way that, after the better part of a century, as
Holdsworth said, still remains our starting point.
II
The contemporary American reader of the Law of the Constitution
initially must understand three points. First, Great Britain, unlike theUnited States, does not possess a written document specifying theconstitution of political power. In a narrow sense knowledge of constitutional law in the United States may be had through familiarity
with the text of the Constitution and through the current state ofinterpretation of the written Constitution as revealed through Supreme Court decisions. This approach to knowledge of English constitutional law, due to the absence of a single written document, is
impossible.
The second point proceeds from this observation. That is, howdoes one know, actually and conceptually, the English constitution
and English constitutional law? In the Law of the Constitution Dicey
answers these questions by stipulating three descriptive principles oflaw around which he organizes the book: the legislative sovereignty
of Parliament; the rule of law; and the dependence in the last resort ofthe conventions of the constitution on the law of the constitution. He
states these principles with such force and darity that they remain
today the starting point for any contemporary discussion of constitutional rules and of limitations of governmental powers. While Dicey
xvii

FOREWORD

is writing of Great Britain directly, because of their extraordinary
similarity, he says much that is true of constitutional principles of theUnited States as well. In short, Dicey develops a conceptual structurethat defines the political and legal constitution of democratic government as we know it.
Finally, the book should be read with reference to conditions when
he wrote. Dicey published the Law of the Constitution in 2885. As hecarefully explains, the text of the book was essentially fixed with theseventh edition, which appeared in 29o8. That edition contained revisions up to 29o8in accord with Dicey's understandingof the changes
that had taken place in the English constitution. The eighth edition,
which is reprinted here, appeared in _915when Dicey was eighty
years old. This reprints the text of 19o8, but it contains an introductionof nearly one hundred pages in which Dicey recorded his thoughts
on constitutional changes since 1908. The organization of this introduction, however, follows the organization of the book and may not
be readily understood if the propositions and the arguments of themain text are notfirst read and absorbed. A further suggestion for thepresent-day reader before embarking on the introduction, but after
reading the main body of the work, would be to read the Parliament
Act of 1911,listed as Note XIII. Dicey seeks to show the actual, thetrue state and condition of English constitutional law, within theboundaries of his definition, in the period between 1885 and 19o8.
Were he writing in the 198os, the book would be very different. Thisis the principal value of his 1915introduction, for it shows Dicey's
understanding not only of actual changes in the law but of how thosechanges embody changes in fundamental constitutional principles.
Some of Dicey's detractors have called this introduction the workof a tired, cranky old man, disappointed by life. There is, however,much to be learned from the introduction. For instance, in 1915Dicey
appears cool to women's suffrage, which was then one of the pressing issues of the day. But it must be understood that his chilliness
represented a change. In the 186os he was a great champion of thewomen's movement, and he supported John Stuart Mill's call for
women's suffrage. In the well-known Essays on Reform in 1867, Dicey
contributed a piece entitled 'q"he Balance of Classes" in which hexviii

FOREWORD

spoke against the arguments of the Conservatives and defended individual choice. Following his trip to the United States in _87o, hewrote:
One of the reasons why there is less clamour for Women's Rights [in the
United States] is the existence of a far smaller number of women's wrongs
than with us, e.g., they have in many states the right to hold property whenmarried, as their own, and have got the full legal protection for their earnings .... It is impossible not to conclude that the average education of
women is, compared with that of men, higher than in Europe--henceafreer opening of careers .... In the United States women are as a matter offact obtaining political privileges..,
generally reserved for men.

Dicey was demonstrably a vigorous proponent of women's suffrage.
In any case, the political issue of women's suffrage is moot. But it is
not beside the point to read a distinguished constitutional lawyer's
reflections on the effects of social and political movements on constitutional principles and on individual rights under the constitution.
Dicey says that "constitutional law, as the term is used in England,
appears to include all rules which directly or indirectly affect the
distribution or the exercise of the sovereign power of the state."
These "'rules" fall into two broad categories. The first category of rules
are laws, strictly understood. These laws are written and unwritten,
statutory and customary, which are usually called the Common Law.
These laws are known and recognized to be laws, because--thisisthe important determining factor--they are enforced by the courts.
The other broad category of rules are what Dicey calls "conventionsof the constitution." The rules of this second category are not instrictness laws, they are not enforced or enforceable by the courts; but
they are the usual and customary practice of politicians and civil
servants, and represent what Dicey calls "political" or "constitutional
morality.'" The law of the constitution, then, is of two pieces: therelatively unambiguous laws, derived from judicial decisions andParliamentary enactments, precisely expressed and recognized by the
courts and the relatively ambiguous, largely implicit, conventions,which are part of political practice and morality and enter into public
opinion. Dicey aims to examine the relationship between statutory
law and public morality, and thereby to elucidate the relations bex/x

FOREWORD

tween continuity and change in law and politics. The sovereign
power of the state consists of a 'qegal sovereign" and of a "politicalsovereign."
In the Law of the Constitution Dicey shows how, from a strictly legal
point of view, public morality must yield to law. In a later work
Lectures on Law and Public Opinion in England during the NineteenthCentury, which was published in _9o5, Dicey shows how, from otherthan a strictly legal point of view, public morality acts as a final
sanction on law. No other modern writer has shown so penetratingly, as Dicey does in these two books, the relationships between
law and the mores maiorum--the prevailing beliefs--in democratic
regimes.
Dicey also tells us something of the importance of political morality. By deprecating the growing estrangement between law and morality through the constant addition to the statute books and thecriminal law of acts which the government considers anti-social but
the governed do not consider immoral Dicey offers us his most important lesson: the persistence of this state of affairs can only mean "adecline of reverence for the rule of law."
This phrase, "the rule of law," Dicey formulated into a principle of
the British constitution. He did not create this phrase, but he brought
it into currency, and he was responsible for elaborating the principle.
By the rule of law he means: _)the absence of arbitrary or discretionary power on the part of government; 2) every man is subject to theordinary law of the land administered by ordinary and usual tribums; 3) the general principles of law, the common law rules of theconstitution, in contradistinction to the civil law countries of Europe,
are the consequences of rights of the subject, not their source. To
illuminate this difference Dicey contrasts the rule of law with the
French idea of droit administratif, which he translates as administrativelaw.
Dicey makes the point that in Great Britain in 1885 there was no
distinction between private and public law. One set of laws regulated
and one system of courts adjudicated public and private interests
alike. In subsequent decades this point ceased to be valid.

XIFOREWORD

In Great Britain the officers of government were subject to theordinary law of the land enforced by ordinary courts just as theprivate citizen was. In France, under the provisions of droit administratif, the government and its officials had special rights against private citizens and were to a great extent free from the jurisdiction of
the ordinary courts. However nearly the French and English systems
approach one another in actual practice, the principles governingthem are different. The English system seeks to afford remedies forillegal administrative action, whereas the French hopes by setting up
standards of conduct and by deterrent action to insure that the remedies will not be needed. Dicey saw that the rights of the citizen
were potentially endangered by discretionary executive authority,
because he equated discretion with arbitrariness, which meant that itwas not subject to the rule of law. He claimed "discretionary authority on the part of the government must mean insecurity for legal
freedom on the part of its subjects .... In this sense the rule of law iscontrasted with every system of government based on the exercise by
persons in authority of wide, arbitrary, or discretionary powers ofconstraint." Letourneur, one of the most prominent modern French
writers on droit administratif, has made a similar point: "Droit administratif is by nature a law of inequalities, in which the private person,
who represents purely private interests, cannot be put on the samefooting as the administration charged with the task of conducting
public services in the general interest." Because, he continues, "administrative action requires a unity of decision and of responsibility, it
rests on a principle of authority." Dicey's central insight in this discussion is that divided jurisdiction formed the key element of droit
administratif by permitting government interference in the private affairs of citizens. In this way droit administratif is inconsistent with theliberties afforded by the common law.
In America the tradition of exempting administrative authorities
from the same liability as private persons has been very strong, and,in some ways, is more suitable for illustrating Dicey's point than the
French droit administratif. The federal government, the state governments, municipal corporations of all kinds, and even some privatexx/

FOREWORD

trusts and charities inherited from eighteenth century English law the
Crown's exemption from liability. Only recently have courts been
willing to hold for some kind of liability for the non-governmental
activities of municipal corporations. Moreover, in the United States
legislatures and courts have traditionally been unwilling to make apublic officer liable for acts, though dearly unlawful, if they weredone through mistake or for probable cause. In such cases, both theofficial and the institution for which he worked were not to be held
liable. Finally, until relatively recently, individual exemption fromliability was not balanced by the assumption of liability by the administrative authority.
The rule of law means basically four things: equality of all citizens
before the law; uniformity of courts; the unacceptability of raison d'_tat
as an excuse for an unlawful act; and observance of the old maxim,
nullum crimen sine lege. Dicey did not say he was opposed to special
tribunals to handle technical matters, such as, for example, patents.
But he most definitely denied the propriety of conferring quasijudicial and wide executive authority on administrative agencies. He
would be astonished and overwhelmed by the amount of discretionary authority--which
in Dicey's view must be arbitrary and thus, tosome degree, outside of the ordinary law of the landhwith
which
we have in recent years invested regulatory agencies and tribunals ofadministrative law judges. He would certainly be opposed to thepower exercised by judges, inspectors, and other officers of government in certain not especially technical areas of the law, such as labor
relations, occupational safety, public education, and, in fact, hundreds of others. He would warn us of the inherent dangers in overreliance on the "expert."
Dicey thought that there could be practical and moral checks,
internal and external, which could restrain the legislative branch fromthe abuse of its powers. While it is true that the fights of the subject,which collectively make up the rule of law, are in theory precarious,
being subject to legislative whim, they are in practice firm. He saw nosuch guarantees in bureaucratic agencies and administrative tribums, which, in practice, have wide discretionary powers, espedally those in which the officials are appointed on political grounds.

xxii

FOREWORD

Dicey is absolutely right in thinking that discretionary authority is theselective and arbitrary use of power--for better or for worsemwhich
may be used to foster political allegiance and to promote politicalclients. For these reasons, Dicey's discussion of the rule of law and its
relation to executive discretion and judicial control is extraordinarily
pertinent for understanding much of what has been happening in the
United States in the past half century.
ROGERMICHENER
Committee on Social Thought
The University of Chicago

xxiiiPREFACE TO THE FIRST EDITION

the law of the constitution; it does not pretend to be even a
his book is much(as its lesstitle aimports)
introduction
to the studylaw.
ofsummary,
completeanaccountof constitutional
It deals only with two or three guiding principles which pervade themodem constitution of England. My object in publishing the work is
to provide students with a manual which may impress these leading
principles on their minds, and thus may enable them to study with
benefit in Blackstone's Commentaries and other treatises of the likenature those legal topics which, taken together, make up the constitutional law of England. In furtherance of this design I have not
only emphasised the doctrines (such, for example, as the sovereignty
of Parliament) which are the foundation of the existing constitution,
but have also constantly illustrated English constitutionalism bycomparisons between it and the constitutionalism on the one hand of
the United States, and on the other of the French Republic. Whether I
have in any measure attained my object must be left to the judgmentof my readers. It may perhaps be allowable to remind them that abook consisting of actually delivered lectures must, even though revised for publication, exhibit the characteristics inseparable from oral
exposition, and that a treatise on the principles of the law of theconstitution differs in its scope and purpose, as well from a constitutional history of England as from works like Bagehot's incomparable

X_LAW OF THE CONSTITUTION

English Constitution, which analyse the practical working of our complicated system of modern Parliamentary government.
If, however, I insist on the fact that my book has a special aim of its
own, nothing is further from my intention than to underrate the debt
which I owe to the labours of the lawyers and historians who havecomposed works on the English constitution. Not a page of my lectures could have been written without constant reference to writers
such as Blackstone, Hallam, Hearn, Gardiner, or Freeman, whosebooks are in the hands of every student. To three of these authors inparticular I am so deeply indebted that it is a duty no less than apleasure to make special acknowledgmentof the extent of my obligations. Professor Hearn's Government of England has taught me morethan any other single work of the way in which the labours of lawyers
established in early times the elementary principles which form thebasis of the constitution. Mr. Gardiner's History of England has suggested to me the conclusion on which, confirmed as I found it to be
by all the information I could collect about French administrative law,
stress is frequently laid in the course of the following pages, that theviews of the prerogative maintained by Crown lawyers under the
Tudors and the Stuarts bear a marked resemblance to the legal andadministrative ideas which at the present day under the Third Republic still support the droit administratif of France. To my friend andcolleague Mr. Freeman I owe a debt of a somewhat different nature.
I_s Growth of the English Constitution has been to me a model (fareasier to admire than to imitate) of the mode in which dry and even
abstruse topics may be made the subject of effective and popular
exposition. The dear statement which that work contains of thedifference between our so-called "written law" and "our conventional constitution," originally led me to seek for an answer to theinquiry, what may be the true source whence constitutional understandings, which are not laws, derive their binding power, whilst theequally vigorous statements contained in the same book of the aspect
in which the growth of the constitution presents itself to an historianforced upon my attention the essential difference between the historical and the legal way of regarding our institutions, and compelled me
to consider whether the habit of looking too exclusively at the steps

xxvi

PREFACE TO THE FIRST EDITION

by which the constitution has been developed does not prevent students from paying sufficient attention to the law of the constitution as
it now actually exists. The possible weakness at any rate of the historical method as applied to the growth of institutions, is that it may
induce men to think so much of the way in which an institution has
come to be what it is, that they cease to consider with sufficient carewhat it is that an institution has become.
A. V. DICEYAll Souls College,
Oxford, I885

xxvii

PREFACE TO THE EIGHTH EDITION

he body of this work is the eighth edition, or rather a reprint of
the seventh edition, of the Law of the Constitution first publishedin _885. It is, however, accompanied by a new Introduction.
This Introduction is written with two objects. The first object is totrace and comment upon the way in which the main principles of ourconstitution as expounded by me may have been affected either bychanges of law or by changes of the working of the constitution
which have occurred during the last thirty years (_884-_9_4). The
second object of this Introduction is to state and analyse the main
constitutional ideas which may fairly be called new, either because
they have come into existence during the last thirty years, or because(what is much more frequently the case) they have in England duringthat period begun to exert a new and noticeable influence.
It has been my good fortune to receive in the composition of thisIntroduction, as in the writing of every book which I have published,
untold aid from suggestions made to me by a large number both ofEnglish and of foreign friends. To all these helpers I return my mostsincere thanks. It is at once a duty and a pleasure to mention my
special obligation to two friends, who can both be numbered as highauthorities among writers, who have investigated the constitution ofEngland from different points of view. To the friendship of the late
Sir William Anson I owe a debt the amount of which it is impossible
to exaggerate. He was better acquainted, as his books show, with thexxix

LAW OF THE CONSTITUTION

details and the working of the whole constitution of England than
any contemporary authority. Since I first endeavoured to lay down
the few general principles which in my judgment lie at the basis of
our constitution, I have, whilst engaged in that attempt, always enjoyed his sympathy and encouragement, and, especially in the later
editions of my work, I have received from him corrections and suggestions given by one who had explored not only the principles but
also all the minute rules of our constitutional law and practice. To myfriend Professor A. Berriedale Keith I am under obligations of asomewhat different kind. He has become already, by the publicationof his Responsible Government in the Dominions, an acknowledged authority on all matters connected with the relation between Englandand her Colonies. I have enjoyed the great advantage of his having
read over the parts of my Introduction which refer to our Colonial
Empire. His knowledge of and experience in Colonial affairs has
certainly saved me from many errors into which I might otherwise
have fallen.
It is fair to all the friends who have aided me that I should state
explicitly that for any opinions expressed in this Introduction no one
is responsible except myself. The care with which many persons havegiven me sound information was the more valued by me because I
have known that with some of the inferences drawn by me from thefacts on which I commented my informants probably did not agree.
A. V. Dtc_Y
Oxford, 19I 4

xxx

ANALYSIS OF INTRODUCTION_Kim...........................................

xxxv

The Sovereignty of Parliament ........................
Possible change in constitution of parliamentary(Parliament Act, i91_) ...........................
State of things before passing Act ...................
Direct effects of Parliament Act ......................

xxxvi
sovereign
xxxvi
xxxviii
xxxix(i) Money Bill--House of Lords no veto .............
xxxix(2) Other public Bills--House of Lords has only
suspensive veto ................................
xl(3) House of Commons has unlimited legislative power.... xli
Practical change in area of parliamentary sovereignty(Relation of the Imperial Parliament to Dominions) ........
xlii
First question--Whatis the difference between such
relation in 1884 and 1914? ..........................
xlii
Second question--Whatchanges of opinion caused
the change of relation? ..............................
1
The Rule of Law .....................................
lv
Dedine in reverence for rule of law ......................
lv
Comparison between present official law of England andpresent droit administratif of France ....................
Conventions of the Constitution ........................
First question--Whatchanges?

.......................
xxxi

lxi
lxvi
lxvi

LAW OF THE CONSTITUTION

Second question--What is the tendency of newconventions? ..................................

lxxii

Third question--Does
experience of last thirty years
confirm principles laid down as to connection between
conventions and rule of law? .......................

lxxv

Development during the last Thirty Years of New
Constitutional Ideas ..............................

Ixxvi

Two general observations on new constitutional ideas ......
First observation-- Slow growth of political or constitutional
inventiveness.................................
Second observation--These
new ideas take no account oflxxvi

one of the ends which good legislation ought to attain ....
Criticism of the Four New Constitutional Ideas .............

lxxviilxxx

lxxvi

Woman Suffrage .................................
The causes of demand .............................

lxxx
lxxxi

The two main lines of argument and answers ............
First argument--Everycitizen entitled to vote ...........
Second argument--Differenceof sex no ground for
difference of political rights .......................
Proportional representation........................
The three propositions on which argument in favour of
proportional representation is based ................
The truth of two first propositions admitted ............
Objections to third proposition.....................
First objection--Complicationof system increases powerof wire-pullers ................................
Second objection--Houseof Commons is not mere House
for Debate ..................................

lxxxi
lxxxi

lxxxvii

Third objection--Proportional
representation increases
number and evil of parliamentary groups ...........
Federalism ......................................

lxxxviii
xci

lxxxii
Ixxxivlxxxivlxxxiv
lxxxvilxxxvi

Leading characteristics of federal government............
Characteristics of federal government in relation to Imperial
Federalism ...................................

xcviiiFirst objection--Attempt
to form federal constitution for
Empire full of difficulty and peril ....................

xcix

xxxii

xciii

ANALYSISOF INTRODUCTION

Second objection--No real necessity for formation of
any new federal constitution for Empire ................
ciii
Characteristics of federal government in relation to Home
Rule all round (i.e. federalisation of United Kingdom) ......
civ
Vagueness of the ideas which support the policy offederalisation of United Kingdom (Home Rule all round) .... cv
Specific objections to Home Rule all round ...............
cvi
First objection-- No desire for Federalism in any part of
United Kingdom ................................
cvi
Second objection--Federalisationof United Kingdom
does not promote Imperial Federalism................
cvii
Third objection--Suchfederalisation opposed to whole
history of English constitutionalism..................
cvii
The Referendum.................................
cviii
Meaning of referendum............................
Causes for demand for referendum.....................
The main argument against the referendum..............
The main argument in favour of the referendum..........
Condusions.....................................

xxxiii

cviii
cx
cxi
odv
cxvii

INTRODUCTION

AIM

was based on lectures delivered by me as Vinerian Professor ofIhe
Law ofthe Constitution
firstpublished_885.written
The book
EnglishLaw.
The lectures was
were
given
and theinbook
with the sole object of explaining and illustrating three leading characteristics in the existing constitution of England; they are now generally designated as the Sovereignty of Parliament, the Rule of Law,
and the Conventions of the Constitution. The book, therefore, dealt
with the main features of our constitution as it stood in _884-85,
that is thirty years ago. The work has already gone through seveneditions; each successive edition, including the seventh, has beenbrought up to date, as the expression goes, by amending it so as toembody any change in or affecting the constitution which may haveoccurred since the last preceding edition. On publishing the eighthand final edition of this treatise I have thought it expedient to pursue
a different course. The constant amendment of a book republished insuccessive editions during thirty years is apt to take from it any such
literary merits as it may originally have possessed. Recurring alterations destroy the original tone and spirit of any treatise which has theleast dai_mto belong to the literature of England. The present edition,
therefore, of the Law of the Constitution is in substance a reprint of
the seventh edition; it is however accompanied by this new Introduction whereof the aim is to compare our constitution as it stood andworked in _884with the constitution as it now stands in _9_4. It is thus

XXXVLAW OF THE CONSTITUTION

possible to take a general view of the development of the constitution
during a period filled with many changes both of law and of opinion. 1My readers are thus enabled to see how far either legislation orconstitutional conventions have during the last thirty years extendedor (it may be) limited the application of the principles which in _884
lay at the foundation of our whole constitutional system. This Introduction therefore is in the main a work of historical retrospection. It is
impossible, however (nor perhaps would it be desirable were it possible), to prevent a writer's survey of the past from exhibiting or
betraying his anticipations of the future.
The topics here dealt with may be thus summed up:raTheSovereignty of Parliament, 2 the Rule of Law, 3 the Law and the Conventions of the Constitution, 4 New Constitutional Ideas, s General
Conclusions. 6
SOVEREIGNTY

OF PARLIAMENT _The sovereignty of Parliament is, from a legal point of view, thedominant characteristic of our political institutions. And my readers
will remember that Parliament consists of the King, the House ofLords, and the House of Commons acting together. The principle,
therefore, of parliamentary sovereignty means neither more nor lessthan this, namely that "Parliament" has "'the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set
aside the legislation of Parliament, ,,8 and further that this right orCompare the Introduction
the Nineteenth Century.

to the second edition of Law and Public Opinion in England during

2 See Part I. Chaps. I.-III.,post.

3 See Part II. Chaps. W.-XIII.,
4 See Part III. Chaps.

post.

XIV., XV., post.

5 Seep. Lxxvi, post.
6 A student who wishes to understandthe statementsin the Introduction

should read withcare that part of the book on which they are a comment; thus the portions of the Introduction referring to the Sovereignty of Parliament ought to be read in connec_don with Part I.
Chapters I.-Ili., post.
7 See Chaps. I.-UI., post.
8 See Chap. I. p. 3, post. Parliament
impliedly give to some subordinate

may itself by Act of Parliament either expressly or
legislature or other body the power to modify or add toxxxvi

INTRODUCTION

power of Parliament extends to every part of the King's dominions. 9
These doctrines appear in the first edition of this work, published in_885;they have been repeated in each successive edition published
up to the present day. Their truth has never been denied. We must
now, however, consider whether they are an accurate description ofparliamentary sovereignty as it now exists in 1914. And here it should
be remarked that parliamentary sovereignty may possibly at least
have been modified in two different directions, which ought to be
distinguished. It is possible, in the first place, that the constitution or
nature of the sovereign power may have undergone a change. If, forexample, the King and the Houses of Parliament had passed a law
abolishing the House of Lords and leaving supreme legislative powerin the hands of the King and of the House of Commons, any one
would feel that the sovereign to which parliamentary sovereignty had
been transferred was an essentially different sovereign from the Kingand the two Houses which in 1884 possessed supreme power. It is
possible, in the second place, that since _884 the Imperial Parliamentmay, if not in theory yet in fact, have ceased as a rule to exercise
supreme legislative power in certain countries subject to the authorityof the King. Let us consider carefully each of these two possibilities.
POSSIBLE
CHANGE IN CONSTITUTION
ORCHARACTER
OF THE PARLIAMENTARYSOVEREIGN(EFFECT OF THE PARLIAMENT

The matter under consideration
ament Act, lo has transferred

ACT,

_9_)

is in substance whether the Parli-legislative authority from the King 11anda given Act of Parliament. Thus under the Commonwealth
Act, 63 & 64 Vict. c. 12, theImperial Parliament has given to the Parliament of the Australian Commonwealthpower tomodify many provisions of the Commonwealth
Act, and the Imperial Parliament, under
the National Insurance Act, 1911, has given power to the Insurance Commissioners
and tothe Board of Trade to modify some provisions of the Insurance Act.
9 See pp. 47-6_, post.
lo See especially the Parliament
Act.

Act, 19_1, ss. _-3, and Appendix,

Note XIII., the Parliamentn The Parliament Act in no way diminishes the prerogatives of the King as they existed
immediately before the passing of that Act, and it is enacted (Parliament Act. s. 6) that
"nothing in this Act shall diminish or qualify the existing rights and privileges of the Houseof Commons."
xxxv/iLAW OF THE CONSTITUTION

the two Houses of Parliamentmons?

to the King and the House of Com-

The best mode of giving an answer to this question is first to statebroadly what were the legislative powers of the House of Lords immediately before the passing of the Parliament Act, 18th August 29n,
and next to state the main direct and indubitable effects of that Act on
the legislative power of the House of Lords and of the House ofCommons respectively.
THE STATE OF THINGS IMMEDIATELYBEFORE THE PASSING OF THE PARLIAMENT

ACTNo Act of Parliament of any kind could be passed without theconsent thereto both of the House of Lords and of the House ofCommons. No doubt the House of Lords did very rarely either alteror reject any Money Bill, and though the Lords have always claimed
the right to alter or reject such a Bill, they have only on very special
occasions exercised this power. No doubt again their lordships have,at any rate since 2832, acknowledged that they ought to pass any Bill
deliberately desired by the nation, and also have admitted the existence of a more or less strong presumption that the House of Commons in general represents the will of the nation, and that the Lords
ought, therefore, in general to consent to a Bill passed by the Houseof Commons, even though their lordships did not approve of themeasure. But this presumption may, they have always maintained,
be rebutted if any strong ground can be shown for holding that theelectors did not really wish such a Bill to become an Act of Parliament. Hence Bill after Bill has been passed by their lordships of which
the House of Lords did not in reality approve. It was however absolutely indubitable up to the passing of the Parliament Act that no Act
could be passed by Parliament without obtaining the consent of theHouse of Lords. Nor could any one dispute the legal right or powerof the House, by refusing such assent, to veto the passing of any Act
of which the House might disapprove. Two considerations, however,must be taken into account. This veto, in the first place, has, at any
rate since 2832, been as a rule used by the Lords as a merely suspensive veto. The passing of the Great Reform Act itself was delayed by
xxxv/_

INTRODUCTION

their lordships for somewhat less than two years, and it may well be
doubted whether they have, since 1832, ever by their legislative veto,delayed legislation really desired by the electors for as much as two
years. It must again be remembered that the Lords, of recent years atleast, have at times rejected Bills supported by the majority of theHouse of Commons which, as has been proved by the event, had notreceived the support of the electors. Hence it cannot be denied thatthe action of the House of Lords has sometimes protected the authority of the nation.
THE DIRECT

EFFECTSOF THE PARLIAMENT

ACT 12

Such effects can be summed up in popular and intelligible language, rather than with technical precision, as follows:
1. In respect of any Money Bill the Act takes away all legislative
power from the House of Lords. The House may discuss such a Billfor a calendar month, but cannot otherwise prevent, beyond amonth, the Bill becoming an Act of Parliament. 13
2. In respect of any public Bill (which is not a Money Bill),14the Act
takes away from the House of Lords anyfinal veto, but leaves or gives
to the House a suspensive veto. isThis suspensive veto is secured to the House of Lords because
under the Parliament Act, s. 2, no such Bill can be passed without theconsent of the House which has not fulfilled the following four conditions:i. That the Bill shall, before it is presented to the King for his
assent, be passed by the House of Commons and be rejected by theHouse of Lords in each of three successive sessions. 16
ft. That the Bill shall be sent up to the House of Lords at least one
calendar month before the end of each of these sessions. 17_- See as to "indirect effects," p. lxix, post.
_3 See Parliament Act, ss. _ and 314 Except a Bill for extending the maximum duration of Parliament beyond five years. See
Parliament Act, s. 2, sub-s, x.
_5 See s. 2.
16 See s. 2 (1).
17 Ibid.

xxxix

LAW OF THE CONSTITUTION

iii. That in respect of such Bill at least two years shall have elapsed
between the date of the second reading of the Bill in the House ofCommons during the first of those sessions and the date on which it
passes the House of Commons in the third of such sessions, isiv. That the Bill presented to the King for his assent shall be inevery material respect identical with the Bill sent up to the House ofLords in the first of the three successive sessions except in so far as it
may have been amended by or with the consent of the House ofLords.
The history of the Government of Ireland Act, _9_4, popularly, andthroughout this Introduction generally, called the Home Rule Bill orAct, affords good illustrations of the peculiar procedure instituted by
the Parliament ACt. The Home Rule Bill was introduced into theHouse of Commons during the first of the three successive sessions
on April _, _912;it passed its second reading in the House of Commons during that session on May 9, 1912;it was rejected by the Houseof Lords either actually or constructively 19in each of the three successive sessions. It could not then possibly have been presented to theKing for his assent till June 9, _914;it was not so presented to the Kingtill September _8, _9_4. On that day, just before the actual prorogationof Parliament in the third session, it received the royal assent without
the consent of the House of Lords; it thereby became the Government of Ireland Act, 19_4. The ACt as assented to by the King was insubstance identical with the Bill sent up to the House of Lords in thefirst of the three sessions on January 16, _913. But here we come acrossthe difficulty of amending a Bill under the Parliament Act after it had
once been sent up in the third session to the House of Lords. By June
18 S. 2 (1) Proviso. Under this enactment the House of Lords may insist upon a delay of atleast two years and one calendar month, and a powerful opposition in the House ofCommons may lengthen this delay.
39 Constructive rejection arises under the Parliament Act, s. 2, sub-s. 3, which runs asfollows: "A Bill shall be deemed to be rejected by the House of Lords if it is not passed by
the House of Lords either without amendment or with such amendments only as may be
agreed to by both Houses." The Home Rule Bill was actually rejected by the vote of theHouse of Lords in its first and second session. It was constructively rejected in the third
session by the House of Lords simply by the House not passing the Bill during suchsession.

xl

INTRODUCTION

29_4it was felt to be desirable to amend the Home Rule Bill in respectof the position of Ulster. On June 23 the Government brought into
the House of Lords a Bill which should amend the Home Rule Act
which was still a Bill, and it is difficult to find a precedent for thus
passing an Act for amending a Bill not yet on the statute-book. The
attempt to carry out the Govemment's proposal came to nothing. On
September _8, _9_4, the Home Rule Bill became the Home Rule Act(or technically the Government of Ireland Act, 2914)unamended, buton the very day on which the Home Rule ACt was finally passed it
was in effect amended by a Suspensory ACt under which the Government of Ireland Act, 2914, cannot come into force until at any rate
twelve months from September 28, and possibly will not come into
force until the present war has ended. The Suspensory ACt evades or
avoids the effect of the Parliament Act, but such escape from theeffect of a recently passed statute suggests the necessity for someamendment in the procedure created by the Parliament Act.
3. The House of Commons can without the consent of the Houseof Lords present to the King for his assent any Bill whatever which
has complied with the provisions of the Parliament Act, section 2, orrather which is certified by the Speaker of the House of Commons in
the way provided by the Act to have complied with the conditions of
the Parliament Act, section 2.
The simple truth is that the Parliament Act has given to the Houseof Commons, or, in plain language, to the majority thereof, thepower of passing any Bill whatever, provided always that the conditions of the Parliament Act, section 2, are complied with. But theseprovisions do leave to the House of Lords a suspensive veto which
may prevent a Bill from becoming an Act of Parliament for a period of
certainly more, and possibly a good deal more, than two years.2°
20 The Parliament Act leaves the existing fights and privileges of the House of Commons
untouched (ibid. sect. 6). No reference whatever is therein made to the so-called "veto" ofthe King. Its existence is undoubted, but the veto has not been exercised for at least two
centuries. The well-known words of Burke, however, should always be borne in mind:"The king's negative to bills," he says, "is one of the most indisputed of the royal prerogatives; and it extends to all cases whatsoever. I am far from certain, that if several laws which
I know had fallen under the stroke of that sceptre, the public would have had a very heavy
loss. But it is not the propriety of the exercise which is in question. The exercise itself is

x/i

LAW OF THE CONSTITUTION

In these circumstances it is arguable that the Parliament Act has
transformed the sovereignty of Parliament into the sovereignty of theKing and the House of Commons. But the better opinion on thewhole is that sovereignty still resides in the King and the two Housesof Parliament. The grounds for this opinion are, firstly, that the Kingand the two Houses acting together can most certainly enact or repeal
any law whatever without in any way contravening the Parliament
Act; and, secondly, that the House of Lords, while it cannot prevent
the House of Commons from, in effect, passing under the Parliament
Act any change of the constitution, provided always that the requirements of the Parliament Act are complied with, neverthelesscan, as long as that Act remains in force, prohibit the passing of any
Act the effectiveness of which depends upon its being passed without delay.
Hence, on the whole, the correct legal statement of the actual condition of things is that sovereignty still resides in Parliament, i.e. in
the King and the two Houses acting together, but that the Parliament
Act has greatly increased the share of sovereignty possessed by theHouse of Commons and has greatly diminished the share thereofbelonging to the House of Lords.
PRACTICAL(RELATION

CHANGEIN THE AREA

OF THE IMPERIAL

The term "Dominions"
Canada, Newfoundland,

OF PARLIAMENTARYPARLIAMENT

SOVEREIGNTY

TO THE DOMINIONS

21)

means and includes the Dominion of
and Commonwealth of Australia, New

wisely forborne. Its repose may be the preservation of its existence; and its existence may be
the means of saving the constitution itself, on an occasion worthy of bringing it forth."-Burke, Letter to the Sheriffs of Bristol, vol. iii., ed. 18o8, pp. 18o, 18a; ed. 2872, vol. ii. p. 28.
Experience has confirmed the soundness of Burke's doctrine. The existence of this "negative" has greatly facilitated the development of the present happy relation between Englandand her self-governing
colonies. It has enabled English and colonial statesmanship to createthat combinaiion of Imperial unity with something coming near to colonial independence
which may ultimately turn out to be the salvation of the British Empire.
21 For this use of the term Dominions see British Nationality & Status of Aliens Act, 1914, 4& 5 Geo. V. c. 27, 1st Schedule. Compare especially as to British colonies with representative and responsible government pp. 47 to 6_, post.
The Dominions for the most part consist either of a country which was a self-governing
colony, or of countries which were self-governing colonies in 2884 . But this statement does

xlii

INTRODUCTION

Zealand, and the Union of South Africa. Each of the Dominions is aself-governing colony, i.e. a colony possessed both of a colonial Parliament, or representative legislature, and a responsible government,
or in other words, of a government responsible to such legislature.
Our subject raises two questions:First Question
What is the difference between the relation of the Imperial Parliament to a self-governing colony, such, e.g., as New Zealand, in _884,
and the relation of the same Parliament to the Dominion, e.g. of New
Zealand, in _914?
Before attempting a direct answer to this inquiry it is well to pointout that in two respects of considerable importance the relation of theImperial Parliament 22to the self-governing colonies, whether called
Dominions or not, has in no respect changed since 1884 .
In the first place, the Imperial Parliament still claims in _914, as it
claimed in _884, the possession of absolute sovereignty throughout
every part of the British Empire; and this claim, which certainly extends to every Dominion, would be admitted as sound legal doctrineby any court throughout the Empire which purported to act under
not apply with perfect accuracy to every one of the Dominions. Western Australia, forinstance, which is now one of the states of the Commonwealth of Australia, did not obtain
responsible government till _89o, and Natal, now a state of the Union of South Africa, did
not obtain such government till _893. The Union of South Africa itself consists to a great
extent of states which in _884, though subject to the suzerainty of the King, were (under thegovernment of the Boers) all but independent countries.
Throughout this Introduction, unless the contrary is expressly stated, or appears from thecontext, no reference is made to the position either of (i.) the Crown colonies, or (ii.) the
three colonies, viz. the Bahamas, Barbadoes, and Bermuda, which possess representative
but not responsible government, or (iii.) British India. This Introduction, in short, in so far
as it deals with the relation of the Imperial Parliament to the colonies, refers exclusively, or
all but exclusively, to the relation between the Imperial Parliament and the five Dominions.
22 This term means what an English writer on our constitution would generally call simply"Parliament," that is the Parliament of the United Kingdom. The term "Imperial Parliament" is, however, a convenient one when we have to deal, as in this Introduction, withthe relation between the Parliament of the United Kingdom and the Dominions, every oneof which has representative legislatures of their own which are always popularly, andsometimes in Acts of Parliament, termed Parliaments. The term "Imperial Parliament" isused in colonial statutes, e.g., in the Interpretation Act of the Commonwealth of Australia,
No. 2 of 19Ol.

xliii

LAW OF THE CONSTITUTION

the authority of the King. The constitution indeed of a Dominion in
general originates in and depends upon an Act, or Acts, of the Imperial Parliament; and these constitutional statutes are assuredly liable
to be changed by the Imperial Parliament.
Parliament, in the second place, had long before 2884 practicallyadmitted the truth of the doctrine in vain pressed upon his contemporaries by Burke, 23when insisting upon the folly of the attempt
made by the Parliament of England to exert as much absolute powerin Massachusetts as in Middlesex, that a real limit to the exercise ofsovereignty is imposed not by the laws of man but by the nature ofthings, and that it was vain for a parliamentary or any other sovereign to try to exert equal power throughout the whole of an immense Empire. The completeness of this admission is shown by one
noteworthy fact: the Imperial Parliament in 1884, and long before
1884 , had ceased to impose of its own authority and for the benefit ofEngland any tax upon any British colony. 24The omnipotence, in
23 "Who are you," to quote his words, "that should fret and rage, and bite the chains of
nature? Nothing worse happens to you, than does to all nations who have extensive
empire; and it happens in all the forms into which empire can be thrown. In large bodies,
the circulation of power must be less vigorous at the extremities. Nature has said it. The
Turk cannot govern Egypt, and Arabia, and Curdistan, as he governs Thrace; nor has hethe same dominion in the Crimea and in Algiers which he has at Brusa and Smyrna.
Despotism itself is obliged to truck and huckster. The Sultan gets such obedience as he can.
He governs with a loose rein, that he may govern at all; and the whole of the force andvigour of his authority in the centre is derived from a prudent relaxation in all his borders.
Spain, in her provinces, is, perhaps, not so well obeyed as you are in yours. She complies
too; she submits; she watches times. This is the immutable condition, the eternal law, ofextensive and detached empire."--Burke,
Conciliation with America, vol. iii. (ed. _8o8),
PP. 56 , 5724 This renunciation by the Imperial Parliament of the right to impose taxes upon a colony,whether a self-governing colony or not, has passed through two stages. Since _783 taxation
imposed by an Imperial Act has always been, even in the case of a Crown colony, imposed
for the benefit of the colony, and the proceeds thereof have been paid to the colony. But
until the repeal of the Navigation Laws in _849 Parliament, in support of our whole navigation system, retained the practice of imposing duties on goods imported into the colonies,
though the proceeds thereof were paid to the colonies so taxed. Since 2849 no Imperial Act
has been passed for the taxation of any colony, and no colony is compelled by the Imperial
Parliament to contribute anything in the way of taxation towards the cost of the government of the United Kingdom or towards the defence of the British Empire.
The Imperial Parliament does still impose customs duties upon the Isle of Man. See 3 & 4Geo. V. c. _8.

xliv

INTRODUCTION

short, of Parliament, though theoretically admitted, has been appliedin its full effect only to the United Kingdom.
A student may ask what is the good of insisting upon the absolute
sovereignty of Parliament in relation to the Dominions when it isadmitted that Parliament never gives, outside the United Kingdom,and probably never will give, full effect to this asserted and more orless fictitious omnipotence. The answer to this suggestion is thatstudents who do not bear in mind the daim of Parliament to absolute
sovereignty throughout the whole of the British Empire, will neverunderstand the extent to which this sovereign power is on someoccasions actually exerted outside the limits of the United Kingdom,
nor, though this statement sounds paradoxical, will they understandthe limits which, with the full assent, no less of English than ofcolonial statesmen, are in fact, as regards at any rate the Dominions,
imposed upon the actual exercise of the theoretically limitless authority of Parliament. It will be found further that even to the Dominions
themselves there is at times some advantage in the admitted authority of the Imperial Parliament to legislate for the whole Empire. In theeyes, at any rate, of thinkers who share the moral convictions prevalent in most civilised states, it must seem a gain that the Imperial
Parliament should have been able in _834 to prohibit the existence ofslavery in any country subject to the British Crown, and should be
able to-day to forbid throughout the whole Empire the revival of the
Slave Trade, or of judicial torture.
Let us now turn to the points wherein the relation of the Imperial
Parliament to the self-governing colonies in 1884 differed from theexisting relation of the Imperial Parliament to the Dominions in 1914.
The relation of the Imperial Parliament in _884 to a self-governing
colony, e.g. New Zealand.
The Imperial Parliament, under the guidance of English statesmen,certainly admitted in practice thirty years ago that a self-governing
colony, such as New Zealand, ought to be allowed in local matters tolegislate for itself. Parliament did, however, occasionally legislate for
New Zealand or any other self-governing colony. Thus the existing
English Bankruptcy Act, 1883, as a matter of fact transferred, as it stilltransfers, to the trustee in bankruptcy the bankrupt's property, andx/v

LAW OF THE CONSTITUTION

even his immovable property situate in any part of the British Empire, 2sand a discharge under the English Bankruptcy Act, 2883, was,and still is, a discharge as regards the debts of the bankrupt contracted in any part of the British Empire,26 e.g. in New Zealand or in
the Commonwealth of Australia. So again the veto of the Crown was,in one form or another 27in _884, and even later, used occasionally toprevent colonial legislation which, though approved of by the peopleof the colony and by the legislature thereof, might be opposed to themoral feeling or convictions of Englishmen. Thus colonial Bills forlegalising the marriages between a man and his deceased wife's sister, or between a woman and her deceased husband's brother, weresometimes vetoed by the Crown, or in effect on the advice of ministers supported by the Imperial Parliament. No doubt as time went on
the unwillingness of English statesmen to interfere, by means of theroyal veto or otherwise, with colonial legislation which affected only
the internal government of a self-governing colony, increased. But
such interference was not unknown. There was further, in _884, anappeal in every colony from the judgments of the Supreme Court
thereof to the English Privy Council. And a British Government
would in _884 have felt itself at liberty to interfere with the executive
action of a colonial Cabinet when such action was inconsistent withEnglish ideas of justice. It was also in 1884 a dear principle of English
administration that English colonists should neither directly nor
indirectly take part in negotiating treaties with foreign powers. Nor
had either England or the self-governing colonies, thirty years ago,
realised the general advantage of those conferences now becoming a
regular part of English public life, at which English ministers andcolonial ministers could confer upon questions of colonial policy,
and could thus practically acknowledge the interest of the colonies
in everything which concerned the welfare of the whole Empire.
Neither certainly did English statesmen in _884 contemplate the pos25 See Dicey, Conflict of Laws (2nd ed.), pp. 329-333.
26/b/d., p. 441, and Ellis v. McHenry 0871), L. R. 6, C. P. 228, 234--236;
but contrast New
Zealand Loan, etc, Co. v. Morrison [_898], A. C. 349, cited Conflict of Laws, p. 342.
27 Seepp.

56-6_, post.

xlvi

INTRODUCTION

sibility of a colony standing neutral during a war between England
and a foreign power.
The relation of the Imperial Parliament in 1914to a Dominion. _This relation may now, it is submitted, be roughly summed up in
the following rules:
Rule 1

In regard to any matter which directly affects Imperial interests theImperial Parliament will (though with constantly increasing caution)pass laws which apply to a Dominion and otherwise exercise sovereign power in such a Dominion.
But this rule applies almost exdusively to matters which directly
and indubitably affect Imperial interests. 29
Rule 2
Parliament does not concede to any Dominion or to the legislature
thereof the rightm
a. to repeal [except by virtue of an Act of the Imperial Parliament]
any Act of the Imperial Parliament applying to a Dominion;b. to make of its own authority a treaty with any foreign power;c. to stand neutral in the event of a war between the King and any
foreign power, or, in general, to receive any benefit from a foreign
power which is not offered by such power to the whole of the British
Empire. 30
It must be noted that under these two rules the Imperial Parliament
does retain, and sometimes exerts the right to legislate in regard tomatters which may greatly concern the prosperity of a Dominion,
and also does in some respects seriously curtail both the legislative
power of a Dominion Parliament and the executive power of a Dominion Cabinet. As long, in short, as the present state of things
continues, the Imperial Parliament, to the extent I have laid down,
still treats any Dominion as on matters of Imperial concern subordinate to the sovereignty of the Imperial Parliament.
28 See as to meaningof Dominion,

pp. xlii-xliii, note 21, ante.

29 See Keith, Responsible Government in the Dominions, p. _3_6.
30 Ibid. pp. _t_9-1_22.

xlvii

LAW OF THE CONSTITUTION
Rule 3The Imperial Parliament now admits and acts upon the admission,that any one of the Dominions has acquired a moral right to as much
independence, at any rate in regard to matters occurring within the
territory of such Dominion, as can from the nature of things be conceded to any country which still forms part of the British Empire.
Take the following illustration of the extent of such internal independence:
Parliament does not (except at the wish of a Dominion) legislatewith respect to matters which merely concern the internal interests ofsuch Dominion, e.g. New Zealand. 31
The legislature of any Dominion has within the territorial limits ofsuch Dominion power to legislate in regard to any matter whichsolely concerns the internal interest of such Dominion.
The power of the Crown, i.e. of the British ministry, to veto or
disallow in any way 32any Bill passed by the legislature of a Dominion, e.g. New Zealand, is now most sparingly exercised, and will
hardly be used unless the Bill directly interferes with Imperial interests or is as regards the colonial legislature ultra vires. Thus the
Crown, or in other words a British ministry, will now not veto or
disallow any Bill passed by the legislature of a Dominion on the
ground that such Bill is indirectly opposed to the interests of theUnited Kingdom, or contradicts legal principles generally upheld in
England, e.g. the principle of free trade.
The British Government will not interfere with the executive actionof the Government (e.g. of New Zealand) in the giving or the withholding of pardon for crime, in regard to transactions taking place
wholly within the territory of New Zealand. 33
Any Dominion has now a full and admitted right to raise militaryor naval forces for its own defence. And the policy of England is in
the main to withdraw the English Army from the Dominions and toencourage any Dominion to provide for its own defence and to raise
3_ See Keith, Responsible Government in the Dominions, pp. 13_6-_328.
32 See pp. 56--57, post.
33 See Keith, Responsible Government in the Dominions, p. _583.

xlviiiINTRODUCTION

for itself a Navy, and thereby contribute to the defensive power of the
British Empire.
The Imperial Government is now ready at the wish of a Dominion
to exflude from its constitution, either partially or wholly, the right ofappeal from the decision of the Supreme Court of such Dominion to
the Privy Council. 34
The Imperial Government also is now ready at the wish of a Dominion to grant to such Dominion the power to amend by law theconstitution thereof though created under an Act of the Imperial
Parliament. 3sRule 4The habit has now grown up that conferences should be held fromtime to time in England, at which shall be present the Premier ofEngland and the Premier of each Dominion, for consultation anddiscussion on all matters concerning the interest and the policy of
the Empire, and that such conferences should be from time to time
held may now, it is submitted, be considered a moral right of each
Dominion.
These conferences, which were quite unthought of thirty years
ago, and which did not receive their present form until the year 2907,
mark in a very striking manner a gradual and therefore the more
important change in the relations between England and the selfgoverning colonies.
The answer then to the question before us 36as to the difference
between the relation of England (or in strictness of the Imperial Parliament) to the self-governing colonies 37in 2884 and her relation to
the Dominions in 29_4 can thus be summed up: At the former period
England conceded to the self-governing colonies as much of independence as was necessary to give to such colonies the real management in their internal or local affairs. But English statesmen at that
34 See Commonwealthof Australia Constitution,s. 74; South Africa Act, 29o9, s. 206.

35 See especially South Africa Act, 19o9, s. lO6.
36 See first question, p. xliii, ante.
37 The difference between the expression "'self-governing colonies" and "Dominions"worth notidng. The first is appropriate to 2884, the second is appropriate to 29a4.

xlix

is

LAW OF THE CONSTITUTION

date did intend to retain for the Imperial Parliament, and the Imperial
Government as representing such Parliament, a real and effective
control over the action of the ministry and the legislature of eachself-governing colony in so far as that control was not palpably inconsistent with independence as regards the management of strictly local
affairs. In x9_4 the colonial policy of England is to grant to every
Dominion absolute, unfettered, complete local autonomy, 38in so far
as such perfect self-government by a Dominion does not dearly interfere with loyalty of the Dominion to the Empire. The two relations ofEngland to the self-governing colonies--now
called Dominions-are, it may be objected, simply one and the same relation described insomewhat different language. The objection is plausible, but notsound. My effort has been to describe two different ways of looking
at one and the same relation, and the results of this difference of vieware of practical consequence. In 1884it was admitted, as it is to-day,that the self-governing colonies must have rights of self-government.
But in 1884 the exercise of self-government on the part of any colony
was regarded as subordinate to real control by the English Parliamentand Crown of colonial legislation which might be opposed to English
interests or to English ideals of political prudence. In _914the selfgovernment, e.g., of New Zealand means absolute, unfettered, complete autonomy, without consulting English ideas of expediency oreven of moral duty. The one limit to this complete independence inregard to local government is that it is confined to really local mattersand does not trench upon loyalty to the Empire. The independence of
the Dominion, in short, means nowadays as much of independence
as is compatible with each Dominion remaining part of the Empire.
Second Question
What are the changes of opinion which have led up to the alteredrelation between England and the Dominions? 39
In the early Victorian era [and even in the mid-Victorian era] there were
two rough-and-ready solutions for what was regarded, with some impa38 See Minutes of Proceedings of Imperial Conference, _9_ [Cd. 5745], P. 22.
39 See Lawand Opinion, pp. 450--457.

INTRODUCTION
tience, by the British statesmen of that day as the "Colonial problem." The
one was centralisation--thegovernment, that is, except in relatively trivial
matters, of all the outlying parts of the Empire from an office in Downing
Street. The other was disintegration--theacquiescence in, perhaps the encouragement of, a process of successive "hivings off" by which, without thehazards or embitterments of coercion, each community, as it grew to politicalmanhood, would follow the example of the American Colonies, and start anindependent and sovereign existence of its own. After 7° years' experienceof Imperial evolution, it may be said with confidence that neither of these
theories commands the faintest support to-day, either at home or in any partof our self-governing Empire. We were saved from their adoption--somepeople would say by the favour of Providence--or(to adopt a more flattering hypothesis) by the political instinct of our race. And just in proportion as
centralisation was seen to be increasingly absurd, so has disintegration been
felt to be increasingly impossible. Whether in the United Kingdom, or in any
one of the great communities which you represent, we each of us are, andwe each of us intend to remain, master in our own household. This is, here
at home and throughout the Dominions, the life-blood of our polity. It is the
art_'culusstantis aut cadentis Imperii. 4°

These words are a true statement of patent facts, but it will on
examination be found that the change during recent years in English
opinion, and also in colonial opinion, with regard to the relation
between England and the Dominions presents rather more comlexity
than at first sight may be apparent 41to a casual reader of Mr. Asquith's address. Up to the last quarter of the nineteenth century, andeven as late as _884, many Englishmen, including a considerable
number of our older statemen, held that the solution of the colonialproblem was to be found wholly in the willingness of England topermit and even to promote the separation from the Empire of any
self-governing colony which desired independence, provided that
this separation should take place without engendering any bad feeling between England and her so-called dependencies. No doubt
there existed, at any rate till the middle of the nineteenth century, alimited body of experienced officials who held that our colonial system, as long as it was maintained, implied the active control by
40 Minutes of Proceedings of the Imperial Conference, 1911[Cd. 5745]" Opening address of
the President (Mr. Asquith), p. 22. Compare "Message of King to Governments andPeoples of the Self-governing Dominions," Times, Sept. lO, 1914.
41 Compare Dicey, Law and Opinion, pp. 45o-457 .

li

LAW OF THE CONSTITUTION

England of colonial affairs. But such men in many cases doubted
whether the maintenance of the Colonial Empire was of real benefit
to England, and thought that on the whole, with respect at any rate
to any self-governing colony, the course of prudence was to leavethings alone until it should have become manifest to every one thatthe hour for friendly separation had struck. The self-governing colonies, on the other hand, up at any rate till _884, just because they
were more and more left alone and free to manage their own affairs,
though they occasionally resented the interference of the English
Government with colonial legislation, were on the whole contented
with things as they stood. They certainly did not display any marked
desire to secede from the Empire. Still less, however, did they show
any active wish to take part in controlling the policy of the Empire, or
to share the cost of Imperial defence. Honest belief in the principle oflaissezfaire produced its natural and, as far as it went, beneficial result.
It removed causes of discontent; it prevented the rise of ill-will between England and her self-governing colonies. But it did not of itself
produce any kind of Imperial patriotism. The change which a student
has to note is an alteration of feeling, which did not become very
obvious till near the dose of the nineteenth century. This was thegrowth (to use a current expression) of Imperialism. But this term,
like all popular phrases, is from its very vagueness certain to mislead
those who use it, unless its meaning be defined with some care. In
regard to the British Empire it ought to be used as a term neither ofpraise nor of blame, but as the name for an idea which, in so far as it
is true, is of considerable importance. This idea is that the British
Empire is an institution well worth maintaining, and this not on mere
grounds of sentiment but for definite and assignable reasons. Upon
England and upon every country subject to the King of England theBritish Empire confers at least two benefits: It secures permanent
peace among the inhabitants of the largest of existing states; it again
secures, or ought to secure, to the whole of this vast community
absolute protection against foreign attack. The resources of the Empire are, it is felt, practically inexhaustible; the creation of a fleet
supported by revenues and also by armies drawn from every country
subject to the King of England should, provided England herself//iINTRODUCTION

stands properly armed, render invasion of the British Empire by anyof the great military powers of Europe an impossibility. But then the
hugeness of the Empire and the strength of the Empire, if it remains
united, are enough to show that the different countries which areparts of the Imperial system would, if they each stood alone, be easily
assailable by any state or combination of states which had the command of large military and naval armaments. Neither England, inshort, nor any of her self-governing Dominions can fat to see that the
dissolution of the Empire might take from both the mother country
and the most powerful of the Dominions the means necessary for
maintaining liberty and independence. Loyalty to the Empire, typified by loyalty to the King, is in short a sentiment developed by
the whole course of recent history. It is a feeling or conviction whichplaces the relation of England and the Dominions in a new light. It
amply accounts for the extraordinary difference between the colonial
policy accepted both by England and by the self-governing colonies
in _85o, and even (to a great extent) in _884, and the colonial policy
acceptable both to England and to her all but independent Dominionsin 1914. English statesmen on the one hand now proffer to, andalmost force upon, each Dominion every liberty compatible with themaintenance of the Empire; but then English statesmen no longer
regard with philosophic calm the dawn of the day when any one of
the Dominions may desire to secede from the Empire. The Dominions, on the other hand, have no longer any reason to fear and do notdesire any interference with colonial affairs either by the legislation of
the Imperial Parliament or by the administrative action of officials at
Downing Street who are the servants of the Imperial Parliament. But
then statesmen of the Dominions show a willingness to share the costof the defence of the Empire, and at the same time express at each of
the great Conferences, with more and more plainness, the desire thatthe Dominions should take a more active part in the determination ofImperial policy. It is not my object, at any rate at this part of thisIntroduction, to consider how far it may be possible to give satisfaction to the desires of rational Imperialists, and still less ought any
man of sense to express any confident opinion as to how far thesentiment of Imperialism may in the course of time increase in force///iLAW OF THE CONSTITUTION

or suffer diminution. My immediate aim is to show that this new
Imperialism is the natural result of historical circumstances. It is well,
however, to bear in mind several considerations which Englishmenof to-day are apt to overlook. The friendly Imperialism which finds
expression in the Imperial Conferences is itself the admirable fruit of
the old policy of/aissez faire. The system of leaving the self-governing colonies alone first appeased discontent, and next allowed thegrowth of friendliness which has made it possible for the English
inhabitants, and even in some cases the foreign inhabitants, of the
Dominions to recognise the benefits which the Empire confers upon
the Dominions, and for Englishmen at home to see that the Dominions may contribute to the safety of England and to the prosperity of
the whole Empire. 42But we must at the same time recognise that thepolicy of friendly indifference to secession from the Empire, which
nominally, at any rate, was favoured by many English statesmen
during the nineteenth century, has come to an end. The war in South
Africa was in reality a war waged not only by England but also by the
Dominions to prevent secession; the concession further to the South
African Union of the full rights of a Dominion is no more inconsistent
with resistance to secession than was the restoration to the Southern
States of the American Commonwealth of their full right to existenceas States of the United States. It must, lastly, be noted, that while theinhabitants of England and of the Dominions express at each Conference their honest pleasure in Imperial unity, the growth of Imperialism already causes to many patriotic men one disappointment.
Events suggest that it may turn out difficult, or even impossible, toestablish throughout the Empire that equal citizenship of all British
subjects which exists in the United Kingdom and which Englishmenin the middle of the nineteenth century hoped to see establishedthroughout the length and breadth of the Empire. 43
42 As they now [x914] are contributing.
43 The kind of equality among British subjects which Englishmen, whether wisely or not,hoped to establish throughout the whole Empire is best seen by considering the sort ofequality which actually exists and has for many years existed in England. Speaking broadly,
every British subject has in England at the present day the same political rights as every
natural-born Englishman, e.g. an Englishman born in England and the son of English

I/v

INTROD UCTION

THE RULE OF LAW 44
The rule of law, as described in this treatise, remains to this day a
distinctive characteristic of the English constitution. In England noman can be made to suffer punishment or to pay damages for any
conduct not definitely forbidden by law; every man's legal rights or
liabilities are almost invariably determined by the ordinary Courts of
the realm, and each man's individual rights are far less the result of
our constitution than the basis on which that consitution is founded.
The principles laid down in this treatise with regard to the rule oflaw and to the nature of droit administratif need little change. My
object in this Introduction is first to note a singular decline among
modem Englishmen in their respect or reverence for the rule of law,and secondly, to call attention to certain changes in the droit administratif of France.4S
DECLINEIN REVERENCEFOR RULE

OF LAW

The ancient veneration for the rule of law has in England sufferedduring the last thirty years a marked decline. The truth of this assertion is proved by actual legislation, by the existence among someclasses of a certain distrust both of the law and of the judges, and by amarked tendency towards the use of lawless methods for the attainment of social or political ends.
parents settled in England, Thus a British subject, whatever be the place of his birth, or therace to which he belongs, or I may now add the religion which he professes, has, with therarest possible exceptions, the same right to settle or to trade in England which is possessedby a natural-born Englishman. He has further exactly the same political rights. He can, if hesatisfies the requirements of the English electoral law, vote for a member of Parliament; hecan, if he commends himself to an English constituency, take his seat as a member ofParliament. There is no law which forbids any British subject, wherever he be born, or towhatever race he belongs, to become a member of the English Cabinet or a Prime Minister.
Of course it will be said that it is extremely improbable that the offices I have mentioned
will, in fact, be filled by men who are not in reality Englishmen by race. This remark to acertain extent is true, though it is not wholly true. But the possession of theoretically equal
political rights does certainly give in England, or rather to be strictly accurate in the United
Kingdom, to every British subject an equality which some British subjects do not possess insome of the Dominions.
44 See Part II., and especiallyChap. W., post.

45 See Chap. XII. post.

/v

LAW OF THE CONSTITUTION

Le_slation
Recent Acts have given judidal or quasi-judidal authority to officials 46who stand more or less in connection with, and therefore may
be influenced by, the government of the day, and hence have in somecases excluded, and in others indirectly diminished, the authority of
the law Courts. This tendency to diminish the sphere of the rule oflaw is shown, for instance, in the judicial powers conferred upon the
Education Commissioners by the Education Act, _9o2y on various
officials by the National Insurance Acts, _9_1and 1913, 48 and on theCommissioners of Inland Revenue and other officials by the Finance
Act, 29io.49It is also shown by the Parliament Act, 1911, s. 3, which
enacts that "any certificate of the Speaker of the House of Commons
given under this Act shall be condusive for all purposes and shall not
be questioned in any Court of law." This enactment, if strictly construed, would protect any Speaker who, either from partisanship orto promote some personal interest of his own, signed a certificate
which was notoriously false from being liable to punishment by any
Court of law whatever, so No doubt the House of Commons has been
historically jealous of any judicial interference with persons acting
under the authority of the House, and has on more than one occasion
claimed in a sense to be above the law of the land. All that can be said
is that such claims have rarely been of advantage or credit to theHouse, and that the present time is hardly the proper season for thecurtailment by the House of legitimate judicial power. It must, however, in fairness be noted that the invasion of the rule of law by
imposing judicial functions upon officials is due, in part, to the wholecurrent of legislative opinion in favour of extending the sphere of theState's authority. The inevitable result of thus immensely increasing
46 See generally

on this point Muir, Peers and Bureaucrats, especially pp. 1-94.

47 See sect. 7, and R. v. Board of Education (Swansea Case) [19ao], 2 K. B. 167; Board of Educationv. Rice [1Sa_],A. C. 179.
48 See National Insurance Act, 19_1, ss. 66, 67, 88 (1), and generally Law and Opinion (anded.), pp. 41-43.
49 See especially sect. 2, sub-s. 3, ss. 33 and 96.
50 Would this enactment protect the Speaker against an impeachment
cate which he knew to be false?

for giving a certifi-

INTRODUCTION

the duties of the Government is that State officials must more andmore undertake to manage a mass of public business, e.g., to give one
example only, the public education of the majority of the citizens. But
Courts are from the nature of things unsuited for the transaction ofbusiness. The primary duty of a judge is to act in accordance with thestrict rules of law. He must shun, above all things, any injustice toindividuals. The well-worn and often absurdly misapplied adage that"it is better that ten criminals should escape conviction than that one
innocent man should without cause be found guilty of crime" does
after all remind us that the first duty of a judge is not to punish crime
but to punish it without doing injustice. A man of business, whether
employed by a private firm or working in a public office, must make it
his main object to see that the business in which he is concerned isefficiently carried out. He could not do this if tied down by the rules
which rightly check the action of a judge. The official must act onevidence which, though strong, may not be at all conclusive. The
official must often act with severity towards subordinates whose
stupidity, and not their voluntary wrong-doing, gives cause for dismissal. A judge, on the other hand, is far more concerned with seeingthat the law is strictly carried out than in showing consideration toindividuals. "That hard cases make bad law" is proverbial; the transaction of business, in short, is a very different thing from the giving of
judgments: The more multifarious therefore become the affairs
handed over to the management of civil servants the greater will bealways the temptation, and often the necessity, extending to thediscretionary powers given to officials, and thus preventing law
Courts from intervening in matters not suited for legal decision.
Distrust of Judges and of Courts
If the House of Commons deliberately exdudes the interventionof any law Court in matters which the House may deem (with very
dubious truth) to concern the House alone, we can scarcely wonderthat artisans should have no love for judicial decisions. In plain truth,
while every man of at all respectable instincts desires what he considers justice for himself and for the dass to which he belongs, almost allmen desire something more than, and different from, justice for/v/iLAW OF THE CONSTITUTION

themselves and against their neighbours. This is inevitably the casewith persons such as the members of trade unions, who are trying,
with a good deal of success, to enforce trade rules which often arouse
the censure of the public, and sometimes come into absolute conflictwith the law of the land. The blackleg may be, and one may suspectoften is, a mean fellow who, to put money into his own pocket,
breaks rules which his fellow-workers hold to be just and beneficial to
the trade generally. He, for example, has no objection, if properly
paid for it, to work with men who are not members of any union. The
blackleg, however, all but invariably keeps within the law of the land,and proposes to do nothing which violates any principle establishedby common law or any enactment to be found in the Statute Book.
The trade unionists whom he offends know perfectly well that theblackleg is in the eye of the law no wrong-doer; they therefore feelthat the Courts are his protectors, and that, somehow or other, tradeunions must be protected against the intervention of judges. Hencethe invention of that self-contradictory idea of "peaceful picketing,"
which is no more capable of real existence than would be "peacefulwar" or "unoppressive oppression"; hence, too, that triumph oflegalised wrong-doing sanctioned by the fourth section of the Trade
Disputes Act, sl _9o6. It is however by no means to be supposed that
artisans are the only class accustomed to decry a judge or the legislature when the one gives a judgment or the other passes a law opposed to the moral convictions of a particular part of the community.
Lawlessness
Till a time well within the memory of persons now living, it would
have been very difficult to find any body of men or women who did
not admit that, broadly speaking, a breach of the law of the land was
also an act of immorality. No doubt at all times there have existed, asat the present day, a large number of habitual law-breakers, butthough a cheat, a pickpocket, or a burglar does constantly break thelaw, there is no reason to surmise that cheats, pickpockets, or burglars maintain the doctrine that law-breaking is itself a praiseworthy
51 See Law and Opinion, pp. xliv-xlvi,

and comparelviii

the Trade Union Act, _9_3, ibid. p. xlvifi.

INTRODUCTION

or a moral act. Within the last thirty years, however, there has grown
up in England, and indeed in many other civilised countries, a new
doctrine as to lawlessness. This novel phenomenon, which perplexes
moralists and statesmen, is that large classes of otherwise respectablepersons now hold the belief and act on the conviction that it is not
only allowable, but even highly praiseworthy, to break the law of theland if the law-breaker is pursuing some end which to him or to her
seems to be just and desirable. This view is not confined to any one
class. Many of the English dergy (a class of men well entitled torespect) have themselves shown no great hesitation in thwarting
and breaking laws which they held to be opposed to the law of the
Church. Passive resisters do not scruple to resist taxes imposed forsome object which they condemn. Conscientious objectors are doinga good deal to render ineffective the vaccination laws. The militantsuffragettes glorify lawlessness; the nobleness of their aim justifies intheir eyes the hopeless and perverse illegality of the means by which
they hope to obtain votes for women.
Whence arises this zeal for lawlessness? The following reflections
afford an answer, though only a partial answer, to this perplexing
inquiry:
In England democratic government has already given votes, if notprecisely supreme power, to citizens who, partly because of the fairness and the regularity with which the law has been enforced forgenerations in Great Britain, hardly perceive the risk and ruin involved in a departure from the rule of law. Democratic sentiment,
further, if not democratic principle, demands that law should on thewhole correspond with public opinion; but when a large body ofcitizens not only are opposed to some law but question the moral
right of the state to impose or maintain a given law, our honest
democrat feels deeply perplexed how to act. He does not know in
effect how to deal with lawlessness which is based upon a fundamental difference of public opinion.S2 For such difference makes it impossible that on a given topic the law should be in reality in accordancewith public opinion. Thus many Englishmen have long felt a moral
5a See especially Lowell, Public Opinionand PopularGovernment, chap. iii.

_x

LAW OF THE CONSTITUTION

difficulty in resisting the daim of a nationality to become an independent nation, even though the concession of such a demand may
threaten the ruin of a powerful state and be opposed to the wishes ofthe majority of the citizens thereof. So the undoubted fact that a large
number of Englishwomen desire parliamentary votes seems, in theeyes of many excellent persons, to give to Englishwomen a naturalright to vote for members of Parliament. In each instance, and inmany other cases which will occur to any intelligent reader, English
democrats entertain a considerable difficulty in opposing daims withwhich they might possibly on grounds of expediency or of common
sense have no particular sympathy. The perplexity of such men arises
from the idea that, at any rate under a democratic government, any
law is unjust which is opposed to the real or deliberate conviction of alarge number of citizens. But such a conviction is almost certain to
beget, on the part of persons suffering under what they deem to be
an unjust law, the belief, delusive though it often is, that any kind of
injustice may under a democratic government be rightly opposed by
the use of force. The time has come when the fact ought to be generally admitted that the amount of government, that is of coercion, of
individuals or classes by the state, which is necessary to the welfare
or even to the existence of a civilised community, cannot permanently co-exist with the effective belief that deference to public opinion is in all cases the sole or the necessary basis of a democracy. The
justification of lawlessness is also, in England at any rate, suggested if
not caused by the misdevelopment of party government. The rule ofa party cannot be permanently identified with the authority of thenation or with the dictates of patriotism. This fact has in recent days
become so patent that eminent thinkers are to be found who certainly
use language which implies that the authority or the sovereignty of
the nation, or even the conception of the national will, is a sort ofpolitical or metaphysical fiction which wise men will do well to discard. Happily, crises arise from time to time in the history of any
great state when, because national existence or national independence is at stake, the mass of a whole people feel that the authority of
the nation is the one patent and the one certain political fact. To thesecauses of lawlessness honesty compels the addition of one cause/xINTRODUCTION

which loyal citizens are most anxious not to bring into prominence.
No sensible man can refuse to admit that crises occasionally, thoughvery rarely, arise when armed rebellion against unjust and oppressive laws may be morally justifiable. This admission must certainly bemade by any reasoner who sympathises with the principles inheritedby modern Liberals from the Whigs of 2688. But this concession isoften misconstrued; it is taken sometimes to mean that no man ought
to be blamed or punished for rebellion if only he believes that hesuffers from injustice and is not pursuing any private interest of his
own.
COMPARISONBETWEEN
AND THE PRESENTTHE PRESENTOFFICIAL
DROIT ADMINISTRATIFLAW OF ENGLANDOF FRANCE s3

The last thirty years, and especially the fourteen years which haveelapsed since the beginning of the twentieth century, show a very
noticeable though comparatively slight approximation towards one
another of what may be called the official law of England and the droit
administratif of France. The extension given in the England of to-day
to the duties and to the authority of state officials, or the growth, ofour bureaucracy, s4 to use the expression of an able writer, has, as one
would naturally expect, produced in the law governing our bureaucrats some features which faintly recall some of the characteristics
which mark the droit administratif of France. Our civil servants, indeed, are as yet not in any serious degree put beyond the control ofthe law Courts, but in certain instances, and notably with regard to
many questions arising under the National Insurance Act, I9_, something very like judicial powers have been given to officials closely
connected with the Government. ss And it may not be an exaggeration to say that in some directions the law of England is being "officialised," if the expression may be allowed, by statutes passed
under the influence of socialistic ideas. It is even more certain that thedroit administratif of France is year by year becoming more and morejudicialised. The Conseil d'_tat, or, as we might term it, the Council, is
53 See Chap. XII., especially pp. 242-a67, post; Law and Opinion, pp. xxxii-liii.
54 Muir, Peers and Bureaucrats.
55 See Law and Opinion, pp. xxxix-xliii.

lxi

LAW OF THE CONSTITUTION(as all readers of my seventh edition of this work will know) the great
administrative Court of France, and the whole relation between the
judicial Courts and the Council still depends, as it has depended now
for many years, upon the constitution of the Conflict Court, s6 whichcontains members drawn in equal numbers from the Council of Stateand from the Court of Cassation. It would be idle to suppose that thedecisions of the Coundl itself when dealing with questions of administrative law do not now very nearly approach to, if indeed they
are not in strictness, judicial decisions. The Council, at any rate whenacting in a judicial character, cannot now be presided over by the
Minister of Justice who is a member of the Cabinet. s7 Still it would bea grave mistake if the recognition of the growth of official law inEngland and the gradual judidalisation of the Council as an administrative tribunal led any Englishman to suppose that there exists in
England as yet any true administrative tribunals or any real administrative law. No doubt the utmost care has been taken in France s8 togive high authority to the Council as an administrative tribunal andalso to the Conflict Court. Still the members of the Council do nothold their position by anything like as certain a tenure as do thejudges of the High Court in England, or as do the judges (if we may
use English expressions) of the French common law Courts. A member of the Council is very rarely dismissed, but he still is dismissible.
It must be noted further that the Minister of Justice is still the legal
President of the Conflict Court, though he does not generally presideover it. When, however, the members of the Conflict Court are
equally divided as to the decision of any case, the Minister of Justicedoes preside and give his casting vote. It is indeed said that such acase, which must almost necessarily be a difficult and probably an
important one, is in truth again heard before the Minister of Justiceand in effect is derided by him. A foreigner without practical acquaintance with the French legal system would be rash indeed were he to
56 As to the constitutionof this Court see p. 239 and Appendix,

Note XI. pp. 4_6--417, post.

57 See Poincar6, How France is Governed, Trans. B. Miall. (T. Fisher Unwin,
58 Administrative
law has in some other continental
less judicialised than in France.

/x/icountries,

1913), p. 272.

e.g. in Germany,

been farINTRODUCTION

form or express an assured opinion as to the extent to which thedecisions of the Council or the Conflict Court are practically independent of the wishes and the opinions of the Ministry of the day.
Hesitation by a foreign critic is the more becoming, because it iscertain, that Frenchmen equally competent to form an opinion would
differ in their answer to the inquiry, whether the Council and theConflict Court ought to be still more completely judicialised. The
constitution of the Council of State and of the Conflict Court may
suggest to a foreign critic that while neither of these bodies may begreatly influenced by the Ministry of the day, they are more likely torepresent official or governmental opinion than are any of our English tribunals. It must further always be remembered that under the
French Republic, as under every French government, a kind of authority attaches to the Government and to the whole body of officials
in the service of the state _onctionnaires) such as is hardly possessedby the servants of the Crown in England, s9 and especially that proceedings for the enforcement of the criminal law are in France whollyunder the control of the Government. The high repute of the Council
and, as it seems to a foreigner, the popularity of administrative law, isapparently shown by the success with which the Council has ofrecent years extended the doctrine that the state ought to compensate
persons who suffer damage not only from the errors or faults, e.g.
negligence, of officials, but also for cases in which the law is so carriedout that it inflicts special damage upon individuals, that is damage
beyond what is borne by their neighbours. 6°The authority again of
the Council is seen in the wide extension it has given to the principlethat any act done by an official which is not justified by law will, on
its illegality being proved, be dedared a nullity by the Council. It
ought to be noted that this extension of the liability of the state must,
it would seem, in practice be a new protection for officials; for if thestate admits its own liability to pay compensation for damage suf59 Note, for instance, the absence of any law like the Habeas Corpus Act and the wide andarbitrary powers still left to the police under the head of the r_gime de police; Duguit, Trait_ deDroit Constitutionnel, ii. pp. 24- 26, 33-45, and also the protection still extended in someinstances to officials acting under the orders of their superior.
6o See pp. 262-264, post.

lxiii

LAW OF THE CONSTITUTION

fered by individuals through the conduct of the state's servants, thisadmission must induce persons who have suffered wrong to forego
any remedy which they may have possessed against, say, a postman
or a policeman, personally, and enforce their daim not against theimmediate wrong-doer but against the state itself.
One singular fact dosely connected with the influence in France ofdroit administratif deserves the notice of Englishmen. In the treatiseson the constitutional law of France produced by writers entitled tohigh respect will be found the advocacy of a new form of decentralisation termed ddcentralisation par service, 61which seems to mean thegiving to different departments of civil servants a certain kind of
independence, e.g. leaving the administration of the Post Office to thebody of public servants responsible for the management of the postal
system. This body would, subject of course to supervision by thestate, manage the office in accordance with their own knowledge andjudgment; would, as far as I understand the proposal, be allowed toshare in the gains affected by good management; and would, out of
the revenue of the Post Office, make good the compensation due topersons who suffered by the negligence or misconduct of the officials. On the other hand, the officials would, because they wereservants of the state who had undertaken certain duties to the state,
be forbidden either to organise a strike or in any way to interrupt theworking of the Post Office. It is a little difficult to see why this proposal should be called "decentralisation,'" for that term has hitherto
borne a very different meaning. To an Englishman the course ofproceeding proposed is extremely perplexing; it however is from one
or two points of view instructive. This so-called decentralisation looks
as if it were a revival under a new shape of the traditional French
belief in the merit of administration. This reappearance of an ancient
creed possibly shows that French thinkers who have lost all enthusiasm for parliamentary government look for great benefits toFrance from opening there a new sphere for administrative capacity.
It certainly shows that Frenchmen of intelligence are turning theirthoughts towards a question which perplexes the thinkers or legis61 Duguit, TraitddeDroit Constitutionnel, _.pp. 460-467 .

lxiv

INTRODUCTION

lators of other countries. How far is it possible for officials, e.g. raftway servants and others who undertake duties on the due performance of which the prosperity of a country depends, to be allowed tocease working whenever by so doing they see the possibility of obtaining a rise in the wages paid them? My readers may think that thisexamination into the recent development of French droit administratif
digresses too far from the subject which we have in hand. This critidsm is, it is submitted, unsound, for the present condition of droit
administratif in France suggests more than one reflection which isstrictly germane to our subject. It shows that the slightly increasing
likeness between the official law of England and the droit administratifof France must not conceal the fact that droit administratif still contains
ideas foreign to English convictions with regard to the rule of law,and especially with regard to the supremacy of the ordinary law
Courts. It shows also the possible appearance in France of new ideas,such as the conception of the so-called d_centralisation par service which
are hardly reconcilable with the rule of law as understood in England.
It shows further that the circumstances of the day have already forced
upon France, as they are forcing upon England, a question to which
Englishmen have not yet found a satisfactory reply, namely, how far
civil servants or others who have undertaken to perform services on
the due fulfilment of which the prosperity of the whole country depends, can be allowed to use the position which they occupy for the
purpose of obtaining by a strike or by active political agitation concessions from and at the expense of the state. Nor when once this sort ofquestion is raised is it possible absolutely to reject the idea that England might gain something by way of example from the experience ofFrance. Is it certain that the increasing power of civil servants, or, touse Mr. Muir's expression, of "bureaucrats," may not be properly
met by the extension of official law? 62France has with undoubted
wisdom more or less judicialised her highest administrative tribunal,
and made it to a great extent independent of the Government of theday. It is at least conceivable that modern England would be benefited by the extension of official law. Nor is it quite certain that the
62 Consider the Official Secrets Acts.

lxv

LAW OF THE CONSTITUTION

ordinary law Courts are in all cases the best body for adjudicating
upon the offences or the errors of civil servants. It may require consideration whether some body of men who combined official experience with legal knowledge and who were entirely independent of theGovernment of the day, might not enforce official law with more
effectiveness than any Division of the High Court.
CONVENTIONS

OF THE CONSTITUTION 63

Three different points deserve consideration. They may besummed up under the following questions and the answers thereto:
FIRST QUESTION

Have there been during the last thirty years notable changes in theconventions of the constitution?
ANSWER

Important alterations have most certainly taken place; these may,for the most part, be brought under two different heads which for thesake of dearness should be distinguished from each other, namely,
first, new rules or customs which still continue to be mere constitutional understandings or conventions, and, secondly, understandings or conventions which have since _884 either been converted into
laws or are dosely connected with changes of law. _ These may
appropriately be termed "enacted conventions."
MERE CONVENTIONS

These have arisen, without any change in the law of the land,because they meet the wants of a new time. Examples of such acknowledged understandings are not hard to discover. In _868a Conservative Ministry in office suffered an undoubted defeat at a generalelection. Mr. Disraeli at once resigned office without waiting for eventhe meeting of Parliament. The same course was pursued by Mr.
63 See Chaps. X1V.and XV. post.
64' See espedally the indirect effects of the Parliament Act, p. li, post.

lxvi

INTRODUCTION

Gladstone, then Prime Minister, in 1874, and again, in his turn, by
Disraeli (then Lord Beaconsfield) in 188o, and by Gladstone in 1886.
These resignations, following as they each did on the result of ageneral election, distinctly reversed the leading precedent set by Peelin 1834. The Conservative Ministry of which he was the head, though
admittedly defeated in the general election, did not resign until they
suffered actual defeat in the newly-elected House of Commons. It
may be added, that on the particular occasion the Conservatives
gained both influence and prestige by the ability with which Peel,though in a minority, resisted in Parliament the attempt to compel his
resignation from office; for during this parliamentary battle he wasable to bring home to the electors the knowledge that the Conservative minority, though defeated at the election, had gained thereby agreat accession of strength. Peel also was able to show that while heand his followers were prepared to resist any further changes in theconstitution, they fully accepted the Reform Act of 1832, and, whileutterly rejecting a policy of reaction, were ready to give the country
the benefits of enlightened administration. The new convention,
which all but compels a Ministry defeated at a general election to
resign office, is, on the face of it, an acknowledgment that the electorate constitutes politically the true sovereign power.6S It also tends toconvert a general election into a decision that a particular party shallhold office for the duration of the newly-elected Parliament and, insome instances, into the election of a particular statesman as Prime
Minister for that period. 66This new convention is the sign of many
minor political or constitutional changes, such, for example, as theintroduction of the habit, quite unknown not only to statesmen as far
removed from us as Pitt, but to Peel, to Lord John Russell, or to Lord
Palmerston, of constantly addressing, not only when out of office but
also when in office, speeches to some body of electors and hence tothe whole country.
65 See as to the possible distinction
post.

between"legal" and "political" soverdgnty,

pp. 27-29,

66 It is certain that at the general election of _88o the Liberal electors who gained a victory
meant that Lord Beaconsfield should resign office and that Mr. Gladstone should be appointed Prime Minister.

lxvii

LAW OF THE CONSTITUTION

Another change in political habits or conventions unconnectedwith any legal innovation or alteration has received little attention
because of its gradual growth and of its vagueness, but yet deserves
notice on account of its inherent importance. It is now the establishedhabit of any reigning king or queen to share and give expression to
the moral feelings of British subjects. This expression of the desire on
the part of English royalty to be in sympathy with the humane, thegenerous, and the patriotic feelings of the British people is a matter ofrecent growth. It may fairly be attributed to Queen Victoria as an
original and a noble contribution towards national and Imperial
statesmanship. This royal expression of sympathetic feeling, though
not unknown to, was rarely practised by George III. or the sons who
succeeded him on the throne.67 It belongs to, but has survived, theVictorian age. It has indeed received since the death of Victoria awider extension than was possible during a great part of her long
reign. On such a matter vagueness of statement is the best mode ofenforcing a political fact of immense weight but incapable of precise
definition. At the moment when the United Kingdom is conducting
its first great Imperial war it is on many grounds of importance toremember that the King is the typical and the only recognised representative of the whole Empire.6S
Another example of new political conventions is found in the rulesof procedure adopted by the House of Commons since _88_with aview to checking obstruction, and generally of lessening the meanspossessed by a minority for delaying debates in the House of Commons. These rules increase the possibility of carrying through theHouse in a comparatively short time Bills opposed by a considerable
number of members. That the various devices popularly known as
the Closure, the Guillotine, and the Kangaroo have enabled one
Government after another, when supported by a disciplined majority, to accomplish an amount of legislation which, but for these de67 As the King's speech when addressing the House of Parliament became more and more,
and was known to have become, the utterance rather of ministerial than of royal opinion,
the necessity inevitably arose of the monarch's finding some means for expressing his
personal sympathy with the joy, and, above all, with the sorrow, of his people.
68 See p. cviii, note _o7, post.

IxviiiINTRODUCTION

vices could not have been passed through the House of Commons, isindisputable. Whether the price paid for this result, in the way ofcurtailment and discussion, has been too high, is a question which
we are not called upon to consider. All that need here be said is thatsuch rules of procedure are not in strictness laws but in reality are
customs or agreements assented to by the House of Commons. 69
ENACTEDCONVENTIONS

By this term is meant a political understanding or convention
which has by Act of Parliament received the force of law 7°or may
arise from a change of law. The best examples of such enacted conventions 71are to be found in some of the more or less indirect effects 72of the Parliament Act, _9_.
_. The Parliament Act in regard to the relation in legislative matters
between the House of Lords and the House of Commons goes some
way towards establishing in England a written or, more accurately
speaking, an enacted constitution, instead of an unwritten or, moreaccurately speaking, an unenacted constitution. 73
2. The Act greatly restrains, if it does not absolutely abolish, theuse of the royal prerogative to create peers for the purpose of"swamping the House of Lords" in order to force through the Housea Bill rejected by the majority of the peers. Such exercise of theprerogative has never but once, namely under Queen Anne in _7L2,
actually taken place. The certainty, however, that William W. would
use his prerogative to overcome the resistance of the House of Lords
69 As to the essential difference
see pp. cxl-cxlvi, post.
7° See Provisional

betweenthe laws and the conventionsof the constitution,

Collection of Taxes Act, 19_3.

71 A critic may indeed say, and with truth, that a convention converted by statute into a law
is in strictness not a convention at all but a part of the law of the constitution. This I will not
deny; but such an enacted convention may indirectly so affect the working of conventional
understandings
or arrangementsthat its indirect effects are conveniently considered when
dealing with the conventions of the constitution.
72 For the direct effects of the Act see p. xxxix, ante.
73 See as to this distinction, p. cxliii, post, and note especially Parliament ACt, s. I, sub-ss. 2,
3, which give a statutable definition of a Money Bill, and also contain a special provision as
to the mode of determining whether a Bill is a Money Bill.

Ixix

LAW OF THE CONSTITUTION

in 1832, carried the great Reform Act. The certainty that George V.
would use the same prerogative carried the Parliament Act, 1911.In
each case the argument which told with the King in favour of anunlimited creation of peers was that the constitution supplied noother means than this exceptional use or abuse of the royal prerogative for compelling the Lords to obey the will of the country. The
Parliament Act deprives this argument of its force. Any king whoshould in future be urged by Ministers to swamp the House of Lords
will be able to answer: "If the people really desire the passing of a Bill
rejected by the House of Lords, you can certainly in about two years
turn it into an Act of Parliament without the consent of the Lords. ''74
The Parliament Act cuts away then the sole ground which in 1832 orin 1911could justify or even suggest the swamping of the House ofLords.
3- Under the Parliament Act it may probably become the custom
that each Parliament shall endure for its full legal duration, i.e. fornearly the whole of five years. For a student of the Act must bear inmind two or three known facts. A House of Commons the majority
whereof perceive that their popularity is on the wane will for thatvery reason be opposed to a dissolution; for until it occurs suchmajority can carry any legislation it desires, and a dissolution may
destroy this power. The payment to all unofficial M.P.s of a salary of£400 a year may induce many M.P.s who belong to a Parliamentaryminority to acquiesce easily enough in the duration of a Parliament
which secures to each of them a comfortable income. Between the
Revolution of 1688 and the year 1784 few, if any, dissolutions took
place from any other cause than either the death of a king, which
does not now dissolve a Parliament, or the lapse of time under the
Septennial Act, and during that period the Whigs, and notably
Burke, denied the constitutional right of the King to dissolve Parliament at his pleasure; the dissolution of 178 4 was denounced as a"penal dissolution." The Parliament of the French Republic sits forfour years, but it can be dissolved at any time by the President with
74 See the Parliament Act, s. 7, "Five years shall be substituted for seven years as the time
fixed for the maximum duration of Parliament under the Septennial Act, _7_5.''

IXX

INTRODUCTION

the consent of the Senate. This power has been employed but once
during the last thirty-seven years, and this single use of the presidential prerogative gives a precedent which no French statesman is
tempted to follow. It is highly probable, therefore, that the direct
appeal from the House of Commons to the electorate by a sudden
dissolution may henceforward become in England almost obsolete.
Yet this power of a Premier conscious of his own popularity, todestroy the House of Commons which put him in office, and to
appeal from the House to the nation, has been treated by Bagehot as
one of the features in which the constitution of England excels theconstitution of the United States.
4. The Parliament Act enables a majority of the House of Commons to resist or overrule the will of the electors or, in other words, ofthe nation. That this may be the actual effect of the Act does not
admit of dispute. That the Home Rule Bill was strenuously opposedby a large number of the electorate is certain. That this Bill was hated
by a powerful minority of Irishmen is also certain. That the rejectionof a Home Rule Bill has twice within thirty years met with the approval of the electors is an admitted historical fact. But that the widespread demand for an appeal to the people has received no attention
from the majority of the House of Commons is also certain. No
impartial observer can therefore deny the possibility that a fundamental change in our constitution may be carried out against the willof the nation.
5. The Act may deeply affect the position and the character of the
Speaker of the House of Commons. It has hitherto been the special
glory of the House of Commons that the Speaker who presides overthe debates of the House, though elected by a party, has for at least a
century and more tried, and generally tried with success, to be therepresentative and guide of the whole House and not to be either theleader or the servant of a party. The most eminent of Speakers havealways been men who aimed at maintaining something like a judicial
and therefore impartial character. In this effort they have obtained a
success unattained, it is believed, in any other country except England. The recognition of this moral triumph is seen in the constitutional practice, almost, one may now say, the constitutional rule, that
Ixxi

LAW OF THE CONSTITUTION

a member once placed in the Speaker's chair shall continue to be
re-elected at the commencement of each successive Parliament irrespective of the political character of each successive House of Commons. Thus Speakers elected by a Liberal majority have continued tooccupy their office though the House of Commons be elected inwhich a Conservative majority predominates, whilst, on the other
hand, a Speaker elected by a Conservative House of Commons has
held the Speakership with public approval when the House of Commons exhibits a Liberal majority and is guided by a Cabinet of Liberals. The Parliament Act greatly increases the authority of the Speakerwith respect to Bills to be passed under that Act. No Bill can be sopassed unless he shall have time after time certified in writing under
his hand, and signed by him that the provisions of the Parliament Act
have been strictly followed. This is a matter referred to his own
knowledge and conscience. There may dearly arise cases in which afair difference of opinion may exist on the question whether the
Speaker can honestly give the required certificate. Is it not certain thata party which has a majority in the House of Commons will henceforth desire to have a Speaker who may share the opinions of suchparty? This does not mean that a body of English gentlemen will wish
to be presided over by a rogue; what it does mean is that they will
come to desire a Speaker who is not a judge but is an honest partisan.
The Parliament Act is a menace to the judicial character of the
Speaker. In the Congress of the United States the Speaker of theHouse of Representatives is a man of character and of vigour, but heis an avowed partisan and may almost be called the parliamentary
leader of the party which is supported by a majority in the House ofRepresentatives.
SECOND QUESTION

What is the general tendency of these new conventions?
ANSWER

It assuredly is to increase the power of any party which possesses aparliamentary majority, i.e., a majority, however got together, of theHouse of Commons, and, finally, to place the control of legislation,
Ixxii

INTRODUCTION

and indeed the whole government of the country, in the hands of the
Cabinet which is in England at once the only instrument throughwhich a dominant party can exercise its power, and the only body inthe state which can lead and control the parliamentary majority ofwhich the Cabinet is the organ. That the rigidity and the strength ofthe party system, or (to use an American expression) of the Machine,
has continued with every successive generation to increase in England, is the conviction of the men who have most thoroughly analysed English political institutions as they now exist and work. 7s
Almost everything tends in one and the same direction. The leaders in Parliament each now control their own party mechanism. At
any given moment the actual Cabinet consists of the men who leadthe party which holds office. The leading members of the Opposition
lead the party which wishes to obtain office. Party warfare in Englandis, in short, conducted by leading parliamentarians who constitutethe actual Cabinet or the expected Cabinet. The electors, indeed, arenominally supreme; they can at a general election transfer the government of the country from one party to another. It may be mainrained with much plausibility that under the quinquennial Parliamentcreated by the Parliament Act the British electorate will each five
years do little else than elect the party or the Premier by whom thecountry shall be governed for five years. In Parliament a Cabinet
which can command a steadfast, even though not a very large majority, finds little check upon its powers. A greater number of M.P.s
than fifty years ago deliver speeches in the House of Commons. But
in spite of or perhaps because of this facile eloquence, the authority of
individual M.P.s who neither sit in the Cabinet nor lead the Opposition, has suffered diminution. During the Palmerstonian era, at any
rate, a few of such men each possessed an authority inside andoutside the House which is hardly daimed by any member now-adays who neither has nor is expected to obtain a seat in any Cabinet.
75 See Lowell, Government of England, part ii. chaps, xxiv-xxxvii.; Low, The Governance ofEngland, chaps, i. to vii. Ramsay Muir, in his essay on Bureaucracy (see Peers and Bureaucrats, pp. 1-94), would apparently agree with Mr. Lowell and Mr. Low, though he mainrains that power tends at present under the English cons_tution to fall from the hands ofthe parliamentary Cabinet into the hands of the permanent civil servants.

lxxiiiLAW OF THE CONSTITUTION

Any observer whose political recollections stretch back to the time of
the Crimean War, that is sixty years ago, will remember occasions on
which the words of Roebuck, of Roundell Palmer, of Cobden, andabove all, at certain crises of Bright, might be, and indeed were, of aweight which no Government, or for that matter no Opposition,
could treat as a trifle. Legislation again is now the business, one
might almost say the exdusive business, of the Cabinet. Few if any,
as far as an outsider can judge, are the occasions on which a private
member not supported by the Ministry of the day, can carry any Billthrough Parliament. Any M.P. may address the House, but the Prime
Minister can greatly curtail the opportunity for discussing legislation
when he deems discussion inopportune. The spectade of the Houseof Commons which neither daims nor practices real freedom of discussion, and has no assured means of obtaining from a Ministry in
power answers to questions which vitally concern the interest of thenation, is not precisely from a constitutional point of view, edifying or
reassuring. But the plain truth is that the power which has fallen into
the hands of the Cabinet may be all but necessary for the conduct of
popular government in England under our existing constitution.
There exists cause for uneasiness. It is at least arguable that importantchanges in the conventions, if not in the law, of the constitution may
be urgently needed; but the reason for alarm is not that the English
executive is too strong, for weak government generally means bad
administration, but that our English executive is, as a general rule,
becoming more and more the representative of a party rather than
the guide of the country. No fair-minded man will, especially at thismoment, dispute that the passion for national independence maytransform a government of partisans into a government bent on securing the honour and the safety of the nation. But this fact, though it
is of immense moment, ought not to conceal from us the inherent
tendency of the party system to confer upon partisanship authority
which ought to be the exclusive property of the nation. ,676 Several recent occurrences show the occasional appearance of ideas or practices which
may mitigate rather than increase the rigidity of the party system. In re Sir Stuart Samuel[_9_3], A. C. 514, shows that under the Judicial Committee Act, _833, s. 4, a question of law
on which depends the right of a Member of Parliament to sit in Parliament may be referredlxxiv

INTRODUCTIONTHIRDQUESTION

Does the experience of the last thirty years confirm the doctrine laid
down in this treatise that the sanction which enforces obedience tothe conventions of the constitution is to be found in the dose connection between these conventions and the rule of law? _ANSWER

The doctrine I have maintained may be thus at once illustrated andexplained. The reason why every Parliament keeps in force the
Mutiny Act or why a year never elapses without a Parliament being
summoned to Westminster, is simply that any neglect of these conventional rules would entail upon every person in office the risk, wemight say the necessity, of breaking the law of the land. If the law
governing the army which is in effect an annual Act, were not passed
annually, the discipline of the army would without constant breachesof law become impossible. If a year were to elapse without a Parliament being summoned to Westminster a good number of taxes
would cease to be paid, and it would be impossible legally to deal
with such parts of the revenue as were paid into the Imperial exchequer. Now it so happens that recent experience fully shows theinconvenience and danger of either violating a constitutional convention or of breaking the law because custom had authorised a course ofaction which rested on no legal basis. The House of Lords, in order toto the Privy Council and be adequately and impartially dealt with by a body of eminent
lawyers. The thought suggests itself that other questions affecting the conduct and thecharacter of M.P.s which cannot be impartially investigated by any Committee of the Houseof Commons might be referred to the same high tribunal. The public statement, again, ofLord Kitchener that he took office in no way as a partisan, but simply as a general whose
duty it was to provide for the carrying on of a war in which the welfare and honour of thenation is concerned set a precedent which might be followed in other spheres than that ofmilitary affairs. Is it of itself incredible that a Foreign Secretary of genius might without any
loss of character retain office for years both in Liberal and in Conservative Cabinets? Is there
any thing absurd in supposing that a Lord Chancellor respected for his legal eminence andfor his judgment might serve the country as the highest of our judges and give his legal
knowledge to Cabinets constituted of men with whose politics he did not agree? The
English people would gain rather than lose by a check being placed on the constantly
increasing power of the party system.
77 See pp. 296-3o2,

post.

lxxv

LAW OF THE CONSTITUTION

compel a dissolution of Parliament in 29o9, rejected the Budget. Their
Lordships acted within what was then their legal right, yet theycaused thereby great inconvenience, which, however, was remediedby the election of a new Parliament. For years the income tax had
been collected in virtue not of an Act but of a resolution of the Houseof Commons passed long before the income tax for the coming year
came into existence. An ingenious person wishing to place difficulties
in the way of the Government's proceedings claimed repayment of
the sum already deducted by the Bank of England from such part ofhis income as was paid to him through the Bank. The bold plaintiff atonce recovered the amount of a tax levied without legal authority. No
better demonstration of the power of the rule of law could be foundthan is given by the triumph of Mr. Gibson Bowles.VS
DEVELOPMENT DURING THE LAST THIRTY YEARSOF NEW CONSTITUTIONAL IDEAS
These ideas are (2) Woman Suffrage, (2) Proportionaltion, (3) Federalism, (4) The Referendum.
TWO GENERAL

Representa-

OBSERVATIONS

The brief criticism of each of these new ideas which alone in thisIntroduction it is possible to give, will be facilitated by attending to
two general observations which apply more or less to each of the four
proposed reforms or innovations.
First Observation
Political inventiveness has in general fallen far short of the originality displayed in other fields than politics by the citizens of progressiveor civilised States. The immense importance attached by modem
thinkers to representative government is partly accounted for by its
being almost the sole constitutional discovery or invention unknown
to the citizens of Athens or of Rome. 79It is well also to note that78 Bowles v. Bank of England [1913], I Ch. 57.
79 It is hardly an exaggeration to say that there exist very few other modern politicalconceptions (except the idea of representative
government)
which were not criticised by

Ixxvi

INTRODUCTION

neither representative government nor Roman Imperialism, nor indeed most of the important constitutional changes which the world
has witnessed, can be strictly described as an invention or a discovery. When they did not result from imitation they have generally
grown rather than been made; each was the production of men who
were not aiming at giving effect to any novel political ideal, but were
trying to meet in practice the difficulties and wants of their time. In nopart of English history is the tardy development of new constitutional
ideas more noteworthy or more paradoxical than during the whole
Victorian era (1837 to 19o2). It was an age full of intellectual activity
and achievement; it was an age rich in works of imagination and of
science; it was an age which extended in every direction the field ofhistorical knowledge; but it was an age which added little to theworld's scanty store of political or constitutional ideas. The same
remark in one sense applies to the years which have passed since theopening of the twentieth century. What I have ventured to term new
constitutional ideas are for the most part not original; their novelty
consists in the new interest which during the last fourteen years they
have come to command.
Second Observation
These new ideas take very little, one might almost say no account,of one of the ends which good legislation ought, if possible, to attain.
But this observation requires explanatory comment.
Under every form of popular government, and certainly under the
more or less democratic constitution now existing in England, legislation must always aim at the attainment of at least two different ends,
which, though both of importance, are entirely distinct from one
another. One of these ends is the passing or the maintaining of goodor wise laws, that is laws which, if carried out, would really promote
the happiness or welfare of a given country, and therefore which aredesirable in themselves and are in conformity with the nature of
the genius of Aristotle. Note however that the immense administrative system known
as the Roman Empire lay beyond, or at any rate outside, the conceptions of any Greek
philosopher.

/xxv//

LAW OF THE CONSTITUTION

things. That such legislation is a thing to be desired, no sane man candispute. If, for example, the freedom of trade facilitates the acquisition of good and cheap food by the people of England, and does notproduce any grave counterbalancing evil, no man of ordinary sense
would deny that the repeal of the corn laws was an act of wise
legislation. If vaccination banishes small-pox from the country anddoes not produce any tremendous counterbalancing evil, the public
opinion even of Leicester would hold that a law enforcing vaccination
is a wise law. The second of these two different ends is to ensure thatno law should be passed or maintained in a given country, e.g. in
England, which is condemned by the public opinion of the English
people. That this where possible is desirable will be admitted byevery thoughtful man. A law utterly opposed to the wishes andfeelings entertained by the inhabitants of a country, a rule which
every one dislikes and no one will obey, is a nullity, or in truth no law
at all; and, even in cases where, owing to the power of the monarch
who enacts a law opposed to the wishes of his subjects, such a law
can to a certain extent be enforced, the evils of the enforcement may
far overbalance the good effects of legislation in itself wise. This
thought fully justifies an English Government in tolerating throughout India institutions, such as caste, supported by Indian opinion
though condemned by the public opinion and probably by the wise
opinion of England. The same line of thought explained, palliated,and may even have justified the hesitation of English statesmen toprohibit suttee. Most persons, then, will acknowledge that soundlegislation should be in conformity with the nature of things, or, toexpress the matter shortly, be "wise," and also be in conformity withthe demands of public opinion, or, in other words, be "popular," orat any rate not unpopular. But there are few Englishmen who sufficiently realise that both of these two ends cannot always be attained,
and that it very rarely happens that they are each equally attainable.
Yet the history of English legislation abounds with illustrations of the
difficulty on which it is necessary here to insist. Thus the Reform Act,
1832,8°is in the judgment of most English historians and thinkers a
80 See J. R. M. Butler, The Passing of the Great Reform Bill (Longmans,
This is an excellent piece of historical narrative and inquiry.
Ixxviii

Green & Co.,

1914).

INTRODUCTION

wise law; it also was at the time of its enactment a popular law. The
Whigs probably underrated the amount and the strength of the opposition to the Act raised by Tories, but that the passing of the Reform Act was hailed with general favour is one of the best attested
facts of modern history. The Act of Union passed in 17o7 was provedby its results to be one of the wisest Acts ever placed on the statutebook. It conferred great benefits upon the inhabitants both of England and of Scotland. It created Great Britain and gave to the united
country the power to resist in one age the threatened predominanceof Louis XIV., and in another age to withstand and overthrow thetremendous power of Napoleon. The complete success of the Act issufficiently proved by the absence in 1832 of any demand by either
Whigs, Tories, or Radicals for its repeal. But the Act of Union, when
passed, was unpopular in Scotland, and did not command any decided popularity among the electors of England. The New Poor Law
of 1834saved the country districts from ruin; its passing was thewisest and the most patriotic achievement of the Whigs, but the Act
itself was unpopular and hated by the country labourers on whom it
conferred the most real benefit. Within two years from the passing of
the Reform ACt it robbed reformers of a popularity which they had
hoped might be lasting. Indeed the wisdom of legislation has little to
do with its popularity. Now all the ideas which are most dear toconstitutional reformers or innovators in 1914lead to schemes of moreor less merit for giving full expression in the matter of legislation to
public opinion, i.e. for ensuring that any law passed by Parliamentshall be popular, or at lowest not unpopular. But these schemes makein general little provision for increasing the chance that legislation
shall also be wise, or in other words that it shall increase the real
welfare of the country. The singular superstition embodied in the
maxim vox populi vox Dei has experienced in this miscalled scientific
age an unexpected revival. This renewed faith in the pre-eminent
wisdom of the people has probably acquired new force from its congeniality with democratic sentiment. May we not conjecture that the
new life given to a popular error is in part and indirectly due to thedecline in the influence of utilitarianism? Faith in the voice of thepeople is closely connected with the doctrine of "natural rights." Thisdogma of natural rights was in England contemned and confuted bylxxix

LAW OF THE CONSTITUTION

Bentham and his disciples, sl The declining influence of the utilitarian
school appears therefore to give new strength to this doctrine. People
forget that the dogma of natural rights was confuted not only by
Benthamites but by powerful thinkers of the eighteenth and of thenineteenth century who had no sympathy with utilitarianism.
CRITICISM

OF EACHOF THE FOURNEW CONSTITUTIONAL

IDEAS s2

Woman Suffrage
The claim for women of the right to vote for members of Parliament, or, as now urged, to be placed in a position of absolute politicalequality with men, is no new demand. It was made in England before
the end of the eighteenth century, 83but no systematic, or at any rate
noticeable, movement to obtain for Englishwomen the right to votefor members of Parliament can be carried back much earlier than_866- 67, when it was supported in the House of Commons by

j. s. MiN.
Let my readers consider for a moment first the causes which haveadded strength to a movement which is _866 attracted comparatively
little public attention, and next the main lines of argument or of feelingwhich really tell on the one hand with the advocates and on the otherwith the opponents of the daim to votes for women, s4
TheCauses
These may be thus summarised. Since the beginning of the nineteenth century the number in the United Kingdom of self-supporting
81 See Law and Opinion, pp. 309, 27_, 272.
82 It would be impossible, and it is not my aim in this Introduction, to state or evensummarise all the arguments for or against each of these ideas; my sole object is to bring
into light the leading thoughts or feelings which underlie the advocacy of, or the opposition
to, each of these new ideas. See p. lxxiv-lxxv, ante.
83 See the Vindication of the Rights of Women, by Mary Wollstonecraft, published 2792. Little
was heard about such rights during the great French Revolution. There is no reason to
suppose that Madame Roland ever claimed parliamentary votes for herself or for her sex.
84 For an examination of all the main arguments alleged on either side see Dicey, Letters to a
Friend on Votes for Women.

Ixxx

INTRODUCTION

and also of unmarried women has greatly increased; and this classhas by success in literature, as well as in other fields, acquired year by
year greater influence. In the United Kingdom there exists among theactual population an excess of women over men, and this excess isincreased by the emigration of Englishmen to our colonies andelsewhere. The low rate of payment received by women as comparedwith men, for services of any kind in which men and women enter
into competition, has excited much notice. The spreading belief, or,as it used to be considered, the delusion, that wages can be raised bylegislation, has naturally suggested the inference that want of a parliamentary vote inflicts severe pecuniary loss upon women. The extension of the power of the state and the enormous outgrowth ofsocial legislation results in the daily enactment of laws which affectthe very matters in which every woman has a personal interest. In an
era of peace and of social reform the electors themselves constantly
claim the sympathy and the active co-operation of women on behalfof causes which are treated, at any rate by partisans, as raising grave
moral or religious controversy. Hence the agitation in favour of
Woman Suffrage often commends itself to ministers of religion andnotably to the English clergy, who believe, whether rightly or not,that the political power of women would practically add to the authority in the political world of the Church of England. These circumstances, and others which may be suggested by the memory or theingenuity of my readers, are enough to explain the prominence andweight acquired for the movement in favour of giving the parliamentary franchise to women.
The Main Lines of Argument

These may be brought under two heads; they are most dearly andbriefly exhibited if under each head is stated the argument of the
Suffragist and the answer or reasoning in reply of the Anti-Suffragist.
First Argument

Every citizen, or, as the point is generally put, every person whopays taxes under the law of the United Kingdom, is entitled as amatter of right to a vote for a member of Parliament. Hence theobvious condusion that as every Englishwoman pays taxes under thelxxxiLAW OF THE CONSTITUTION

law of the United Kingdom, every Englishwoman
fade entitled to a vote.

is at any rate pr/ma

AnswerThis line of reasoning proves too much. It inevitably leads to the
condusion that any form of popular government ought to be basedon the existence of strictly universal suffrage. An extreme suffragettewill say that this result is not a reductio ad absurdum. But there arethousands of sensible Englishmen and Englishwomen who, while
they doubt the advisability of introducing into England even manhood suffrage, refuse to admit the cogency of reasoning which leads
to the result that every Englishman and Englishwoman of full age
must have a right to vote for a member of Parliament. But the fullstrength of an anti-suffragist's reply cannot be shown by any man
who does not go a little further into the nature of things. A fairminded man prepared to do this will, in the first place, admit thatmany democratic formulas, e.g. the dictum that "liability to taxation
involves the right to representation,"
do verbally cover a woman's
daim to a parliamentary vote. His true answer is that many so-called
democratic principles, as also many so-called conservative principles,
are in reality not principles at all but war-cries, or shibboleths which
may contain a good deal of temporary or relative truth but are mixed
up with a vast amount of error. The idea, he will ultimately say, thatthe possession of a vote is a personal right is a delusion. It is in truth
the obligation to discharge a public duty, and whether this miscalledright should be conferred upon or withheld from Englishwomen canbe decided only by determining whether their possession of the parliamentary vote will conduce to the welfare of England.
Second Argument

The difference of sex presents no apparent or necessary reason for
denying to Englishwomen the same political rights as are conferred
upon Englishmen. It is found by experience, as suffragists will add,
that some women have in many ways even greater capacity for the
exercise of government than have some men. This argument may
best be put in its full strength if it be placed, as it often is, in the formof a question: Was it reasonable that Florence Nightingale should not

lxxxiiINTRODUCTION

have possessed the right to vote for a member of Parliament wheneven in her day her footman or her coachman, if he had happened to
be a ten-pound householder, or a forty-shilling freeholder, might
have exercised a right denied to a lady who, as appears from her
biography, possessed many statesmanlike qualities, who did in fact
in some lines of action exert more political power than most M.P.s,
and who always exercised power disinterestedly, and generally exercised it with admitted benefit to the country? There is not the remotest doubt that the argument involved in this inquiry (in whatever
form it is stated) seems to many women, to a great number of parliamentary electors, and also to a considerable number of M.P.s, toafford an unanswerable and condusive reason in favour of giving
parliamentary votes to women.
Answer

The daim of parliamentary votes for women as now put forward in
England is in reality a claim for the absolute political equality of thetwo sexes. Whether its advocates are conscious of the fact or not, it isa demand on behalf of women for seats in Parliament and in the
Cabinet. It means that Englishwomen should share the jury box andshould sit on the judicial bench. It treats as insignificant for most
purposes that difference of sex which, after all, disguise the matter as
you will, is one of the most fundamental and far-reaching differences
which can distinguish one body of human beings from another. It is
idle to repeat again and again reasoning which, for the last thirty
years and more, has been pressed upon the attention of every English reader and elector. One thing is certain: the real strength (and it isgreat) of the whole conservative argument against the demand of
votes for women lies in the fact that this line of reasoning, on the face
thereof, conforms to the nature of things. The anti-suffragists canre-echo the words of Burke whilst adapting them to a controversy
unknown to him and practically unknown to his age:
The principles that guide us, in public and in private, as they are not of ourdevising, but moulded into the nature and the essence of things, will endurewith the sun and moon--long,very long after whig and tory, Stuart andBrunswick [suffragist, suffragette, and anti-suffragist], and all such misera-

Ixxxiii

LAW OF THE CONS_TTUTION
ble bubbles and playthings of the hour, are vanished from existence andfrom memory. 85

Proportional Representation 86
The case in favour of the introduction of proportional representation into England rests on the truth of three propositions.
First Proposition

The House of Commons often fails to represent with precision or
accuracy the state of opinion e.g. as to woman suffrage, existing
among the electorate of England. In other words, the House ofCommons often fails to be, as it is sometimes expressed, "the mirrorof the national mind," or to exactly reflect the will of the electors.
Second Proposition

It is quite possible by some system of proportional representation
to frame a House of Commons which would reflect much more thanat present the opinion of the nation, or, in other words, of the electorate.
Third Proposition

It is pre-eminently desirable that every opinion bondfide existing
among the electors should be represented in the House of Commonsin as nearly as possible the same proportion in which it exists among
the electors, or, to use popular language, among the nation.
Now of these three propositions the substantial truth of the firstand second must, in my judgment, be admitted. No one can doubt
the possibility, and even the high probability, that, for example, thecause of woman suffrage may, at the present moment, obtain morethan half the votes of the House of Commons while it would not
obtain as many as half the votes of the electorate. Nor again is it at allinconceivable that at some other period the cause of woman suffrage
85 Burke, Correspondence,i. pp. 332, 333.
86 See Humphreys, ProportionalRepresentation;J. Fischer Williams, ProportionalRepresentation and British Politics;Lowell, Public Opinionand Popular Government, pp. _22- J24.

[xxxiv

INTRODUCTION

should, while receiving the support of half the electorate, fail to obtain the votes of half the House of Commons. No one, in the second
place, can, I think, with reason dispute that, among the numerous
plans for proportional representation thrust upon the attention of the
public, some one, and probably several, would tend to make theHouse of Commons a more complete mirror of what is called themind of the nation than the House is at present; and this concession,
it may with advantage be noted, does not involve the belief that
under any system of popular government whatever, a representative
body can be created which at every moment will absolutely and withcomplete accuracy reflect the opinions held by various dasses of thepeople of England. Now my belief in the substantial truth of the first
and the second of our three propositions makes it needless for me, at
any rate for the purpose of this Introduction, to consider the reservations with which their absolute accuracy ought to be assumed. For
the sake of argument, at any rate, I treat them as true. My essential
objection to the system of proportional representation consists in mygrave doubt as to the truth of the third of the above three propositions, namely, that it is desirable that any opinion existing among anylarge body of electors should be represented in the House of Commons as nearly as possible in the same proportion in which it exists
among such electors.
Before, however, any attempt is made to state the specific objections which in my judgment lie against the introduction of proportional representation into the parliamentary constitution of England,
it is essential to discriminate between two different ideas which areconfused together under the one demand for proportional representation. The one of these ideas is the desirability that every opinion
entertained by a substantial body of Englishmen should obtain utterance in the House of Commons, or, to use a vulgar but effective pieceof political slang, "be voiced by" some member or members of that
House. Thus it has been laid down by the leader of the Liberal party
that

it was infinitely to the advantageof the House of Commons,
if it was to be areal reflection and mirror of the national mind, that there should be no strain

Ixxxv

LAW OF THE CONSTITUTION
of opinion honestly entertainedby any substantial body of the King's subjects which should not find there representationand speech. 87

To this doctrine any person who has been influenced by the teachingof Locke, Bentham, and Mill will find it easy to assent, for it is wellknown that in any country, and especially in any country where
popular government exists, the thoughts, even the bad or the foolishthoughts, of the people should be known to the national legislature.
An extreme example will best show my meaning. If among thepeople of any land the hatred of the Jews or of Judaism should exist,
it would certainly be desirable that this odious prejudice should findsome exponent or advocate in the Parliament of such country, for theknowledge of popular errors or delusions may well be essential to thecarrying out of just government or wise administration. Ignorance isnever in truth the source of wisdom or of justice. The other idea or
meaning attached by Proportionalists to proportional representationis that every influential opinion should not only find utterance in theHouse of Commons, but, further, and above all, be represented in
the House of Commons by the same proportionate number of votes
which it obtains from the voters at an election. Thus the eminent man
who advocated the desirability of every opinion obtaining a hearing
in the House of Commons, used on another occasion the following
words: 'qt is an essential and integral feature of our policy that weshall go forward with the task of making the House of Commons not
only the mouthpiece but the mirror of the national mind.-88 Now thedoctrine of proportional representation thus interpreted is a dogma towhich a fair-minded man may well refuse his assent. It is by nomeans obviously true; it is open to the following (among other) objections that admit of clear statement.
Objections

to the Third Proposition

First Objection
The more complicated any system of popular election is made, the more power is thrown into the hands of election

87 See Mr. Asquith's speech at St. Andrews, Feb. 19, 1906 , cited by J. Fischer Williams,
Proportional Representation, p. 17.
88 Mr. Asquith at Burnley, Dec. 5, 191o, cited by J. Fischer Williams, Proportional Representat/on, p. 17.

IxxxviINTRODUCTION

agents or wire-pullers. This of itself increases the power and lowers
the character of the party machine; but the greatest political danger
with which England is now threatened is the inordinate influence ofparty mechanism. This objection was long ago insisted upon by
Bagehot. 89It explains, if it does not wholly justify, John Bright's
denunciation of fancy franchises.
SecondObjection The House of Commons is no mere debating sodety. It is an assembly entrusted with great though indirect executive authority; it is, or ought to be, concerned with the appointment
and the criticism of the Cabinet. Grant, for the sake of argument, thatevery influential opinion should in the House of Commons gain ahearing. This result would be obtained if two men, or only one man,were to be found in the House who could ensure a hearing wheneverhe spoke in favour of some peculiar opinion. The argument for
woman suffrage was never stated with more force in Parliament thanwhen John Mill represented Westminster. The reasons in its favour
would not, as far as argument went, have commanded more attention if a hundred members had been present who shared Mill's
opinions but were not endowed with his logical power and his lucidity of expression. But where a body of men such as constitute theHouse of Commons are at all concerned with government, unity ofaction is of more consequence than variety of opinion. The idea,
indeed, of representation may be, and often is, carried much too far.
A Cabinet which represented all shades of opinion would be a Ministry which could not act at all. No one really supposes that a Government could in ordinary circumstances be formed in which two opposite parties balanced one another. Nor can it often be desirable that an
opinion held by, say, a third of a ministerial party should necessarily
be represented by a third of the Cabinet. It may well be doubted
whether even on commissions appointed partly, at any rate, for the
purpose of inquiry, it is at all desirable that distinctly opposite views
should obtain recognition. The Commission which laid down theleading lines of Poor Law Reform in 2834rendered an immense service to England. Would there have been any real advantage in plac89 Bagehot, English Constitution,

pp. _48-_59.

Ixxxvii

LAW OF THE CONSTITUTION

ing on that Commission men who condemned any change in theexisting poor law?
ThirdObjection Proportional representation, just because it aims at
the representation of opinions rather than of persons, tends to promote the existence in the House of Commons of numerous party
groups and also fosters the admitted evil of log-rolling. The workingof English parliamentary government has owed half of its success tothe existence of two leading and opposed parties, and of two suchparties only. Using somewhat antiquated but still intelligible terms,
let me call them by the name of Tories and Whigs.9° These twoparties have, if one may speak in very broad terms, tended, the one
to uphold the rule of the well-born, the well-to-do, and therefore, on
the whole, of the more educated members of the community; theother has promoted the power of numbers, and has therefore aimed
at increasing the political authority of the comparatively poor, that is,of the comparatively ignorant. Each tendency has obviously somegood and some bad effects. If, for a moment, one may adopt modern
expressions while divesting them of any implied blame or praise, one
may say that Conservatism and Liberalism each play their part inpromoting the welfare of any country where popular government
exists. Now, that the existence of two leading parties, and of two
such parties only, in England has favoured the development of English constitutionalism is past denial. It is also certain that during thenineteenth century there has been a notable tendency in English
public life to produce in the House of Commons separate groups orparties which stood more or less apart from Tories and Whigs, andwere all but wholly devoted to the attainment of some one definitechange or reform. The Repealers, as led by O'Connell, and still more
the Free Traders, as led by Cobden 91are early examples of such
9 ° I choose these old expressions which have been in use, at any rate from 1689 till thepresent day, because they make it easier to keep somewhat apart from the burning controversies of 19_4.
9_ Cobden would have supported any Premier, whether a Tory or a Whig, who undertook
to repeal the Corn Laws. O'Connell would have supported any Premier who had pledged
himself to repeal the Act of Union with Ireland; but O'Connell's position was peculiar. He
took an active interest in English politics, he was a Benthamite Liberal, and during a part ofhis career acted in alliance with the Whigs.

lxxxviii

INTRODUCTION

groups. These groups avowedly held the success of the cause forwhich they fought of greater consequence than the maintenance in
office either of Tories or of Whigs. Even in _845 they had perplexed
the working of our constitution; they had gone far to limit the operation of the very valuable nile that a party, which persuades Parliament to adopt the party's policy, should be prepared to take officeand carry that policy into effect. The Free Traders, in fact, give thebest, if not the earliest, example of an English group organised to
enforce the adoption by the English parliament of an opinion, doctrine, or theory to which that group was devoted. Now an observer ofthe course of events during the last sixty years will at once note theincreasing number of such groups in the House of Commons. To-day
we have Ministerialists and Unionists (corresponding roughly withthe old Whigs and Tories), we have also Irish Nationalists and theLabour Party. These parties have each separate organisations. But
one can easily observe the existence of smaller bodies each devoted toits own movement or cause, such, for example, as the temperance
reformers, as the advocates of woman suffrage, or as the members
who hold that the question of the day is the disestablishment of the
Church. This state of things already invalidates our constitutionalcustoms. Nor is it easy to doubt that any fair system of proportional
representation must increase the number of groups existing in Parliament, for the very object of Proportionalists is to ensure that every
opinion which exists among an appreciable number of British electors
shall have an amount of votes in Parliament proportionate to thenumber of votes it obtains among the electors. If, for example, a tenthof the electors should be anti-vaccinators, the anti-vaccinators ought,
under a perfect scheme of representation, to command sixty-sevenvotes in the House of Commons. Sixty-seven anti-vaccinators who
might accidentally obtain seats in the House of Commons, e.g. as
Conservatives or Liberals, would, be it noted, constitute a very
different body from sixty-seven members sent to the House of Commons to represent the cause of anti-vaccination. The difference is this:In the first case each anti-vaccinator would often perceive that there
were matters of more pressing importance than anti-vaccination; but
the sixty-seven men elected under a system of proportional represen_x_x

LAW

OF THE CONSTITUTION

tation to obtain the total repeal of the vaccination laws would, one
may almost say must, make that repeal the one dominant object of
their parliamentary action. That the multiplication of groups might
weaken the whole system of our parliamentary government is a
probable conjecture. That proportional representation might tend toextend the vicious system of log-rolling is all but demonstrable. Letme suppose the sixty-seven anti-vaccinators to be already in existence; let me suppose, as would probably be the case, that they areelected because of their firm faith in anti-vaccination, and that, bothfrom their position and from their creed, they feel that to destroy thevaccination laws is the supreme object at which every good man
should aim. They will soon find that their sixty-seven votes, thoughof high importance, are not enough to save the country. The course
which these patriots must follow is obvious. They are comparatively
indifferent about Home Rule, about Disestablishment, about the objects of the Labour Party. Let them promise their support to each of
the groups advocating each of these objects in return for the help in
repealing legislation which originates, say our anti-vaccinators, in thedelusions of Jenner. A political mirade will have been performed. A
majority in favour of anti-vaccination will have been obtained; thevoice of fanatics will have defeated the common sense of the nation.
Let me, as an illustration of my contention, recall to public attention
a forgotten fact. Some forty years ago the Claimant, now barely remembered as Arthur Orton, was a popular hero. His condemnation
to imprisonment for fourteen or fifteen years excited much indignation. He obtained one representative, and one representative only, of
his grievances in the House of Commons. Under a properly organised system of proportional representation, combined with ourpresent household suffrage, he might well have obtained twenty.
Does any one doubt that these twenty votes would have weighedwith the Whips of any party in power? Is it at all certain that the
Claimant might not, thus supported, have obtained a mitigation ofhis punishment, if not a re-trial of his case? This is an extreme illustration of popular folly. For this very reason it is a good test of a logicaltheory. I do not contend that proportional representation cannotxcINTRODUCTION

be defended by weighty considerations; my contention is that it isopen to some grave objections which have not received an adequateanswer. 92
Federalism93
In _884 the peculiarities and the merits of federal government had
not attracted the attention of the English public. Here and there astatesman whose mind was turned towards the relation of Englandand her colonies had perceived that some of the self-governing colonies might with advantage adopt federal constitutions. In _867 Parliament had readily assented to the creation of the Canadian Dominion
and thereby transformed the colonies possessed by England on thecontinent of America into a federal state. In truth it may be said thatthe success of the Northern States of the American Commonwealthin the War of Secession had, for the first time, impressed upon Englishmen the belief that a democratic and a federal state might comewith success through a civil war, carried on against states whichasserted their right to secede from the Republic of which they were apart. StiUin _884 hardly a statesman whose name carried weight withEnglishmen advocated the formation of a federal system as a remedy
for the defects, whatever they were, of the English constitution, or as
the means for uniting the widely scattered countries which make up
the British Empire. Walter Bagehot was in his day, as he still is, themost eminent of modern English constitutionalists. He compared theconstitution of England with the constitution of the United States.
But the result of such comparison was, in almost every case, to illustrate some hitherto unnoted merit of the English constitution which
was not to be found in the constitution of the great American Repub92 Proportional representation
was in Mill's day known as minority representation.
Thechange of name is not without significance. In 287o the demand for minority representation
was put forward mainly as the means for obtaining a hearing for intelligent minorities
whose whisper might easily be drowned by the shouts of an unintelligent majority. In 19z4
minority representationis recommended
mainly as the means of ensuring that the true
voice of the nation shall be heard. It was once considered a check upon democracy; it is now
supported as the best method for giving effect to the true will of the democracy.
93 Compare espedally as to federal government,

xc/

Chap. III. p. 73, post.

LAW OF THE CONSTITUTION

lic. Sir Henry Maine was in his time the most brilliant of the writers
who had incidentally turned their thoughts towards constitutional
problems. Maine's Popular Government, published in 2885, expressed
his admiration for the rigidity or the conservatism of Americanfederalism. But he never hinted at the conviction, which he probably
never entertained, that either the United Kingdom or the British Empire would gain by transformation into a federal state. Thirty years
ago the nature of federalism had received in England very inadequate
investigation. 94In this, as in other matters, 1914strangely contrasts
with 1884 . The notion is now current that federalism contains thesolution of every constitutional problem which perplexes British
statesmanship. Why not, we are told, draw closer the bonds which
maintain peace and goodwill between the United Kingdom and all
her colonies, by constructing a new and grand Imperial federation
governed by a truly Imperial Parliament, which shall represent every
state, including England, which is subject to the government of the
King? Why not, we are asked, establish a permanent reconciliation
between England and Ireland by the conversion of the United Kingdom into a federalised kingdom whereof England, Scotland, Ireland,
and Wales, and, for aught I know, the Channel Islands and the Isle ofMan, shall form separate states? This new constitutional idea of theinherent excellence of federalism is a new faith or delusion which
deserves examination. My purpose, therefore, is to consider two
different matters--namely,
first, the general characteristics offederalism; secondly, the bearing of these characteristics on the proposal popularly known as Imperial federalism, for including England 9s and the five self-governing colonies in a federal constitution,
and also the proposal (popularly known as Home Rule all round) for
federalising the United Kingdom.
94 In Chap. III., post, federalism was analysed (_885) as illustrating, by way of contrast, thatsovereignty of the English Parliament which makes England one of the best examples of aunitary state.
95 In treating of Imperial federalism, as often in other parts of this book, I purposely andfrequently, in accordance with popular language, use "England" as equivalent to the United Kingdom.

xcii

INTRODUCTION
Leading Characteristics

of Federal Government

96

Federalism is a natural constitution for a body of states which
desire union and do not desire unity. Take as countries which exhibit
this state of feeling the United States, the English federated colonies,
the Swiss Confederation, and the German Empire, and contrast withthis special condition of opinion the deliberate rejection by all Italianpatriots of federalism, which in the case of Italy presented many
apparent advantages, and the failure of union between Sweden and
Norway to produce any desire for unity or even for a continued
political connection, though these Scandinavian lands differ little
from each other in race, in religion, in language, or in their common
interest to maintain their independence against neighbouring andpowerful countries.
The physical contiguity, further, of countries which are to form a
confederated state is certainly a favourable, and possibly a necessary,condition for the success of federal government.
The success of federal government is greatly favoured by, if it does
not absolutely require, approximate equality in the wealth, in the
population, and in the historical position of the different countries
which make up a confederation. The reason for this is pretty obvious.
The idea which lies at the bottom of federalism is that each of theseparate states should have approximately equal political rights andshould thereby be able to maintain the "limited independence" (if theterm may be used) meant to be secured by the terms of federal union.
Hence the provision contained in the constitution of the UnitedStates under which two Senators, and no more, are given to eachstate, though one be as populous, as large, and as wealthy as is New
York, and another be as small in area and contain as few citizens as
Rhode Island. Bagehot, indeed, points out that the equal power in
the Senate of a small state and of a large state is from some points ofview an evil. It is, however, an arrangement obviously congenial to
96 See especially Chap. In. p. 73, post. It is worth observing that the substance of thischapter was published before the production by Gladstone of his first Home Rule Bill for
Ireland.

xciii

LAW OF THE CONSTITUTION

federal sentiment. If one state of a federation greatly exceed in its
numbers and in its resources the power of each of the other states,and still more if such "dominant partner," to use a current expression, greatly exceed the whole of the other Confederated States in
population and in wealth, the confederacy will be threatened withtwo dangers. The dominant partner may exercise an authority almost
inconsistent with federal equality. But, on the other hand, the otherstates, if they should possess under the constitution rights equal to
the rights or the political power left to the dominant partner, mayeasily combine to increase unduly the burdens, in the way of taxationor otherwise, imposed upon the one most powerful state.
Federalism, when successful, has generally been a stage towards
unitary government. In other words, federalism tends to pass into
nationalism. This has certainly been the result of the two most successful of federal experiments. The United States, at any rate as they
now exist, have been well described as a nation concealed under theform of a federation. The same expression might with considerable
truth be applied to Switzerland. Never was there a country in which
it seemed more difficult to produce national unity. The Swiss cantons
are divided by difference of race, by difference of language, bydifference of religion. These distinctions till nearly the middle of thenineteenth century produced a kind of disunion among the Swiss
people which in _914seems almost incredible. They forbade the existence of a common coinage; they allowed any one canton to protect
the financial interest of its citizens against competition by the inhabitants of every other canton. In 1847 the Sonderbund threatened todestroy the very idea of Swiss unity, Swiss nationality, and Swiss
independence. Patriots had indeed for generations perceived that thefederal union of Switzerland afforded the one possible guarantee forthe continued existence of their country. But attempt after attempt tosecure the unity of Switzerland had ended in failure. The victory of
the Swiss federalists in the Sonderbund war gave new life to Switzerland: this was the one indubitable success directly due to the
movements of _847-48. It is indeed happy that the victory of thefederal armies took place before the fall of the French Monarchy, andthat the Revolution of February, combined with other movements
xciv

INTRODUCTION

which distracted Europe, left the Swiss free to manage their own
affairs in their own way. Swiss patriotism and moderation met with
their reward. Switzerland became master of her own fate. Each stepin the subsequent progress of the new federal state has been a stepalong the path leading from confederate union to national unity.
A federal constitution is, as compared with a unitary constitution, aweak form of government. Few were the thinkers who in _884 would
have denied the truth of this proposition. In _914language is constantly used which implies that a federal government is in itseff
superior to a unitary constitution such as that of France or of England. Yet the comparative weakness of federalism is no accident. A
true federal government is based on the division of powers. Itmeans
the constant effort of statesmanship to balance one state of the confederacy against another. No one can rate more highly than myself
the success with which a complicated system is worked by the members of the Swiss Council or, to use expressions familiar to Englishmen, by the Swiss Cabinet. Yet everywhere throughout Swiss arrangements you may observe the desire to keep up a sort of balanceof advantages between different states. The members of the Council
are seven in number; each member must, of necessity, belong to adifferent canton. The federal Parliament meets at Bern; the federal
Court sits at Lausanne in the canton of Vaud; the federal university isallotted to a third canton, namely Zurich. Now rules or practices ofthis kind must inevitably restrict the power of bringing into a Swiss
Cabinet all the best political talent to be found in Switzerland. Such asystem applied to an English or to a French Cabinet would be foundalmost unworkable. Federalism again would mean, in any country
where English ideas prevail, the predominance of legalism or, inother words, a general willingness to yield to the authority of the law
courts. Nothing is more remarkable, and in the eyes of any impartial
criticmore praiseworthy, than the reverence paid on the whole byAmerican opinion to the Supreme Court of the United States. Nor
must one forget that the respect paid to the opinion of their own
judges, even when deciding questions on which political feeling runs
high, is, on the whole, characteristic of the citizens of each particularstate. The Supreme Court, e.g., of Massachusetts may be called uponxoo

LAW OF THE CONSTITUTION

to determine in effect whether a law passed by the legislature of
Massachusetts is, or is not, constitutional; and the decision of the
Court will certainly meet with obedience. Now, what it is necessary
to insist upon is that this legalism which fosters and supports the Meof law is not equally displayed in every country. No French court has
ever definitely pronounced a law passed by the French legislatureinvalid, nor, it is said, has any Belgian court ever pronounced invalid
a law passed by the Belgian Parliament. Whether English electors arenow strongly disposed to confide to the decision of judges questions
which excite strong political feeling is doubtful. Yet--and this is no
insignificant matter--under
every federal system there must almostof necessity exist some body of persons who can decide whether theterms of the federal compact have been observed. But if this power beplaced in the hands of the Executive, the law will, it may be feared, bemade subservient to the will of any political party which is for the
moment supreme. If it be placed in the hands of judges, who professand probably desire to practise judicial impartiality, it may be very
difficult to ensure general respect for any decision which contradicts
the interests and the principles of a dominant party. Federalism,
lastly, creates divided allegiance. This is the most serious and themost inevitable of the weaknesses attaching to a form of government
under which loyalty to a citizen's native state may conflict with hisloyalty to the whole federated nation. Englishmen, Scotsmen, andIrishmen have always, as soldiers, been true to the common flag. The
whole history of the Sonderbund in Switzerland and of Secession in
the United States bears witness to the agonised perplexity of thenoblest among soldiers when called upon to choose between loyalty
to their country and loyalty to their canton or state. One example ofthis difficulty is amply sufficient for my purpose. General Scott andGeneral Lee alike had been trained as officers of the American Army;each was a Virginian; each of them was determined from the outbreak of the Civil War to follow the dictates of his own conscience;each was placed in a position as painful as could be occupied by asoldier of bravery and honour; each was a victim of that double
allegiance which is all but inherent in federalism. General Scott fol-xcv/

INTRODUCTION

lowed the impulse of loyalty to the Union. General Lee felt that as amatter of duty he must obey the sentiment of loyalty to Virginia.
In any estimate of the strength or the weakness of federal government it is absolutely necessary not to confound, though the confusion
is a very common one, federalism with nationalism. A truly federal
government is the denial of national independence to every state of
the federation. No single state of the American Commonwealth is aseparate nation; no state, it may be added, e.g. the State of New York,
has anything like as much of local independence as is possessed by
New Zealand or by any other of the five Dominions. 97There is ofcourse a sense, and a very real sense, in which national tradition andnational feeling may be cultivated in a state which forms part of aconfederacy. The French inhabitants of Quebec are Frenchmen to thecore. But their loyalty to the British Empire is certain. One indisputable source of their Imperial loyalty is that the break-up of the Empire
might, as things now stand, result to Canada in union with theUnited States. But Frenchmen would with more difficulty maintaintheir French character if Quebec became a state of the Union andceased to be a province of the Dominion. In truth national characterin one sense of that term has less necessary connection than Englishmen generally suppose with political arrangements. It would be
simple folly to assert that Sir Walter Scott did not share the sentimentof Scottish nationalism; yet the influence of Scott's genius throughout
Europe was favoured by, and in a sense was the fruit of, the unionwith England. But the aspiration and the effort towards actual national independence is at least as inconsistent with the conditions of afederal as with the conditions of a unitary government. Any one will
see that this is so who considers how patent would have been thefolly of the attempt to establish a confederacy which should have left
Italy a state of the Austrian Empire. Nor does historical experience
countenance the idea that federalism, which may certainly be a step
towards closer national unity, can be used as a method for graduallybringing political unity to an end.
97 As to meaning of "Dominions"see p. xlii, note 21, ante.

xcvii

LAW OF THE CONSTITUTION
The Characteristics

of Federal Government

in Relation

to Imperial

Federalism

Many Englishmen of to-day advocate the building up of somegrand federal constitution which would include the United Kingdom(or, to use popular language, England) and at any rate the five Dominions. This splendid vision of the advantages to be obtained byincreased unity of action between England and her self-governing
colonies is suggested by obvious and important facts. The wisdom of
every step which may increase the reciprocal goodwill, strong as it
now is, of England and her Dominions is proved by the success ofeach Imperial Conference. It is perfectly plain already, and will become every day plainer both to Englishmen and to the inhabitants of
the British Empire outside England, that the existence of the Empire
ought to secure both England and her colonies against even the possibility of attack by any foreign power. It to-day in reality secures themaintenance of internal peace and order in every country inhabitedby British subjects. It is further most desirable, it may probably become in no long time an absolute necessity, that every country
throughout the Empire should contribute in due measure to the costof Imperial defence. To this it should be added that the material
advantages accruing to millions of British subjects from the Imperial
power of England may more and more tend to produce that growthof loyalty and goodwill towards the Empire which in 1914is a characteristic and splendid feature both of England and of her colonies.
Any man may feel pride in an Imperial patriotism grounded on thelegitimate belief that the Empire built up by England furthers theprosperity and the happiness of the whole body of British subjects. 98
98 "But this Empire of ours is distinguished from [other Empires] by spedal and dominating characteristics. From the external point of view it is made up of countries which are notgeographically conterminous or even contiguous, which present every variety of climate,soil, people, and religion, and, even in those communities which have attained to complete
self-government,
and which are represented in this room to-day, does not draw its unifying and cohesive force solely from identity of race or of language. Yet you have here apolitical organisation which, by its mere existence, rules out the possibility of war between
populations numbering something like a third of the human race. There is, as there must be
among communities so differently situated and drcumstanced, a vast variety of constitutional methods, and of social and political institutions and ideals. But to speak for a moment
for that part of the Empire which is represented here to-day, what is it that we have incommon, which amidst every diversity of external and material conditions, makes us andxcviiiINTRODUCTION

But, when every admission which the most ardent of Imperialists can
ask for, is made of the benefits conferred in every quarter of the world
upon the inhabitants of different countries, by the existence of England's Imperial power, it is quite possible for a calm observer to doubt
whether the so-called federalisation of the British Empire is an object
which ought to be aimed at by the statesmen either of England or of
the Dominions. The objections to the creed of federalism, in so far as
it means the building up of a federal constitution for the Empire, orrather for England and her Dominions, may be summed up in thestatement that this belief in a new-fangled federalism is at bottom adelusion, and a delusion perilous not only to England but to thewhole British Empire. But this general statement may be best justified
by the working out of two criticisms.
First: The attempt toform a federal constitution for the Empire is at thismoment full of peril to England, to the Dominions, and, it may well be, to themaintenance of the British Empire. The task imposed upon British andupon colonial statesmanship is one of infinite difficulty. As we allknow, the creation of the United States was for the thirteen independent colonies a matter of absolute necessity. But the highest statesmanship of the ablest leaders whom a country ever possessed was
hardly sufficient for the transformation of thirteen different states into
one confederated nation. Even among countries differing little inrace, religion, and history, it was found all but impossible to reconcile
the existence of state rights with the creation of a strong central andnational power. If any one considers the infinite diversity of thekeeps us one? There are two things in the self-governing British Empire which are uniquein the history of great political aggregations.
The first is the reign of Law: wherever theKing's writ runs, it is the symbol and messenger not of an arbitrary authority, but of rights
shared by every citizen, and capable of being asserted and made effective by the tribunalsof the land. The second is the combination of local autonomy--absolute,unfettered,complete--withloyalty to a common head, co-operation, spontaneous and unforced, forcommon interests and purposes, and, I may add, a common trusteeship, whether it be inIndia or in the Crown Colonies, or in the Protectorates, or within our own borders, of theinterests and fortunes of fellow-subjects who have not yet attained, or perhaps in somecases may never attain, to the full stature of self-government.
"-- See speech of the Right
Hon. H. H. Asquith (President of the Conference), Minutes of Proceedings of the Imperial
Conference, _911 [Cd. 5745], P. 22.

xcix

LAW OF THE CONSTITUTION

countries which make up the British Empire, if he reflects that they
are occupied by different races whose customs and whose civilisation
are the product of absolutely different histories, that the different
countries of the Empire are in no case contiguous, and in many
instances are separated from England and from each other by seas
extending over thousands of miles, he will rather wonder at theboldness of the dreams entertained by the votaries of federal Imperialism, than believe that the hopes of federalising the Empire arelikely to meet with fulfilment. I shall be reminded, however, and withtruth, that Imperial federalism, as planned by even its most sanguine
advocates, means something very different from the attempt to framea constitution of which the United Kingdom, the Dominions, theCrown colonies, and British India shall constitute different states.
Our Imperialists really aim, and the fact must be constantly borne inmind, at federalising the relation not between England and the restof the Empire, but between England and the five self-governing
Dominions. But then this admission, while it does away with someof the difficulties besetting the policy which is miscalled Imperial
federalism, raises a whole body of difficult and all but unanswerable
questions. Take a few of the inquiries to which sanguine reformers,
who talk with easy confidence of federalism being the solution of all
the most pressing constitutional problems, must find a reply. What is
to be the relation between the new federated state (consisting ofEngland and the five Dominions) and British India? Will the millions
who inhabit India readily obey a new and strange sovereign, or will
the states of the new confederacy agree that the rest of the Empire
shall be ruled by the Parliament and Government of England alone?
Is the whole expense of Imperial defence to be borne by the federated
states, or will the new federation of its own authority impose taxes
upon India and the Crown colonies for the advantage of the federated state? Is it certain, after all, that the mutual goodwill entertained
between England and the Dominions really points towards federalism? No doubt England and the states represented at the Imperial
Conferences entertain a genuine and ardent wish that the British
Empire should be strong and be able, as against foreigners, and evenin resistance to secession, to use all the resources of the whole Empire

INTRODUCTION

for its defence and maintenance.

But then each one of the Dominions

desires rather the increase than the lessening of its own independence. Is there the remotest sign that, for example, New Zealand,though thoroughly loyal to the Empire, would tolerate interferenceby any Imperial Parliament or Congress with the internal affairs of
New Zealand which even faintly resembled the authority exerted by
Congress in New York, or the authority exerted by the Parliament of
the Canadian Dominion in Quebec? But if the Dominions would not
tolerate the interference with their own affairs by any Parliament,
whatever its title, sitting at Westminster, is there the remotest reason
to suppose that the existing Imperial Parliament will consent to become a Parliament of the Empire in which England, or rather theUnited Kingdom, and each of the five Dominions shall be fairly represented? But here we come to a further inquiry, to which our
new federalists hardly seem to have given a thought: What
are they going to do with the old Imperial Parliament which has,throughout the whole history of England, inherited the traditions
and often exerted the reality of sovereign power? Under our newfederation is the Imperial Parliament to become a Federal Congress
wherein every state is to have due representation? Is this Federal
Congress to be for Englishmen the English Parliament, or is there to
be in addition to or instead of the ancient Parliament of England a
new local English Parliament controlling the affairs of England alone?
This question itself is one of unbounded difficulty. It embraces two or
three inquiries the answers whereto may trouble the thoughts oftheorists, and these replies, if they are ever discovered, may give risethroughout England and the British Empire to infinite discord. Is it
not one example of the perplexities involved in any plan of Imperial
federalism, and of the intellectual levity with which they are met, that
our Federalists never have given a dear and, so to speak, intelligible
idea of what is to be under a federal government the real position notof the United Kingdom but of that small country limited in size, but
still of immense power, which is specifically known by the augustname of England? The traditional feuds of Ireland and the ecdesiastical grievances of Wales, the demand of some further recognition ofthat Scottish nationality, for which no sensible Englishman shows or

LAW OF THE CONSTITUTION

is tempted to show the least disrespect, all deserve and receive exaggerated attention. But England and English interests, just because
Englishmen have identified the greatness of England with the prosperity of the United Kingdom and the greatness and good government of the Empire, are for the moment overlooked. I venture toassure all my readers that this forgetfulness of Englandwand by
England I here mean the country known, and famous, as England
before the legal creation either of Great Britain or of the United
Kingdomwis a fashion opposed both to common sense and to common justice, and, like all opposition to the nature of things, will
ultimately come to nothing. 99The questions I have mentioned are
numerous and full of complexity. The present time, we must add, isintensely unfavourable to the creation of a new federalised and Imperial constitution. The Parliament and the Government of the United
Kingdom may be chargeable with grave errors: they have fallen into
many blunders. But they have never forgotten-- they will never, one
trusts, forget-- that they holda common trusteeship,whetherit be in India or in the Crown Colonies, or in
the Protectorates,
or within our own borders, of the interests and fortunes offellow-subjects
who have not yet attained, or perhaps in some cases may
never attain, to the full stature of self-government,
lo0

Is it credible that, for instance, the peoples of India will see withindifference this trusteeship pass from the hands of an Imperial Parlament (which has more or less learned to think imperially, and in
England has maintained the equal political rights of all British subjects) into the hands of a new-made Imperial Congress which will
99 Sir Joseph Ward is an eminent colonial statesman; he is also an ardent Imperialist of thecolonial type. In his plan for an Imperial Council, or in other words for an Imperial Parliament representing the United Kingdom, or rather the countries which now make it up, andalso the Dominions, he calmly assumes that Englishmen will without difficulty allow theUnited Kingdom to be broken up into four countries ruled by four local Parliaments. He
supposes, that is to say, as a matter of course, that Englishrnen will agree to a radical change
in the government of England which no sane English Premier would have thought ofpressing upon the Parliaments of the self-governing colonies which now constitute theDominion of Canada or which now constitute the Commonwealthof Australia. See Minutes of Proceedings of the Imperial Conference, 1911[Cd. 5745], PP. 59 -6L
loo See Mr. Asquith's

address, cited pp. xcviii-xcix,

c/i

note 98, ante.

INTRODUCTION

consist in part of representatives of Dominions which, it may be ofnecessity, cannot give effect to this enlarged conception of British
citizenship? 1°1
Second:The unity of the Empire does not require the formation of afederal
or of any other brand-new constitution. I yield to no man in my passion
for the greatness, the strength, the glory, and the moral unity of the
British Empire. 1021am one of the thousands of Englishrnen who
approved, and still approve, of the war in South Africa because it
forbade secession. But I am a student of the British constitution; myunhesitating conviction is that the constitution of the Empire ought todevelop, as it is actually developing, in the same way in which grewup the constitution of England. 103The relation between England andthe Dominions, and, as far as possible, between England and thecolonies which are not as yet self-governing countries, need not be
developed by arduous feats of legislation. It should grow under the
influence of reasonable understandings and of fair customs. There
are, as I have intimated, lo4two objects on which every Imperialist
should fix his eyes. The one is the contribution by every country
within the Empire towards the cost of defending the Empire. The
second object is the constant consultation between England and theDominions. The English taxpayer will not, and ought not to, continue
for ever paying the whole cost of Imperial defence. The Dominions
cannot for an indefinite period bear the risks of Imperial wars without
having a voice in determining if such wars should begin, and whenand on what terms they should be brought to an end. Imperial
statesmanship is rapidly advancing in the right direction. The system
of Imperial Conferencesl°S and other modes of inter-communication
101 See p. liv, and note 43, ante.
1o2 SeeA Fool's Paradise, p. 24.
lo3 This conviction is strengthenedby the facts now daily passing before our eyes (Sept.

191-4).
lo4 See pp. xcviii, xcix, ante; and see A Fool's Paradise, p. 25.
lo5 Consider the gradual, the most hopeful, and the most successful development of these
conferences from _887 to the last conference in 19_1. A sort of conference was held in 1887,
and the conferences of 1897 and 19o2 were held in connection with some other celebration.

ciii

LAW OF THE CONSTITUTION

between England and the Dominions will, we may hope, result in
regulating both the contribution which the Dominions ought to maketowards the defence of the Empire, and the best method for collectingcolonial opinion on the policy of any war which may assume an Imperial character. My full belief is that an Imperial constitution basedon goodwill and fairness may within a few years come into real existence, before most Englishmen have realised that the essential foundations of Imperial unity have already been firmly laid. The ground of
my assurance is that the constitution of the Empire may, like the constitution of England, be found to rest far less on parliamentary statutes
than on the growth of gradual and often unnoted customs.
Characteristics

of Federal Government
Home Rule All Roundin RelationtoAdvocates of the so-called "federal solution" apparently believethat the United Kingdom as a whole will gain by exchanging ourpresent unitary constitution for some unspecified form of federal
government. To an Englishman who still holds, as was universallyheld by every English statesman till at the very earliest 288o, that theunion between England and Scotland was the wisest and most fortunate among the achievements of British statesmanship, there is great
difficulty in understanding
the new belief that the federalisation of
the United Kingdom will confer benefit upon any of the inhabitantsof Great Britain. 106A candid critic may be able to account for the
existence of a political creed which he does not affect to share.
The first regular conference for no other purpose than consultation was held in 19o7, in
which the Imperial Conference received by resolution a definite constitution. The conference of _91_was held under the scheme thus agreed upon in _9o7.
_o6 The omission of reference to the policy of Home Rule for Ireland as embodied in the
Government of Ireland Act, _914, is intentional. The true character and effect of that Act
cannot become apparent until some years have passed. The Act itself stands in a position
never before occupied by any statute of immense and far-reaching importance.
It may notcome into operation for an indefinite period. Its very authors contemplate its amendment
before it shall begin to operate. The Act is at the moment detested by the Protestants of
Ulster, and a binding though ambiguous pledge has been given that the Act will not beforced upon Ulster against her will. The people of Great Britain will insist on this pledge
being held sacred. To a constitutionalist
the Act at present affords better ground for wonder
than for criticism. If any reader should be curious to know my views on Home Rule hefind them in a general form in England's Case against Home Rule, published in 1887; and as
applied to the last Home Rule Bill, in A Fool's Paradise, published in _913.
c/v

INTRODUCTION

The faith in Home Rule all round has been stimulated, if not mainly
created, by the controversy, lasting for thirty years and more, overthe policy of Home Rule for Ireland. British Home Rulers have always
been anxious to conceal from themselves that the creation of a separate Irish Parliament, and a separate Irish Cabinet depending for its
existence on such Parliament, is a real repeal of the Act of Union
between Great Britain and Ireland. This refusal to look an obvious
fact in the face is facilitated by the use of that most ambiguous phrase,"Home Rule all round." Federalism has, no doubt, during the last
thirty, or one may say fifty, years acquired a good deal of new prestige. The prosperity of the United States, the military authority of
the German Empire, may by federalists be put down to the credit offederal government, though in matter of fact no two constitutions
can, either in their details or in their spirit, bear less real resemblance
than the democratic and, on the whole, unmilitary constitution of theUnited States and the autocratic Imperial and, above all, military
government of Germany. Federal government has also turned out tobe the form of government suitable for some of the British Dominions. It has been an undoubted success in the Canadian Dominion. It
has not been long tried but has not been a failure in the AustralianCommonwealth. It may become, Englishmen are inclined to think it
is, the best form of government for the states included in the Union ofSouth Africa. Little reflection, however, is required in order to seethat none of these federations resemble the constitution of Englandeither in their historical development or in their actual circumstances.
Then, too, it is thought that whereas English statesmen find it difficult to regulate the relation between Great Britain and Ireland, thetask will become easier if the same statesmen undertake to transform,by some hocus-pocus of political legerdemain, the whole United
Kingdom into a federal government consisting of at least four different states. It is supposed, lastly, though the grounds for the supposition are not very evident, that the federalisation of the United
Kingdom is necessary for, or conducive to, the development of Imperial federalism.
Federalism, in short, has at present the vague, and therefore thestrong and imaginative, charm which has been possessed at one timethroughout Europe by the parliamentary constitutionalism of Engco

LAW OF THE CONSTITUTION

land and at another by the revolutionary republicanism of France. It
may be well, therefore, to state with some precision why, to one who
has studied the characteristics of federal government, it must seemin the highest degree improbable that Home Rule all round, or thefederal solution, will be of any benefit whatever to any part of theUnited Kingdom.
2. There is no trace whatever of the existence of the federal spirit
throughout the United Kingdom. In England, which is after all by far
the most important part of the kingdom, the idea of federalism hashitherto been totally unknown. Politicians may have talked of it when
it happened to suit their party interest, but to the mass of the people
the idea of federation has always been, and I venture to assert at thismoment is, unknown and all but incomprehensible.
Scotsmen sometimes complain that Great Britain is often called England. They sometimes talk as though they were in some mysterious manner precluded from a fair share in the benefits accruing from the unity ofGreat Britain. To any one who investigates the actual course of British
politics, and still more of British social life since the beginning of thenineteenth century, these complaints appear to be utterly groundless.
The prejudices which, say, in the time of Dr. Johnson, kept Scotsmen
and Englishmen apart, have in reality vanished. To take one example
of disappearing differences, we may note that while many leading Englishmen fill in Parliament Scottish seats many Scotsmen fill
English seats. What is true is that the course of events, and theway in which the steam-engine and the telegraph bring the world
everywhere doser together, are unfavourable to that prominence inany country which at one time was attainable by particular localities,
or by small bodies of persons living somewhat apart from the generalcourse of national life. This change has, like all other alterations, its
weak side. It is quite possible honestly to regret the time when Edinburgh possessed the most intellectual society to be found in GreatBritain or Ireland. It is also possible honestly to wish that Lichfieldand Norwich might still have, as they had at the beginning of thenineteenth century, a little and not unfamous literary coterie of theirown. There is a sense in which the growth of large states is injurious
to the individual life of smaller communities. The Roman Republic

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INTRODUCTION

and the Roman Empire did not produce thinkers or writers who did
as much for the progress of mankind as was done by the philosophers, the historians, and the poets of Greece, and the fruits of Greek
genius were mainly due to the intellectual achievements of Athens
during not much more than a century. Ireland is, as regards most of
its inhabitants, discontented with the Union. But it is idle to pretendthat Ireland has ever desired federalism in the sense in which it was
desired by the colonies which originally formed the United States,or by the inhabitants of what are now the provinces of the Canadian
Dominion. O'Connell for a very short time exhibited a tendency to
substitute federalism for repeal. He discovered his mistake and reverted to repeal, which with his more revolutionary followers meantnationalism. No one who reads the last and the strangest of thebiographies of Parnell can doubt that "Ireland a Nation" was the crywhich met his own instinctive feeling no less than the wishes of his
followers, except in so far as their desires pointed towards a revolutionary change in the tenure of land rather than towards thedaim for national independence.
2. There is good reason to fear that the federalisation of the United
Kingdom, stimulating as it would the disruptive force of local nationalism, might well arouse a feeling of divided allegiance. This
topic is one on which I have no wish to dwell, but it cannot be
forgotten by any sensible observer who reflects upon the history ofsecession in the United States, or of the Sonderbund in Switzerland,or who refuses to forget the preeminently uneasy connection between the different parts of the Austrian Empire and the deliberate
determination of Norway to sever at all costs the union with Sweden.
Nor is it possible to see how the federalisation of the United Kingdom
should facilitate the growth of Imperial federalism.
3. Federalism, as the dissolution of the United Kingdom, is absolutely foreign to the historical and, so to speak, instinctive policy ofEnglish constitutionalists. Each successive generation from the reignof Edward I. onwards has laboured to produce that complete politicalunity which is represented by the absolute sovereignty of the Parliament now sitting at Westminster. Let it be remembered that no constitutional arrangements or fictions could get rid of the fact that Eng-

cvii

LAW OF THE CONSTITUTION

land would, after as before the establishment of Home Rule all round,continue, in virtue of her resources and her population, the predominant partner throughout the United Kingdom, and the partner onwhom sovereignty had been conferred, not by the language of any
statute or other document, but by the nature of things. It would be
hard indeed to prevent the English Parliament sitting at Westminster
from not only daiming but exercising sovereign authority; and to allthese difficulties must be added one ominous and significant reflection. To every foreign country, whether it were numbered among ourallies or among our rivals, the federalisation of Great Britain would betreated as a proof of the declining power alike of England and of the
British Empire. lo7
The Referendum loa
The word Referendum is a foreign expression derived from Switzerland. Thirty years ago it was almost unknown to Englishmen, eventhough they were interested in political theories. Twenty years ago it
was quite unknown to British electors. The word has now obtained
popular currency but is often misunderstood. It may be well, therefore, to define, or rather describe, the meaning of the "referendum"
as used in this Introduction and as applied to England. The referendum is used by me as meaning the principle that Bills, even
107 Any great change in the form of the constitution of England, e.g. the substitution of an
English republic for a limited monarchy, might deeply affect the loyalty of all the Britishcolonies. Can any one be certain that New Zealand or Canada would, at the bidding of the
Parliament of the United Kingdom, transer their loyalty from George V. to a President
chosen by the electorate of the United Kingdom, and this even though the revolution werecarried out with every legal formality including the assent of the King himself, and eventhough the King were elected the first President of the new Commonwealth? Is it certainthat a federated union of England, Ireland, Scotland, and Wales would command in ourcolonies the respect paid to the present United Kingdom? These questions may well seem
strange: they are not unimportant. The King is what the Imperial Parliament has neverbeen, the typical representative of Imperial unity throughout every part of the Empire.
lO8 Lowell, Public Opinion and Popular Government, part iii. chaps, xi-xv., especially chaps.
xii. and xiii. (best thing on the subject); Lowell, Government of England, i. p. 411; "The
Referendum and its Critics," by A. V. Dicey, Quarterly Review, No. 423, April 19_o;The Crisisof Liberalism, by J. A. Hobson; Low, The Governance of England, Intro. p. xvii; "Ought theReferendum tobe introduced into England?" by A. V. Dicey, Contemporary Review, 189o,
and National Review, 1894.

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INTRODUCTION

when passed both by the House of Commons and by the House ofLords, lo9should not become Acts of Parliament until they have been
submitted to the vote of the electors and have received the sanction orapproval of the majority of the electors voting on the matter. The
referendum is sometimes described, and for general purposes welldescribed, as "the people's veto." This name is a good one; it reminds
us that the main use of the referendum is to prevent the passing of
any important Act which does not command the sanction of theelectors. The expression "veto" reminds us also that those who advocate the introduction of the referendum into England in fact demandthat the electors, who are now admittedly the political sovereign ofEngland, should be allowed to play the part in legislation which wasreally played, and with popular approval, by e.g. Queen Elizabeth ata time when the King or Queen of England was not indeed theabsolute sovereign of the country, but was certainly the most important part of the sovereign power, namely Parliament. 110In this Introduction the referendum, or the people's veto, is considered simply
with reference to Bills passed by the Houses of Parliament but whichhave not received the royal assent. The subject is dealt with by nomeans exhaustively, but with a view in the first place to bring out thecauses of the demand in England for the referendum; and in thenext place to consider carefully and examine in turn first by far thestrongest argument against, and secondly the strongest argument
in favour of introducing the referendum into the constitution ofEngland.

_o9 And afortiori when passed under the Parliament Act, without the consent of the Houseof Lords.
11o The referendum,
it should be noted, can be applied to legislation for different purposes
and in different ways. It may, for instance, be applied only to a Bill affecting fundamental
changes in the constituiJon, e.g. to a Bill affecting the existence of the monarchy, or to any
Bill which would in popular language be called a Reform Bill, and to such Bill after it has
been passed by the two Houses. In this case the object of the referendum
would be toensure that no Act of transcendent
importance shall be passed without the undoubted
assent of the electors. The referendum
may again be applied, as it is applied in the Commonwealth of Australia, for preventing "deadlocks," as they are called, arising from the factof one House of Parliament having carried repeatedly, and the other having repeatedly
rejected, a given Bill.

c_

LAW OF THE CONSTITUTION
The Causes

During forty years faith in parliamentary government has suffered an extraordinary decline or, as some would say, a temporary
edipse. 111This change is visible in every dvilised country. Depreciation of, or contempt for, representative legislatures dearly exists
under the parliamentary and republican government of France,
under the federal and republican constitution of the Swiss Confederacy, or of the United States, under the essential militarism and thesuperficial parliamentarism of the German Empire, and even underthe monarchical and historical constitutionalism of the British Empire. This condition, whether temporary or permanent, of public
opinion greatly puzzles the now small body of surviving constitutionalists old enough to remember the sentiment of the mid-Victorianera, with its prevalent belief that to imitate the forms, or at any rate to
adopt the spirit of the English constitution, was the best method
whereby to confer upon the people of any civilised country the combined blessings of order and of progress. To explain in any substantial degree the alteration in popular opinion it would be necessary to
produce a treatise probably longer and certainly of more profoundthought than the book for which I am writing a new Introduction. Yet
one or two facts may be noted which, though they do not solve theproblem before us, do to some slight extent suggest the line in which
its solution must be sought for. Parliamentary government may
under favourable circumstances go a great way towards securing
such blessings as the prevalence of personal liberty and the free expression of opinion. But neither parliamentary government nor any
form of constitution, either which has been invented or may be discovered, will ever of itself remove all or half the sufferings of humanbeings. Utopias lead to disappointment just because they are utopias.
The very extension of constitutional government has itself led to thefrustration of high hopes; for constitutions have by force of imitation
been set up in states unsuited to popular government. What is evenmore important, parliamentary government has by its continued
existence betrayed two defects hardly suspected by the Liberals or_

Compare Law and Opinion (and ed.), pp. 440-443-£X

INTRODUCTION

reformers of Europe, or at any rate of England, between 1832 and288o. We now know for certain that while popular government may
be under wise leadership a good machine for simply destroying
existing evils, it may turn out a very poor instrument for the construction of new institutions or the realisation of new ideals. We know
further that party government, which to many among the wisest ofmodern constitufionalists appears to be the essence of England's farfamed constitution, inevitably gives rise to partisanship, and at lastproduces a machine which may well lead to political corruption andmay, when this evil is escaped, lead to the strange but acknowledged
result that a not unfairly elected legislature may misrepresent thepermanent will of the electors. This fact has made much impression
on the political opinion both of England and of the United States. The
above considerations taken as a whole afford some explanation of ademand for that referendum which, though it originates in Switzerland, flourishes in reality, though not in name, in almost every stateof the American Commonwealth.
The MainArgument

Againstthe Referendum

To almost all Englishmen the chief objection to the referendum isso obvious, and seems to many fair-minded men so condusive, that
it ought to be put forward in its full strength and to be carefully
examined before the reader is called upon to consider the possible
advantages of a great change in our constitution. This objection may
be thus stated:
In England the introduction of the referendum means, it is urged,
the transfer of political power from knowledge to ignorance. Let us
put this point in a concrete form. The 67o members of the House ofCommons together with the 6oo and odd members of the House ofLords n2 contain a far greater proportion of educated men endowedwith marked intellectual power and trained in the exercise of somehigh political virtues than would generally be found among, say, I27oelectors collected merely by chance from an electorate of more than8,ooo, ooo. The truth of this allegation can hardly be disputed; the_. Strictly, 638 members.

See Whitaker's Almanack, _9_4, p. 124.

cxi

LAW OF THE CONSTITUTION

inference is drawn therefrom that to substitute the authority of theelectorate for the authority of the House of Commons and the Houseof Lords is to transfer the government of the country from the rule ofintelligence to the rule of ignorance. This line of argument can be put
in various shapes. It is, in whatever form it appears, the reasoning
on which the most capable censors of the referendum rely. Oddly
enough (though the matter admits of explanation) this line of reasoning is adopted at once by a thoughtful conservative, such as
Maine, and by revolutionists who wish to force upon England,through the use of authoritative legislation, the ideals of socialism.
Maine saw in the referendum a bar to all reasonable reforms. He
impresses upon his readers that democracy is not in itself a progressive form of government, and expresses this view in words which
deserve quotation and attention:
The delusion that democracy when it has once had all things put under its
feet, is a progressive form of government, lies deep in the convictions of aparticular political school; but there can be no delusion grosser .... All thathas made England famous, and all that has made England wealthy, has been
the work of minorities, sometimes very small ones. It seems to me quite
certain that, if for four centuries there had been a very widely extended
franchise and a very large electoral body in this country, there would havebeen no reformation of religion, no change of dynasty, no toleration of
Dissent, not even an accurate Calendar. The threshing-machine,thepower-loom, the spinning-jenny,and possibly the steam-engine,
wouldhave been prohibited. Even in our day, vaccination is in the utmost danger,
and we may say generally that the gradual establishmentof the masses in
power is of the blackest omen for all legislation founded on scientific opinion, which requires tension of mind to understand it, and self-denial tosubmit to it. 113

And he thence practically infers that democracy as it now exists in
England would, combined with the referendum, be probably adeath-blow to all reasonable reform. 114To Maine, in short, the referendum is the last step in the development of democracy, and his
censure of the referendum is part of a powerful attack by an intellec113Maine, PopularGovernment, pp. 97-98 .
See//n'd. pp. 96-97 .

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INTRODUCTION

tual conservative on democratic government which he distrusted andabhorred. Now revolutionists who probably think themselves democrats have of recent years attacked the referendum on grounds whichmight have been suggested by Maine's pages. The referendum, weare told by socialistic writers, will work steadily to the disadvantageof the Liberal Party. 11sWould not, we are asked, the anti-reforming
press exhaust itself in malignant falsehoods calculated to deceive thepeople? Such suggestions and others of the same quality may besummed up in an argument which from a socialistic point of view has
considerable force. The people, it is said, are too stupid to be entrusted with the referendum; the questions on which the electors arenominally called upon to decide must never be put before them withsuch dearness that they may understand the true issues submitted totheir arbitrament. The party machine, think our new democrats, may
be made the instrument for foisting upon the people of Englandchanges which revolutionary radicals or enthusiasts know to be reforms, but which the majority of the electorate, if they understood
what was being done, might condemn as revolution or confiscation.
The attacks of conservatives and the attacks of socialistic democrats toa certain extent balance one another, but they contain a common
element of tnath. The referendum is a mere veto. It may indeed often
stand in the way of salutary reforms, but it may on the other handdelay or forbid innovations condemned by the weight both of theuneducated and of the educated opinion of England. Thus it is, to say
the least, highly probable that, if the demand of votes for women
were submitted to the present electorate by means of a referendum, anegative answer would be returned, and an answer of such decision
as to check for years the progress or success of the movement infavour of woman suffrage. It must, in short, be admitted that a vetoon legislation, whether placed in the hands of the King, or in thehands of the House of Lords, or of the House of Commons, or of the8,ooo,0oo electors, would necessarily work sometimes well and sometimes ill. It might, for example, in England forbid the enforcement or
extension of the vaccination laws; it might forbid the grant of parlia1_5 See Against the Referendumand Quarterly Review, April _9_o,No. 423, pp. 551, 552.

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LAW OF THE CONSTITUTION

mentary votes to Englishwomen; it might have forbidden the passingof the Government of Ireland Act, 1914;it might certainly have forbidden the putting of any tax whatever on the importation of corn
into the United Kingdom. Now observe that if you take any person,
whether an Englishman or Englishwoman, he or she will probably
hold that in some one or more of these instances the referendum
would have worked ill, and that in some one or more of these instances it would have worked well. All, therefore, that can be conclusively inferred from the argument against the referendum is that thepeople's veto, like any other veto, may sometimes be ill, and sometimes be well employed. Still it certainly would be urged by a fairminded opponent of the referendum that there exists a presumptionthat the Houses of Parliament acting together will exhibit something
more of legislative intelligence than would the mass of the electorate
when returning their answer to a question put to them by the referendum. But a reasonable supporter of the referendum, while admitring that such a presumption may exist, will however maintainthat it is of very slight weight. The Parliament Act gives unlimited
authority to a parliamentary or rather House of Commons majority.
The wisdom or experience of the House of Lords is in matters ofpermanent legislation thereby deprived of all influence. A House ofCommons majority acts more and more exclusively under the influence of party interests. It is more than possible that the referendum
might, if introduced into England, increase the authority of voters not
deeply pledged to the dogmas of any party. The referendum, as I
have dealt with it, cannot, be it always borne in mind, enforce any
law to which at any rate the House of Commons has not consented. It
has the merits as also the weaknesses of a veto. Its strongest recommendation is that it may keep in check the inordinate power now
bestowed on the party machine.
The Main Argumentin Favour of the Referendum

The referendum is an institution which, if introduced into England,
would be strong enough to curb the absolutism of a party possessedof a parliamentary majority. The referendum is also an institution
which in England promises some considerable diminution in the mostcxiv

INTRODUCTION

patent defects of party government. Consider first the strength of
the referendum. It lies in the fact that the people's veto is at once a
democratic institution, and, owing to its merely negative character,may be a strictly conservative institution. It is democratic, for it is inreality, as also on the face thereof, an appeal to the people. It isconservative since it ensures the maintenance of any law or institution which the majority of the electors effectively wish to preserve.
Nor can any one who studies the present condition of English society
seriously believe that, under any system whatever, an institution
deliberately condemned by the voice of the people can for a long time
be kept in existence. The referendum is, in short, merely the dearrecognition in its negative form of that sovereignty of the nation ofwhich under a system of popular government every leading statesman admits the existence. But the mere consonance of a given arrangement with some received doctrine, such as "the sovereignty ofthe people," must with a thoughtful man carry little weight, except inso far as this harmony with prevalent ideas promises permanence tosome suggested reform or beneficial institution. Let us then consider
next the tendency of the referendum to lessen the evils of the party
system. An elected legislature may well misrepresent the will of thenation. This is proved by the constant experience of Switzerland andof each of the States which make up the American Commonwealth.
This danger of misrepresenting the will of the nation may exist evenin the case of an honest and a fairly-elected legislative body. Thismisrepresentation is likely or even certain to arise where, as in England, a general election comes more and more to resemble the election of a given man or a given party to hold office for five years.
Partisanship must, under such a system, have more weight thanpatriotism. The issues further to be determined by the electors will
year by year become, in the absence of the referendum, more complicated and confused. But in the world of politics confusion naturally
begets intrigue, sometimes coming near to fraud. Trust in elected
legislative bodies is, as already noted, dying out under every form of
popular government. The party machine is regarded with suspicion,and often with detestation, by public-spirited citizens of the UnitedStates. Coalitions, log-rolling, and parliamentary intrigue are in Eng-

cxv

LAW OF THE CONSTITUTION

land diminishing the moral and political faith in the House of Commons. Some means must, many Englishmen believe, be found forthe diminution of evils which are under a large electorate the natural,
if not the necessary, outcome of our party system. The obvious corrective is to confer upon the people a veto which may restrict theunbounded power of a parliamentary majority. No doubt the referendum must be used with vigilance and with sagacity. Perpetualwatchfulness on the part of all honest citizens is the unavoidable priceto be paid for the maintenance of sound popular government. The
referendum futher will promote or tend to promote among the electors a kind of intellectual honesty which, as our constitution now
works, is being rapidly destroyed. For the referendum will make itpossible to detach the question, whether a particular law, e.g. a law
introducing some system of so-called tariff reform, shall be passed,from the totally different question, whether Mr. A or Mr. B shall beelected for five years Prime Minister of England. Under the referendum an elector may begin to find it possible to vote for or against agiven law in accordance with his real view as to its merits or demerits,
without being harassed through the knowledge that if he votes
against a law which his conscience and his judgment condemns, hewill also be voting that A, whom he deems the fittest man in England
to be Prime Minister, shall cease to hold office, and that B, whom theelector happens to distrust, shall at once become Prime Minister. And
no doubt the referendum, if ever established in England, may havethe effect, which it already has in Switzerland, of making it possiblethat a minister or a Cabinet, supported on the whole by the electorate, shall retain office honestly and openly, though some proposal
made by the Prime Minister and his colleagues and assented to byboth Houses of Parliament is, through the referendum, condemnedby the electorate. These possible results are undoubtedly repulsive tomen who see nothing to censure in our party system. But, as I havethroughout insisted, the great recommendation of the referendum isthat it tends to correct, or at lowest greatly to diminish, the worst andthe most patent evils of party government.
No effort has been made by me to exhaust the arguments against
or in favour of the referendum. My aim in this Introduction has beencxv/

INTRODUCTION

to place before my readers the strongest argument against and also
the strongest argument in favour of the introduction of the referendum into the constitution of England. It is certain that no man, who isreally satisfied with the working of our party system, will ever lookwith favour on an institution which aims at correcting the vices ofparty government. It is probable, if not certain, that any one, who
realises the extent to which parliamentary government itself is losing
credit from its too dose connection with the increasing power of theparty machine, will hold with myself that the referendum judiciously
used may, at any rate in the case of England, by checking the omnipotence of partisanship, revive faith in that parliamentary government which has been the glory of English constitutional history.
CONCLUSIONS
2. The sovereignty of Parliament is still the fundamental doctrineof English constitutionalists. But the authority of the House of Lords
has been gravely diminished, whilst the authority of the House ofCommons, or rather of the majority thereof during any one Parliament, has been immensely increased. Now this increased portion ofsovereignty can be effectively exercised only by the Cabinet whichholds in its hands the guidance of the party machine. And of theparty which the parliamentary majority supports, the Premier has
become at once the legal head and, if he is a man of ability, the realleader. 116This gradual development of the power of the Cabinet andof the Premier is a change in the working of the English constitution.
It is due to at least two interconnected causes. The one is the advancetowards democracy resulting from the establishment, 1867 to 1884, ofHousehold Suffrage; the other is the increasing rigidity of the party
system. The result of a state of things which is not yet fully recognised inside or outside Parliament is that the Cabinet, under a leader
who has fully studied and mastered the arts of modem parliamentary
warfare, can defy, on matters of the highest importance, the possible
or certain will of the nation. This growth of the authority obtained by
n6 Lowell, Government of England, chaps, xxiv-xxvii.,
Opinion and Popular Government, part ii. pp. 57-1_o.

cxv//

and especially i. pp. 441-447; Public

LAW OF THE CONSTITUTION

the men who can control the party machine is the more formidable if
we adopt the view propounded by the ablest of the critics of theGovernment of England, and hold with Lowell that party government has been for generations not the accident or the corruption but,
so to speak, the very foundation of our constitutional system. 11_The
best way to measure the extent of a hardly recognised alteration in
the working of parliamentary government in England is to note theway in which a system nominally unchanged worked in the days of
Palmerston, i.e. from 2855 to 2865, that is rather less than sixty years
ago. He became Premier in 2855. He was in 2857 the most popular of
Prime Ministers. After a contest with a coalition of all his opponents,
a dissolution of Parliament gave to the old parliamentary hand a large
and decisive majority. For once he lost his head. He became for theminute unpopular in the House of Commons. A cry in which there
was little of real substance was raised against him amongst the electors. In 2858 he resigned office; in 2859 another dissolution restored
to office the favourite of the people. He remained Premier with thesupport of the vast majority of the electors till his death in 2865. Thesetransactions were natural enough in the Palmerstonian era; they
could hardly recur in 19I4. Palmerston, as also Gladstone, did not
hold power in virtue of the machine. The Parliament Act is the lastand greatest triumph of party government.
2. The increasing influence of the party system has in England,and still more throughout the British Empire, singularly coincidedwith the growth of the moral influence exercisable by the Crown.
From the accession of Victoria to the present day the moral force atthe disposal of the Crown has increased. The plain truth is that theKing of England has at the present day two sources of moral authority of which writers on the constitution hardly take enough accountin regard to the future. The King, whoever he be, is the only man
throughout the British Empire who stands outside, if not above, theparty system. The King is, in lands outside the United Kingdom, theacknowledged, and indeed the sole, representative and centre of
the Empire. 118
1I7 See note on preceding

page.

118 See p. lxviii, ante.
cxvfiiINTRODUCTION

3. The last quarter of the nineteenth and, still more clearly, the first
fourteen years of the twentieth century are, as already pointed out,marked by declining faith in that rule of law which in _884was one of
the two leading principles of constitutional government as understood in England.
4. The various ideas for the improvement of the constitution which
now occupy the minds of reformers or innovators are intended, at
any rate, to provide against the unpopularity of legislation, but forthe most part are hardly framed with the object of promoting thewisdom of legislation. No doubt some of these schemes may indirectly increase the chance that injudicious legislation may receive acheck. Proportional representation may sometimes secure a hearing
in the House of Commons for opinions which, though containing agood deal of truth, command little or comparatively little popularity.
The referendum, it is hoped, may diminish the admitted and increasing evil of our party system. Still, as I have insisted, the main
object aimed at by the advocates of political change is for the mostpart to ensure that legislation shall be in conformity with popular
opinion. 119
The conclusions I have enumerated are certainly calculated to excite anxiety in the minds of sensible and patriotic Englishmen. Everycitizen of public spirit is forced to put to himself this question: What
will be the outcome of the democratic constitutionalism now established and flourishing in England? He is bound to remember thatpessimism is as likely to mislead a contemporary critic as optimism.
He will find the nearest approach to the answer which his inquiry
requires in a sermon or prophecy delivered in 1872 by a constitutionalist who even then perceived possibilities and perils to which fortytwo years ago our leading statesmen were for the most part blind.
Listen to the words of Waiter Bagehot:
In the meantime, our statemen have the greatest opportunities they have
had for many years, and likewise the greatest duty. They have to guide thenew voters in the exercise of the franchise; to guide them quietly, and without saying what they are doing, but still to guide them. The leading statesmen in a free country have great momentary power. They settle the conver_I9 See pp. lxxvii-lxxx, ante.
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LAW OF THE CONS_TUTION
sation of mankind. It is they who, by a great speech or two, determine whatshall be said and what shall be written for long after. They, in conjunction
with their counsellors, settle the programme of their party--the "platform,"as the Americans call it, on which they and those associated with them are to
take their stand for the political campaign. It is by that programme, by acomparison of the programmes of different statesmen, that the world forms
its judgment. The common ordinary mind is quite unfit to fix for itself what
political question it shall attend to; it is as much as it can do to judge decentlyof the questions which drift down to it, and are brought before it; it almost
never settles its topics; it can only decide upon the issues of these topics.
And in settling what these questions shall be, statesmen have now especiallya great responsibility if they raise questions which will excite the lower orders of mankind; if they raise questions on which those orders are likely to
be wrong; if they raise questions on which the interest of those orders is not
identical with, or is antagonistic to, the whole interest of the State, they will
have done the greatest harm they can do. The future of this country depends
on the happy working of a delicate experiment, and they will have done all
they could to vitiate that experiment. Just when it is desirable that ignorantmen, new to politics, should have good issues, and only good issues, put
before them, these statesmen will have suggested bad issues. They will havesuggested topics which will bind the poor as a class together; topics which
will excite them against the rich; topics the discussion of which in the only
form in which that discussion reaches their ear will be to make them thinkthat some new law can make them comfortable--that
it is the present law
which makes them uncomfortable--that
Government has at its disposal aninexhaustible fund out of which it can give to those who now want without
also creating elsewhere other and greater wants. If the first work of the poor
voters is to try to create a "poor man's paradise," as poor men are apt tofancy that Paradise, and as they are apt to think they can create it, the great
political trial now beginning will simply fail. The wide gift of the elective
franchise will be a great calamity to the whole nation, and to those who gain
it as great a calamity as to any. 12o

This is the language of a man of genius, who being dead yet
speaketh. Whether the warning which his words certainly contain
was unnecessary, or whether his implied prophecy of evil has notalready been partially fulfilled or may not at some not distant dateobtain more complete fulfilment, are inquiries which must be answered by the candour and the thoughtfulness of my readers. The
complete reply must be left to the well-informed and more or less
12oBagehot, English Constitution (2nd ed.). pp. xvii-xix.

C3CX

INTRODUCTION

impartial historian, who in 195oor in 2000 shall sum up the final
outcome of democratic government in England. Still it may be allowable to an author writing in _914, though more than half blinded, as
must be every critic of the age in which he lives, by the ignorance andthe partialities of his own day, to remember that the present has its
teaching no less than the past or the future. National danger is thetest of national greatness. War has its lessons which may be more
impressive than the lessons, valuable as they always are, of peace.
The whole of a kingdom, or rather of an Empire, united for once inspirit, has entered with enthusiasm upon an arduous contact with anation possessed of the largest and the most highly trained army
which the modern world can produce. This is in itself a matter ofgrave significance. England and the whole British Empire with her
have taken up the sword and thereby have risked the loss of wealth,of prosperity, and even of political existence. And England, with thefervent consent of the people of every land subject to the rule of ourKing, has thus exchanged the prosperity of peace for the dangers andlabours of war, not for the sake of acquiring new territory or ofgaining additional military glory, for of these things she has enoughand more than enough already, but for the sake of enforcing theplainest rules of international justice and the plainest dictates ofcommon humanity. This is a matter of good omen for the happy
development of popular government and for the progress, slow
though it be, of mankind along the path of true fortitude and of real
righteousness. These facts may rekindle among the youth of Englandas of France the sense that to be young is very heaven; these facts
may console old men whom political disillusion and disappointment
which they deem undeserved may have tempted towards despair,and enable them to rejoice with calmness and gravity that they have
lived long enough to see the day when the solemn call to the performance of a grave national duty has united every man and every
dass of our common country in the determination to defy thestrength, the delusions, and the arrogance of a militarised nation, andat all costs to secure for the civilised world the triumph of freedom, of
humanity, and of justice.

cxxiOUTUNE OF SUBJECT

THE TRUE NATURE OF
CONSTITUTIONAL LAW

_ Ot
ghsh
lstl_h_q_C,0nrke writes

BU

in _79_:Great critics have taught us one essential rule .... It is this, that if ever weshould find ourselves disposed not to admire those writers or artists, Livy
and Virgil for instance, Raphael or Michael Angelo, whom all the learned
had admired, not to follow our own fancies, but to study them until weknow how and what we ought to admire; and if we cannot arrive at thiscombination of admiration with knowledge, rather to believe that we aredull, than that the rest of the world has been imposed on. It is as good a rule,at least, with regard to this admired constitution (of England). We ought tounderstand it according to our measure; and to venerate where we are notable presently to comprehend. 1

Hallam writes in 1828:
No unbiased observer who derives pleasure from the welfare of his species,
can fail to consider the long and uninterruptediyincreasing prosperity ofEngland as the most beautiful phamomenon
in the history of mankind.
Climates more propitious may impart more largely the mere enjoyments ofexistence; but in no other region have the benefits that political institutions
can confer been diffused over so extended a population; nor have any people
so well reconciled the discordant elements of wealth, order, and liberty.
These advantages are surely not owing to the soil of this island, nor to
the latitude in which it is placed; but to the spirit of its laws, from which,through various means, the characteristic independence
and industriousness of our nation have been derived. The constitution, therefore, of Eng1 Burke, Works,iii, (_872ed.), p. 114.

cxxv

LAW OF THE CONSTITUTION
land must be to inquisitive men of all countries, far more to ourselves, anobject of superior interest; distinguished, especially, as it is from all freegovernments of powerful nations, which history has recorded, by its manifesting, after the lapse of several centuries, not merely no symptom of irretrievable decay, but a more expansive energy.2

These two quotations from authors of equal though of utterly
different celebrity, recall with singular fidelity the spirit with which
our grandfathers and our fathers looked upon the institutions of theircountry. The constitution was to them, in the quaint language ofGeorge the Third, "the most perfect of human formations"; 3 it was tothem not a mere polity to be compared with the government of any
other state, but so to speak a sacred mystery of statesmanship; it "had(as we have all heard from our youth up) not been made but had
grown"; it was the fruit not of abstract theory but of that instinct
which (it is supposed) has enabled Englishmen, and especially uncivilised Englishmen, to build up sound and lasting institutions,much as bees construct a honeycomb, without undergoing the degradation of understanding
the principles on which they raise a fabricmore subflely wrought than any work of conscious art. The constitution was marked by more than one transcendent quality which in theeyes of our fathers raised it far above the imitations, counterfeits, orparodies, which have been set up during the last hundred years
throughout the civilised world; no predse date could be named as theday of its birth; no definite body of persons could claim to be its
creators, no one could point to the document which contained its
clauses; it was in short a thing by itself, which Englishmen andforeigners alike should "venerate, where they are not able presently
to comprehend."
ModernThe present generation must of necessity look on the constitution
viewofconsOina spirit different from the sentiment either of _79_ or of _818. We
tution.
cannot share the religious enthusiasm of Burke, raised, as it was, to
2 Hallam, Middle Ages (zath ed.), ii. p. 267. Nothing gives a more vivid idea of English
sentiment with regard to the constitution towards the end of the eighteenth century than
the satiricalpicture of national pride to be found in Goldsmith's Citizen of the World, LetterW.
3 See Stanhope, Life of Pitt, i. App. p. _o.

cxxv/

THE TRUE NATURE OF CONSTITUTIONAL

LAW

the temper of fanatical adoration by just hatred of those "doctors ofthe modem school," who, when he wrote, were renewing the rule ofbarbarism in the form of the reign of terror; we cannot exactly echo
the fervent self-complacency of Hallam, natural as it was to an Englishman who saw the institutions of England standing and flourishing, at a time when the attempts of foreign reformers to combine
freedom with order had ended in ruin. At the present day students ofthe constitution wish neither to criticise, nor to venerate, but to understand; and a professor whose duty it is to lecture on constitutionallaw, must feel that he is called upon to perform the part neither of a
critic nor of an apologist, nor of an eulogist, but simply of an expounder; his duty is neither to attack nor to defend the constitution,
but simply to explain its laws. He must also feel that, however attractive be the mysteries of the constitution, he has good reason to envy
professors who belong to countries such as France, Belgium, or theUnited States, endowed with constitutions of which the terms are to
be found in printed documents, known to all citizens and accessible
to every man who is able to read. Whatever may be the advantages ofa so-called "unwritten" constitution, its existence imposes specialdifficulties on teachers bound to expound its provisions. Any one will
see that this is so who compares for a moment the position of writers,such as Kent or Story, who commented on the Constitution ofAmerica, with the situation of any person who undertakes to give
instruction in the constitutional law of England.
..... 1
When these distinguished jurists delivered, in the form of lectures,
tf_cul_,of
mmentcommentaries
upon the Constitution of the United States, they knew
g0n
mst_tu_g_,_hprecisely what was the subject of their teaching and what was theproper mode of dealing with it. The theme of their teaching was adefinite assignable part of the law of their country; it was recorded ina given document to which all the world had access, namely, "theConstitution of the United States established and ordained by the
People of the United States." The articles of this constitution fallindeed far short of perfect logical arrangement, and lack absolutelucidity of expression; but they contain, in a clear and intelligible
form, the fundamental law of the Union. This law (be it noted) is
made and can only be altered or repealed in a way different from thecxxviiLAW OF THE CONSTITUTION

method by which other enactments are made or altered; it stands
forth, therefore, as a separate subject for study; it deals with thelegislature, the executive, and the judiciary, and, by its provisions for
its own amendment, indirectly defines the body in which resides thelegislative sovereignty of the United States. Story and Kent therefore
knew with precision the nature and limits of the department of law
on which they intended to comment; they knew also what was themethod required for the treatment of their topic. Their task as commentators on the constitution was in kind exactly similar to the taskof commenting on any other branch of American jurisprudence. The
American lawyer has to ascertain the meaning of the Artides of theConstitution in the same way in which he tries to elicit the meaning of
any other enactment. He must be guided by the rules of grammar, by
his knowledge of the common law, by the light (occasionally) thrownon American legislation by American history, and by the condusions
to be deduced from a careful study of judicial decisions. The task, inshort, which lay before the great American commentators was the
explanation of a definite legal document in accordance with the received cannons of legal interpretation. Their work, difficult as it
might prove, was work of the kind to which lawyers are accustomed,
and could be achieved by the use of ordinary legal methods. Story
and Kent indeed were men of extraordinary capacity; so, however,were our own Blackstone, and at least one of Blackstone's editors. If,
as is undoubtedly the case, the American jurists have produced
commentaries on the constitution of the United States utterly unlike,
and, one must in truth add, vastly superior to, any commentaries on
the constitutional law of England, their success is partly due to thepossession of advantages denied to the English commentator or lecturer. His position is entirely different from that of his American
rivals. He may search the statute-book from beginning to end, but hewill find no enactment which purports to contain the articles of theconstitution; he will not possess any test by which to discriminate
laws which are constitutional or fundamental from ordinary enactments; he will discover that the very term "constitutional law," which
is not (unless my memory deceives me) ever employed by Black-cxxviiiTHE TRUE NATURE

OF CONSTITUTIONAL

LAW

stone, is of comparatively modern origin; and in short, that before
commenting on the law of the constitution he must make up his
mind what is the nature and the extent of English constitutional law. 4._,_
His natural, his inevitable resource is to recur to writers of authority
eek_
tomon the law, the history, or the practice of the constitution. He will find'ri' (it must be admitted) no lack of distinguished guides; he may avail_,_; himself of the works of lawyers such as Blackstone, of the investiga,u_nJtions of historians such as Hallam or Freeman, and of the specula_,_ tions of philosophical theorists such as Bagehot or Hearn. From eachdass he may learn much, but for reasons which I am about to lay
before you for consideration, he is liable to be led by each dass ofauthors somewhat astray in his attempt to ascertain the field of his
labours and the mode of working it; he will find, unless he can obtainsome due to guide his steps, that the whole province of so-called"constitutional law" is a sort of maze in which the wanderer is perplexed by unreality, by antiquarianism, and by conventionalism.
,,er_ Let us turn first to the lawyers, and as in duty bound to Blackstone.
0__
Of constitutional law as such there is not a word to be found in his._,',_Commentaries. The matters which appear to belong to it are dealt withby him in the main under the head Rights of Persons. The Book
which is thus entitled treats (inter alia) of the Parliament, of the Kingand his title, of master and servant, of husband and wife, of parent
and child. The arrangement is curious and certainly does not bring
into view the true scope or character of constitutional law. This,
however, is a trifle. The Book contains much real learning about oursystem of government. Its true defect is the hopeless confusion bothof language and of thought, introduced into the whole subject ofconstitutional law by Blackstone's habit--common
to all the lawyersof his time--of applying old and inapplicable terms to new institu4 See this point brought out with great dearness by Monsieur Boutmy, Etudes de Droit
Constitutionnel (2nd ed.), p. 8, English translation, p. 8. Monsieur Boutmy well points outthat the sources of English constitutional law may be considered fourfold, namely--(_)
Treaties or Quasi-Treaties,
i.e. the Acts of Union; (2) The Common Law; (3) Solemn Agreements (pacts), e.g. the Bill of Rights; (4) Statutes. This mode of dMsion is not exactly thatwhich would be naturally adopted by an English writer, but it calls attention to distinctions
often overlooked between the different sources of English constitutional law.

cxxix

LAW OF THE CONSTITUTION

tions, and especially of ascribing in words to a modem and constitutional King the whole, and perhaps more than the whole, of thepowers actually possessed and exercised by William the Conqueror.
Blackstone writes:
We are next to consider those branches of the royal prerogative, whichinvest thus our sovereign lord, thus all-perfect and immortal in his kingly
capacity, with a number of authorities and powers; in the exertion whereof
consists the executive part of the government. This is wisely placed in asingle hand by the British constitution, for the sake of unanimity, strength,and dispatch. Were it placed in many hands, it would be subject to many
wills: many wills, if disunited and drawing different ways, create weakness
in a government; and to unite those several wills, and reduce them to one,is a work of more time and delay than the exigencies of state will afford.
The King of England is, therefore, not only the chief, but properly the sole,magistrate of the nation; all others acting by commission from, and in due
subordination
to him; in like manner as, upon the great revolution of the
Roman state, all the powers of the ancient magistracy of the commonwealthwere concentrated in the new Emperor: so that, as Gravina expresses it, inejus unius persona veteris reipublicae vis atque majestas per cumulatas magistratuum
potestates exprimebatur, s

The language to this passage is impressive; it stands curtailed but
in substance unaltered in Stephen's Commentaries. It has but one fault;
the statements it contains are the direct opposite of the truth. The
executive of England is in fact placed in the hands of a committee
called the Cabinet. If there be any one person in whose single handthe power of the State is placed, that one person is not the King but
the chairman of the committee, known as the Prime Minister. Nor
can it be urged that Blackstone's description of the royal authority
was a true account of the powers of the King at the time when
Blackstone wrote. George the Third enjoyed far more real authority
than has fallen to the share of any of his descendants. But it would be
absurd to maintain that the language I have cited painted his true
position. The terms used by the commentator were, when he used
them, unreal, and known 6 to be so. They have become only a little
more unreal during the century and more which has since elapsed.
5 Blackstone, Commentaries,i. p. 25o.
6 The following passage from Paley's MoralPhilosophy, published in i785, is full of instruction. "In the British, and possibly in all other constitutions, there exists a wide difference

CXXX

THE TRUE NATURE OF CONSTITUTIONAL LAW
The King is considered in domestic affairs.., as the fountain of justice,and general conservator of the peace of the kingdom .... He therefore hasalone the right of erecting courts of judicature: for, though the constitution of
the kingdom hath entrusted him with the whole executive power of thelaws, it is impossible, as well as improper, that he should personally carry
into execution this great and extensive trust: it is consequently necessary,that courts should be erected to assist him in executing this power; andequally necessary, that if erected, they should be erected by his authority.
And hence it is, that all jurisdictions of courts are either mediately or immediately derived from the Crown, their proceedings run generally in theKing's name, they pass under his seal, and are executed by his officers. 7

Here we are in the midst of unrealities or fictions. Neither the King
nor the Executive has anything to do with erecting courts of justice.
We should rightly condude that the whole Cabinet had gone mad if
to-morrow's Gazette contained an order in council not authorised bystatute erecting a new Court of Appeal. It is worth while here to note
what is the true injury to the study of law produced by the tendency
of Blackstone, and other less famous constitutionalists, to adhere to
unreal expressions. The evil is not merely or mainly that these expressions exaggerate the power of the Crown. For such conventional
exaggeration a reader could make allowance, as easily as we dofor ceremonious terms of respect or of social courtesy. The harm
wrought is, that unreal language obscures or conceals the true extent
between the actual state of the government and the theory. The one results from the other;but still they are different. When we contemplate the theory of the British government, we
see the King invested with the most absolute personal impunity; with a power of rejecting
laws, which have been resolved upon by both Houses of Parliament; of conferring by hischarter, upon any set or succession of men he pleases, the privilege of sending representatives into one House of Parliament, as by his immediate appointment he can place whom hewill in the other. What is this, a foreigner might ask, but a more circuitous despotism? Yet,when we turn our attention from the legal existence to the actual exercise of royal authority
in England, we see these formidable prerogatives dwindled into mere ceremonies; and intheirstead, a sure and commanding influence, of which the constitution, it seems, is totally
ignorant, growing out of that enormous patronage, which the increased extent and opulence of the Empire has placed in the disposal of the executive magistrate."--Paley, Moral
Philosophy,Book vi. cap. vii. The whole chapter whence this passage is taken repays study.
Paley sees farmore dearly into the true nature of the then existing constitution than did
Blackstone.Itis further noticeable that in 2785the power to create Parliamentary boroughs
was still looked upon as in theory an existing prerogative of the Crown. The power of the
Crown was still large, and rested in fact upon the possession of enormous patronage.
7 Blackstone, Commentaries,i. p. 267.

cxxxi

LAW

OF THE CONSTITUTION

of the powers, both of the King and of the Government. No one,
indeed, but a child, fancies that the King sits crowned on his throne
at Westminster, and in his own person administers justice to his
subjects. But the idea entertained by many educated men that an
English King or Queen reigns without taking any part in the government of the country, is not less far from the truth than the notion that
Edward VII. ever exercises judicial powers in what are called his
Courts. The oddity of the thing is that to most Englishmen the extent
of the authority actually exercised by the Crown--andthe same
remark applies (in a great measure) to the authority exercised by thePrime Minister, and other high officialsuis a matter of conjecture.
We have all learnt from Blackstone, and writers of the same class, tomake such constant use of expressions which we know not to bestrictly true to fact, that we cannot say for certain what is the exact
relation between the facts of constitutional government and the moreor less artificial phraseology under which they are concealed. Thus tosay that the King appoints the Ministry is untrue; it is also, of course,
untrue to say that he creates courts of justice; but these two untrue
statements each bear a very different relation to actual facts. Moreover, of the powers ascribed to the Crown, some are in reality exercised by the Government, whilst others do not in truth belong either
to the King or to the Ministry. The general result is that the true
position of the Crown as also the true powers of the Government areconcealed under the fictitious ascription to the sovereign of politicalomnipotence, and the reader of, say, the first Book of Blackstone, canhardly discern the facts of law with which it is filled under the unrealities of the language in which these facts find expression.
li
H1stoLet us turn from the formalism of lawyers to the truthfulness of
rian's view
ofcon_t_-ourconstitutional historians.
tlon. Its_n"qdanHere a student or professor troubled about the nature of constitutional law finds himself surrounded by a crowd of eminent instructors. He may avail himself of the impartiality of Hallam: he may
dive into the exhaustless erudition of the Bishop of Oxford: he will
discover infinite parliamentary experience in the pages of Sir Thomas
May, and vigorous common sense, combined with polemical research, in Mr. Freeman's Growth of the English Constitution. Let us takethis book as an excellent type of historical constitutionalism. The
cxxxiiTHE TRUE NATURE OF CONSTITUTIONAL LAW

i

Growth of the English Constitution is known to every one. Of its recognised merits, of its dearness, of its accuracy, of its force, it wereuseless and impertinent to say much to students who know, or ought
to know, every line of the book from beginning to end. One point,
however, deserves especial notice. Mr. Freeman's highest merit is his
unrivalled faculty for bringing every matter under discussion to adear issue. He challenges his readers to assent or deny. If you deny
you must show good cause for your denial, and hence may learn fully
as much from rational disagreement with our author as from unhesitating assent to his views. Take, then, the Growth of the English
Constitution as a first-rate specimen of the mode in which an historianlooks at the constitution. What is it that a lawyer, whose object is toacquire the knowledge of law, will learn from its pages? A few citations from the ample and excellent head notes to the first two chapters of the work answer the inquiry.
They run thus:
The Landesgemeindenof Uri and Appenzell; their bearing on English
Constitutional History; political elements common to the whole Teutonic
race; monarchic, aristocratic, and democratic elements to be found from the
beginning; the three classes of men, the noble, the common freeman, andthe slave; universal prevalence of slavery; the Teutonic institutions common
to the whole Aryan family; witness of Homer; description of the German
Assemblies by Tacitus; continuity of English institutions; English nationality
assumed; Teutonic institutions brought into Britain by the English conquerors; effects of the settlement on the conquerors; probable increase ofslavery; Earls and Churls; growth of the kingly power; nature of kingship;
special sanctity of the King; immemorial distinction between Kings and Ealdormen .... Gradual growth of the English constitution; new laws seldom
called for; importance of precedent; return to early principles in modem
legislation; shrinking up of the ancient national Assemblies; constitution of
the Witenagem6t; the Witenagem6t continued in the House of Lords;
Gem6ts after the Norman Conquest; the King's right of summons; Life Peerages; origin of the House of Commons; comparison of English and Frenchnational Assemblies; of English and French history generally; course of
events influenced by particular men; Simon of Montfort...
Edward theFirst; the constitution finally completed under him; nature of later changes;
difference between English and continental legislatures.

All this is interesting, erudite, full of historical importance, andthoroughly in its place in a book concerned solely with the "growth"
cxxxiii

LAW

OF THE CONSTITUTION

of the constitution; but in regard to English law and the law of theconstitution, the Landesgemeinden of Uri, the witness of Homer, theealdormen, the constitution of the Witenagem6t, and a lot more offascinating matter are mere antiquarianism. Let no one suppose thatto say this is to deny the relation between history and law. It were far
better, as things now stand, to be charged with heresy, than to fallunder the suspicion of lacking historical-mindedness,or of questioning the universal validity of the historical method. What one may
assert without incurring the risk of such crushing imputations is, thatthe kind of constitutional history which consists in researches into theantiquities of English institutions, has no direct bearing on the rulesof constitutional law in the sense in which these rules can become thesubject of legal comment. Let us eagerly learn all that is known, andst_ more eagerly all that is not known, about the Witenagem6t. But
let us remember that antiquarianism is not law, and that the functionof a trained lawyer is not to know what the law of England wasyesterday, still less what it was centuries ago, or what it ought to be
to-morrow, but to know and be able to state what are the principlesof law which actually and at the present day exist in England. For thispurpose it boots nothing to know the nature of the Landesgemeindenof Uri, or to understand, if it be understandable,
the constitution of
the Witenagem6t. All this is for a lawyer's purposes simple antiquarianism. It throws as much light on the constitution of the UnitedStates as upon the constitution of England; that is, it throws from alegal point of view no light upon either the one or the other.
Contrast The name of the United States serves well to remind us of the true
betweenand relation between constitutional historians and legal constitutionalists.
viewof They are each concerned with the constitution, but from a different
const3tu_on aspect. An historian is primarily occupied with ascertaining the steps
by which a constitution has grown to be what it is. He is deeply,
sometimes excessively, concerned with the question of "origins." Heis but indirectly concerned in ascertaining what are the rules of theconstitution in the year _9o8. To a lawyer, on the other hand, theprimary object of study is the law as it now stands; he is only secondarily occupied with ascertaining how it came into existence. This isabsolutely dear if we compare the position of an American historian
legal
historical

cxxxiv

THE TRUE

NATURE

OF CONSTITUTIONAL

LAWwith the position of an American jurist. The historian of the American
Union would not commence his researches at the year _789; he would
have a good deal to say about Colonial history and about the institutions of England; he might, for aught I know, find himself impelled togo back to the Witenagem6t; he would, one may suspect, pause in his
researches considerably short of Uri. A lawyer lecturing on the constitution of the United States would, on the other hand, necessarily
start from the constitution itself. But he would soon see that theartides of the constitution required a knowledge of the Artides ofConfederation; that the opinions of Washington, of Hamilton, andgenerally of the "Fathers," as one sometimes hears them called in
America, threw light on the meaning of various constitutional artides; and further, that the meaning of the constitution could not beadequately understood by any one who did not take into account thesituation of the colonies before the separation from England and therules of common law, as well as the general conceptions of law andjustice inherited by English colonists from their English forefathers.
As it is with the American lawyer compared with the American historian, so it is with the English lawyer as compared with the English
historian. Hence, even where lawyers are concerned, as they frequently must be, with the development of our institutions, arises afurther difference between the historical and the legal view of theconstitution. Historians in their devotion to the earliest phases ofascertainable history are infected with a love which, in the eyes of alawyer, appears inordinate, for the germs of our institutions, andseem to care little about their later developments. Mr. Freeman gives
but one-third of his book to anything as modem as the days of theStuarts. The period of now more than two centuries which has
elapsed since what used to be called the "Glorious Revolution," filled
as those two centuries are with change and with growth, seems
hardly to have attracted the attention of a writer whom lack, not ofknowledge, but of will has alone prevented from sketching out the
annals of our modem constitution. A lawyer must look at the matter
differently. It is from the later annals of England he derives most help
in the study of existing law. What we might have obtained from Dr.
Stubbs had he not surrendered to the Episcopate gifts which we

cxxxv

LAW OF THE CONSTITUTION

hoped were dedicated to the University alone, is now left to conjecture. But, things being as they are, the historian who most nearly
meets the wants of lawyers is Mr. Gardiner. The struggles of theseventeenth century, the conflict between James and Coke, Bacon's
theory of the prerogative, Charles's effort to substitute the personal_1 of Charles Stuart for the legal will of the King of England, are all
matters which touch not remotely upon the problems of actual law. A
knowledge of these things guards us, at any rate, from the illusion,for illusion it must be termed, that modern constitutional freedom
has been established by an astounding method of retrogressive progress; that every step towards civilisation has been a step backwards
towards the simple wisdom of our uncultured ancestors. The assumption which underlies this view, namely, that there existed
among our Saxon forefathers a more or less perfect polity, conceals
the truth both of law and of history. To ask how a mass of legal
subtleties
would have looked..,in the eyes of a man who had borne his part in theelections of Eadward and of Harold, and who had raised his voice anddashed his arms in the great Assembly which restored Godwine to his
lands, sis to put an inquiry which involves an untenable assumption; it is likeasking what a Cherokee Indian would have thought of the claim ofGeorge the Third to separate taxation from representation. In eachcase the question implies that the simplicity of a savage enables him
to solve with fairness a problem of which he cannot understand theterms. Civilisation may rise above, but barbarism sinks below thelevel of legal fictions, and our respectable Saxon ancestors were, ascompared, not with ourselves only, but with men so like ourselves as
Coke and Hale, respectable barbarians. The supposition, moreover,that the cunning of lawyers has by the invention of legal fictions
corrupted the fair simplicity of our original constitution, underrates
the statesmanship of lawyers as much as it overrates the merits ofearly society. The fictions of the Courts have in the hands of lawyers
8 See Freeman, Growth o[the English Constitution (_st ed.), p. 125.

cxxxviTHE TRUE NATURE OF CONSTITUTIONAL

LAW

such as Coke served the cause both of justice and of freedom, andserved it when it could have been defended by no other weapons.
For there are social conditions under which legal fictions or subtleties
afford the sole means of establishing that rule of equal and settled law
which is the true basis of English civilisation. Nothing can be morepedantic, nothing more artificial, nothing more unhistorical, than thereasoning by which Coke induced or compelled James to forego theattempt to withdraw cases from the Courts for his Majesty's personal
determination.9 But no achievement of sound argument, or stroke ofenlightened statesmanship, ever established a rule more essential tothe very existence of the constitution than the principle enforced by
the obstinacy and the fallacies of the great Chief-Justice. Oddly
enough, the notion of an ideal constitution corrupted by the technicalities of lawyers is at bottom a delusion of the legal imagination. The
idea of retrogressive progress is merely one form of the appeal toprecedent. This appeal has made its appearance at every crisis in thehistory of England, and indeed no one has stated so forcibly as myfriend Mr. Freeman himself the peculiarity of all English efforts toextend the liberties of the country, namely, that these attempts atinnovation have always assumed the form of an appeal to preexisting rights. But the appeal to precedent is in the law courts merely
a useful fiction by which judicial decision conceals its transformation
into judicial legislation; and a fiction is none the less a fiction because
it has emerged from the Courts into the field of politics or of history.
Here, then, the astuteness of lawyers has imposed upon the simplicity of historians. Formalism and antiquarianism have, so to speak,joined hands; they have united to mislead students in search for thelaw of the constitution.
Let us turn now to the political theorists.
of No better types of such thinkers can be taken than Bagehot andProfessor Heam. No author of modem times (it may be confidently_sof
h asserted) has done so much to elucidate the intricate workings
English government as Bagehot. His English Constitution is so full ofbrightness, originality, and wit, that few students notice how full it is
9 See _2Rep. 64; Hearn,

Government of England (2nd ed.), chap. iii.

cxxxvii

LAW OF THE CONSTITUTION

also of knowledge, of wisdom, and of insight. The slight touches, forexample, by which Bagehot paints the reality of Cabinet government,
are so amusing as to make a reader forget that Bagehot was the firstauthor who explained in accordance with actual fact the true natureof the Cabinet and its real relation to the Crown and to Parliament.
He is, in short, one of those rare teachers who have explained intricate matters with such complete dearness, as to make the publicforget that what is now so dear ever needed explanation. Professor
Hearn may perhaps be counted an anticipator of Bagehot. In any casehe too has approached English institutions from a new point of view,and has looked at them in a fresh light; he would be universally
recognised among us as one of the most distinguished and ingenious
exponents of the mysteries of the English constitution, had it notbeen for the fact that he made his fame as a professor, not in any of
the seats of learning in the United Kingdom, but in the University of
Melbourne. From both these writers we expect to learn, and do learnmuch, but, as in the case of Mr. Freeman, though we learn muchfrom our teacher which is of value, we do not learn precisely what as
lawyers we are in search of. The truth is that both Bagehot andProfessor Heam deal and mean to deal mainly with political understandings or conventions and not with rules of law. What is theprecise moral influence which might be exerted by a wise constitutional monarch; what are the circumstances under which a Minister isentitled to dissolve Parliament; whether the simultaneous creation ofa large number of Peers for a special purpose is constitutionally justifiable; what is the principle on which a Cabinet may allow of open
questions-- these and the like are the kind of inquiries raised andsolved by writers whom, as being occupied with the conventional
understandingsof the constitution, we may term conventionalists.
These inquires are, many of them, great and weighty; but they are
not inquiries which will ever be debated in the law courts. If thePremier should advise the creation of five hundred Peers, the Chancery Division would not, we may be sure, grant an injunction to
restrain their creation. If he should on a vote of censure decline toresign office, the King's Bench Division would certainly not issue aquo warranto calling upon him to show cause why he continues to be
cxxxv_

THE TRUE NATURE OF CONSTITUTIONAL

LAW

Prime Minister. As a lawyer, I find these matters too high for me.
Their practical solution must be left to the profound wisdom of Members of Parliament; their speculative solution belongs to the provinceof political theorists.
dc0n One suggestion a mere legist may be allowed to make, namely,_t, onal,,do_ that the authors who insist upon and explain the conventional char_texplam.,,con- acter of the understandings which make up a great part of the con,orbedstitution, leave unexplained the one matter which needs explanation.
They give no satisfactory answer to the inquiry how it happens thatthe understandings of politics are sometimes at least obeyed as rigorously as the commands of law. lo To refer to public opinion and to
considerations of expediency is to offer but a very inadequate solutionof a really curious problem. Public opinion approves and public
expediency requires the observance of contracts, yet contracts are notalways observed, and would (presumably) be broken more often
than they are did not the law punish their breach, or compel theirperformance. Meanwhile it is certain that understandings are notlaws, and that no system of conventionalism will explain the whole
nature of constitutional law, if indeed "constitutional law" be instrictness law at all.
_ons_For at this point a doubt occurs to one's mind which must more
n0nat
.....
,
y
than
once have haunted students of the constitution. Is it possible_"atthat so-called "constitutional law" is in reality a cross between history
and custom which does not properly deserve the name of law at all,and certainly does not belong to the province of a professor called
upon to learn or to teach nothing but the true indubitable law ofEngland? Can it be that a dark saying of Tocqueville's, "the English
constitution has no real existence" (die n'existe pointU), contains thetruth of the whole matter? In this case lawyers would gladly surrender a domain to which they can establish no valid title. The one halfof it should, as belonging to history, go over to our historical professors. The other half should, as belonging to conventions which illustrate the growth of law, be transferred either to my friend the Corpus
m See further on this point, Part III. post.
n Tocqueville, CEuvres Completes, i. 166, 167.

cxxxixLAW OF THE CONSTITUTION

Professor of Jurisprudence, because it is his vocation to deal with theoddities or the outlying portions of legal science, or to my friend the
Chichele Professor of International Law, because he being a teacherof law which is not law, and being accustomed to expound thoserules of public ethics which are miscalled international law, willfind himself at home in expounding political ethics which, on the
hypothesis under consideration, are miscalled constitutional law.
Before, however, admitting the truth of the supposition that "constitutional law" is in no sense law at all, it will be well to examine alittle further into the precise meaning which we attach to the term
constitutional law, and then consider how far it is a fit subject for legal
exposition.
, cons,sts
Constitutional law, as the term is used in England, appears to
of
two
d,
f
ferentincludeall rules which directly or indirectly affect the distribution or
kinds of_lesthe exercise of the sovereign power in the state. 12Hence it indudes(among other things) all rules which define the members of thesovereign power, all rules which regulate the relation of such members to each other, or which determine the mode in which the sovereign power, or the members thereof, exercise their authority. Its
rules prescribe the order of succession to the throne, regulate theprerogatives of the chief magistrate, determine the form of the legislature and its mode of election. These rules also deal with Ministers,with their responsibility, with their spheres of action, define the territory over which the sovereignty of the state extends and settle who
are to be deemed subjects or citizens. Observe the use of the word
"rules," not "laws." This employment of terms is intentional. Its
object is to call attention to the fact that the rules which make up
constitutional law, as the term is used in England, include two sets ofprinciples or maxims of a totally distinct character.
(i.)Rules
The one set of rules are in the strictest sense 'qaws,'" since they are
which
are
laws--lawtruerules which (whether written or unwritten, whether enacted by statof the consfitufion.

Compare Holland, Jurisprudence Ototh ed.), pp. _38, 139, and 359-363- "By the constitution of a country is meant so much of its law as relates to the designation and form of thelegislature; the rights and functions of the several parts of the legislative body; the construction, office, and jurisdiction of courts of justice. The constitution is one principal division,section, or title of the code of public laws, distinguishedfrom the rest only by the superior
importance of the subject of which it treats."--Paley,
Moral Philosophy, Book vi. chap. vii.
cxl

THE TRUE NATURE OF CONSTITUTIONAL

LAW

ute or derived from the mass of custom, tradition, or judge-mademaxims known as the Common Law) are enforced by the Courts;
these rules constitute "constitutional law" in the proper sense of that
term, and may for the sake of distinction be called collectively "thelaw of the constitution."
Ru_, The other set of rules consist of conventions, understandings,_& are_.1,,_habits, or practices which, though they may regulate the conduct of
Lon_ en_,,,1t,_ the several members of the sovereign power, of the Ministry, or of
n_tltlJ_Oi3
other officials, are not in reality laws at all since they are not enforcedby the Courts. This portion of constitutional law may, for the sake of
distinction, be termed the "'conventions of the constitution," or constitutional morality.
To put the same thing in a somewhat different shape, "constitutional law," as the expression is used in England, both by the public
and by authoritative writers, consists of two elements. The one element, here called the "law of the constitution," is a body of undoubted law; the other element, here called the "conventions of theconstitution," consists of maxims or practices which, though they
regulate the ordinary conduct of the Crown, of Ministers, and ofother persons under the constitution, are not in strictness laws at all.
The contrast between the law of the constitution and the conventionsof the constitution

may be most easily seen from examples.

To the law of the constitution belong the following rules:_7_dg "The King can do no wrong." This maxim, as now interpreted by,_,, the Courts, means, in the first place, that by no proceeding known to
the law can the King be made personally responsible for any act done
by him; if (to give an absurd example) the King were himself to shootthe Premier through the head, no court in England could take cognisance of the act. The maxim means, in the second place, that no one
can plead the orders of the Crown or indeed of any superior officer in
defence of any act not otherwise justifiable by law; this principle inboth its applications is (be it noted) a law and a law of the constitution, but it is not a written law. "There is no power in the Crown todispense with the obligation to obey a law;" this negation or abolitionof the dispensing power now depends upon the Bill of Rights; it is alaw of the Constitution and a written law. "'Some person is legally
responsible for every act done by the Crown." This responsibility of
ar_p_e_cxli

LAW OF THE CONSTITUTION

Ministers appears in foreign countries as a formal part of the constitution; in England it results from the combined action of several legal
principles, namely, first, the maxim that the King can do no wrong;secondly, the refusal of the Courts to recognise any act as done by the
Crown, which is not done in a particular form, a form in general
involving the affixing of a particular seal by a Minister, or the countersignature or something equivalent to the counter-signature of a
Minister; thirdly, the principle that the Minister who affixes a particular seal, or countersigns his signature, is responsible for the act
which he, so to speak, endorses; 13this again is part of the constitution and a law, but it is not a written law. So again the right topersonal liberty, the right of public meeting, and many other rights,
are part of the law of the constitution, though most of these rights areconsequences of the more general law or principle that no man can bepunished except for direct breaches of law (i.e. crimes) proved in theway provided by law (i.e. before the Courts of the realm).
To the conventions of the constitution belong the following
maxims:"The King must assent to, or (as it is inaccurately expressed) cannot
which
be- 'veto '14any bill passed by the two Houses of Parliament"; "the House
long to,_°_-the of Lords does not originate any money bill"; "when the House of,_onC°ns_Lords acts as a Court of Appeal, no peer who is not a law lord takes
part in the decisions of the House"; 'qVlinisters resign office when
they have ceased to command the confidence of the House of Commons"; "a bill must be read a certain number of times before passing
through the House of Commons." These maxims are distinguishedfrom each other by many differences;IS under a new or written conExamples
of rules23 Compare Hearn, Government of England (and ed.), chap. iv.
14 As to the meaning of "veto," see Hearn, Government of England (and ed.), pp. 5_, 6o, 6_,
63, 548, and the article on the word Veto in the last edition of the Encyclopaedia Britannica, byProfessor Orelh.
25 Some of these maxims are never violated, and are universally admitted to be inviolable.
Others, on the other hand, have nothing but a slight amount of custom in their favour, andare of disputable validity. The main distinction between different classes of conventionalrules may, it is conceived, be thus stated: Some of these rules could not be violated without
bringing to a stop the course of orderly and pacific government; others might be violated
without any other consequence than that of exposing the Minister or other person by whomthey were broken to blame or unpopularity.
cxlffTHE TRUE NATURE

OF CONSTITUTIONAL

LAW

stitution some of them probably would and some of them would nottake the form of actual laws. Under the English constitution they
have one point in common: they are none of them "laws" in the true
sen_seof that word, for if any or all of them were broken, no court
would take notice of their violation.
It is to be regretted that these maxims must be called "conventional,'"for the word suggests a notion of insignificance or unreality.
This, however, is the last idea which any teacher would wish toconvey to his hearers. Of constitutional conventions or practices
some are as important as any laws, though some may be trivial, as:

may also be the case with a genuine law. My object, however, is tocontrast, not shams with realities, but the legal element with theconventional element of so-called "constitutional law."_nc_onThis distinction differs essentially, it should be noted, from thet_ een_,, and distinction between"written law" (or statute law) and "unwritten_nven_0_n0tlaw"(or common law). There are laws of the constitution, as, for_esameasd,_r_nd° example, the Bill of Rights, the Act of Settlement, and Habeas Corpus_,,e_Acts, Which are "written law," found in the statute-books_in
otherldun*,tten,,words, are statutory enactments. There are other most importantlaws of the constitution (several of which have already been mentioned) which are "unwritten" laws, that is, not statutory enactments. Some further of the laws of the constitution, such, for example, as the law regulating the descent of the Crown, which were at
one time unwritten or common law, have now become written orThis difference will at bottom be found to depend upon the degree of directness withwhich the violation of a given constitutional maxim brings the wrongdoer into conflict withthe law of the land. Thus a Ministry under whose advice Parliament were not summoned tomeet for more than a year would, owing to the lapse of the Mutiny Act, etc., become
through their agents engaged in a conflict with the Courts. The violation of a convention of
the constitution would in this case lead to revolutionary or reactionary violence. The rule,on the other hand, that a Bill must be read a given number of times before it is passed is,though a well-establishedconstitutional principle, a convention which might be disregarded without bringing the Government
into conflict with the ordinary law. A Ministry
who induced the House of Commons to pass an Act, e.g. suspending the Habeas Corpus
Act, after one reading, or who induced the House to alter their rules as to the number oftimes a Bill should be read, would in no way be exposed to a contest with the ordinary
tribunals. Ministers who, after Supplies were voted and the Mutiny Act passed, should
prorogue the House and keep office for months after the Government had ceased to retain
the confidence of the Commons, might or might not incur grave unpopularity, but would
not necessarily commit a breach of law. See further Part III. post.
cxliiiLAW OF THE CONSTITUTION

statute law. The conventions of the constitution, on the other hand,cannot be recorded in the statute-book, though they may be formallyreduced to writing. Thus the whole of our parliamentary procedure isnothing but a mass of conventional law; it is, however, recorded in
written or printed rules. The distinction, in short, between written
and unwritten law does not in any sense square with the distinction
between the law of the constitution (constitutional law properly socalled) and the conventions of the constitution. This latter is thedistinction on which we should fix our whole attention, for it is ofvital importance, and elucidates the whole subject of constitutionallaw. It is further a difference which may exist in countries which havea written or statutory constitution. 16In the United States the legal
powers of the President, the Senate, the mode of electing the President, and the like, are, as far as the law is concerned, regulated
wholly by the law of the constitution. But side by side with the law
have grown up certain stringent conventional rules, which, though
they would not be noticed by any court, have in practice nearly theforce of law. No President has ever been re-elected more than once:the popular approval of this conventional limit (of which the constitution knows nothing) on a President's re-eligibility proved a fatal bar
to General Grant's third candidature. Constitutional understandings
have entirely changed the position of the Presidential electors. They
were by the founders of the constitution intended to be what theirname denotes, the persons who chose or selected the President; thechief officer, in short, of the Republic was, according to the law, to beappointed under a system of double election. This intention has
failed; the "electors" have become a mere means of voting for a
16 The conventional element in the constitution of the United States is far larger than mostEnglishmen suppose. See on this subject Wilson, Congressional Government, and Bryce (3rded.), American Commonwealth, chaps, xxxiv, and xxxv. It may be asserted without muchexaggeration that the conventional element in the constitution of the United States is now
as large as in the English constitution. Under the American system, however, the line
between "conventionalroles" and "laws" is drawn with a precision hardly possible inEngland.
Under the constitution of the existing French Republic, constitutional conventions orunderstandings
exert a considerable amount of influence. They considerably limit, forinstance, the actual exercise of the large powers conferred by the letter of the constitution
on the President. See Chardon, L'Administration de la France--Les Fonctionnaires, pp. 79-1o5.

cx//v

THE TRUE NATURE OF CONSTITUTIONAL

•
•
:

LAW

particular candidate; they are no more than so many ballots cast for
the Republican or for the Democratic nominee. The understandingthat an elector is not really to elect, has now become so firmly established, that for him to exercise his legal power of choice is considereda breach of political honour too gross to be committed by the mostunscrupulous of politicians. Public difficulties, not to say dangers,
might have been averted if, in the contest between Mr. Hayes and
Mr. Tilden, a few Republican electors had felt themselves at liberty tovote for the Democratic candidate. Not a single man among themchanged his side. The power of an elector to elect is as completely
abolished by constitutional understandings in America as is the royalright of dissent from bills passed by both Houses by the same force inEngland. Under a written, therefore, as under an unwritten constitution, we find in full existence the distinction between the law and theconventions of the constitution.

_,n_t,,,- Upon this difference I have insisted at possibly needless length,,ub_ectbecause it lies at the very root of the matter under discussion. Once/legal'ud_
grasp the ambiguity latent in the expression "constitutional law," andconnected with the subject falls so completely into its rightd,J_v_,_,,
cons_tu- everythingonplace that a lawyer, called upon to teach or to study constitutional law
as a branch of the law of England, can hardly fail to see dearly thecharacter and scope of his subject.
With conventions or understandings
he has no direct concern.
They vary from generation to generation, almost from year to year.
Whether a Ministry defeated at the polling booths ought to retire on
the day when the result of the election is known, or may more properly retain office until after a defeat in Parliament, is or may be aquestion of practical importance. The opinions on this point whichprevail today differ (it is said) from the opinions or understandings
which prevailed thirty years back, and are possibly different from theopinions or understanding which may prevail ten years hence.
Weighty precedents and high authority are cited on either side of thisknotty question; the dicta or practice of Russell and Peel may bebalanced off against the dicta or practice of Beaconsfield and Gladstone. The subject, however, is not one of law but of politics, andneed trouble no lawyer or the class of any professor of law. If he is"onallawcxlv

LAW OF THE CONSTITUTION

concerned with it at all, he is so only in so far as he may be called
upon to show what is the connection (if any there be) between theconventions of the constitution and the law of the constitution.
This the true constitutional law is his only real concern. His proper
function is to show what are the legal rules (i.e. rules recognised by
the Courts) which are to be found in the several parts of the constitution. Of such rules or laws he will easily discover more than enough.
The rules determining the legal position of the Crown, the legal fightsof the Crown's Ministers, the constitution of the House of Lords, theconstitution of the House of Commons, the laws which govern theestablished Church, the laws which determine the position of the
non-established Churches, the laws which regulate the army,these and a hundred other laws form part of the law of the constitution, and are as truly part of the law of the land as the artides of theConstitution of the United States form part of the law of the Union.
Lawof
The duty, in short, of an English professor of law is to state what
const_tut,on
can
be
are
the laws which form part of the constitution, to arrange them in
expounded
l_ke
other
any their order, to explain their meaning, and to exhibit where possible
branchEnglishof their logical connection. He ought to expound the unwritten or partly_aw
unwritten constitution of England, in the same manner in which
Story and Kent have expounded the written law of the American
constitution. The task has its special perplexities, but the difficulties
which beset the topic are the same in kind, though not in degree, as
those which are to be found in every branch of the law of England.
You are called upon to deal partly with statute law, partly withjudge-made law; you are forced to rely on Parliamentary enactments
and also on judicial decisions, on authoritative dicta, and in manycases on mere inferences drawn from judicial doctrines; it is often
difficult to discriminate between prevalent custom and acknowledged right. This is true of the endeavour to expound the law of theconstitution; all this is true also in a measure of any attempt to explain
our law of contract, our law of torts, or our law of real property.
Moreover, teachers of constitutional law enjoy at this moment one
invaluable advantage. Their topic has, of recent years,_7 become of
27 This treatise was originally published in 1885. Since that date legal decisions and public
discussion have thrown light upon several matters of consiitutional law, such, for example,
as the limits to the right of public meeting and the nature of martial law.
cxlv/

THE TRUE NATURE OF CONSTITUTIONAL

LAW

immediate interest and of pressing importance. These years havebrought into the foreground new constitutional questions, and haveafforded in many instances the answers thereto. The series of actions
connected with the name of Mr. Bradlaugh 18has done as much todear away the obscurity which envelops many parts of our public law
as was done in the eighteenth century by the series of actions connected with the name of John Wilkes. The law of maintenance has
been rediscovered; the law of blasphemy has received new elucidation. Everybody now knows the character of a penal action. It is now
possible to define with precision the relation between the House ofCommons and the Courts of the land; the legal character and solemnity of an oath has been made patent to all the world, or at any rate to
all those persons who choose to read the Law Reports. Meanwhilecircumstances with which Mr. Bradlaugh had no connection haveforced upon public attention all the various problems connected withthe right of public meeting. Is such a right known to the law? What
are the limits within which it may be exercised? What is the true
definition of an "unlawful assembly"? How far may dtizens lawfully
assembled assert their right of meeting by the use of force? What are
the limits within which the English constitution recognises the rightof self-defence? These are questions some of which have been raised
and all of which may any day be raised before the Courts. They are
inquiries which touch the very root of our public law. To find the true
reply to them is a matter of importance to every citizen. While these
inquiries require an answer the study of the law of the constitution
must remain a matter of pressing interest. The fact, however, that theprovisions of this law are often embodied in cases which have gained
notoriety and excite keen feelings of political partisanship may fostera serious misconception. Unintelligent students may infer that thelaw of the constitution is to be gathered only from famous judgments
which embalm the results of grand constitutional or political conflicts.
This is not so. Scores of unnoticed cases, such as the Parlement Beige, 19or Thomas v. The Queen, 20touch upon or decide principles of constitu18 Written _885. See for Bradlaugh's
p. 248.

political career, Dict. Nat. Biog., Supplement,_9 4 P. D. _9; 5 P- D. 197. Compare

Walker v. Baird [2892], A. C. 49 _, 497-

2o L. R., so Q. B. 3 2.
cxlviivol. i.

LAW OF THE CONSTITUTION

tional law. Indeed every action against a constable or collector ofrevenue enforces the greatest of all such principles, namely, thatobedience to administrative orders is no defence to an action or prosecution for acts done in excess of legal authority. The true law of theconstitution is in short to be gathered from the sources whence wecollect the law of England in respect to any other topic, and forms asinteresting and as distinct, though not as well explored, a field forlegal study or legal exposition as any which can be found. The subject
is one which has not yet been fully mapped out. Teachers and pupils
alike therefore suffer from the inconvenience as they enjoy the interest of exploring a province of law which has not yet been entirely
reduced to order.21
This inconvenience has one great compensation. We are compelled
to search for the guidance of first principles, and as we look for a due
through the mazes of a perplexed topic, three such guiding principles
gradually become apparent. They are, first, the legislative sovereignty
of Parliament; 22secondly, the universal rule or supremacy throughout
the constitution of ordinary law; 2sand thirdly (though here we treadon more doubtful and speculative ground), the dependence in thelast resort of the conventions upon the law of the constitution. _ To
examine, to elucidate, to test these three principles, forms, at any rate
(whatever be the result of the investigation), a suitable introduction to
the study of the law of the constitution.
21 Since these words were written, Sir William Anson's admirable Law and Custom of theConstitution has gone far to provide a complete scheme of English constitutional law.
22 See Part I. post.
23 See Part II. post.
24 See Part Ill. post.

cxlvffiPAR T I
THE SOVEREIGNTY

OF PARLIAMENT

Chapter I

THE NATURE OF PARUAMENTARYSOVEREIGNTY

dominant characteristic of our political institutions.
hesovereignty
Parliament(fromlegal pointof view)
•_.,_
ol
My
aim in thisofchapter
is, inisthe
firsta place,
to explain
the the;napier nature of Parliamentary sovereignty and to show that its existence is alegal fact, fully recognised by the law of England; in the next place, toprove that none of the alleged legal limitations on the sovereignty of
Parliament have any existence; and, lastly, to state and meet certain
speculative difficulties which hinder the ready admission of the doctrine that Parliament is, under the British constitution, an absolutely
sovereign legislature.
NATURE OF PARLIAMENTARYSOVEREIGNTY,_a_reof
Parliament means, in the mouth of a lawyer (though the word has'P_rhamenta_
S0veroften a different sense in ordinary conversation), the King, the House
el_ntyof Lords, and the House of Commons; these three bodies acting
together may be aptly described as the "King in Parliament," andconstitute Parliament. 1
The principle of Parliamentary sovereignty means neither more nor
less than this, namely, that Parliament thus defined has, under the
English constitution, the right to make or unmake any law whatever;
and, further, that no person or body is recognised by the law ofConf. Blackstone, Commentar/es, i. p. 153.

CHAPTER

1

3

LAW OF THE CONSTITUTION

England as having a right to override or set aside the legislation of
Parliament.
A law may, for our present purpose, be defined as "any rule which
will be enforced by the Courts." The principle then of Parliamentary
sovereignty may, looked at from its positive side, be thus described:
Any Act of Parliament, or any part of an Act of Parliament, whichmakes a new law, or repeals or modifies an existing law, will beobeyed by the Courts. The same principle, looked at from its negativeside, may be thus stated: There is no person or body of persons whocan, under the English constitution, make rules which override orderogate from an Act of Parliament, or which (to express the samething in other words) will be enforced by the Courts in contraventionof an Act of Parliament. Some apparent exceptions to this rule no
doubt suggest themselves. But these apparent exceptions, as where,
for example, the Judges of the High Court of Justice make rules ofcourt repealing Parliamentary enactments, are resolvable into cases inwhich Parliament either directly or indirectly sanctions subordinate
legislation. This is not the place for entering into any details as to thenature of judicial legislation; 2 the matter is mentioned here only inorder to remove an obvious difficulty which might present itself tosome students. It will be necessary in the course of these lectures tosay a good deal more about Parliamentary sovereignty, but for thepresent the above rough description of its nature may suffice. The
important thing is to make dear that the doc_ne of Parliamentary
sovereignty is, both on its positive and on its negative side, fullyrecognised by the law of England.
Unlimited Legislative Authority of Parliament
Un,m,
ted
leglslaiweauthority
Parha-ofment.

The dassical passage on this subject is the following extract fromBlackstone's Commentaries:Sir Edward Coke, 3 says:
The powerthat it cannot

and jurisdictionof Parliament
be confined,
either for causes

is so transcendentor persons,withinand absolute,
any bounds.

2 The reader who wishes for fuller information on the nature of judge-made law will findwhat he wants in Dicey's Law and Public Opinion in England, App. Note iv. p. 482, and in Sir
Frederick Pollock's Essays in Jurisprudence and Ethics, p. 237.
3 Fourth Institute, p. 36.
PARTI

4

THE NATURE OF PARUAMENTARY SOVEREIGNTY
And of this high court, he adds, it may be truly said, "Si antiquitatem spectes,
est vetustissima; si dignitatem, est honoratissima; si jurisdictionem, est capacissima."
It hath sovereign and uncontrollable authority in the making, confirming,
enlarging, restraining, abrogating, repealing, reviving, and expounding oflaws, concerning matters of all possible denominations,
ecclesiastical or
temporal, civil, military, maritime, or criminal: this being the place wherethat absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs andgrievances, operations and remedies, that transcend the ordinary course of
the laws, are within the reach of this extraordinary tribunal. It can regulate or
new-model the succession to the Crown; as was done in the reign of Henry
VIII. and William III. It can alter the established religion of the land; as wasdone in a variety of instances, in the reigns of king Henry VIII. and his threechildren. It can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, andthe several statutes for triennial and septennial elections. It can, in short, doeverything that is not naturally impossible; and therefore some have notscrupled to call its power, by a figure rather too bold, the omnipotence ofParliament. True it is, that what the Parliament doth, no authority uponearth can undo. So that it is a matter most essential to the liberties of thiskingdom, that such members be delegated to this important trust, as aremost eminent for their probity, their fortitude, and their knowledge; for it
was a known apophthegmof the great lord treasurer Burleigh, "that England could never be ruined but by a Parliament": and, as Sir Matthew Haleobserves, this being the highest and greatest court over which none othercan have jurisdiction in the kingdom, if by any means a misgovernment
should any way fall upon it, the subjects of this kingdom are left without all
manner of remedy. To the same purpose the president Montesquieu, though
I trust too hastily, presages; that as Rome, Sparta, and Carthage have losttheir liberty and perished, so the constitution of England will in time lose its
liberty, will perish: it will perish whenever the legislative power shall become more corrupt than the executive. 4

De Lolme has summed up the matter in a grotesque expression
which has become almost proverbial. "It is a fundamental principlewith English lawyers, that Parliament can do everything but make awoman a man, and a man a woman."
H_qtoncalThis supreme legislative authority of Parliament is shown histori_e\amples
0,Par cally in a large number of instances.
,hamentary_o\'erelgntv.

4 Blackstone, Commentaries,i. pp. 16o, 16i. Compare as to sovereignty of Parliament, De
RepublicaAnglorum; A Discourseon the Commonwealthof England, by Sir Thomas Smith,edited by L. Alston, Book ii, chap. i. p. 148.The book was originally published in 1583.
CHAPTER I

5LAW OF THE CONSTITUTION

Acto_Settlement.

The descent of the Crown was varied and finally fixed under the
Act of Settlement, 12& 13 William HI., c. 2; the King occupies thethrone under a Parliamentary title; his claim to reign depends uponand is the result of a statute. This is a proposition which, at thepresent day, no one is inclined either to maintain or to dispute; but aglance at the statute-book shows that not much more than two
hundred years ago Parliament had to insist strenuously upon theprinciple of its own lawful supremacy. The first section of 6 Anne, c.
7, enacts (inter alia),
That if any person or persons shall maliciously, advisedly, and directly by
writing or printing maintain and affirm that our sovereign lady the Queenthat now is, is not the lawful and rightful Queen of these realms, or that thepretended Prince of Wales, who now styles himself King of Great Britain, orKing of England, by the name of James the Third, or King of Scotland, by
the name of James the Eighth, hath any right or title to the Crown of these
realms, or that any other person or persons hath or have any right or title tothe same, otherwise than according to an Act of Parliament made in Englandin the first year of the reign of their late Majesties King William and Queen
Mary, of ever blessed and glorious memory, intituled, An Act declaring therights and liberties of the subject, and settling the succession of the Crown;
and one other Act made in England in the twelfth year of the reign of his saidlate Majesty King William the Third, intituled, An Act for the further limitation of the Crown, and better securing the rights and liberties of the subject;
and the Acts lately made in England and Scotland mutually for the union of
the two kingdoms; or that the Kings or Queens of this realm, with and by theauthority of Parliament, are not able to make laws and statutes of sufficient
force and validity to limit and bind the Crown, and the descent, limitation,
inheritance, and government thereof; every such person or persons shall be
guilty of high treason, and being thereof lawfully convicted, shall be adjudged traitors, and shall suffer pains of death, and all losses and forfeitures
as in cases of high treason, sActsofUmon.

The Acts of Union (to one of which Blackstone calls attention)afford a remarkable example of the exertion of Parliamentary authority. But there is no single statute which is more significant either as tothe theory or as to the practical working of the constitution than the
Septennial Act.6 The circumstances of its enactment and the nature of
the Act itself merit therefore special attention.
5 6Anne, c. 42 (otherwise 6 Anne, c. 7), sec. 2. This enactment is still in force.
6 1 George I. st. 2, c. 38.

PART I

6

THE NATURE OF PARLIAMENTARY SOVEREIGNTY

r_n,_

In 1716the duration of Parliament was under an Act of 1694 limited
to three years, and a general election could not be deferred beyond
2717.The King and the Ministry were convinced (and with reason)that an appeal to the electors, many of whom were Jacobites, might
be perilous not only to the Ministry but to the tranquinity of the state.
The Parliament then sitting, therefore, was induced by the Ministry
to pass the Septennial Act by which the legal duration of parliament
was extended from three to seven years, and the powers of the thenexisting House of Commons were in effect prolonged for four years
beyond the time for which the House was elected. This was a muchstronger proceeding than passing say an ACt which enabled future
Parliaments to continue in existence without the necessity for a general election during seven instead of during three years. The statutewas justified by considerations of statesmanship and expediency.
This justification of the Septennial Act must seem to every sensible
man so ample that it is with some surprise that one reads in writers sofair and judicious as HaUam or Lord Stanhope attempts to minimise
the importance of this supreme display of legislative authority. Hallam writes:
Nothing can be more extravagant than what is sometimes confidently pretended by the ignorant, that the legislature exceeded its rights by this enactment; or, if that cannot legally be advanced, that it at least violated the trustof the people, and broke in upon the andent constitution.

This remark he bases on the ground thatthe law for triennial Parliaments was of little more than twenty years' continuance. It was an experiment, which, as was argued, had proved unsuccessful; it was subject, like every other law, to be repealed entirely, or to bemodified at discretion.7

Lord Stanhopesays:

We may..,cast aside the foolish idea that the Parliament overstepped its
legitimate authority in prolonging its existence; an idea which was indeed
urged by party-spirit at the time, and which may still sometimes pass current
7 HaUarn, ConstitutionalHistory of England, iii. (2872ed.), p. 236.

CHAPTER I

7

LAW OF THE CONSTITUTION
in harangues to heated multitudes, but which has been treated with utter
contempt by the best constitutional writers.8

Cons,tut_onal _m-

These remarks miss the real point of the attack on the Septennial
ortanceand also conceal the constitutional importance of the statute. The
eptennial of Act,Act
thirty-one peers who protested against the Bill because (among othergrounds)
itis agreed, that the House of Commons must be chosen by the people, andwhen so chosen, they are truly the representativesof the people, which theycannot be so properly said to be, when continued for a longer time thanthat for which they were chosen; for after that time they are chosen by the
Parliament, and not the people, who are thereby deprived of the only remedy which they have against those, who either do not understand,or
through corruption, do wilfully betray the trust reposed in them; which
remedy is, to choose better men in their places, 9

hit exactly the theoretical objection to it. The peculiarity of the Act
was not that it changed the legal duration of Parliament or repealed
the Triennial Act; the mere passing of a Septennial ACt in 2716was not
and would never have been thought to be anything more startling or
open to graver censure than the passing of a Triennial Act in 2694.
What was startling was that an existing Parliament of its own authority prolonged its own legal existence. Nor can the argument used byPriestley, 10and in effect by the protesting Peers
that Septennial Parliaments were at first a direct usurpation of the rights ofthe people; for by the same authority that one Parliament prolonged theirown power to seven years, they might have continued it to twice seven, or
like the Parliament of 1641 have made it perpetual

be treated as a blunder grounded simply on the "ignorant assumption" that the Septennial Act prolonged the original duration of Parliament. 11The contention of Priestley and others was in substancethat members elected to serve for three years were constitutionally so
8 Lord Mahon, History of England, i. p. 3o2.
9 Thorold Rogers, Protestsof the Lords, i. p. 228.
so See Priestley on Government (_77_),P. 20.
11 Hallam, ConstitutionalHistory, iii. (1872ed.), p. 236 (n.).

PART1

8

THE NATURE OF PARLIAMENTARY SOVEREIGNTY

farat least the delegates or agents of their constituents that they could
not, without an inroad on the constitution, extend their own authority beyond the period for which it was conferred upon them by theirprincipals, i.e. the electors. There are countries, and notably theUnited States, where an Act like the Septennial Act would be held
legally invalid; no modem English Parliament would for the sake of
keeping a government or party in office venture to pass say a Decennial Act and thus prolong its own duration; the contention therefore
that Walpole and his followers in passing the Septennial Act violated
the understandings of the constitution has on the face of it nothing
absurd. Parliament made a legal though unprecedented use of its
powers. To under-rate this exertion of authority is to deprive theSeptennial Act of its true constitutional importance. That Act provesto demonstration that in a legal point of view Parliament is neither
the agent of the electors nor in any sense a trustee for its constituents.
Itis legally the sovereign legislative power in the state, and the Septennial Act is at once the result and the standing proof of such Parliamentary sovereignty.
,_rHitherto we have looked at Parliament as legally omnipotent in
lee Ol_,_regard to public fights. Let us now consider the position of Parlia,¢nt_ath_,0_ ment in regard to those private rights which are in civilised states_ht_justly held specially secure or sacred. Coke (it should be noted) particularly chooses interference with private rights as specimens of Parliamentary authority.
Yet some examples are desired. Daughters and heirs apparent of a man or
woman, may by Act of Parliament inherit during the life of the ancestor.
It may adjudge an infant, or minor, of full age.
To attaint a man of treason after his death.
To naturalise a mere alien, and make him a subject born. It may bastard achild that by law is legitimate, viz. begotten by an adulterer, the husband
being within the four seas.
To legitimate one that is illegitimate, and born before marriage absolutely.
And to legitimate secundum quid, but not simpliciter. 12

Coke is judicious in his choice of instances. Interference with public
fights is at bottom a less striking exhibition of absolute power than
_2 Coke, Fourth Institute, p. 36.

CHAPTER I

9LAW OF THE CONSTITUTION

is the interference with the far more important rights of individuals; aruler who might think nothing of overthrowing the constitution of his
country, would in all probability hesitate a long time before hetouched the property or interfered with the contracts of private persons. Parliament, however, habitually interferes, for the public advantage, with private rights. Indeed such interference has now(greatly to the benefit of the community) become so much a matter ofcourse as hardly to excite remark, and few persons reflect what a sign
this interference is of the supremacy of Parliament. The statute-bookteems with Acts under which Parliament gives privileges or rights toparticular persons or imposes particular duties or liabilities uponother persons. This is of course the case with every railway Act, but
no one will realise the full action, generally the very beneficial actionof Parliamentary sovereignty, who does not look through a volume
or two of what are called Local and Private Acts. These Acts are just as
much Acts of Parliament as any Statute of the Realm. They deal withevery kind of topic, as with railways, harbours, docks, the settlementof private estates, and the like. To these you should add Acts such as
those which declare valid marriages which, owing to some mistake ofform or otherwise, have not been properly celebrated, and Acts,
common enough at one time but now rarely passed, for the divorce ofmarried persons.
One further class of statutes deserve in this connection more noticethan they have received-- these are Acts of Indemnity.
An olin- An Act of Indemnity is a statute, the object of which is to makede_ru_, legal transactions which when they took place were illegal, or to free
individuals to whom the statute applies from liability for having broken the law; enachnents of this kind were annually passed withalmost unbroken regularity for more than a century (_727-_828) tofree Dissenters from penalties, for having accepted municipal offices
without duly qualifying themselves by taking the sacrament according to the rites of the Church of England. To the subject of Acts ofIndemnity, however, we shall return in a later chapter. 13The point to
be now noted is that such enactments being as it were the legalisation
i3 See Chap. V. post.

PARTI

io

THE NATURE OF PARUAMENTARY SOVEREIGNTY

of illegality are the highest exertion and crowning proof of sovereign
power.
So far of the sovereignty of Parliament from its positive side: let us
now look at the same doctrine from its negative aspect.
The Absence of Any Competing Legislative Power_,*er The King, each House of Parliament, the Constituencies, and the_,_,PY
Law Courts, either have at one time daimed, or might appear to_,o,_ claim, independent legislative power. It will be found, however, on
examination that the claim can in none of these cases be made good.
,_,_n_ The King
Legislative authority originally resided in the King inCouncil, 14and even after the commencement of Parliamentary legislation there existed side by side with it a system of royal legislation
under the form of Ordinances, is and (at a later period) of Prodamations.
_._,0_
These had much the force of law, and in the year _539 the Act 31
oclama_.
Henry VIII., c. 8, formally empowered the Crown to legislate bymeans of proclamations. This statute is so short and so noteworthy
that it may well be quoted in extenso.
The King for the time being, with the advice of his Council, or the more partof them, may set forth prodamations
under such penalifies and pains as tohim and them shall seem necessary, which shall be observed as though they
were made by Act of Parliament; but this shall not be prejudicial to any
person's inheritance, offices, liberties, goods, chattels, or life; and whosoever
shall willingly offend any article contained in the said proclamations,
shall
pay such forfeitures, or be so long imprisoned, as shall be expressed in thesaid prodamafions;and if any offending will depart the realm, to the intent
he will not answer his said offence, he shall be adjudged a traitor. _6

This enactment marks the highest point of legal authority everreached by the Crown, and, probably because of its inconsistency
with the whole tenor of English law, was repealed in the reign of
Edward the Sixth. It is curious to notice how revolutionary would_4 See Stubbs, ConstitutionalHistory, i. pp. _26-_.8, and ii. pp. 245-247.
15 Stubbs, ibid. ii. chap. xv.
_6 3_Henry VIII., c. 8.

CHAPTER 1

11

LAW OF THE CONSTITUTION

have been the results of the statute had it remained in force. It musthave been followed by two consequences. An English king would
have become nearly as despotic as a French monarch. The statutewould further have established a distinction between "laws" properly so called as being made by the legislature and "ordinances"having the force of law, though not in strictness laws as being rather
decrees of the executive power than Acts of the legislature. Thisdistinction exists in one form or another in most continental states,
and is not without great practical utility. In foreign countries thelegislature generally confines itself to laying down general prindplesof legislation, and leaves them with great advantage to the public tobe supplemented by decrees or regulations which are the work of theexecutive. The cumbersomeness and prolixity of English statute law
is due in no small measure to futile endeavours of Parliament to workout the details of large legislative changes. This evil has become soapparent that in modern times Acts of Parliament constantly containprovisions empowering the Privy Council, the judges, or some other
body, to make rules under the Act for the determination of details
which cannot be settled by Parliament. But this is only an awkward
mi_gation 17of an acknowledged evil, and the substance no less than
the form of the law would, it is probable, be a good deal improved if
the executive government of England could, like that of France, bymeans of decrees, ordinances, or proclamations having the force oflaw, work out the detailed application of the general principles embodied in the Acts of the legislature. 18In this, as in some otherinstances, restrictions wisely placed by our forefathers on the growth
17 A critic has objected to the words "awkward mitigation of an acknowledged evil" on the
ground that they condemn in England a system which as it exists abroad is referred to as
being not without great practical utility. The expression objected to is, however, justifiable.
Under the English system elaborate and detailed statutes are passed, and the power tomake rules under the statute, e.g. by order m council or otherwise, is introduced only incases where it is obvious that to embody the rules in the statute is either highly inexpedientor practically impossible. Under the foreign, and espedally the French system, the form oflaws, or in other words, of statutes, is permanently affected by the knowledge of legislatorsand draftsmen that any law will be supplemented by decrees. English statutes attempt, andwith very little success, to provide for the detailed execution of the laws enacted therein.
Foreign laws are, what every law ought to be, statements of general principles.
18 See Duguit, Manuel de Droit Public Francais--Droit

PARTI

12

Constitutlonnel,

ss. 14o, 141.

THE NATURE

OF PARLIAMENTARYSOVEREIGNTY

of royal power, are at the present day the cause of unnecessary
restraints on the action of the executive government. For the repeal of
32Henry VIII., c. 8, rendered governmental legislation, with all its
defects and merits, impossible, and left to prodamations only suchweight as they might possess at common law. The exact extent of thisauthority was indeed for some time doubtful. In _6_o, however, asolemn opinion or protest of the judges 19established the modem
doctrine that royal proclamations have in no sense the force of law;they serve to call the attention of the public to the law, but theycannot of themselves impose upon any man any legal obligation or
duty not imposed by common law or by Act of Parliament. In 2766
Lord Chatham attempted to prohibit by force of proclamation theexportation of wheat, and the Act of Indemnity (7 George HI., c. 7),
passed in consequence of this attempt, may be considered the final
legislative disposal of any daim on the part of the Crown to make law
by force of proclamation.
The main instances 2°where, in modem times, prodamations ororders in council are of any effect are cases either where, at common
law, a proclamation is the regular mode, not of legislation, but of
19 See Coke, _L2Rep. p. 74; and Gardiner,

History of England, ii. pp. _o4, lo 5.

2o In rare instances, which are survivals from the time when the King of England was thetrue "sovereign" in the technical sense of that term, the Crown exercises legislative functions in virtue of the prerogative. Thus the Crown can legislate, by proclamations or orders
in council, for a newly conquered country, (Campbell v. Hall, Cowp. 2o4), and has claimed
the right, though the validity thereof is doubtful, to legislate for the Channel Islands byorders in council. In the Matter of the States of]ersey, 9 Moore P. C., n. s. _84, 262. See
Stephen, Commentaries (8th ed.), i. pp. _oo-lo2. 'q'he Channel Islands indeed claim to haveconquered England, and are the sole fragments of the dukedom of Normandy which still
con_nue attached to the British Crown. For this reason, in these islands alone of all British
possessions does any doubt arise as to whether an Act of the imperial Parliament is of its
own force binding law. In practice, when an Act is intended to apply to them, a section isinserted authorising the King in Council to issue an Order for the application of the Act tothese islands, and requiring the registration of that Order in the islands, and the Order in
Council is made by the King and registered by the States accordingly." Sir H. Jenkyns,
British Rule and Jurisdiction beyond the Seas, p. 37. But whatever doubt may arise in the
Channel Islands, every English lawyer knows that any English court will hold that an Act ofParliament dearly intended to apply to the Channel Islands is in force there proprio vigore,
whether registered by the States or not.
As to the legislative power of the Crown in Colonies which are not self-governing, see
further British Rule and Jurisdiction beyond the Seas, p. 95.

CHAPTERI

13

LAW OF THE CONSTITUTION

announcing the executive will of the King, as when Parliament issummoned by prodamation, or else where orders in council haveauthority given to them by Act of Parliament.
Hous_of
Resolutions of Either House of Parliament The House of Commons,Parhamentat any rate, has from time to time appeared to claim for resolutions of
the House, something like legal authority. That this pretension cannot be supported is certain, but there exists some difficulty in defining with precision the exact effect which the Courts concede to a
resolution of either House.
Two points are, however, well established.
R,olu_ons
First,
the resolution of neither House is a law.
of either
House.
This is the substantial result of the case of Stockdale v. Hansard. 21
The gist of the decision in that case is that a libellous document did
not cease to be a libel because it was published by the order of theHouse of Commons, or because the House subsequently resolvedthat the power of publishing the report which contained it, was an
essential incident to the constitutional functions of Parliament.
Secondly, each House of Parliament has complete control over its
own proceedings, and also has the right to protect itself by committing for contempt any person who commits any injury against, oroffers any affront to the House, and no Court of law will inquire into
the mode in which either House exercises the powers which it by law
possesses. 22
The practical difficulty lies in the reconciliation of the first with thesecond of these propositions, and is best met by following out theanalogy suggested by Mr. Justice Stephen, between a resolution of
the House of Commons, and the decision of a Court from which
there is no appeal.
I do not say that the resolution of the House is the judgment of a Court not
subject to our revision; but it has much in common with such a judgment.
The House of Commons is not a Court of Justice; but the effect of its privilege
to regulate its own internal concerns, practically invests it with a judicial

21 9A. &E._.
22 See Stockdalev. Hansard, 9 A. & E. r, Caseof Sheriff of Middlesex, 11A. & E. 273; Burdett v.
Abbot, 14 East, 1, 111, 131;Bradlaughv. Gossett, 12Q. B. D. 272.

PARTI

_4

THE NATURE OF PARLIAMENTARY SOVEREIGNTY:,, astoect olcharacter when it has to apply to particular cases the provisions of Acts of
Parliament. We must presume that it discharges this function properly, andwith due regard to the laws, in the making of which it has so great a share. If
its determination is not in accordance with law, this resembles the case of anerror by a judge whose decision is not subject to appeal. There is nothing
startling in the recognition of the fact that such an error is possible. If, forinstance, a jury in a criminal case give a perverse verdict, the law has provided no remedy. The maxim that there is no wrong without a remedy, does
not mean, as it is sometimes supposed, that there is a legal remedy for every
moral or political wrong. If this were its meaning, it would be manifestly
untrue. There is no legal remedy for the breach of a solemn promise notunder seal, and made without consideration; nor for many kinds of verbal
slander, though each may involve utter ruin; nor for oppressive legislation,
though it may reduce men practically to slavery; nor for the worst damage toperson and property inflicted by the most unjust and cruel war. The maxim
means only that legal wrong and legal remedy are correlative terms; and it
would be more intelligibly and correctly stated, if it were reversed, so as tostand, "Where there is no legal remedy, there is no legal wrong. ''23

The law therefore stands thus. Either House of Parliament has the_0_onsfullest power over its own proceedings, and can, like a Court, commit.,_ther_u_ for contempt any person who, in the judgment of the House, is guilty
of insult or affront to the House. The Case of the Sheriff of Middlesex 24;
carries this right to the very farthest point. The Sheriff was imprisoned for contempt under a warrant issued by the Speaker. Every one
knew that the alleged contempt was nothing else than obedience by
the Sheriff to the judgment of the Court of Queen's Bench in the caseof Stockdale v. Hansard, and that the Sheriff was imprisoned by theHouse because under such judgment he took the goods of the defendant Hansard in execution. Yet when the Sheriff was brought byHabeasCorpus before the Queen's Bench the Judges held that they
could not inquire what were the contempts for which the Sheriff wascommitted by the House. The Courts, in other words, do not claim
any right to protect their own officials from being imprisoned by theHouse of Commons for alleged contempt of the House, even though
the so-called contempt is nothing else than an act of obedience to the
Courts. A declaration or resolution of either House, on the other
23 Bradlaughv. Gossett, _. Q. B. D. 271, 285.
24 I_A. & E. 273.

CHAPTERI

1_LAW OF THE CONSTITUTION

hand, is not in any sense a law. Suppose that X were by order of theHouse of Commons to assault A out of the House, irrespective of any
act done in the House, and not under a warrant committing A forcontempt; or suppose that X were to commit some offence by which
he incurred a fine under some Act of Parliament, and that such finewere recoverable by A as a common informer. No resolution of
the House of Commons ordering or approving of X's act could be
pleaded by X as a legal defence to proceedings, either civil or criminal, against him.2S If proof of this were wanted it would be affordedby the Act 3 & 4 Vict. c. 9. The object of this Act, passed in consequence of the controversy connected with the case of Stockdale v.
Hansard, is to give summary protection to persons employed in the
publication of Parliamentary papers, which are, it should be noted,
papers published by the order of one or other of the Houses ofParliament. The necessity for such an Act is the dearest proof that anorder of the House is not of itself a legal defence for the publication ofmatters which would otherwise be libellous. The House of Commons
by invoking
the authorityof the whole Legislature
to give validity to the plea
they had vainly set up in the action [of Stockdale v. Hansard], and by notappealingagainst the judgmentof the Court of Queen's
Bench, had, in
effect, admitted
the correctnessof that judgment
and affirmed the great
principle
on which it was founded,
viz. that no single branch of the Legislature can, by an assertionof its alleged privileges,
alter, suspend,or supersede any known law of the land, or bar the resort of any Englishman
to anyremedy,or his exercise and enjoymentof any right, by that law established. 26
25 Conf. Attorney -General v. Bradlaugh, 14Q. B. D. (C. A.), 667.
26 Amould, Memoir of Lord Denman, ii. p. 7o. Nothing is harder to define than the extent of
the indefinite powers or fights possessed by either House of Parliament under the head ofprivilege or law and custom of Parliament. The powers exercised by the Houses, andespecially in practice by the House of Commons, make a near approach to an authority
above that of the ordinary law of the land. Parliamentary
privilege has from the nature ofthings never been the subject of precise legal definition. One or two points are worth noticeas being dearly established.
1. Either House of Parliament may commit for contempt, and the Courts will not gobehind the committal and inquire into the facts constituting the alleged contempt. Henceeither House may commit to prison for contempt any person whom the House think guilty
of contempt.

PARTI

16

THE NATURE

OF PARLIAMENTARYSOVEREIGNTY_,cL_n- The Vote of the Parliamentary Electors Expressions are constantly,,_,e_c,
es used in the course of political discussions which imply that the bodyof persons entitled to choose members of Parliament possess under
the English constitution some kind of legislative authority. Such language is, as we shall see, not without a real meaning; 2vit points to theimportant consideration that the wishes of the constituencies influence the action of Parliament. But any expressions which attribute to
Parliamentary electors a legal part in the process of law-making arequite inconsistent with the view taken by the law of the position of anelector. The sole legal right of electors under the English constitution
is to elect members of Parliament. Electors have no legal means ofinitiating, of sanctioning, or of repealing the legislation of Parliament.
No Court will consider for a moment the argument that a law isinvalid as being opposed to the opinion of the electorate; their opinion can be legally expressed through Parliament, and through Parliament alone. This is not a necessary incident of representative
government. In Switzerland no change can be introduced in the constitution 28which has not been submitted for approval or disapproval
to all male citizens who have attained their majority; and even an
ordinary law which does not involve a change in the constitution
may, after it has been passed by the Federal Assembly, be submitted
2. The House of Lords have power to commit an offender to prison for a specified term,even beyond the duration of the session (May, Parliamentary Practice (11th ed.), pp. 91, 92).
But the House of Commons do not commit for a definite period, and prisoners committed
by the House are, if not sooner discharged, released from their confinement on a prorogation. If they were held longer in custody they would be discharged by the Courts upon awrit of Habeas Corpus (May, Parliamentary Practice, chap. iii.).
3- A libel upon either House of Parliament or upon a member thereof, in his character ofa member, has been often treated as a contempt. (/b/d.)
4. The Houses and all the members thereof have all the privileges as to freedom ofspeech, etc., necessary for the performance of their duties. (See generally May's Parliamentary Practice, chap. iii.) Compare as to Parliamentary privilege Shaftesbury's Case, 6 St. Tr.
1269; Flower's Case, 8 T. R. 314;Ashby v. White, _ Sin. L. Cas. (9th ed.), 268; Wilkes's Case, _9
St. Tr. _153;Burdett v. Colman, 14 East, 163; Rex v. Creevy, _ M. & S. 273; C/arke v. Bradlaugh, 7
Q. B, D. 38, 8. App. Cas. 354; The Attorney-General v. Bradlaugh, 14 Q. B. D. 667.
27 See pp. 27-3o, post.
28 Constitution F_l_rale de la Confederation Swisse, Arts. _18-121; see Adams,
eration, chap. vi.

CHAPTERl

I 7

The Swiss Confed-

LAW OF THE CONSTITUTION

on the demand of a certain number of citizens to a popular vote, andis annulled if a vote is not obtained in its favour, a9The
Courts.

The Law Courts A large proportion of English law is in reality
made by the judges, and whoever wishes to understand the natureand the extent of judicial legislation in England, should read Pollock's
admirable essay on the Science of Case Law. 30The topic is too wide a
one to be considered at any length in these lec_res. All that we neednote is that the adhesion by our judges to precedent, that is, theirhabit of deciding one case in accordance with the principle, or supposed principle, which governed a former case, leads inevitably to
the gradual formation by the Courts of fixed rules for decision, which
are in effect laws. This judicial legislation might appear, at first sight,
inconsistent with the supremacy of Parliament. But this is not so.
English judges do not claim or exercise any power to repeal a Statute,whilst Acts of Parliament may override and constantly do override
the law of the judges. Judicial legislation is, in short, subordinate
legislation, carried on with the assent and subject to the supervisionof Parliament.
ALLEGED LEGAL LIMITATIONS ON THE LEGISLATIVE
SOVEREIGNTY OF PARLIAMENT

Allegedlimitations.

All that can be urged as to the speculative difficulties of placing any
limits whatever on sovereignty has been admirably stated by Austin
and by Professor Holland. al With these difficulties we have, at thismoment, no concern. Nor is it necessary to examine whether it be or
be not true, that there must necessarily be found in every state someperson, or combination of persons, which, according to the constitution, whatever be its form, can legally change every law, and there29 Constitution FM_rale de la Confederation Swisse, Art. 89.
3 ° Pollock, Essays in Jurisprudence and Ethics, p. 237, and see Dicey, Law and Opinion in
England (2nd ed.), pp. 36_, 483 .
31 See Austin, Jurisprudence, i. (4th ed.), pp. 270-274, and Holland, Jurisprudence Ooth ed.),pp. 47-52 and 359-363 . The nature of sovereignty is also stated with brevity and dearness
in Lewis, Use and Abuse of Political Terms, pp. 37- 53. Compare, for a different view, Bryce,
Studies in History and Jurisprudence, ii., Essay ix., Obedience; and Essay x., The Nature ofSovereignty.

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THE NATURE OF PARUAMENTARYSOVEREIGNTY

fore constitutes the legally supreme power in the state. Our wholebusiness is now to carry a step further the proof that, under the
English constitution, Parliament does constitute such a supreme
legislative authority or sovereign power as, according to Austin andother jurists, must exist in every civilised state, and for that purpose
to examine into the validity of the various suggestions, which havefrom time to time been made, as to the possible limitations on Parliamentary authority, and to show that none of them are countenanced by English law.
The suggested limitations are three in number. 32.Mor._lawFirst, Acts of Parliament, it has been asserted, are invalid if they areopposed to the principles of morality or to the doctrines of international law. Parliament, it is in effect asserted, cannot make a law
opposed to the dictates of private or public morality. Thus Blackstonelays down in so many words that thelaw of nature being coeval with mankind, and dictated by God himself, is ofcourse superior in obligation to any other. It is binding over all the globe, inaU countries,
and at all times: no human laws are of any validity ff contrary tothis; and such of them as are valid derive all their force and all their authority, mediately

or immediately,

from this original; 33

and expressions are sometimes used by modern judges which imply
that the Courts might refuse to enforce statutes going beyond theproper limits (internationally speaking) of Parliamentary authority. 34
But to words such as those of Blackstone, and to the obiter dicta of the
Bench, we must give a very qualified interpretation. There is no legal
basis for the theory that judges, as exponents of morality, may overrule Acts of Parliament. Language which might seem to imply this32 Another limitation has been suggested more or less distinctly by judges such as Coke (I2Rep. 76; and Hearn, Government of England (2nd ed.), pp. 48, 49); an Act of Parliamentcannot (it has been intimated) overrule the principles of the common law. This doctrine
once had a real meaning (see Maine, Early History of Institutions, pp. 381, 382), but it has
never received systematic judicial sanction and is now obsolete. See Colonial Laws Validity
Act, _865, 28 & 29 Vict. c. 63.
33 Blackstone,
48, 49.

Commentaries, i. p. 4o; and see Hearn, Government of England (2nd ed.), pp.

34 See Ex parte Blain, x2 Ch. D. (C. A.), 522, 53x, judgment

CHAPTERI

19

of Cotton,

L. J.

LAW OF THE CONSTITUTION

amounts in reality to nothing more than the assertion that the judges,
when attempting to ascertain what is the meaning to be affixed to an
Act of Parliament, will presume that Parliament did not intend toviolate 3s the ordinary rules of morality, or the principles of international law, and will therefore, whenever possible, give such an interpretation to a statutory enactment as may be consistent with thedoctrines both of private and of international morality. A modem
judge would never listen to a barrister who argued that an Act ofParliament was invalid because it was immoral, or because it went
beyond the limits of Parliamentary authority. The plain truth is that
our tribunals uniformly act on the principle that a law alleged to be abad law is ex hypothesi a law, and therefore entitled to obedience by
the Courts.
PrerogatJve

Secondly, doctrines have at times 36been maintained which went
very near to denying the right of Parliament to touch the Prerogative.
In the time of the Stuarts 37the doctrine was maintained, not onlyby the King, but by lawyers and statesmen who, like Bacon, favoured
the increase of royal authority, that the Crown possessed under thename of the "prerogative" a reserve, so to speak, of wide and indefinite rights and powers, and that this prerogative or residue ofsovereign power was superior to the ordinary law of the land. This
doctrine combined with the deduction from it that the Crown could
suspend the operation of statutes, or at any rate grant dispensationfrom obedience to them, certainly suggested the notion that the highpowers of the prerogative were to a certain extent beyond the reach of
Parliamentary enactment. We need not, however, now enter into thepolitical controversies of another age. All that need be noticed isthat though certain powers--as,for example, the right of making
treaties--are now left by law in the hands of the Crown, and are
exercised in fact by the executive government, no modem lawyer
would maintain that these powers or any other branch of royal au35 See Colquhoun v. Brooks, 21 Q. B. D. (C. A.), 52; and compare
PP- 57, 58, with the judgment of Fry, L. J., ibid. pp. 61. 62.

the languageof Lord Esher,

36 See Stubbs, Constitutional History, ii. pp. 239, 486, 513-515.
37 Gardiner, History, iii. pp. 2-5; compare, as to Bacon's view of the prerogative,
Bacon, by Edwin A. Abbott, pp. 14o, 26Ot 279.

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20

FrancisTHE NATURE OF PARLIAMENTARYSOVEREIGNTY

thority could not be regulated or abolished by Act of Parliament, or,what is the same thing, that the judges might legally treat as invalid astatute, say, regulating the mode in which treaties are to be made, ormaking the assent or the Houses of Parliament necessary to the validity of a treaty. 38_gThirdly, language has occasionally been used in Acts of Parliament
4ct_ ot:_rj,_r_ent
Which implies that one Parliament can make laws which cannot betouched by any subsequent Parliament, and that therefore the legislative authority of an existing Parliament may be limited by the enactments of its predecessors. 39:,_Act_of That Parliaments have more than once intended and endeavoured
Lpaon
to pass Acts which should tie the hands of their successors is certain,
but the endeavour has always ended in failure. Of statutes intended
to arrest the possible course of future legislation, the most noteworthy are the Acts which embody the treaties of Union with Scotland 4°
and Ireland. 4_The legislators who passed these Acts assuredly intended to give to certain portions of them more than the ordinary
effect of statutes. Yet the history of legislation in respect of these very
38 Compare the parliamentary practice in accordance with which the consent or recommendation of the Crown is required to the introduction of bills touching the prerogative or
the interests of the Crown.
39 This doctrine was known to be erroneous by Bacon. "The principal law that was madethis Parliament was a law of a strange nature, rather just than legal, and more magnanimous than provident. This law did ordain, That no person that did assist in arms orotherwise the King for the time being, should after be impeached therefor, or attainted
either by the course of law or by Act of Parliament; for if any such act of attainder did hap tobe made, it should be void and of none effect .... But the force and obligation of this law
was in itself illusory, as to the latter part of it; (by a precedent Act of Parliament to bind or
frustrate a future). For a supreme and absolute power cannot conclude itself, neither canthat which is in nature revocable be made fixed; no more than if a man should appoint or
declare by his will that if he made any later will it should be void. And for the case of the Act
of Parliament, there is a notable precedent of it in King Henry the Eighth's time, who
doubting he might die in the minority of his son, provided an Act to pass, That no statutemade during the minority of a king should bind him or his successors, except it wereconfirmed by the king under his great seal at his full age. But the first Act that passed inKing Edward the Sixth's time was an ACt of repeal of that former Act; at which timenevertheless the King was minor. But things that do not bind may satisfy for the time."
Works of Francis Bacon, vi., by Spedding, Ellis, and Heath (18(n), pp. 159, x6o.
40 The Union with Scotland ACt, 17o6, 6 Anne, c. 11.
41 The Union with Ireland Act, 18oo, 39 & 4° Geo. III., c. 67.

CHAPTER I

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LAW OF THE CONSTITUTION

Acts affords the strongest proof of the futility inherent in every attempt of one sovereign legislature to restrain the action of anotherequally sovereign body. Thus the Act of Union with Scotland enacts
in effect that every professor of a Scotch University shall acknowledge and profess and subscribe the Confession of Faith as his profession of faith, and in substance enacts that this provision shall be afundamental and essential condition of the treaty of union in all timecoming. 42But this very provision has been in its main part repealedby the Universities (Scotland) Act, 2853,43which relieves most professors in the Scotch universities from the necessity of subscribing theConfession of Faith. Nor is this by any means the only inroad madeupon the terms of the Act of Union; from one point of view at any
rate the Act 10Anne, c. 12,_ restoring the exercise of lay patronage,
was a direct infringement upon the Treaty of Union. The intended
unchangeableness, and the real liability of these Acts or treaties to bechanged by Parliament, comes out even more strikingly in the historyof the Act of Union with Ireland. The fifth Article of that Act runs asfollows:
That it be the fifth artide of Union, that the Churches of England and Ireland
as now by law established, be united into one Protestant episcopal Church,
to be called the United Church of England and Ireland; and that the doctrine,
worship, discipline, and government of the said United Church shall be andshall remain in full force for ever, as the same are now by law established for
the Church of England; and that the continuance and preservation of thesaid United Church, as the established Church of England and Ireland, shallbe deemed and be taken to be an essential and fundamental part of theUnion.

That the statesmen who drew and passed this Article meant tobind the action of future Parliaments is apparent from its language.
That the attempt has failed of success is apparent to every one who
knows the contents of the Irish Church Act, 2869.
Actright
hm.-of
One Act, indeed, of the British Parliament might, looked at in themg
P_.amentlightof history, daim a peculiar sanctity. It is certainly an enactmenttotax colOnly.

42 See 6 Anne, c. 11,art. 25.
43 16 &17Vict. c. 89, s. I.
44 Compare Innes, Law of Creedsin Scotland, pp. 118-12_.
PART I

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THE NATURE OF PARLIAMENTARY SOVEREIGNTY

of which the terms, we may safely predict, will never be repealed andthe spirit will never be violated. This Act is the Taxation of Colonies
Act, 1778.4s It provides that Parliament
will not impose any duty, tax, or assessment whatever, payable in any of his
Majesty's colonies, provinces, and plantations in North America or the West
Indies; except only such duties as it may be expedient to impose for the regulation of commerce; the net produce of such duties to be always paid andapplied to and for the use of the colony, province, or plantation, in which thesame shall be respectively levied, in such manner as other duties collected by theauthority of the respective general courts, or general assemblies, of such colonies,
provinces, or plantations, are ordinarily paid and applied. 46

This language becomes the more impressive when contrasted with
the American Colonies Act, _776,47which, being passed in that year
to repeal the Acts imposing the Stamp Duties, carefully avoids any
surrender of Parliament's right to tax the colonies. There is no need todwell on the course of events of which these two Acts are a statutory
record. The point calling for attention is that though policy and prudence condemn the repeal of the Taxation of Colonies Act, _778, orthe enactment of any law inconsistent with its spirit, there is under
our constitution no legal difficulty in the way of repealing or overriding this Act. If Parliament were tomorrow to impose a tax, say on
New Zealand or on the Canadian Dominion, the statute imposing it
would be a legally valid enactment. As stated in short by a very
judicious writer-It is certain that a Parliament cannot so bind its successors by the terms ofany statute, as to limit the discretion of a future Parliament, and thereby
disable the Legislature from entire freedom of action at any future time when
it might be needful to invoke the interposition of Parliament to legislate forthe public welfare. 48

45 28Geo. II1., c. 12.
46 18Geo. III., c. 12, s. _.
47 6Geo. llI., c. _.
48 Todd, ParliamentaryGovernment in the British Colonies,p. 192. It is a matter of curious,
though not uninstructive, speculation to consider why it is that Parliament, though on
several occasions passing Acts which were intended to be immutable, has never in reality
succeeded in restricting its own legislative authority.
This question may be considered either logically or historically.
CHAPTER I

23

LAW OF THE CONSTITUTION

Parliamentary sovereignty is therefore an undoubted legal fact.
It is complete both on its positive and on its negative side. Parliament can legally legislate on any topic whatever which, in the judgment of Parliament, is a fit subject for legislation. There is no power
which, under the English constitution, can come into rivalry with thelegislative sovereignty of Parliament.
The logical reason why Parliament has failed in its endeavours to enact unchangeable
enactments is that a sovereign power cannot, while retaining its sovereign character, restrict
its own powers by any particular enactment. An ACt, whatever its terms, passed by Parliament might be repealed in a subsequent,
or indeed in the same, session, and there would
be nothing to make the authority of the repealing Parliament less than the authority of the
Parliament by which the statute, intended to be immutable, was enacted. "Limited
Sovereignty,"
in short, is in the case of a Parliamentary as of every other sovereign, acontradiction in terms. Its frequent and convenient use arises from its in reality signifying,
and being by any one who uses words with any accuracy understood to signify, that someperson, e.g. a king, who was at one time a real sovereign or despot, and who is in nametreated as an actual sovereign, has become only a part of the power which is legally
supreme or sovereign in a particular state. This, it may be added, is the true position of theking in most constitutional monarchies.
Let the reader, however, note that the impossibility of placing a limit of the exercise ofsovereignty does not in any way prohibit either logically, or in matter of fact, the abdicationof sovereignty. This is worth observation, because a strange dogma is sometimes put
forward that a sovereign power, such as the Parliament of the United Kingdom, can neverby its own act divest itself of sovereignty. This position is, however, clearly untenable. An
autocrat, such as the Russian Czar, can undoubtedly
abdicate; but sovereignty or thepossession of supreme power in a state, whether it be in the hands of a Czar or of aParliament, is always one and the same quality. If the Czar can abdicate, so can a Parliament. To argue or imply that because sovereignty is not limitable (which is true) it cannot besurrendered(which is palpably untrue) involves the confusion of two distinct ideas. It is
like arguing that because no man can, while he lives, give up, do what he will, his freedomof volition, so no man can commit suicide. A sovereign power can divest itself of authority
in two ways, and (it is submitted) in two ways only. It may simply put an end to its own
existence. Parliament could extinguish itself by legally dissoving itself and leaving no means
whereby a subsequent Parliament could be legally summoned. (See Bryce, American Commonwealth, i, (3rd ed.), p. 242, note 2.) A step nearly approaching to this was taken by the
Barebones Parliament when, in 2653, it resigned its power into the hands of Cromwell. A
sovereign again may transfer sovereign authority to another person or body of persons. The
Parliament of England went very near doing this when, in 1539, the Crown was empowered to legislate by proclamation; and though the fact is often overlooked, the Parliaments both of England and of Scotland did, at the time of the Union, each transfer
sovereign power to a new sovereign body, namely, the Parliament of Great Britain. This
Parliament, however, just because it acquired the full authority of the two legislatures bywhich it was constituted, became in its turn a legally supreme or sovereign legislature,authorised therefore, though contrary perhaps to the intention of its creators, to modify or

PARTI

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THE NATURE OF PARLIAMENTARYSOVEREIGNTY

No one of the limitations alleged to be imposed by law on theabsolute authority of Parliament has any real existence, or receives
any countenance, either from the statute-book or from the practice of
the Courts.
This doctrine of the legislative supremacy of Parliament is the very
keystone of the law of the constitution. But it is, we must admit, adogma which does not always find ready acceptance, and it is well
worth while to note and examine the difficulties which impede theadmission of its truth.
abrogate the Act of Union by which it was constituted. If indeed the Act of Union had leftalive the Parliaments of England and of Scotland, though for one purpose only, namely, tomodify when necessary the ACt of Union, and had conferred upon the Parliament of GreatBritain authority to pass any law whatever which did not infringe upon or repeal the ACt of
Union, then the Act of Union would have been a fundamental law unchangeable legally by
the British Parliament: but in this case the Parliament of Great Britain would have been, nota sovereign, but a subordinate, legislature, and the ultimate sovereign body, in the technical sense of that term, would have been the two Parliaments of England and of Scotland
respectively. The statesmen of these two countries saw fit to constitute a new sovereign
Parliament, and every attempt to tie the hands of such a body necessarily breaks down, on
the logical and practical impossibility of combining absolute legislative authority with restrictions on that authority which, if valid, would make it cease to be absolute.
The historical reason why Parliament has never succeeded in passing immutable laws, orin other words, has always retained its character of a supreme legislature, lies deep in thehistory of the English people and in the peculiar development of the English constitution.
England has, at any rate since the Norman Conquest, been always governed by an absolute
legislator. This lawgiver was originally the Crown, and the peculiarity of the process bywhich the English constitution has been developed lies in the fact that the legislative
authority of the Crown has never been curtailed, but has been transferred from the Crown
acting alone (or rather in Council) to the Crown acting first together with, and then insubordination to, the Houses of Parliament. Hence Parliament, or in technical terms
the King in Parliament, has become--it
would perhaps be better to say has always
rernained--asupreme legislature. It is well worth notice that on the one occasion when
English reformers broke from the regular course of English historical development,
theyframed a written constitution, anticipating in many respects the constitutionalismof theUnited States, and placed the constitution beyond the control of the ordinary legislature. It
is quite dear that, under the Instrument of Government of 1653, Cromwell intended certain
fundamentals to be beyond the reach of Parliament. It may be worth observing that theconstitution of 1653 placed the Executive beyond the control of the legislature. The Protector
under it occupied a position which may well be compared either with that of the American
President or of the German Emperor. See Harrison, Cromwell, pp. _94-2o 3. For a view ofsovereignty which, though differing to a certain extent from the view put forward in thiswork, is full of interest and instruction, my readers are referred to Professor Sidgwick's
Elements of Politics, ch. xxxi. "Sovereignty and Order."CHAPTERI

25

LAW OF THE CONSTITUTION

DIFFICULTIES AS TO THE DOCTRINEOF PARLIAMENTARY SOVEREIGNTYD,
The reasons why many persons find it hard to accept the doctrine
as ftof_ult,
Par- esh,menta_of Parliamentary sovereignty are twofold.
sovereignty
c_ff_culty
The dogma sounds like a mere application to the British constitufrom
Aos_n's tion of Austin's theory of sovereignty, and yet intelligent students oftheory Austin must have noticed that Austin's own conclusion as to thepersons invested with sovereign power under the British constitution
does not agree with the view put forward, on the authority of English
lawyers, in these lectures. For while lawyers maintain that sovereignty resides in "Parliament," i.e. in the body constituted by theKing, the House of Lords, and the House of Commons, Austin
holds 49that the sovereign power is vested in the King, the House ofLords, and the Commons or the electors.
Difficulty
Every one, again, knows as a matter of common sense that, whatfrom
actualh_t_on ever lawyers may say, the sovereign power of Parliament is not un°fn_a°hwer
limited, and that King, Lords, and Commons united do not possess
mentanything like that "restricted omnipotence"--if
the term may be
excused--whichis the utmost authority ascribable to any humaninstitution. There are many enactments, and these laws not in themselves obviously unwise or tyrannical, which Parliament never would
and (to speak plainly) never could pass. If the doctrine of Parliamentary sovereignty involves the attribution of unrestricted power toParliament, the dogma is no better than a legal fiction, and certainly is
not worth the stress here laid upon it.
Both these difficulties are real and reasonable difficulties. They are,it will be found, to a certain extent connected together, and well
repay careful consideration.
CnbasmAS to Austin's theory of sovereignty in relation to the British conon Austin'sthe°,., stitution, sovereignty, like many of Austin's conceptions, is a
generalisation drawn in the main from English law, just as the ideas
49 See Austin, Jurisprudence,i. (4th ed.), pp. 251-255. Compare Austin's language as to thesovereign body under the constitution of the United States. (Austin, Jurisprudence,i. (4thed.), p. 2683

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THE NATURE

OF PARUAMENTARYSOVEREIGNTY

of the economists of Austin's generation are (to a great extent) generalisations suggested by the circumstances of English commerce. In
England we are accustomed to the existence of a supreme legislative
body, i.e. a body which can make or unmake every law; and which,therefore, cannot be bound by any law. This is, from a legal point ofview, the true conception of a sovereign, and the ease with which thetheory of absolute sovereignty has been accepted by English jurists isdue to the peculiar history of English constitutional law. So far, therefore, from its being true that the sovereignty of Parliament is a deduction from abstract theories of jurisprudence, a critic would comenearer the truth who asserted that Austin's theory of sovereignty issuggested by the position of the English Parliament, just as Austin's
analysis of the term "law" is at Bottom an analysis of a typical law,
namely, an English criminal statute.
It should, however, be carefully noted that the term "sovereignty,"
as long as it is accurately employed in the sense in which Austin
sometimes s° uses it, is a merely legal conception, and means simply
the power of law-making unrestricted by any legal limit. If the term"sovereignty" be thus used, the sovereign power under the English
constitution is dearly "Parliament." But the word "sovereignty" issometimes employed in a political rather than in a strictly legal sense.
That body is "politically" sovereign or supreme in a state the will ofwhich is ultimately obeyed by the citizens of the state. In this sense of
the word the electors of Great Britain may be said to be, together with
the Crown and the Lords, or perhaps, in strict accuracy, independently of the King and the Peers, the body in which sovereign poweris vested. For, as things now stand, the will of the electorate, andcertainly of the electorate in combination with the Lords and the
Crown, is sure ultimately to prevail on all subjects to be determinedby the British government. The matter indeed may be carried a little
further, and we may assert that the arrangements of the constitution
are now such as to ensure that the will of the electors shall by regularand constitutional means always in the end assert itself as the pre50 Compare Austin, Jurisprudence, i. (4th ed.), p. 268.

CHAPTERI

27

LAW OF THE CONSTITUTION

dominant influence in the country. But this is a political, not a legal
fact. The electors can in the long run s_ always enforce their will. But
the Courts will take no notice of the will of the electors. The judges
know nothing about any will of the people except in so far as that willis expressed by an Act of Parliament, and would never suffer thevalidity of a statute to be questioned on the ground of its having been
passed or being kept alive in opposition to the wishes of the electors.
The political sense of the word "sovereignty" is, it is true, fully as
important as the legal sense or more so. But the two significations,though intimately connected together, are essentially different, andin some part of his work Austin has apparently confused the one
sense with the other. He writes:
Adopting
the languageof some of the writers who have treated of the
British constitution,
I commonly
supposethat the present parliament,or theparliament
for the time being, is possessedof the sovereignty:
or I commonly
supposethat the King and the Lords, with the membersof the Commons'house, form a tripartite
body which is sovereignor supreme.
But, speaking
accurately,
the membersof the Commons'house are merely trustees forthe body by which they are elected and appointed:
and, consequently,
thesovereignty
always resides in the King and the Peers, with the electoral body

52 The working of a constitution is greatly affected by the rate at which the will of thepolitical sovereign can make itself felt. In this matter we may compare the constitutions of
the United States, of the Swiss Confederacy, and of the United Kingdom respectively. In
each case the people of the country, or to speak more accurately the electorate, are politically sovereign. The action of the people of the United States in changing the Federal
Constitution is impeded by many difficulties, and is practically slow; the Federal Constitution has, except after the civil war, not been materially changed during the century which
has elapsed since its formation. The Articles of the Swiss Confederation
admit of more easychange than the Articles of the United States Constitution, and since 1848 have undergone
considerable modification. But though in one point of view the present constitution, revisedin 1874, may be considered a new constitution, it does not differ fundamentallyfrom that of
2848. As things now stand, the people of England can change any part of the law of theconstitution with extreme rapidity. Theoretically there is no check on the action of Parliament whatever, and it may be conjectured that in practice any change however fundamental would be at once carried through, which was approved of by one House of Commons,and, after a dissolution of Parliament, was supported by the newly elected House. The
paradoxical and inaccurate assertion, therefore, that England is more democratically governed than either the United States or Switzerland, contains a certain element of truth; theimmediate wishes of a decided majority of the electorate of the United Kingdom can be
more rapidly carried into legal effect than can the immediate wishes of a majority among
the people either of America or of Switzerland.

PARTI

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THE NATURE

OF PARUAMENTARYSOVEREIGNTY

of the Commons.
That a trust is imposed by the party delegating,and that
the party representing
engages to discharge
the trust, seems to be importedby the correlative expressionsdelegation and representation. It were absurd to
suppose that the delegating
empowers
the representative
party to defeat or
abandon any of the purposes
for which the latter is appointed:
to suppose,for example, that the Commons
empower
their representatives
in parliament
to relinquish their share in the sovereignty
to the King and the Lords. s2

Austin owns that the doctrine here laid down by him is inconsistent with the language used by writers who have treated of the British
constitution. It is further absolutely inconsistent with the validity of
the Septennial Act. Nothing is more certain than that no English
judge ever conceded, or, under the present constitution, can concede, that Parliament is in any legal sense a "trustee ''s3 for the electors. Of such a feigned "'trust" the Courts know nothing. The plain
truth is that as a matter of law Parliament is the sovereign power inthe state, and that the "'supposition" treated by Austin as inaccurateis the correct statement of a legal fact which forms the basis of ourwhole legislative and judicial system. It is, however, equally true thatin a political sense the electors are the most important part of, we may
even say are actually, the sovereign power, since their will is under
the present constitution sure to obtain ultimate obedience. The language therefore of Austin is as correct in regard to "political" sovereignty as it is erroneous in regard to what we may term 'qegal"sovereignty. The electors are a part of and the predominant part ofthe politically sovereign power. But the legally sovereign power isassuredly, as maintained by all the best writers on the constitution,
nothing but Parliament.
It may be conjectured that the error of which (from a lawyer's pointof view) Austin has been guilty arises from his feeling, as every
person must feel who is not the slave to mere words, that Parliamentis (as already pointed out s4)nothing like an omnipotent body, butthat its powers are practically limited in more ways than one. And
52 Austin, Jurisprudence, i. (4th ed.), p. 253.
53 This Austin concedes, but the admission is fatal to the contention that Parliament is notin strictness a sovereign. (See Austin Jurisprudence, i. (4th ed.), pp. 252, 253. )54 See p. 26, ante.

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LAW OF THE CONSTITUTION

this limitation Austin expresses, not very happily, by saying that themembers of the House of Commons are subject to a trust imposed
upon them by the electors. This, however, leads us to our second
difficulty, namely, the coexistence of parliamentary sovereignty withthe fact of actual limitations on the power of Parliment.
Existence
AS to the actual limitations on the sovereign power of Parliament,ofactual_im_t_ons
the actual exercise of authority by any sovereign whatever, and notato
power
not,nco,-bly
by Parliament, is bounded or controlled by two limitations. Of
slstent
with_overe,gntythese the one is an external, the other is an internal limitation.
External The external limit to the real power of a sovereign consists in thelimitpossibility or certainty that his subjects, or a large number of them,will disobey or resist his laws.
This limitation exists even under the most despotic monarchies. A
Roman Emperor, or a French King during the middle of the eighteenth century, was (as is the Russian Czar at the present day) instrictness a "sovereign" in the legal sense of that term. He had absolute legislative authority. Any law made by him was binding, andthere was no power in the empire or kingdom which could annul
such law. It may also be true, -- though here we are passing from thelegal to the political sense of sovereignty,--thatthe will of an absolute monarch is in general obeyed by the bulk of his subjects. But itwould be an error to suppose that the most absolute ruler who everexisted could in reality make or change every law at his pleasure.
That this must be so results from considerations which were long ago
pointed out by Hume. Force, he teaches, is in one sense always on
the side of the governed, and government therefore in a sense always
depends upon opinion. He writes:
Nothing appears
more surprising
to those, who consider human affairs
with a philosophicaleye, than the easiness with which the many are governed by the few; and the implicit submission,
with which men resign theirown sentiments
and passions
to those of their rulers. When we inquire bywhat means this wonder is effected, we shall find, that, as force is always on
the side of the governed,
the governors
have nothing to support
them butopinion. It is, therefore,on opinion only that government
is founded;andthis maxim extends to the most despotic and most military governments,
as well as to the most free and most popular.
The Soldan of Egypt, or theEmperorof Rome, might drive his harmless
subjects, like brute beasts,

PARTI

30

THE NATURE OF PARLIAMENTARY SOVEREIGNTY
against their sentiments and inclination: But he must, at least, have led his
mamalukes or praetorian bands, like men, by their opinion, ss

The authority, that is to say, even of a despot, depends upon the_,t_rn_readinessof his subjects or of some portion of his subjects to obey his
hmJton_,_c,,eo,behests; and this readiness to obey must always be in reality limited.
,0_erelgn
p...... This is shown by the most notorious facts of history. None of theearly Caesars could at their pleasure have subverted the worship or
fundamental institutions of the Roman world, and when Constantine
carried through a religious revolution his success was due to thesympathy of a large part of his subjects. The Sultan could not abolish
Mahommedanism.
Louis the Fourteenth at the height of his power
could revoke the Edict of Nantes, but he would have found it impossible to establish the supremacy of Protestantism, and for the same
reason which prevented James the Second from establishing thesupremacy of Roman Catholicism. The one king was in the strict
sense despotic; the other was as powerful as any English monarch.
But the might of each was limited by the certainty of popular disobedience or opposition. The unwillingness of subjects to obey may
have reference not only to great changes, but even to small matters.
The French National Assembly of _87_was emphatically the sovereign power in France. The majority of its members were (it is said)
prepared for a monarchical restoration, but they were not prepared torestore the white flag: the army which would have acquiesced in the
return of the Bourbons, would not (it was anticipated) tolerate thesight of an anti-revolutionary symbol: "the chassepots would go off ofthemselves." Here we see the precise limit to the exercise of legalsovereignty; and what is true of the power of a despot or of theauthority of a constituent assembly is specially true of the sovereignty
of Parliament; it is limited on every side by the possibility of popular
resistance. Parliament might legally establish an Episcopal Church in
Scotland; Parliament might legally tax the Colonies; Parliament might
without any breach of law change the succession to the throne orabolish the monarchy; but every one knows that in the present stateof the world the British Parliament will do none of these things. In_ratlon;of

55 Hume, Essays, i. (_875ed.), pp. lo9, ,lo.

CHAPTERI

3i

LAW

OF THE CONSTJTUTION

each case widespread resistance would result from legislation which,though legally valid, is in fact beyond the stretch of Parliamentary
power. Nay, more than this, there are things which Parliament hasdone in other times, and done successfully, which a modern Parliament would not venture to repeat. Parliament would not at the present day prolong by law the duration of an existing House of Commons. Parliament would not without great hesitation deprive of theirvotes large dasses of Parliamentary electors; and, speaking generally,
Parliament would not embark on a course of reactionary legislation;
persons who honestly blame Catholic Emancipation and lament thedisestablishment of the Irish Church do not dream that Parliament
could repeal the statutes of 1829 or of 1869. These examples fromamong a score are enough to show the extent to which the theoretically boundless sovereignty of Parliament is curtailed by the external
limit to its exercise.
Internal
The internal limit to the exercise of sovereignty arises from thelimit. Illust_at,
on_ nature of the sovereign power itself. Even a despot exercises his
powers in accordance with his character, which is itself moulded by
the circumstances under which he lives, including under that headthe moral feelings of the time and the society to which he belongs.
The Sultan could not if he would change the religion of the Mahommedan world, but if he could do so it is in the very highest degree
improbable that the head of Mahommedanism
should wish to overthrow the religion of Mahomet; the internal check on the exercise of
the Sultan's power is at least as strong as the external limitation.
People sometimes ask the idle question why the Pope does not introduce this or that reform? The true answer is that a revolutionist is not
the kind of man who becomes a Pope, and that the man who becomes a Pope has no wish to be a revolutionist. Louis the Fourteenth
could not in all probability have established Protestantism as thenational religion of France; but to imagine Louis the Fourteenth as
wishing to carry out a Protestant reformation is nothing short ofimagining him to have been a being quite unlike the Grand Monarque.
Here again the internal check works together with the external check,and the influence of the internal limitation is as great in the case of aParliamentary sovereign as of any other; perhaps it is greater. Parlia-

PARTI

_2

THE NATURE OF PARLIAMENTARY SOVEREIGNTY

ment could not prudently tax the Colonies; but it is hardly conceivable that a modern Parliament, with the history of the eighteenth
century before its eyes, should wish to tax the Colonies. The combined influence both of the external and of the internal limitation onlegislative sovereignty is admirably stated in Leslie Stephen's Sc/enceof Ethics, whose chapter on "Law and Custom" contains one of thebest statements to be met with of the limits placed by the nature ofthings on the theoretical omnipotence of sovereign legislatures.
Lawyers are apt to speak as though the legislature were omnipotent, as
they do not require to go beyond its decisions. It is, of course, omnipotent in
the sense that it can make whatever laws it pleases, inasmuch as a law means
any rule which has been made by the legislature. But from the scientificpoint of view, the power of the legislature is of course strictly limited. It islimited, so to speak, both from within and from without; from within, because the legislature is the product of a certain social condition, and determined by whatever determines the society; and from without, because
the power of imposing laws is dependent upon the instinct of subordination, which is itself limited. If a legislature decided that all blue-eyed babies
should be murdered, the preservation of blue-eyed babies would be illegal;
but legislators must go mad before they could pass such a law, and subjects
be idiotic before they could submit to it. s6_m,t_ma_notc0modeThough sovereign power is bounded by an external and an internal
limit,
neither boundary is very definitely marked, nor need the two
precisely coincide. A sovereign may wish to do many things which
he either cannot do at all or can do only at great risk of serious
resistance, and it is on many accounts worth observation that theexact point at which the external limitation begins to operate, that is,
the point at which subjects will offer serious or insuperable resistanceto the commands of a ruler whom they generally obey, is never fixedwith precision. It would be rash of the Imperial Parliament to abolishthe Scotch law Courts, and assimilate the law of Scotland to that ofEngland. But no one can feel sure at what point Scotch resistance tosuch a change would become serious. Before the War of Secession
the sovereign power of the United States could not have abolishedslavery without provoking a civil war; after the War of Secession
56 Leslie Stephen, Scienceof Ethics, p. 143.

CHAPTER

l

33

LAW

OF THE CONSTITUTION

the sovereign power abolished slavery and conferred the electoral
franchise upon the Blacks without exciting actual resistance.
RepresenIn reference to the relation between the external and the internal
tatlve government
limit to sovereignty, representative government presents a noteworproducesco,ha-be- thy peculiarity. It is this. The aim and effect of such government is todence
ternaltWeenandeXproduce a coincidence, or at any rate diminish the divergence, beinternal tween the external and the internal limitations on the exercise ofhmlt
sovereign power. Frederick the Great may have wished to introduce,and may in fact have introduced, changes or reforms opposed to thewishes of his subjects. Louis Napoleon certainly began a policy of free
trade which would not be tolerated by an assembly which truly represented French opinion. In these instances neither monarch reached
the external limit to his sovereign power, but it might very well have
happened that he might have reached it, and have thereby provoked
serious resistance on the part of his subjects. There might, in short,have arisen a divergence between the internal and the external check.
The existence of such a divergence, or (in other words) of a difference
between the permanent wishes of the sovereign, or rather of the King
who then constituted a predominant part of the sovereign power,
and the permanent wishes of the nation, is traceable in Englandthroughout the whole period beginning with the accession of Jamesthe First and ending with the Revolution of 2688. The remedy for thisdivergence was found in a transference of power from the Crown to
the Houses of Parliament; and in placing on the throne rulers whofrom their position were induced to make their wishes coincide withthe will of the nation expressed through the House of Commons; thedifference between the will of the sovereign and the will of the nation
was terminated by the foundation of a system of real representative
government. Where a Parliament truly represents the people, thedivergence between the external and the internal limit to the exercise
of sovereign power can hardly arise, or if it arises, must soon disappear. Speaking roughly, the permanent wishes of the representative
portion of Parliament can hardly in the long run differ from thewishes of the English people, or at any rate of the electors; that which
the majority of the House of Commons command, the majority of the
English people usually desire. To prevent the divergence between thewishes of the sovereign and the wishes of subjects is in short the
PARTI

34

THE NATURE OF PARLIAMENTARY SOVEREIGNTY

effect, and the only certain effect, of bork5 fide representative government. For our present purpose there is no need to determine
whether this result be good or bad. An enlightened sovereign has
more than once carried out reforms in advance of the wishes of his
subjects. This is true both of sovereign kings and, though more
rarely, of sovereign Parliaments. But the sovereign who has done
this, whether King or Parliament, does not in reality represent his
subjects, s7 All that it is here necessary to insist upon is that theessential property of representative government is to produce coincidence between the wishes of the sovereign and the wishes of thesubjects; to make, in short, the two limitations on the exercise ofsovereignty absolutely coincident. This, which is true in its measureof all real representative government, applies with special truth to theEnglish House of Commons.
Burke writes:
The House of Commons was supposed originally to be no part of the standing government of this country. It was considered as a control, issuing immediatelyfrom the people, and speedily to be resolved into the mass from whence it
arose. In this respect it was in the higher part of government what juries arein the lower. The capacity of a magistrate being transitory, and that of a citizen
permanent, the latter capacity it was hoped would of course preponderate in all
discussions, not only between the people and the standing authority of the
Crown, but between the people and the fleeting authority of the House ofCommons itself. It was hoped that, being of a middle nature between subject
and government, they would feel with a more tender and a nearer interest
everything that concerned the people, than the other remoter and more permanent parts of legislature.
Whatever alterations time and the necessary accommodation of business
may have introduced, this character can never be sustained, unless theHouse of Commons shall be made to bear some stamp of the actual disposition of the people at large. It would (among public misfortunes) be an evil
more natural and tolerable, that the House of Commons should be infectedwith every epidemical phrensy of the people, as this would indicate someconsanguinity, some sympathy of nature with their constitutents, than thatthey should in all cases be wholly untouched by the opinions and feelings ofthe people out of doors. By this want of sympathy they would cease to be a
House of Commons.SS
57 Compare Law and Opinion in England, pp. 4, 5.
58 Burke, Works, ii. (_8o8 ed.), pp. 287, 288. See further in reference to Parliamentary
sovereignty, App. Note III., Distinction between a ParliamentaryExecutive and a NonParliamentary Executive.
CHAPTER

I

35

Chapter II

PARLIAMENT AND NON-SOVEREIGN
LAW-MAKING BODIES

A,mofchapter,"]Fn my last chapter I dwelt upon the nature of Parliamentary

sover-

leignty;object in by
thiscomparing
chapter is theto illustratecharacteristics
of such mysovereignty
essential thefeaturesof asovereign Parliament like that of England with the traits which marknon-sovereign law-making bodies.
CHARACTERISTICS

OF SOVEREIGN PARLIAMENT

ParliamenThe characteristics of Parliamentary sovereignty may be deduced
ta D' sovereignty,
from the term itself. But these traits are apt to escape the attention ofEnglishmen, who have been so accustomed to live under the rule of asupreme legislature, that they almost, without knowing it, assume
that all legislative bodies are supreme, and hardly therefore keep
dear before their minds the properties of a supreme as contrasted
with a non-sovereign law-making body. In this matter foreign observers are, as is natural, dearer-sighted
than Englishmen. De Lolme,
Gneist, and Tocqueville seize at once upon the sovereignty of Parliament as a salient feature of the English constitution, and recognise
the far-reaching effects of this marked peculiarity in our institutions.
Tocqueville writes:
In England, the Parliament has an acknowledged right to modify theconstitution; as, therefore, the constitution may undergo perpetual changes,

PART I36

PARLIAMENT AND NON-SOVEREIGN LAW-MAKING BODIES
it does not in reality exist; the Parliament is at once a legislative and aconstituent assembly. 1

His expressions are wanting in accuracy, and might provoke somecriticism, but the description of the English Parliament as at once "alegislative and a constituent assembly" supplies a convenient formulafor summing up the fact that Parliament can change any law whatever. Being a "legislative" assembly it can make ordinary laws, beinga "constituent" assembly it can make laws which shift the basis of theconstitution. The results which ensue from this fact may be brought
under three heads.
_%rhament_,,
First, there is no law which Parliament cannot change, or (to put....o, the same thing somewhat differently), fundamental or so-called con_h_n_estitutional laws are under our constitution changed by the same bodyand in the same manner as other laws, namely, by Parliament acting
in its ordinary legislative character.
A Bill for reforming the House of Commons, a Bill for abolishing
the House of Lords, a Bill to give London a municipality, a Bill tomake valid marriages celebrated by a pretended dergyman, who isfound after their celebration not to be in orders, are each equally
within the competence of Parliament, they each may be passed in
substantially the same manner, they none of them when passed willbe, legally speaking, a whit more sacred or immutable than theothers, for they each will be neither more nor less than an Act ofParliament, which can be repealed as it has been passed by Parliament, and cannot be annulled by any other power.
\0dlstmcSecondly, there is under the English constitution no marked or dear
_10qbe,,,,,nco,distinction
between laws which are not fundamental or constitutional,tltuhonal_.aord.
and laws which are fundamental or constitutional. The very language'_arvlaws
therefore, expressing the difference between a 'qegislative" assembly
which can change ordinary laws and a "constituent" assembly which
can change not only ordinary but also constitutional and fundamental
laws, has to be borrowed from the political phraseology of foreigncountries.
Tocqueville, i. (translation), p. 96, CEuvresCompletes,i. pp. 166,167.

CHAPTER

II

37

LAW OF THE CONSTITUTION

Relation
This absence of any distinction between constitutional and ordibetween
Par,amennary laws has a dose connection with the non-existence in England oftary sovere,gnty
and any written or enacted constitutional statute or charter. Tocquevillean
unwIlttencons_-indeed, in common with other writers, apparently holds the untufion.
written character of the British constitution to be of its essence:"L'Angleterre n'ayant point de constitution 6crite, qui peut direqu'on change sa constitution? ''2 But here Tocqueville falls into anerror, characteristic both of his nation and of the weaker side of his
own rare genius. He has treated the form of the constitution as thecause of its substantial qualities, and has inverted the relation of
cause and effect. The constitution, he seems to have thought, waschangeable because it was not reduced to a written or statutory fom-t.
It is far nearer the truth to assert that the constitution has never been
reduced to a written or statutory form because each and every part of
it is changeable at the will of Parliament. When a country is governed
under a constitution which is intended either to be unchangeable orat any rate to be changeable only with special difficulty, the constitution, which is nothing else than the laws which are intended to havea character of permanence or immutability, is necessarily expressed inwriting, or, to use English phraseology, is enacted as a statute.
Where, on the other hand, every law can be legally changed withequal ease or with equal difficulty, there arises no absolute need for
reducing the constitution to a written form, or even for looking upona definite set of laws as specially making up the constitution. One
main reason then why constitutional laws have not in England beenrecognised under that name, and in many cases have not been reduced to the form of a statutory enactment, is that one law, whateverits importance, can be passed and changed by exactly the same
method as every other law. But it is a mistake to think that the whole
law of the English constitution might not be reduced to writing and
be enacted in the form of a constitutional code. The Belgian constitution indeed comes very near to a written reproduction of the English
constitution, and the constitution of England might easily beturned into an Act of Parliament without suffering any material
2 Tocqueville,

PARTI

CEuvres Completes, i. p. 312.

J8

PARUAMENTAND NON-SOVEREIGN

LAW-MAKING

BODIEStransformation of character, provided only that the English Parliament retainedmwhat the Belgian Parliament, by the way, does notpossess--theunrestricted power of repealing or amending the constitutional code.
\_p_rsonThirdly, there does not exist in any part of the British Empire any
entitledto
executive, legislative or judicial, which__,_0_nc_
o_Par- person or body of persons,
_,_nt
can
pronouncevoid
anyenactment
passed by the British Parliament,01don the ground of such enactment being opposed to the constitution,or on any ground whatever, except, of course, its being repealed by
Parliament.
These then are the three traits of Parliamentary sovereignty as itexists in England: first, the power of the legislature to alter any law,
fundamental or otherwise, as freely and in the same manner as otherlaws; secondly, the absence of any legal distinction between constitutional and other laws; thirdly, the non-existence of any judicial orother authority having the right to nullify an Act of Parliament, or totreat it as void or unconstitutional.
F_,,b,_y These traits are all exemplifications of the quality which my friend_t,_t,o_Mr. Bryce has happily denominated the "flexibility ''3 of the British
constitution. Every part of it can be expanded, curtailed, amended, or
abolished, with equal ease. It is the most flexible polity in existence,and is therefore utterly different in character from the "rigid" constitutions (to use another expression of Mr. Bryce's) the whole orsome part of which can be changed only by some extra-ordinary
method of legislation.
0t!he con-

CHARACTERISTICS OFNON-SOVEREIGN LAW-MAKING BODIES
Cha_From the attributes of a sovereign legislature it is possible to infer_'_....
negatively what are the characteristics all (or some) of which are thesovereign_"marks of a non-sovereign law-making body, and which therefore
makmg_oa,_ may be called the marks or notes of legislative subordination.
actenstics

3 See Bryce, Studies in History and Jurisprudence, i. Essay III., Flexible and Rigid Constitutions.

CHAPTERU

39LAW OF THE CONSTITUTION

These signs by which you may recognise the subordination of alaw-making body are, first, the existence of laws affecting its constitution which such body must obey and cannot change; hence, secondly, the formation of a marked distinction between ordinary laws
and fundamental laws; and lastly, the existence of some person or
persons, judicial or otherwise, having authority to pronounce upon
the validity or constitutionality of laws passed by such law-making
body.
Wherever any of these marks of subordination exist with regard toa given law-making body, they prove that it is not a sovereign legislature.
Meaningofterm"lawmakm_
body.'

Observe the use of the words "law-making body."
This term is here employed as an expression which may indude
under one head 4 both municipal bodies, such as railway companies,

4 This inclusion has been made the subject of criticism.
The objections taken to it are apparently threefold.
First, there is, it is said, a certain absurdity in bringing into one dass things so different inimportance and in dignity as, for example, the Belgian Parliament and an English Schoolboard. This objection rests on a misconception.
It would be ridiculous to overlook the
profound differences between a powerful legislature and a petty corporation. But there isnothing ridiculous in calling attention to the points which they have in common. The solematter for consideration is whether the alleged similarity be real. No doubt when features oflikeness between things which differ from one another both in appearance and in dignity
are pointed out, the immediate result is to produce a sense of amusement,
but the apparent
absurdity is no proof that the likeness is unreal or undeserving of notice. A man differs froma rat. But this does not make it the less true or the less worth noting that they are bothvertebrate animals.
Secondly, the powers of an English corporation, it is urged, can in general only be exercised reasonably, and any exercise of them is invalid which is not reasonable, and this is nottrue of the laws made, e.g., by the Parliament of a British colony.
The objection admits of more than one reply. It is not universally true that the bye-laws
made by a corporation are invalid unless they are reasonable. But let it be assumed for thesake of argument that this restriction is always, as it certainly is often, imposed on themaking of bye-laws. This concession does not involve the consequence that bye-laws do
not partake of the nature of laws. All that follows from it is a conclusion which nobody
questions, namely, that the powers of a non-sovereign
law-making body may be restricted
in very different degrees.
Thirdly, the bye-laws of a corporation are, it is urged, not laws, because they affect only
certain persons, e.g. in the case of a railway company the passengers on the railway, and donot, like the laws of a colonial legislature, affect all persons coming under the jurisdiction of
the legislature; or to put the same objection in another shape, the bye-laws of a railway
company apply, it is urged, only to persons using the railway, in addition to the general law

PARTI

40

PARLIAMENTAND NON-SOVEREIGN

LAW-MAKING

BODIES

school-boards, town councils, and the like, which possess a limited
power of making laws, but are not ordinarily called legislatures, andbodies such as the Parliaments of the British Colonies, of Belgium, orof France, which are ordinarily called "legislatures," but are not in
reality sovereign bodies.
The reason for grouping together under one name such very
different kinds of "law-making" bodies is, that by far the best way ofclearing up our ideas as to the nature of assemblies which, to use theforeign formula, s are "legislative" without being "constituent," andwhich therefore are not sovereign legislatures, is to analyse the characteristics of societies, such as English railway companies, which possess a certain legislative authority, though the authority is dearlydelegated and subject to the obvious control of a superior legislature.
It will conduce to dearness of thought if we divide non-sovereign
law-making bodies into the two great classes of obviously subordinate bodies such as corporations, the Council of India, etc., and such
legislatures of independent countries as are legislative without being
constituent, i.e. are non-sovereign legislative bodies.
The consideration of the position of the non-sovereign legislatures
which exist under the complicated form of constitution known as afederal government is best reserved for a separate chapter.6of the land by which such persons are also bound, whereas the laws, e.g., of the New
Zealand Parliament constitute the general law of the colony.
The objection is plausible, but does not really show that the similarity insisted upon
between the position of a corporation and, e.g., a colonial legislature is unreal. In either casethe laws made, whether by the corporation or by the legislature, apply only to a limitedclass of persons, and are liable to be overridden by the laws of a superior legislature. Evenin the case of a colony so nearly independent
as New Zealand, the inhabitants are boundfirst by the statutes of the Imperial Parliament, and in addition thereto by the Acts of the
New Zealand Parliament. The very rules which are bye-laws when made by a corporation
would admittedly be laws if made directly by Parliament. Their character cannot bechanged by the fact that they are made by the permission of Parliament through a subordinate legislative body. The Council of a borough, which for the present purpose is a better
example of my meaning than a railway company, passes in accordance with the powers
conferred upon it by Parliament a bye-law prohibiting processions with music on Sunday.
The same prohibition if contained in an Act of Parliament would be admittedly a law. It isnone the less a law because made by a body which is permitted by Parliament to legislate.
5 See p. 37, ante.
6 See Chap.

CHAPTERn

III., post.

41

LAW OF THE CONSTITUTION

Subordinate Law-making Bodies
SubordiCorporations An English railway company is as good an example
natebodies, as can be found of a subordinate law-making body. Such a company
Corpora- is in the strictest sense a law-making society, for it can under thehons.
powers of its Act make laws (called bye-laws) for the regulation (interalia) of travelling upon the railway, 7 and can impose a penalty for thebreach of such laws, which can be enforced by proceedings in the
Courts. The rules therefore or bye-laws made by a company within
the powers of its Act are "laws" in the strictest sense of the term, as
any person will discover to his own cost who, when he travels by railfrom Oxford to Paddington, deliberately violates a bye-law duly
made by the Great Western Railway Company.
But though an English railway company is dearly a law-making
body, it is dearly a non-sovereign law-making body. Its legislative
power bears all the marks of subordination.
First, the company is bound to obey laws and (amongst others) the
Act of Parliament creating the company, which it cannot change. Thisis obvious, and need not be insisted upon.
Secondly, there is the most marked distinction between the Act
constituting the company, not a line of which can be changed by thecompany, and the bye-laws which, within the powers of its Act, thecompany can both make and change. Here we have on a very small
scale the exact difference between constitutional laws which cannot,
and ordinary laws which can, be changed by a subordinate legislature, i.e. by the company. The company, if we may apply to it theterms of constitutional law, is not a constituent, but is within certain
limits a legislative assembly; and these limits are fixed by the constitution of the company.
Thirdly, the Courts have the fight to pronounce, and indeed arebound to pronounce, on the validity of the company's bye-laws; thatis, upon the validity, or to use political terms, on the constitutionalityof the laws made by the company as a law-making body. Note par7 See especially the Companies Clauses Consolidation Act, 2845 (8 & 9 Vict. c. 2o), sees. 203,
lO8-U2. This Act is always embodied in the special Act constituting the company. Its
enactments therefore form part of the constitution of a railway company.

PART I

42

PARLIAMENT AND NON-SOVEREIGN LAW-MAKING BODIES

ticularly that it is not the function of any Court or judge to dedarevoid or directly annul a bye-law made by a railway company. The
function of the Court is simply, upon any particular case coming
before it which depends upon a bye-law made by a railway company,
to decide for the purposes of that particular case whether the bye-law
is or is not within the powers conferred by Act of Parliament upon
the company; that is to say, whether the bye-law is or is not valid,
and to give judgment in the particular case according to the Court'sview of the validity of the bye-law. It is worth while to examine withsome care the mode in which English judges deal with the inquiry
whether a particular bye-law is or is not within the powers given to
the company by Act of Parliament, for to understand this point goes agood way towards understanding the exact way in which English or
American Courts determine the constitutionality of Acts passed by anon-sovereign legislature.
The London and North-Western Railway Company made a byelaw by which
any person travelling without the special permission of some duly authorised servant of the company in a carriage or by a train of a superior class tothat for which his ticket was issued is hereby subject to a penalty not exceeding forty shillings, and shall, in addition, be liable to pay his fare according
to the class of carriage in which he is travelling from the station where thetrain originally started, unless he shows that he had no intention to defraud.

X, with the intention of defrauding the company, travelled in a firstdass carriage instead of a second-class carriage for which his ticket
was issued, and having been charged under the bye-law was convicted in the penalty of ten shillings, and costs. On appeal by X, theCourt determined that the bye-law was illegal and void as being
repugnant to 8 Vict. c. 2o, s. m 3, or in effect to the terms of the Act
incorporating the company, s and that therefore X could not be convicted of the offence charged against him.
A bye-law of the South-Eastern Railway Company required that apassenger should deliver up his ticket to a servant of the company
when required to do so, and that any person travelling without a
8 Dyson v. L, & N.-W. Ry. Co., 7 Q- B. D. 32.

CHAPTER

II

43

LAW OF THE CONSTITUTION

ticket or failing or refusing to deliver up his ticket should be required
to pay the fare from the station whence the train originally started tothe end of his journey. X had a railway ticket enabling him to travelon the South-Eastern Railway. Having to change trains and pass outof the company's station he was asked to show his ticket, and refused
to do so, but without any fraudulent intention. He was summoned
for a breach of the bye-law, and convicted in the amount of the farefrom the station whence the train started. The Queen's Bench Division held the conviction wrong on the ground that the bye-law wasfor several reasons invalid, as not being authorised by the Act underwhich it purported to be made.9
Now in these instances, and in other cases where the Courts pronounce upon the validity of a bye-law made by a body (e.g. a railway
company or a school-board) having powers to make bye-laws enforceable by penalties, it is natural to say that the Courts pronounce
the bye-laws valid or invalid. But this is not strictly the case. What thejudges determine is not that a particular bye-law is invalid, for it is
not the function of the Courts to repeal or annul the bye-laws madeby railway companies, but that in a proceeding to recover a penalty
from X for the breach of a bye-law judgment must be given on thebasis of the particular bye-law being beyond the powers of the company, and therefore invalid. It may indeed be thought that the distinction between annulling a bye-law and determining a case upon
the assumption of such bye-law being void is a distinction without adifference. But this is not so. The distinction is not without importance even when dealing with the question whether X, who is alleged
to have broken a bye-law made by a railway company, is liable to pay
a fine; it is of first-rate importance when the question before the
Courts is one involving considerations of constitutional law, as forexample when the Privy Council is called upon, as constantly happens, to determine cases which involve the validity or constitutionality of laws made by the Dominion Parliament or by one of theprovincial Parliaments of Canada. The significance, however, of the
9 Saunders v. S.-E. Ry. Co., 5 Q- B. D. 456. Compare Bentham v. Hoyle, 3 Q. B. D. 289, and L.
B. & S. C. Ry. Co. v. Watson, 3 C. P. D. 429; 4 C. P. D. (C. A.), i_8.

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distinction will become more apparent as we proceed with our subject; the matter of consequence now is to notice the nature of the
distinction, and to realise that when a Court in deciding a given caseconsiders whether a bye-law is, or is not, valid, the Court does adifferent thing from affirming or annulling the bye-law itself.
c_uno_of Legislative Council of British India1° Laws are made for British India.n_,._ by a Legislative Council having very wide powers of legislation. ThisCouncil, or, as it is technically expressed, the "Governor-GeneralinCouncil," can pass laws as important as any Acts passed by the
British Parliament. But the authority of the Council in the way of
law-making is as completely subordinate to, and as much dependent
upon, Acts of Parliament as is the power of the London and NorthWestern Railway Company to make bye-laws.
The legislative powers of the Governor-General and his Council
arise from definite Parliamentary enactments." These Acts constitute
what may be termed as regards the Legislative Council the constitution of India. Now observe, that under these Acts the Indian Council
is in the strictest sense a non-sovereign legislative body, and thisindependently of the fact that the laws or regulations made by theGovernor-General in Council can be annulled or disallowed by the
Crown; and note that the position of the Council exhibits all themarks or notes of legislative subordination.
First, the Council is bound by a large number of rules which cannot
be changed by the Indian legislative body itself, and which can bechanged by the superior power of the Imperial Parliament.
Secondly, the Acts themselves from which the Council derives its
authority cannot be changed by the Council, and hence in regard to
the Indian legislative body form a set of constitutional or fundamental
laws, which, since they cannot be changed by the Council, stand in
marked contrast with the laws or regulations which the Council is_o See Ilbert, Government of India, pp. 199-216, Digest of Statutory Enactments,

ss. 6o-69.

_ The Government of India Act, _833 (3 & 4 Will. IV. c. 85), ss. 45-48, 5i, 52; The IndianCouncils Act, 1862 (24 & 25 Vict. c. 67), ss. _6-25; The Government of India Act, _865 (28 &29 Vict. c. 27).
The Indian Council is in some instances under Acts of Parliament, e.g. 24 & 25 Vict. c. 67,
28 & 29 Vict. c. 17; 32 & 33 Vict. c. 98, empowered to legislate for persons outside India.

CHAPTER

1!

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LAW OF THE CONSTITUTION

empowered to make. These fundamental rules contain, it must be
added, a number of specific restrictions on the subjects with regard towhich the Council may legislate. Thus the Governor-General inCouncil has no power of making laws which may affect the authorityof Parliament, or any part of the unwritten laws or constitution of theUnited Kingdom, whereon may depend in any degree the allegianceof any person to the Crown of the United Kingdom, or the sovereignty or dominion of the Crown over any part of India. 12
Thirdly, the Courts in India (or in any other part of the British
Empire) may, when the occasion arises, pronounce upon the validity
or constitutionality of laws made by the Indian Council.
The Courts treat Acts passed by the Indian Council precisely in thesame way in which the King's Bench Division treats the bye-laws of arailway company. No judge in India or elsewhere ever issues a decree
which declares invalid, annuls, or makes void a law or regulation
made by the Governor-General in Council. But when any particularcase comes before the Courts, whether civil or criminal, in which therights or liabilities of any party are affected by the legislation of the
Indian Council, the Court may have to consider and determine with aview to the particular case whether such legislation was or was notwithin the legal powers of the Council, which is of course the samething as adjudicating as regards the particular case in hand upon thevalidity or constitutionality of the legislation in question. Thus suppose that X is prosecuted for the breach of a law or regulation passedby the Council, and suppose the fact to be established past a doubtthat X has broken this law. The Court before which the proceedings
take place, which must obviously in the ordinary course of things be
an Indian Court, may be called upon to consider whether the regulation which X has broken is within the powers given to the IndianCouncil by the Acts of Parliament making up the Indian constitution.
If the law is within such powers, or, in other words, is constitutional,
the Court will by giving judgment against X give full effect to the law,just as effect is given to the bye-law of a railway company by thetribunal before whom an offender is sued pronouncing judgment
12 See 24 & 25 Vict. c. 67. s. 22.

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BODIESagainst him for the penalty. If, on the other hand, the Indian Court
deem that the regulation is ultra vires or unconstitutional, they will
refuse to give effect to it, and treat it as void by giving judgment forthe defendant on the basis of the regulation being invalid or having
no legal existence. On this point the Empress v. Burah'3 is most instructive. The details of the case are immaterial; the noticeable thing isthat the High Court held a particular legislative enactment of theGovernor-General in Council to be in excess of the authority given tohim by the Imperial Parliament and therefore invalid, and on thisground entertained an appeal from two prisoners which, if the enactment had been valid, the Court would admittedly have been incompetent to entertain. The Privy Council, it is true, held on appeal '4
that the particular enactment was within the legal powers of theCouncil and therefore valid, but the duty of the High Court of Calcutta to consider whether the legislation of the Governor-General wasor was not constitutional, was not questioned by the Privy Council.
To look at the same thing from another point of view, the Courts in
India treat the legislation of the Governor-General in Council in a
way utterly different from that in which any English Court can treat
the Acts of the Imperial Parliament. An Indian tribunal may be called
upon to say that an Act passed by the Governor-General need not beobeyed because it is unconstitutional or void. No British Court cangive judgment, or ever does give judgment, that an Act of Parliament
need not be obeyed because it is unconstitutional. Here, in short, wehave the essential difference between subordinate and sovereign
legislative power.'S
EnghshEnglish Colonies with Representative and Responsible Governments Many
col_mesEnglish colonies, and notably the Dominion of New Zealand (towhich country our attention had best for the sake of dearness be spedally directed), possess representative assemblies which occupy asomewhat peculiar position.
_3 3 Ind. L. R. (Calcutta Series), p. 63.
14 Reg. v. Burah, 3 App. Cas. 889.
15 See especially Empress v. Burah and Book Singh, 3 Ind. L. R. (Calcutta Series, _878), 63,
86-89, for the judgment of Markby J.

CHAPTER
II

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LAW OF THE CONSTITUTION

Powersexercisedby colon,alPafliaments.

The Parliament of the Dominion of New Zealand exercises throughthat country 16 many of the ordinary powers of a sovereign assembly such as the Parliament of the United Kingdom. It makes andrepeals laws, it puts Ministries in power and dismisses them fromoffice, it controls the general policy of the New Zealand Government,
and generally makes its will felt in the transaction of affairs after themanner of the Parliament at Westminister. An ordinary observer
would, if he looked merely at the everyday proceedings of the New
Zealand legislature, find no reason to pronounce it a whit less powerful within its sphere than the Parliament of the United Kingdom. No
doubt the assent of the Governor is needed in order to turn colonial
out

Bills into laws: and further investigation would show our inquirerthat for the validity of any colonial Act there is required, in addition to
the assent of the Governor, the sanction, either express or implied, of
the Crown. But these assents are constantly given almost as a matterof course, and may be compared (though not with absolute correctness) to the Crown's so-called "veto" or right of refusing assent toBills which have passed through the Houses of Parliament.
Limit toYet for all this, when the matter is further looked into, the Dominpowers ion Parliament (together with other colonial legislatures) will befound to be a non-sovereign legislative body, and bears decisive
marks of legislative subordination. The action of the Dominion Parliament is restrained by laws which it cannot change, and are changeable only by the Imperial Parliament; and further, New Zealand Acts,
even when assented to by the Crown, are liable to be treated by
the Courts in New Zealand and elsewhere throughout the British
dominions as void or unconstitutional,
on the ground of their coming
16 No colonial legislature has as such any authority beyond the territorial limits of thecolony. This forms a considerable restriction on the powers of a colonial Parliament, and agreat part of the imperial legislation for the colonies arises from the Act of a colonial
legislature having, unless given extended operation by some imperial statute, no effectbeyond the limits of the colony.
In various instances, however, imperial Acts have given extended power of legislation tocolonial legislatures. Sometimes the imperial Act authorises a colonial legislature to makelaws on a specified subject with extra-territorial
operation [e.g. the Merchant Shipping Act,
1894, ss. 478, 735, 736]. Sometimes an Act of the colonial legislature is given the force of law
throughout British dominions. (Compare Jenkyns, British Rule and Jurisdiction beyond theSeas, p. 7o.)

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into conflict with laws of the Imperial Parliament, which the colonial
legislature has no authority to touch. 17
That this is so becomes apparent the moment we realise the exact
relation between colonial and Imperial laws. The matter is worth
some little examination, both for its own sake and for the sake of thelight it throws on the sovereignty of Parliament.
The charter of colonial legislative independence is the Colonial
Laws Validity Act, _865. isc0_,n,_ This statute seems (oddly enough) to have passed through Parlia:_,a,tv
Act, ment without discussion; but it permanently defines and extends the_"_authority of colonial legislatures, and its main provisions are of suchimportance as to deserve verbal citation:
Sec. 2. Any colonial law which is or shall be in any respect repugnant to
the provisions of any Act of Parliament extending to the colony to whichsuch law may relate, or repugnant to any order or regulation made underauthority of such Act of Parliament, or having in the colony the force andeffect of such Act, shall be read subject to such Act, order, or regulation, andshall, to the extent of such repugnancy, but not otherwise, be and remain
absolutely void and inoperative.
3. No colonial law shall be or be deemed to have been void or inoperativeon the ground of repugnancy to the law of England, unless the same shall be
repugnant to the provisions of some such Act of Parliament, order, or regulation as aforesaid.
4. No colonial law, passed with the concurrence of or assented to by theGovernor of any colony, or to be hereafter so passed or assented to, shallbe or be deemed to have been void or inoperative, by reason only of any
instructions with reference to such law or the subject thereof which may
have been given to such Governor by or on behalf of Her Majesty, by any_7As also upon the ground of their being in strictness ultravires, i.e. beyond the powers
conferred upon the Dominion legislature. This is the ground why a colonial Act is in
general void, in so far as it is intended to operate beyond the territory of the colony. 'qn_879,the Supreme Court of New Zealand held that the Foreign Offenders Apprehension
Act, _863,of that colony, which authorises the deportation of persons charged with indictable misdemeanours in other colonies, was beyond the competence of the New Zealandlegislature, for it involved detention on the high seas, which the legislature could not
authorise, as it could legislate only for peace, order, and good government within the limitsof the colony." Jenkyns, British Ruleand Jurisdictionbeyond the Seas, p. 7o, dting In re Gleich.
Ollivier Bell and Fitzgerald's N. Z. Rep., S. C. p. 39_8 28 & 29 Vict. c. 63. See on this enactment, Jenkyns, British Rule and Jurisdictionbeyondthe
Seas,pp. 71,72,

CHAPTER 11

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LAW OF THE CONSTITUTION
instrument other than the letters-patent or instrument authorising such
Governor to concur in passing or to assent to laws for the peace, order, andgood government of such colony, even though such instructions may bereferred to in such letters-patent or last-mentioned instrument.
5. Every colonial legislature shall have, and be deemed at all times to have
had, full power within its jurisdiction to establish courts of judicature, and toabolish and reconstitute the same, and to alter the constitution thereof, andto make provision for the administration of justice therein; and every representative legislature shall, in respect to the colony under its jurisdiction,
have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as
may from time to time be required by any Act of Parliament, letters-patent,
order in council, or colonial law for the time being in force in the said colony.

The importance, it is true, of the Colonial Laws Validity Act, 1865,
may well be either exaggerated or quite possibly underrated. The
statute is in one sense less important than it at first sight appears,
because the principles laid down therein were, before its passing,more or less assumed, though with some hesitation, to be good law
and to govern the validity of colonial legislation. From another pointof view the Act is of the highest importance, because it determines,
and gives legislative authority to, principles which had never before
been accurately defined, and were liable to be treated as open to
doubt. 19In any case the terms of the enactment make it now possible
to state with precision the limits which bound the legislative authorityof a colonial Parliament.
The Dominion Parliament may make laws opposed to the English
common law, and such laws (on receiving the required assents) are
perfectly valid.
Thus a New Zealand Act which changed the common law rules as
to the descent of property, which gave the Governor authority toforbid public meetings, or which abolished trial by jury, might beinexpedient or unjust, but would be a perfectly valid law, and would
19 Up to 1865the prevalent opinion in England seems to have been that any law seriously
opposed to the principles of English law was repugnant to the law of England, and colonial
laws were from time to time disallowed solely on the ground of such supposed repugnacy
and invalidity.

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be recognised as such by every tribunal throughout the British Empire. 2°
The Dominion Parliament, on the other hand, cannot make anylaws inconsistent with any Act of Parliament, or with any part of an
Act of Parliament, intended by the Imperial Parliament to apply to
New Zealand.
Suppose, for example, that the Imperial Parliament were to pass an
Act providing a special mode of trial in New Zealand for particulardasses of offences committed there, no enactment of the colonial
Parliament, which provided that such offences should be tried:
otherwise than as directed by the imperial statute, would be of any
legal effect. So again, no New Zealand Act would be valid thatlegalised the slave trade in the face of the Slave Trade Act, _824, 5George IV. c. 1_3, which prohibits slave trading throughout the•"
British dominions; nor would Acts passed by the Dominion Parliament be valid which repealed, or invalidated, several provisions of
the Merchant Shipping Act _894 meant to apply to the colonies, or
which deprived a discharge under the English Bankruptcy Act of theeffect which, in virtue of the imperial statute, it has as a release fromdebts contracted in any part whatever of the British dominions. No
colonial legislature, in short, can override imperial legislation which isintended to apply to the colonies. Whether the intention be expressedin so many words, or be apparent only from the general scope andnature of the enactment, is immaterial. Once establish that an imperial law is intended to apply to a given colony, and the consequence
follows that any colonial enactment which contravenes that law isinvalid and unconstitutional.21
Acts
ofcol- Hence the Courts in the Dominion of New Zealand, as also in theorual_0_s_a_r+
rest of the British Empire, may be called upon to adjudicate upon the
may beprovalidity or constitutionality of any Act of the Dominion Parliament.
nouncedvoldb_Cou_
2o Assuming, of course, that such Acts are not inconsistent with any imperial statuteapplying to the colony. (Compare Robinson v. Reynolds, Macassey's N. Z. Rep. p. 562.)
2_ See Tarring, Law Relating to the Colonies (and ed.), pp. 232- 247, for a list of imperial
statutes which relate to the colonies in general, and which therefore no colonial legislationcan, except under powers given by some Act of the Imperial Parliament, contravene.

CHAPTER II_1LAW OF THE CONSTITUTION

For if a New Zealand law really contradicts the provisions of an Act ofParliament extending to New Zealand, no Court throughout the
British dominions could legally, it is dear, give effect to the enactmentof the Dominion Parliament. This is an inevitable result of the legislative sovereignty exercised by the Imperial Parliament. In the supposed case the Dominion Parliament commands the judges to act in aparticular manner, and the Imperial Parliament commands them toact in another manner. Of these two commands the order of theImperial Parliament is the one which must be obeyed. This is the very
meaning of Parliamentary sovereignty. Whenever, therefore, it is alleged that any enactment of the Dominion Parliament is repugnant to
the provisions of any Act of the Imperial Parliament extending to thecolony, the tribunal before which the objection is raised must pronounce upon the validity or constitutionality of the colonial law. 22
ColomalThe constitution of New Zealand is created by and depends upon
Parhament
may
bea the New Zealand Constitution Act, 1852, 15& 16Vict. c. 72, and the"con_t,tuent"as Acts amending the same. One might therefore expect that the Parwellasleg, slatlve
liament of the Dominion of New Zealand, which may conveniently
body.
be called the New Zealand Parliament, would exhibit that "mark ofsubordination" which consists in the inability of a legislative body tochange fundamental or constitutional laws, or (what is the samething) in the dearly drawn distinction between ordinary laws which
the legislature can change and laws of the constitution which it cannot change, at any rate when acting in its ordinary legislative character. But this anticipation is hardly borne out by an examination into
the Acts creating the constitution of New Zealand. A comparison of
the Colonial Laws Validity Act, 1865, s. 5, with the New ZealandConstitution Act, as subsequently amended, shows that the New
Zealand Parliament can change the artides of the constitution. Thispower, derived from imperial statutes, is of course in no way inconsistent with the legal sovereignty of the Imperial Parliament.23 One
22 See Powell v. Apollo Candle Co., lO App. Cas. 282; Hodge v. The Queen, 9 App. Cas. 117.
23 The constitutions of some self-governing colonies, e.g. Victoria, certainly show that a
Victorian law altering the constitution must in some instances be passed in a manner
different from the mode in which other laws are passed. This is a faint recognition of thedifference between fundamental and other laws. Compare 18 & 19 Vict. c. 55, Sched. I. s. 60;

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may fairly therefore assert that the New Zealand Parliament, in
common with many other colonial legislative assemblies, is, though a"subordinate," at once a legislative and a constituent assembly. Itis a"subordinate" assembly 24because its powers are limited by thelegislation of the Imperial Parliament; it is a constituent assembly
since it can change the artides of the constitution of New Zealand.
The authority of the New Zealand Parliament to change the artides of
the constitution of New Zealand is from several points of view worth
notice.
_;_,0,,,_ We have here a decisive proof that there is no necessary connection,h,,between the written character and the immutability of a constitution.
The New Zealand constitution is to be found in a written document;
it is a statutory enactment. Yet the artides of this constitutional statute can be changed by the Parliament which it creates, and changedin the same manner as any other law. This may seem an obvious
matter enough, but writers of eminence so often use language which
implies or suggests that the character of a law is changed by its being
expressed in the form of a statute as to make it worth while notingthat a statutory constitution need not be in any sense an immutable
but there appears to have been considerable laxity in regard to observing these constitutional provisions. See Jenks, Government of Victoria, pp. 247-249.
24 It is usually the case that a self-governing colony, such as New Zealand, has the power
in one form or another to change the colonial constitution. The extent, however, of thispower, and the mode in which it can be exercised, depends upon the terms of the Act ofParliament, or of the charter creating or amending the colonial constitution, and differs in
different cases. Thus the Parliament of New Zealand can change almost all, though notquite all, of the artides of the constitution, and can change them in the same manner inwhich it can change an ordinary colonial law. The Parliament of the Canadian Dominion
cannot change the constitution of the Dominion. The Parliament of the Australian Commonwealth, on the other hand, occupies a peculiar position. It can by virtue of the terms ofthe constitution itself alter, by way of ordinary legislation, certain of the artides of theconstitution (see, e.g., Constitution of Commonwealth, ss. 65, 67), whilst it cannot, by wayof ordinary legislation, change other artides of the constitution. All the articles, however, ofthe constitution which cannot be changed by ordinary Parliamentary legislation can-subject, of course, to the sanction of the Crown--bealtered or abrogated by the Houses of
the Parliament, and a vote of the people of the Commonwealth, as provided by the Constitution of the Commonwealth,s. 128. The point to be specially noted is, that the Imperial
Parliament, as a rule, enables a self-governing colony to change the colonial constitution.
The exception in the case of Canada is more apparent than real; the Imperial Parliament
would no doubt give effect to any change dearly desired by the inhabitants of the Canadian
Dominion.

CHAPTERII

53LAW OF THE CONSTITUTION

constitution. The readiness again with which the English Parliament
has conceded constituent powers to colonial legislatures shows how
little hold is exercised over Englishmen by that distinction between
fundamental and non-fundamental
laws which runs through almost
all the constitutions not only of the Continent but also of America.
The explanation appears to be that in England we have long beenaccustomed to consider Parliament as capable of changing one kindof law with as much ease as another. Hence when English statesmen
gave Parliamentary government to the colonies, they almost as amatter of course bestowed upon colonial legislatures authority to deal
with every law, whether constitutional or not, which affected thecolony, subject of course to the proviso, rather implied than expressed, that this power should not be used in a way inconsistent
with the supremacy of the British Parliament. The colonial legislatures, in short, are within their own sphere copies of the Imperial
Parliament. They are within their own sphere sovereign bodies; but
their freedom of action is controlled by their subordination to theParliament of the United Kingdom.
Howcon- The question may naturally be asked how the large amount offlictsbetween _m- colonial liberty conceded
to countries like New Zealand has been
peria] andco_on.a_legallyreconciled with Imperial sovereignty?
legislation_r_ided.
The inquiry lies a little outside our subject, but is not really foreign
to it, and well deserves an answer. Nor is the reply hard to find if wekeep in mind the true nature of the difficulty which needs explanation.
The problem is not to determine what are the means by which theEnglish Government keeps the colonies in subjection, or maintains
the political sovereignty of the United Kingdom. This is a matter ofpolitics with which this book has no concern.
The question to be answered is how (assuming the law to beobeyed throughout the whole of the British Empire) colonial legislative freedom is made compatible with the legislative sovereignty of
Parliament? How are the Imperial Parliament and the colonial legislatures prevented from encroaching on each other's spheres?
No one will think this inquiry needless who remarks that in confederations, such as the United States, or the Canadian Dominion,

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the Courts are constantly occupied in determining the boundaries
which divide the legislative authority of the Central Government
from that of the State Legislatures.
c_,_,,_,s The assertion may sound paradoxical, but is nevertheless strictly, a_crted by.,_p_true, that the acknowledged legal supremacy of Parliament is one
maL_,ot_r,,_h _causeof the wide power of legislation allowed to colonial asl'arhament,
semblies.

I,,Iveto.
nghto!

The constitutions of the colonies depend directly or indirectly uponimperial statutes. No lawyer questions that Parliament could legallyabolish any colonial constitution, or that Parliament can at any moment legislate for the colonies and repeal or override any colonial law
whatever. Parliament moreover does from time to time pass Acts
affecting the colonies, and the colonial, 2s no less than the English,
Courts completely admit the principle that a statute of the Imperial
Parliament binds any part of the British dominions to which thestatute is meant to apply. But when once this is admitted, it becomes
obvious that there is little necessity for defining or limiting the sphereof colonial legislation. If an Act of the New Zealand Parliament contravenes an imperial statute, it is for legal purposes void; and if an Act
of the New Zealand Parliament, though not infringing upon any
statute, is so opposed to the interests of the Empire that it ought not
to be passed, the British Parliament may render the Act of no effect bymeans of an imperial statute.
This course, however, is rarely, if ever, necessary; for Parliament
exerts authority over colonial legislation by in effect regulating the useof the Crown's "veto" in regard to colonial Acts. This is a matter
which itself needs a little explanation.
The Crown's right to refuse assent to bills which have passed
through the Houses of Parliament is practically obsolete. 26The power
25 See Todd, Parliamentary Government, pp. _68-192.
26 This statement has been questioned--see
Hearn (and ed.), p. 63--but is, it is submitted,
correct. The so-called "veto" has never been employed as regards any public bill since theaccession of the House of Hanover. When George the Third wished to stop the passing of
Fox's India Bill, he abstained from using the Crown's right to dissent from proposed
legislation, but availed himself of his influence in the House of Lords to procure therejection of the measure. No stronger proof could be given that the right of veto was morethan a century ago already obsolete. But the statement that a power is practically obsolete

CHAP_

ll

55

LAW OF THE CONSTITUTION

of the Crown to negative or veto the bills of colonial legislatures
stands on a different footing. It is virtually, though not in name, theright of the Imperial Parliament to limit colonial legislative independence, and is frequently exercised.
This check on colonial legislation is exerted in two different manners. 27
does not involve the assertion that it could under no conceivable circumstances be revived.
On the whole subject of the veto, and the different senses in which the expression is used,
the reader should consult an excellent article by Professor Orelli of Zurich, to be foundunder the word "Veto" in Encyclopaedia Britannica (9th ed.), xxiv. p. 2o8.
The history of the Royal Veto curiously illustrates the advantage which sometimes arises
from keeping alive in theory prerogatives which may seem to be practically obsolete. The
Crown's legislative "'veto" has certainly long been unused in England, but it has turned out
a convenient method of regulating the relation between the United Kingdom and theColonies. If the right of the King to refuse his assent to a bill which had passed the two
Houses of Parliament had been abolished by statute, it would have been difficult, if not
impossible, for the King to veto, or disallow, Acts passed by the Parliament of a selfgoverning colony, e.g. New Zealand. It would, in other words, have been hard to create aparliamentary veto of colonial legislation. Yet the existence of such a veto, which ought tobe, and is, sparingly used, helps to hold together the federation known as the British
Empire.
27 The mode in which the power to veto colonial legislation is exercised may be best
understood from the following extract from the Rules and Regulations printed some years
ago by the Colonial Office:
RULES AND REGULATIONSCHAPTER Ill§_. Legislative Councils and Assemblies
48 . In every colony the Governor has authority either to give or to withhold his assent tolaws passed by the other branches or members of the Legislature, and until that assent isgiven no such law is valid or binding.
49- Laws are in some cases passed with suspending
clauses; that is, although assented toby the Governor they do not come into operation or take effect in the colony until they shallhave been specially confirmed by Her Majesty, and in other cases Parliament has for thesame purpose empowered the Governor to reserve laws for the Crown's assent, instead ofhimself assenting or refusing his assent to them.
5o. Every law which has received the Governor's assent (unless it contains a suspending
dause) comes into operation immediately,or at the time specified in the law itself. But the
Crown retains power to disallow the law; and if such power be exercised..,the law ceases
to have operation from the date at which such disallowance is published in the colony.
51. In colonies having representative
assemblies the disallowance of any law, or the
Crown's assent to a reserved bill, is signified by order in council. The confirmation of an Act
passed with a suspending clause, is not signified by order in council unless this mode ofconfirmation is required by the terms of the suspending
clause itself, or by some special
provision in the constitution of the colony.

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r_,,,,_t
The Governor of a colony, say New Zealand, may directly refuse
o_'veto_......e_ his assent to a bill passed by both Houses of the New Zealand Parliament. In this case the bill is finally lost, just as would be a bill which
had been rejected by the colonial council, or as would be a bill passed
52. In Crown colonies the allowance or disallowance of any law is generally signified bydespatch.
53. In some cases a period is limited, after the expiration of which local enactments,
though not actually disallowed, cease to have the authority of law in the colony, unlessbefore the lapse of that time Her Majesty's confirmation of them shall have been signified
there; but the general rule is otherwise.
54. In colonies possessing representative assemblies, laws purport to be made by the
Queen or by the Governor on Her Majesty's behalf or sometimes by the Governor alone,omitting any express reference to Her Majesty, with the advice and consent of the council
and assembly. They are almost invariably designated as Acts. In colonies not having suchassemblies, laws are designated as ordinances, and purport to be made by the Governor,
with the advice and consent of the Legislative Council (or in British Guiana of the Court of

Polio/).
The "veto," it will be perceived, may be exercised by one of two essentially different
methods: first, by the refusal of the Governor's assent; secondly, by the exercise of the royal
power to disallow laws even when assented to by the Governor. As further, the Governor
may reserve bills for the royal consideration, and as colonial laws are sometimes passed
containing a clause which suspends their operation until the signification of the royalassent, the check on colonial legislation may be exercised in four different forms-(1) The refusal of the Governor's assent to a bill.
(2) Reservation of a bill for the consideration of the Crown, and the subsequent lapse of
the bill owing to the royal assent being refused, or not being given within thestatutory time.
(3) The insertion in a bill of a clause preventing it from coming into operation until thesignification of the royal assent thereto, and the want of such royal assent.
(4) The disallowance by the Crown of a law passed by the Colonial Parliament with theassent of the Governor.
The reader should note, however, the essential difference between the three first modes
and the fourth mode of checking colonial legislation. Under the three first a proposal law
passed by the colonial legislature never comes into operation in the colony. Under the
fourth a colonial law which has come into operation in the colony is annulled or disallowedby the Crown from the date of such disallowance. In the case of more than one colony, such
disallowance must, under the Constitution Act or letters-patent, be signified within two
years. See the British North American Act, _867, sec. 56. Compare the Australian Constitutions Act, 1842 (5 & 6Vict. c. 76), secs. 32, 33; the Australian Constitutions Act, _85o, 13 & _4
Vict. c. 59; and the Victoria Constitution Act, _855 (_8 & 19Vict. c. 55), sec. 3.
Under the Australian Commonwealth
ACt the King may disallow an Act assented to by
the Governor-General
within one year after the Governor-General'sassent. (Commonwealth of Australia Constitution Act, sec. 59.)

CHAPTER I1

57

LAW OF THE CONSTITUTION

by the English Houses of Parliament if the Crown were to exert theobsolete prerogative of refusing the royal assent. The Governor,
again, may, without refusing his assent, reserve the bill for the consideration of the Crown. In such case the bill does not come into force
until it has received the royal assent, which is in effect the assent of
the English Ministry, and therefore indirectly of the Imperial Parliament.
The Governor, on the other hand, may, as representing the Crown,
give his assent to a New Zealand bill. The bill thereupon comes into
force throughout New Zealand. But such a bill, though for a time avalid Act, is not finally made law even in New Zealand, since theCrown may, after the Governor's assent has been given, disallow thecolonial Act. The case is thus put by Mr. Todd:
Although a governor as representing the Crown is empowered to givethe royal assent to bills, this act is not final and conclusive; the Crown itself
having, in point of fact, a second veto. All statutes assented to by the governor of a colony go into force immediately, unless they contain a clausesuspending their operation until the issue of a prodamation of approval by
the queen in council, or some other specific provision to the contrary; but the
governor is required to transmit a copy thereof to the secretary of state forthe colonies; and the queen in council may, within two years after the receiptof the same, disallow any such Act. ''28

The result therefore of this state of things is, that colonial legislation
is subject to a real veto on the part of the imperial government, andno bill which the English Ministry think ought for the sake of imperialinterests to be negatived can, though passed by the New Zealand orother colonial legislature, come finally into force. The home government is certain to negative or disallow any colonial law which, either
in letter or in spirit, is repugnant to Parliamentary legislation, and alarge number of Acts can be given which on one ground or anotherhave been either not assented to or disallowed by the Crown. In 2868
the Crown refused assent to a Canadian Act reducing the salary of
the Governor-General.29
In _872 the Crown refused assent to a
28 Todd, ParliamentaryGovernment in the British Colonies,p. 137.
29 Todd, ParliamentaryGovernment in the British Colonies,p. 144.

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BODIES

Canadian Copyright Act because certain parts of it conflicted withimperial legislation. In 1873 a Canadian Act was disallowed as being
contrary to the express terms of the British North America Act, i868;
and on similar grounds in 1878 a Canadian Shipping Act was disallowed. 3°So again the Crown has at times in effect passed a veto upon
Australian Acts for checking Chinese immigration. 31And Acts
passed by a colonial legislature, allowing divorce on the ground solely of the husband's adultery or (before the passing of the Deceased
Wife's Sister's Marriage Act, 19o7, 7 Edward VII. c. 47) legalisingmarriage with a deceased wife's sister or with a deceased husband'sbrother, have (though not consistently with the general tenor of ourcolonial policy) been sometimes disallowed by the Crown, that is, in
effect by the home government.
The general answer therefore to the inquiry, how colonial liberty oflegislation is made legally reconcilable with imperial sovereignty, isthat the complete recognition of the supremacy of Parliament obviates the necessity for carefully limiting the authority of colonial
legislatures, and that the home government, who in effect represent
Parliament, retain by the use of the Crown's veto the power of preventing the occurrence of conflicts between colonial and imperial
laws. To this it must be added that imperial treaties legally bind thecolonies, and that the "treaty-making power," to use an American
expression, resides in the Crown, and is therefore exercised by thehome government in accordance with the wishes of the Houses ofParliament, or more strictly of the House of Commons; whilst theauthority to make treaties is, except where expressly allowed by Act
of Parliament, not possessed by any colonial government. 32
It should, however, be observed that the legislature of a selfgoverning colony is free to determine whether or not to pass laws
necessary for giving effect to a treaty entered into between the impe30/Nd., pp. _47, 15o.
3_ As regards the Australian colonies such legislation has, I am informed, been heretofore
checked in the following manner. Immigration bills have been reserved for the consideration of the Crown, and the assent of the Crown not having been given, have never comeinto force.
32 See Todd, Parliamentary Government in the Britzsh Colonies, pp. 192-218.

CHAPTER11

59

LAW OF THE CONSTITUTION

rial government and a foreign power; and further, that there might inpractice be great difficulty in enforcing within the limits of a colony
the terms of a treaty, e.g. as to the extradition of criminals, to whichcolonial sentiment was opposed. But this does not affect the prindple
of law that a colony is bound by treaties made by the imperial government, and does not, unless under some special provision of an
Act of Parliament, possess authority to make treaties with any foreign
power.
Policy of
Any one who wishes justly to appreciate the nature and the extent
imperial
government
not to of the control exerted by Great Britain over colonial legislation shouldlnterferewith
actionkeep two points carefully in mind. The tendency, in the first place,ofco_on,_of the imperial government is as a matter of policy to interfere lessand less with the action of the colonies, whether in the way of lawmaking 33or otherwise.34 Colonial Acts, in the second place, evenwhen finally assented to by the Crown, are, as already pointed out,
invalid if repugnant to an Act of Parliament applying to the colony.
The imperial policy therefore of non-intervention
in the local affairs ofBritish dependencies combines with the supreme legislative authorityof the Imperial Parliament to render encroachments by the Parliament of the United Kingdom on the sphere of colonial legislation, or
33 Thus the New Zealand Deceased Husband's
Brother Act, 29oo, No. 72, legalising marriage with a deceased husband's brother, the Immigration Restriction Act, 29Ol, passed by
the CommonwealthParliament, the Immigrants' Restriction Act, 29o7, No. 15, passed by
the Transvaal Legislature, have all received the sanction of the Crown. The last enactment
illustrates the immensely wide legislative authority which the home government _11 undersome circumstances concede to a colonial Parliament. The Secretary of State for India (Mr.
Morley) "regrets that he cannot agree that the Act in question can be regarded as similar tothe legislation already sanctioned in other self-governing colonies .... Section 2 (4) of theTransvaal Act introduces a principle to which no parallel can be found in previous legislation. This dause..,will debar from entry into the Transvaal British subjects who would befree to enter into any other colony by proving themselves capable of passing the educational
tests laid down for immigrants. It will, for instance, permanently
exclude from the Transvaal members of learned professions and graduates of European Universities of Asiatic
origin who may in future wish to enter the colony." See Parl. Paper [Cd. 3887], Correspondence relating to Legislation affecting Asiatics in the Transvaal, pp. 52, 53, and compare pp.
31, 32. See p. liv, ante.
34 Except in the case of political treaties, such as the Hague Conventions,the imperial
government does not nowadays bind the colonies by treaties, but secures the insertion
treaties of clauses allowing colonies to adhere to a treaty if they desire to do so.

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60

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BODIES

by colonial Parliaments on the domain of imperial legislation, ofcomparatively rare occurrence.3S
Foreign Non-sovereign Legislatures\.,_.
We perceive without difficulty that the Parliaments of even those._verelgn_,_r, colonies, such as the Dominion of Canada, or the Australian Com0tlnde_._dentmonwealth,which are most nearly independent states, are nothatlons
in reality sovereign legislatures. This is easily seen, because thesovereign Parliament of the United Kingdom, which legislates for thewhole British Empire, is visible in the background, and because thecolonies, however large their practical freedom of action, do not act as
independent powers in relation to foreign states; the Parliament of adependency cannot itseff be a sovereign body. It is harder for Englishmen to realise that the legislative assembly of an independent
nation may not be a sovereign assembly. Our political habits ofthought indeed are so based upon the assumption of Parliamentaryomnipotence, that the position of a Parliament which represents an
independent nation and yet is not itself a sovereign power is apt toappear to us exceptional or anomalous. Yet whoever examines theconstitutions of civilised countries will find that the legislative assemblies of great nations are, or have been, in many cases legislative
without being constituent bodies. To determine in any given casewhether a foreign legislature be a sovereign power or not we must
examine the constitution of the state to which it belongs, and ascertain whether the legislature whose position is in question bears any ofthe marks of subordination. Such an investigation will in many or inmost instances show that an apparently sovereign assembly is inreality a non-sovereign law-making body.
France. France has within the last hundred and thirty years made trial of atleast twelve constitutions. 3s35 The right of appeal to the Privy Council from the decision of the Courts of the colonies isanother link strengthening
the connection between the colonies and England.
There have been, however, of recent years a good number of conflicts between imperialand colonial legislation as to matters affecting merchant shipping.
36 Demombynes, Les Constitutions Europ_ennes, _. (2nd ed.), pp. 1-5. See Appendix,
I., Rigidity of French Constitutions.

CHAPTER It

61

Note

LAW OF THE CONSTITUTION

These various forms of government have, amidst all their differences, possessed in general one common feature. They have most ofthem been based upon the recognition of an essential distinction
between constitutional or "fundamental" laws intended to be either
immutable or changeable only with great difficulty, and "ordinary'"laws which could be changed by the ordinary legislature in the common course of legislation. Hence under the constitutions which
France has from time to time adopted the common Parliament orlegislative body has not been a sovereign legislature.
Const,
t_The constitutional monarchy of Louis Philippe, in outward appeartionalmonarchy
ance at least, was modelled on the constitutional monarchy of Engof Louis
Philippe.
land. In the Charter not a word could be found which expressly limits
the legislative authority possessed by the Crown and the two Chambers, and to an Englishman it would seem certainly arguable that
under the Orleans dynasty the Parliament was possessed of sovereignty. This, however, was not the view accepted among Frenchlawyers. Tocqueville writes:
The immutability of the Constitution of France is a necessary consequence ofthe laws of that country .... As the King, the Peers, and the Deputies allderive their authority from the Constitution, these three powers united cannot alter a law by virtue of which alone they govern. Out of the pale of theConstitution they are nothing; where, then, could they take their stand toeffect a change in its provisions? The alternative is dear: either their efforts
are powerless against the Charter, which continues to exist in spite of them,in which case they only reign in the name of the Charter; or they succeed inchanging the Charter, and then the law by which they existed being annuUed, they themselves cease to exist. By destroying the Charter, they destroy themselves. This is much more evident in the laws of 2830 than in thoseof _814. In _8a4 the royal prerogative took its stand above and beyond theConstitution; but in 183o it was avowedly created by, and dependent on, theConstitution. A part, therefore, of the French Constitution is immutable,
because it is united to the destiny of a family; and the body of the Constitution is equally immutable, because there appear to be no legal means ofchanging it. These remarks are not applicable to England. That country
having no written Constitution, who can assert when its Constitution ischanged? 37
37 A. de Tocqueville, Democracyin America, ii. (translation), App. pp. 32.2,323. CEuvres
Completes,i. p. 311.

PARTI

62

PARLIAMENT AND NON-SOVEREIGN LAW-MAKING BODIES

Tocqueville's reasoning 38may not carry conviction to an Englishman, but the weakness of his argument is of itself strong evidenceof the influence of the hold on French opinion of the doctrine which it
is intended to support, namely, that Parliamentary sovereignty was
not a recognised part of French constitutionalism. The dogma which
is so naturally assented to by Englishmen contradicts that idea of theessential difference between constitutional and other laws which appears to have a firm hold on most foreign statesmen and legislators.
The Republic of _848 expressly recognised this distinction; no single
artide of the constitution proclaimed on 4th November _848 could bechanged in the same way as an ordinary law. The legislative assembly sat for three years. In the last year of its existence, and then only,
it could by a majority of three-fourths, and not otherwise, convoke a
constituent body with authority to modify the constitution. This constituent and sovereign assembly differed in numbers, and otherwise,from the ordinary non-sovereign legislature.
Present
The National Assembly of the French Republic exerts at least as
Rep_b_cmuch direct authority as the English Houses of Parliament. The
French Chamber of Deputies exercises at least as much influence on
the appointment of Ministers, and controls the action of the government, at least as strictly as does our House of Commons. The President, moreover, does not possess even a theoretical right of veto. For
all this, however, the French Parliament is not a sovereign assembly,
but is bound by the laws of the constitution in a way in which no lawbinds our Parliament. The artides of the constitution, or "fundamen_e._ubhc oftal laws," stand in a totally different position from the ordinary law of
the land. Under article 8 of the constitution, no one of these fundamental enactments can be legally changed otherwise than subject tothe following provisions:8. Les Chambres auront le droit, par d_lib&ations s@ar_es, prises clans chacune
la majorit_ absolue des voix, soit spontan_ment, soit sur la demande du Pr6sident de la
38 His view is certainly paradoxical. (See Duguit, Manuel dedroit ConstitutionnelFranfais,s.
_49,P. _o9o.)As a matter of fact one provision of the Charter, namely, art. 23, regulating theappointment of Peers, was changed by the ordinary process of legislation. See Law of 29th
December 2831, H61ie,Les Constitutions de la France, p. _oo6.

CHAPTER 11

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LAW OF THE CONSTITUTION
Rd,publique, de d_clarer qu'il y a lieu de r_viser les lois constitutionnelles.
Apr_s quechacune des deux Chambres aura pris cette rdsolution, riles se r_uniront en Assembl_enationale pour procdder ft la rdvision. --Les d_lib_rations portant rdoision des lois
constitu tionnelles, en tout ou en partie, devront _tre prises _ la majorit_ absolue desmembres composant l'Assembl_e nationale. 39

Supreme legislative power is therefore under the Republic vested
not in the ordinary Parliament of two Chambers, but in a "national
assembly," or congress, composed of the Chamber of Deputies andthe Senate sitting together.
D,st3ncl3on The various constitutions, in short, of France, which are in thisbetweennexibJeand respect fair types of continental polities, 4° exhibit, as compared withns,d const,rut,on., the expansiveness or "flexibility" of English institutions, that characteristic which may be conveniently described as "rigidity. ,,4139 Duguit et Monnier, Les Constitutions de la France depuis I789, pp. 320, 321. A striking
example of the difference between English and French constitutionalism
is to be found in
the division of opinion which exists between French writers of authority on the answer tothe inquiry whether the French Chambers, when sitting together, have constitutionallytheright to change the constitution. To an Englishman the question seems hardly to admit ofdiscussion, for Art. 8 of the constitutional laws enacts in so many words that these laws
may be revised, in the manner therein set forth, by the Chambers when sitting together as a
National Assembly. Many French constitutionalists
therefore lay down, as would any
English lawyer, that the Assembly is a constituent as well as a legislative body, and isendowed with the right to change the constitution (Duguit, Manuel, s. 151, Moreau, Prdcis
dldmentaire de droit constitutionnel (Paris, 1892), p. _49). But some eminent authorities maintain that this view is erroneous, and that in spite of the words of the constitution theultimate right of consl3tutional amendment
must be exercised directly by the French people,
and that therefore any alteration in the constitutional laws by the Assembly lacks, at any
rate, moral validity unless it is ratified by the direct vote of the electors. (See, on the one
side, Duguit, Manuel, s. 153; Bard et Robiquet, La Constitution francaise de i875 (and ed.), pp.
374-39 o, and on the other side, Esmein, Droit Constitutionnel (4th ed.), p. 907; Borgeaud,
Etablissement et Rivision des Constitutions, pp. 303- 3o7 .)4° No constitution better merits study in this as in other respects than the constitution ofBelgium. Though formed after the English model, it rejects or omits the principle of Parliamentary sovereignty. The ordinary Parliament cannot change anything in the constitution; it is a legislative, not a constituent body; it can declare that there is reason for changing
a particular constitutional provision, and having done so is ipsofacto dissolved (apr_s cetted_claration les deux chambres sont dissoutes de plein droit). The new Parliament thereupon
elected has a right to change the constitutional article which has been dedared subject tochange (Constitution deLa Belgique, Arts. 13_, 71).
41 See Appendix,

PAR T I

Note I., Rigidity of French Constitutions.

64PARLIAMENTAND NON-SOVEREIGN

LAW-MAKING

BODIES

And here it is worth while, with a view to understanding theconstitution of our own country, to make perfectly dear to ourselves
the distinction already referred to between a "flexible" and a "rigid"
constitution.
_t.,,b_ A "flexible" constitution is one under which every law of every_;_t,- description can legally be changed with the same case and in thesame manner by one and the same body. The "flexibility" of ourconstitution consists in the right of the Crown and the two Houses tomodify or repeal any law whatever; they can alter the succession to
the Crown or repeal the Acts of Union in the same manner in which
they can pass an Act enabling a company to make a new railway from
Oxford to London. With us, laws therefore are called constitutional,
because they refer to subjects supposed to affect the fundamental
institutions of the state, and not because they are legally more sacredor difficult to change than other laws. And as a matter of fact, themeaning of the word "constitutional" is in England so vague that theterm "a constitutional law or enactment" is rarely applied to any
English statute as giving a definite description of its character.
R,_dcon- A "rigid" constitution is one under which certain laws generally_tltutlons
known as constitutional or fundamental laws cannot be changed in
the same manner as ordinary laws. The "rigidity" of the constitution,
say of Belgium or of France, consists in the absence of any right on
the part of the Belgian or French Parliament, when acting in its ordinary capacity, to modify or repeal certain definite laws termed constitutional or fundamental. Under a rigid constitution the term "constitutional" as applied to a law has a perfectly definite sense. It meansthat a particular enactment belongs to the articles of the constitution,and cannot be legally changed with the same ease and in the samemanner as ordinary laws. The articles of the constitution will no
doubt generally, though by no means invariably, be found to indude
all the most important and fundamental laws of the state. But it
certainly cannot be asserted that where a constitution is rigid all its
artides refer to matters of supreme importance. The rule that the
French Parliament must meet at Versailles was at one time one of theconstitutional

CHAPTERII

laws of the French Republic. Such an enactment,

65

how-

LAW OF THE CONSTITUTION

ever practically important, would never in virtue of its own character
have been termed constitutional; it was constitutional simply because
it was induded in the artides of the constitution. 42
The contrast between the flexibility of the English and the rigidityof almost every foreign constitution suggests two interesting inquiries.
Whether First, does the rigidity of a constitution secure its permanence andrigidity of
cons_tuinvest the fundamental institutions of the state with practical imtlon
securespermanence?

mutability?
To this inquiry historical experience gives an indecisive answer.
In some instances the fact that certain laws or institutions of a state
have been marked off as placed beyond the sphere of political controversy, has, apparently, prevented that process of gradual innovation which in England has, within not much more than sixty years,transformed our polity. The constitution of Belgium stood for morethan half a century without undergoing, in form at least, any materialchange whatever. The constitution of the United States has lasted formore than a hundred years, but has not undergone anything like theamount of change which has been experienced by the constitution ofEngland since the death of George the Third. 43But if the inflexibilityof constitutional laws has in certain instances checked the gradualand unconscious process of innovation by which the foundations of acommonwealth are undermined, the rigidity of constitutional forms
has in other cases provoked revolution. The twelve unchangeable
42 The terms "flexible" and "rigid" (originally suggested by my friend Mr. Bryce) are, it
should be remarked, used throughout this work without any connotation either of praise orof blame. The flexibility and expansivenessof the English constitution,or the rigidity andimmutability of, e.g., the constitution of the United States, may each be qualities whichaccording to the judgment of different critics deserve either admiration or censure. With
such judgments this treatise has no concern. My whole aim is to make dear to my readers
the exact difference between a flexible and a rigid constitution. It is not my object topronounce any opinion on the question whether the flexibility or rigidity of a given polity
be a merit or a defect.
43 No doubt the constitution of the United States has in reality, though not in form,changed a good deal since the beginning of last century; but the change has been effected
far less by formally enacted constitutional amendments
than by the growth of customs or
institutions which have modified the working without altering the ar_des of the constitution.

PART I66

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NON-SOVEREIGN

LAW-MAKING

BODIES

constitutions of France have each lasted on an average for less thanten years, and have frequently perished by violence. Louis Philippe's
monarchy was destroyed within seven years of the time when
Tocqueville pointed out that no power existed legally capable ofaltering the artides of the Charter. In one notorious instance atleast--and other examples of the same phenomenon might be produced from the annals of revolutionary France--the immutability of
the constitution was the ground or excuse for its violent subversion.
The best plea for the Coup d'_,tat of 1852was, that while the Frenchpeople wished for the re-election of the President, the article of theconstitution requiring a majority of three-fourths of the legislative
assembly in order to alter the law which made the President's reelection impossible, thwarted the will of the sovereign people. Had
the Republican Assembly been a sovereign Parliament, Louis Napoleon would have lacked the plea, which seemed to justify, as well assome of the motives which tempted him to commit, the crime of the
2nd of December.
Nor ought the perils in which France was involved by the immutability with which the statesmen of 2848invested the constitution to belooked upon as exceptional; they arose from a defect which is inherent in every rigid constitution. The endeavour to create laws whichcannot be changed is an attempt to hamper the exercise of sovereign
power; it therefore tends to bring the letter of the law into conflictwith the will of the really supreme power in the state. The majority ofFrench electors were under the constitution the true sovereign ofFrance; but the rule which prevented the legal re-election of the
President in effect brought the law of the land into conflict with thewill of the majority of the electors, and produced, therefore, as a rigid
constitution has a natural tendency to produce, an opposition between the letter of the law and the wishes of the sovereign. If theinflexibility of French constitutions has provoked revolution, theflexibility of English institutions has, once at least, saved them fromviolent overthrow. To a student, who at this distance of time calmly
studies the history of the first Reform Bill, it is apparent, that in 2832
the supreme legislative authority of Parliament enabled the nation tocarry through a political revolution under the guise of a legal reform.

CHAPTER II

67

LA W OF THE CONSTITUTION

The rigidity, in short, of a constitution tends to check gradual innovation; but, just because it impedes change, may, under unfavourable circumstances, occasion or provoke revolution.
What
are
Secondly, what are the safeguards which under a rigid constitution
thesateguards uncan be taken against unconstitutional legislation?
againstcons_tuThe general answer to our inquiry (which of course can have no
tlonal legJsla,on? application to a country like England, ruled by a sovereign Parliament) is that two methods may be, and have been, adopted by the
makers of constitutions, with a view to rendering unconstitutional
legislation, either impossible, or inoperative.
Reliance may be placed upon the force of public opinion and upon
the ingenious balancing of political powers for restraining the legislature from passing unconstitutional enactments. This system opposes
unconstitutional legislation by means of moral sanctions, which resolve themselves into the influence of public sentiment.
Authority, again, may be given to some person or body of persons,and preferably to the Courts, to adjudicate upon the constitutionalityof legislative acts, and treat them as void if they are inconsistent withthe letter or the spirit of the constitution. This system attempts not somuch to prevent unconstitutional legislation as to render it harmlessthrough the intervention of the tribunals, and rests at bottom on theauthority of the judges.
This general account of the two methods by which it may be attempted to secure the rigidity of a constitution is hardly intelligible
without further illustration. Its meaning may be best understood by acomparison between the different policies in regard to the legislature
pursued by two different classes of constitutionalists.
Sategu.ards
French constitution-makers
and their continental followers have,providedbyconhnental
const, tut, onahsts

as we have seen, always attached vital importance to the distinction
between fundamental and other laws, and therefore have constantly
created legislative assemblies which possessed "legislative" without
possessing "constituent" powers. French statesmen have therefore
been forced to devise means for keeping the ordinary legislature
within its appropriate sphere. Their mode of procedure has beenmarked by a certain uniformity; they have dedared on the face of theconstitution the exact limits imposed upon the authority of the legisPARTI

68

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BODIES

lature; they have laid down as artides of the constitution wholebodies of maxims intended to guide and control the course of legislation; they have provided for the creation, by special methods andunder special conditions, of a constituent body which alone should
be entitled to revise the constitution. They have, in short, directed
their attention to restraining the ordinary legislature from attempting
any inroad upon the fundamental laws of the state; but they have in
general trusted to public sentiment, 44or at any rate to political considerations, for inducing the legislature to respect the restraints imposed on its authority, and have usually omitted to provide machinery for annulling unconstitutional enactments, or for rendering themof no effect.
._r_nc,Ro, These traits of French constitutionalism are specially noticeable in
0iunonary•_0n,_tu-the three earliest of French political experiments. The Monarchicalt,0n_ constitution of 1791, the Democratic constitution of i793, the Directorial constitution of 1795 exhibit, under all their diversities, two features in common. 4s They each, on the one hand, confine the power ofthe legislature within very narrow limits indeed; under the Directory,
for instance, the legislative body could not itself change any one of
the 377 artides of the constitution, and the provisions for creating a
constituent assembly were so framed that not the very least alterationin any of these articles could have been carried out within a period ofless than nine years. 46None of these constitutions, on the other
44 "Aucun des pouvoirs institu6s par la constitution n'a le droit de la changer dans son
ensemble ni dans ses parties, sauf les r6formes qui pourront y 6tre faites par la voie de la
r6vision, conform6ment aux dispositions du titre VII. ci-dessus.
"L'Assembl6e nationale constituante en remet le d6p6t _ la fiddlit6 du Corps legislatif, duRoi et des juges, a la vigilance des p6res de famille, aux 6pouses et aux m6res,/_ l'affection
des jeunes citoyens, au courage de tousles France3is."-- Constitution de 2791, Tit. vii. Art. 8;
Duguit et Monnier, Les Constitutions de la France depuis i 789, p. 34.
These are the terms in which the National Assembly entrusts the Constitution of _79_ tothe guardianship of the nation. It is just possible, though not likely, that the reference to thejudges is intended to contain a hint that the Courts should annul or treat as void unconstitutional laws. Under the Constitution of the Year VIII. the senate had authority to annul
unconstitutionallaws. But this was rather a veto on what in England we should call Bills
than a power to make void laws duly enacted. See Constitution of Year VIII., Tit. ii. Arts.
26, 28, H61ie, Les Constitutions de la France, p. 579.
45 See Appendix,
46 See Constitution

CHAPTER II

Note I, Rigidity of French Constitutions.
of _795, Tit. xiii. Art. 338, H61ie, Les Constitutions de la France, p. 463 .

69LAW OF THE CONSTITUTION

hand, contain a hint as to the mode in which a law is to be treated
which is alleged to violate the constitution. Their framers indeed
hardly seem to have recognised the fact that enactments of the legislature might, without being in so many words opposed to the constitution, yet be of dubious constitutionality, and that some means
would be needed for determining whether a given law was or was
not in opposition to the principles of the constitution.
E_,s_n_These characteristics of the revolutionary constitutions have been
Republican
constt_- repeated in the works of later French constitutionalists. Under thehon.
present French Republic there exist a certain number of laws (not it istrue a very large number), which the Parliament cannot change; andwhat is perhaps of more consequence, the so-caUed Congress 47couldat any time increase the number of fundamental laws, and thereby
greatly decrease the authority of future Parliaments. The constitution,
however, contains no article providing against the possibility of an
ordinary Parliament carrying through legislation greatly in excess of
its constitutional powers. Any one in fact who bears in mind therespect paid in France from the time of the Revolution onwards to thelegislation of de facto governments and the traditions of the French
judicature, will assume with confidence that an enactment passed
through the Chambers, promulgated by the President, and publishedin the Bulletin des Lois, will be held valid by every tribunal throughout
the Republic.
Are
This curious result therefore ensues. The restrictions placed on thetides theof arco_ne_,a_action of the legislature under the French constitution are not in
constitu,law_,,?_°_s
reality laws, since they are not rules which in the last resort will be
enforced by the Courts. Their true character is that of maxims ofpolitical morality, which derive whatever strength they possess frombeing formally inscribed in the constitution and from the resulting
support of public opinion. What is true of the constitution of France
applies with more or less force to other politics which have been
formed under the influence of French ideas. The Belgian constitution,for example, restricts the action of the Parliament no less than does
47 The term is used by French writers, but does not appear in the Lois Conslitutionnelles,
one would rather gather that the proper title for a so-called Congress is L'Assembl_e
Nationale.

PART I70

andPARLIAMENTAND NON-SOVEREIGN

LAW-MAKING

BODIESthe Republican constitution of France. But it is at least doubtful
whether Belgian constitutionalists have provided any means whatever for invalidating laws which diminish or do away with the rights(e.g. the right of freedom of speech) "guaranteed" to Belgian citizens.
The jurists of Belgium maintain, in theory at least, that an Act ofParliament opposed to any article of the constitution ought to betreated by the Courts as void. But during the whole period of Belgian
independence, no tribunal, it is said, has ever pronounced judgment
upon the constitutionality of an Act of Parliament. This shows, it may
be said, that the Parliament has respected the constitution, and certainly affords some evidence that, under favourable circumstances,formal dedarations of rights may, from their influence on popularfeeling, possess greater weight than is generally attributed to them inEngland; but it also suggests the notion that in Belgium, as in France,
the restrictions on Parliamentary authority are supported mainly bymoral or political sentiment, and are at bottom rather constitutional
understandings than laws.
To an English critic, indeed, the attitude of continental and espedally of revolutionary statesmen towards the ordinary legislaturebears an air of paradox. They seem to be almost equally afraid ofleaving the authority of the ordinary legislature unfettered, and oftaking the steps by which the legislature may be prevented frombreaking through the bonds imposed upon its power. The explanation of this apparent inconsistency is to be found in two sentiments
which have influenced French constitution-makers
from the veryoutbreak of the Revolution--an
over-estimate of the effect to be produced by general declarations of rights, and a settled jealousy of any
intervention by the judges in the sphere of politics. 4s We shall see, ina later chapter, that the public law of France is still radically influenced by the belief, even now almost universal among Frenchmen,that the law Courts must not be allowed to interfere in any way
whatever with matters of state, or indeed with anything affecting themachinery of government. 49
48 A. de Tocqueville, CEuvres Completes, i. pp. 167,
49 See Chap. XII.

CHAPTERII

71

168.

LAW OF THE CONSTITUTION

Sae_ard_ The authors of the American constitution

provided

have, for reasons that

byfoundwill appear in my next chapter, been even more anxious than Frenche/'s ofUmted statesmen to limit the authority of every legislative body throughout
Statesthe Republic. They have further shared the faith of continental politicians in the value possessed by general dedarations of rights. But
they have, unlike French constitution-makers, directed their attention, not so much to preventing Congress and other legislatures frommaking laws in excess of their powers, as to the invention of meansby which the effect of unconstitutional laws may be nullified; andthis result they have achieved by making it the duty of every judge
throughout the Union to treat as void any enactment which violates
the constitution, and thus have given to the restrictions contained in
the constitution on the legislative authority either of Congress or theState legislatures the character of real laws, that is, of rules enforcedby the Courts. This system, which makes the judges the guardians of
the constitution, provides the only adequate safeguard which hashitherto been invented against unconstitutional legislation.

PARTI

72

Chapter III

PARLIAMENTARYSOVEREIGNTY
AND FEDERALISM;ub,e_1

A"Y present aim is to illustrate the nature of Parliamentary
sovereignty as it exists in England, by a comparison withthe system of government known as Federalism as it exists:
in several parts of the civilised world, and especially in the UnitedStates of America. 1. Federahsm
There are indeed to be found at the present time three other notebestun-

IVI

worthy examples of federal government--the
Swiss Confederation,,ngcon:the
Dominionof
Canada,andtheGermanEmpire.
2But while from ast_tutlon ofStatesLrated study of the institutionsof each of these states one may draw illustrations which throw light on our subject, it will be best to keep our
attention throughout this chapter fixed mainly on the institutions of
the great American Republic. And this for two reasons. The Union, in
the first place, presents the most completely developed type offederalism. All the features which mark that scheme of government,
and above all the control of the legislature by the Courts, are there
exhibited in their most salient and perfect form; the Swiss Confederation 3, moreover, and the Dominion of Canada, are more or less
derstood
bxstudv-

1 On the whole subject of American Federalism the reader should consult Mr. Bryce's
American Commonwealth, and with a view to matters treated of in this chapter should readwith special care vol. i. part i.
2 To these we must now (19o8) add the Commonwealthof Australia. (See Appendix, Note
IX., Australian Federalism), [and see further the South Africa Act, 19o9, 9 Ed. VII. c. 9]3 Swiss federalism deserves an amount of attention which it has only of recent years begun
to receive. The essential feature of the Swiss Commonwealthis that it is a genuine and

CHARTERm

73

LAW OF THE CONSTITUTION

copied from the American model, whilst the constitution of the German Empire is too full of anomalies, springing both from historicaland from temporary causes, to be taken as a fair representative of any
known form of government. The Constitution of the United States, inthe second place, holds a very peculiar relation towards the institutions of England. In the principle of the distribution of powers which
determines its form, the Constitution of the United States is the exact
opposite of the English constitution, the very essence of which is, as I
hope I have now made dear, the unlimited authority of Parliament.
But while the formal differences between the constitution of theAmerican Republic and the constitution of the English monarchy
are, looked at from one point of view, immense, the institutions ofAmerica are in their spirit little else than a gigantic development of
the ideas which lie at the basis of the political and legal institutions ofEngland. The principle, in short, which gives its form to our systemof government is (to use a foreign but convenient expression) "unitarianism," or the habitual exercise of supreme legislative authority
by one central power, which in the particular case is the British Parliament. The principle which, on the other hand, shapes every part of
the American polity, is that distribution of limited, executive, legislative, and judical authority among bodies each co-ordinate with andindependent of the other which, we shall in a moment see, is essential to the federal form of government. The contrast therefore between the two polities is seen in its most salient form, and the resultsof this difference are made all the more visible because in every otherrespect the institutions of the English people on each side the Atlantic
rest upon the same notions of law, of justice, and of the relation
between the rights of individuals and the rights of the government,or the state.
We shall best understand the nature of federalism and the points inwhich a federal constitution stands in contrast with the Parliamentary
constitution of England if we note, first, the conditions essential tonatural democracy, but a democracy based on Continental, and not on Anglo-Saxon, ideasof freedom and of government.
The constitution of the Commonwealth of Australia contains at least one feature apparently suggested by Swiss federalism. See Appendix, Note IX., Australian Federalism.

PARTI

74

PARLIAMENTARYSOVEREIGNTY

AND FEDERALISM

the existence of a federal state and the aim with which such a state isformed; secondly, the essential features of a federal union; and lastly,certain characteristics of federalism which result from its very nature,and form points of comparison, or contrast, between a federal polity
and a system of Parliamentary sovereignty.
-CL_nd,t.onS
A federal state requires for its formation two conditions. 4_andalrn of,_d_ra,sm There must exist, in the first place, a body of countries such as the_Cnun_¢s
Cantons of Switzerland, the Colonies of America, or the Provinces ofcapable of....on Canada, so dosely connected by locality, by history, by race, or the
like, as to be capable of bearing, in the eyes of their inhabitants, animpress of common nationality. It will also be generally found (if we
appeal to experience) that lands which now form part of a federal
state were at some stage of their existence bound together by close
alliance or by subjection to a common sovereign. It were goingfurther than facts warrant to assert that this earlier connection isessential to the formation of a federal state. But it is certain that wherefederalism flourishes it is in general the slowly-matured fruit of some:earlier and looser connection.
E,,_en¢A second condition absolutely essential to the founding of a federal
0! lederal_t,m_n,system is the existence of a very peculiar state of sentiment among
the inhabitants of the countries which it is proposed to unite. They
must desire union, and must not desire unity. If there be no desire tounite, there is dearly no basis for federalism; the wild scheme entertained (it is said) under the Commonwealth of forming a union between the English Republic and the United Provinces was one ofthose dreams which may haunt the imagination of politicians but can
4 For United States see Story, Commentaries on the Constitution of the United States (4th ed.),and Bryce, American Commonwealth.
For Canada see the British North America Act, i867, 3oVict., c. 3; Bourinot, Parliamentary
Procedureand Practice in the Dominion of Canada.
For Switzerland see Constitution F_df,rale de la Confederation Swisse du 29Mai _874; Blumer,
Handbuch des Schweizerischen Bundesstaatsrechtes; Lowell, Governments and Parties in Continental Europe, ii. chaps, xi.-xiii.; Sir F. O. Adams's Swiss Confederation; and Appendix, Note_llI., Swiss Federalism.
For the Commonwealthof Australia, the Constitution whereof deserves careful examination, the reader should consult Quick and Garran, Annotated Constitution of the AustralianCommonwealth; Moore, The Commonwealth of Australia; and Bryce, Studies in History and]urisprudence, i. Essay VIII., "The Constitution of the Commonwealthof Australia." Seefurther, Appendix, Note IX., Australian Federalism.

CHAPTER II1

75

LAW OF THE CONSTITUTION

never be transformed into fact. If, on the other hand, there be a desire
for unity, the wish will naturally find its satisfaction, not under afederal, but under a unitarian constitution; the experience of England and Scotland in the eighteenth and of the states of Italy in thenineteenth century shows that the sense of common interests, orcommon national feeling, may be too strong to allow of that combination of union and separation which is the foundation of federalism.
The phase of sentiment, in short, which forms a necessary condition
for the formation of a federal state is that the people of the proposed
state should wish to form for many purposes a single nation, yetshould not wish to surrender the individual existence of each man's
State or Canton. We may perhaps go a little farther, and say, that afederal government will hardly be formed unless many of the inhabitants of the separate States feel stronger allegiance to their own State
than to the federal state represented by the common government.
This was certainly the case in America towards the end of the eighteenth century, and in Switzerland at the middle of the nineteenth
century. In 1787 a Virginian or a citizen of Massachusetts felt a farstronger attachment to Virginia or to Massachusetts than to the bodyof the confederated States. In 1848 the citizens of Lucerne felt far
keener loyalty to their Canton than to the confederacy, and the samething, no doubt, held true in a less degree of the men of Berne or of
Zurich. The sentiment therefore which creates a federal state is theprevalence throughout the citizens of more or less allied countries of
two feelings which are to a certain extent inconsistent--thedesire fornational unity and the determination to maintain the independenceof each man's separate State. The aim of federalism is to give effect as
far as possible to both these sentiments.
Thea,mo_ A federal state is a political contrivance intended to reconcile nafederahsm.
tional unity and power with the maintenance of "state rights." The
end aimed at fixes the essential character of federalism. For the
method by which Federalism attempts to reconcile the apparently
inconsistent daims of national sovereignty and of state sovereignty
consists of the formation of a constitution under which the ordinary
powers s of sovereignty are elaborately divided between the common
5 See Appendix,

PARTI

Note

II., Divisionof Powers

in Federal

76

States.

PARLIAMENTARYSOVEREIGNTY
ANDFEDERALISM
or national govemmentand the separate states. The details of thisdivision vary under every different federal constitution, but the general principle on which it should rest is obvious. Whatever concerns
the nation as a whole should be. placed under the control of thenational government. All matters which are not primarily of common
interest should remain in the hands of the several States. The preamble to the Constitution of the United States recites that
We, the people of the United States, in order to form a more perfect union,
establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty toourselves and our posterity, do ordain and establish this Constitution for theUnited States of America.

The tenth amendment enacts that "the powers not delegated to theUnited States by the Constitution nor prohibited by it to the States
are reserved to the States respectively or to the people." These twostatements, which are reproduced with slight alteration in the constitution of the Swiss Confederation, 6point out the aim and lay down
the fundamental idea of federalism.
-.0_1
From the notion that national unity can be reconciled with state.__
by a division of powers under a common constitution
4ct_t,c_independence_dCrd_,sn_between the nation on the one hand and the individual States on the
5nJted,,_t_, other, flow the three leading characteristics of completely developed
federalism, _ the supremacy of the constitution_
the distribution
among bodies with limited and co-ordinate authority of the different
powers of government_the
authority of the Courts to act as interpreters of the constitution.
A federal state derives its existence from the constitution, just as a,f_upremacv
conslatu',on
corporation derives its existence from the grant by which it is created.
Hence, every power, executive, legislative, or judidal, whether it
belong to the nation or to the individual States, is subordinate to andcontrolled by the constitution. Neither the President of the UnitedStates nor the Houses of Congress, nor the Governor of Massachusetts, nor the Legislature or General Court of Massachusetts, canlegally exercise a single power which is inconsistent with the articles
6 ConstitutionF_d_rale,Preamble, and art. 3.
CHAPTER IIl

77

LAW OF THE CONSTITUTION

of the Constitution. This doctrine of the supremacy of the constitution is familiar to every American, but in England even trained
lawyers find a difficulty in following it out of its legitimate consequences. The difficulty arises from the fact that under the English
constitution no principle is recognised which bears any real resemblance to the doctrine (essential to federalism) that the Constitution constitutes the "supreme law of the land. ,,7In England we havelaws which may be called fundamental s or constitutional because
they deal with important principles (as, for example, the descent of
the Crown or the terms of union with Scotland) lying at the basisof our institutions, but with us there is no such thing as a supremelaw, or law which tests the validity of other laws. There are indeed
important statutes, such as the Act embodying the Treaty of Union
with Scotland, with which it would be political madness to tamper
gratuitously; there are utterly unimportant statutes, such, for example, as the Dentists Act, 2878, which may be repealed or modified at
the pleasure or caprice of Parliament; but neither the Act of Union
with Scotland nor the Dentists Act, 1878, has more daim than theother to be considered a supreme law. Each embodies the will of thesovereign legislative power; each can be legally altered or repealed by
Parliament; neither tests the validity of the other. Should the Dentists
Act, 2878, unfortunately contravene the terms of the Act of Union,
the Act of Union would be pro tanto repealed, but no judge would
dream of maintaining that the Dentists Act, 2878, was thereby rendered invalid or unconstitutional.
The one fundamental dogma of
English constitutional law is the absolute legislative sovereignty or
despotism of the King in Parliament. But this dogma is incompatible
with the existence of a fundamental compact, the provisions of which
control every authority existing under the constitution. 9
ConseIn the supremacy of the constitution are involved three conseuences_rlttenconslltution.

ouences:

7 See Constitutionof United States, art. 6, d. 2.

8 The expression "fundamental
to the payment of ship-money
9 Compare

PARTI

especiallylaws of England" became current during the controversy(2635). See Gardiner, History of England, viii. pp. 84, 85.

Kent, Commentaries, i. pp. 447-449.

78

asPARLIAMENTARYSOVEREIGNTY

AND FEDERALISM

The constitution must almost necessarily be a "written" constitution.
The foundations of a federal state are a complicated contract. This
compact contains a variety of terms which have been agreed to, andgenerally after mature deliberation, by the States which make up theconfederacy. To base an arrangement of this kind upon understandings or conventions would be certain to generate misunderstandings
and disagreements. The articles of the treaty, or in other words of theconsitution, must therefore be reduced to writing. The constitution
must be a written document, and, if possible, a written document of
which the terms are open to no misapprehension.
The founders of
the American Union left at least one great question unsettled. Thisgap in the Constitution gave an opening to the dispute which was theplea, if not the justification, for the War of Secession.I°_,_,dcon The COnstitution must be what I have termed a "rigid ''ll or "inex..¢,tut_on.
pansive" constitution.
The law of the constitution must be either legally immutable, or
else capable of being changed only by some authority above andbeyond the ordinary legislative bodies, whether federal or statelegislatures, existing under the constitution.
In spite of the doctrine enunciated by some jurists that in every
country there must be found some person or body legally capable ofchanging every institution thereof, it is hard to see why it should beheld inconceivable 12that the founders of a polity should have delib10 NO doubt it is conceivable that a federation might grow up by the force of custom, andunder agreements between different States which were not reduced into writing, and it
appears to be questionable how far the Acha_an League was bound together by anythingequivalent to a written constitution. It is, however, in the highest degree improbable, even
if it be not practically impossible, that in modem times a federal state could be formed
without the framing of some document which, whatever the name by which it is called,
would be in reality a written constitution, regulating the rights and duties of the federal
government and the States composing the Federation.
_ See pp. 39, 64-66, ante.
12 Eminent American lawyers, whose opinion is entitled to the highest respect, maintainthat under the Constitution there exists no person, or body of persons, possessed of legalsovereignty, in the sense given by Austin to that term, and it is difficult to see that thisopinion involves any absurdity. Compare Constitution of United States, art. 5- It would
appear further that certain rights reserved under the Constitution of the German Empire to

CHAPTER III

79

LAW OF THE CONSTITUTION

erately omitted to provide any means for lawfully changing its bases.
Such an omission would not be unnatural on the part of the authorsof a federal union, since one main object of the States entering into
the compact is to prevent further encroachments upon their several
state rights; and in the fifth artide of the United States Constitution may still be read the record of an attempt to give to some of its
provisions temporary immutability. The question, however, whether
a federal constitution necessarily involves the existence of some ultimate sovereign power authorised to amend or alter its terms is of
merely speculative interest, for under existing federal governments
the constitution will be found to provide the means for its own improvement. 13It is, at any rate, certain that whenever the founders ofa federal government hold the maintenance of a federal system to beof primary importance, supreme legislative power cannot be safely
vested in any ordinary legislature acting under the constitution. 14For
so to vest legislative sovereignty would be inconsistent with the aimof federalism, namely, the permanent division between the spheresof the national government and of the several States. If Congress
could legally change the Constitution, New York and Massachusetts
would have no legal guarantee for the amount of independence reserved to them under the Constitution, and would be as subject tothe sovereign power of Congress as is Scotland to the sovereignty of
Parliament; the Union would cease to be a federal state, and would
become a unitarian republic. If, on the other hand, the legislature ofparticular States cannot under the Constitution be taken away from a State without its
assent. (See Reichsverfassung, art. 78.) The truth is that a Federal Constitution partakes of thenature of a treaty, and it is quite conceivable that the authors of the Constitution may intend
to provide no constitutional means of changing its terms except the assent of all the parties
to the treaty.
23 See e.g. South Africa Act, 19o9, s. 252.
14 Under the Constitution of the German Empire the Imperial legislative body can amend
the Constitution. But the character of the Federal Council (Bundesrath) gives ample security
for the protection of State rights. No change in the Constitution can be effected which is
opposed by fourteen votes in the Federal Council. This gives a veto on change to Prussia
and to various combinations of some among the other States. The extent to which national
sentiment and State patriotism respectively predominate under a federal system may beconjectured from the nature of the authority which has the right to modify the Constitution.
See Appendix, Note II., Division of Powers in Federal States.

PARTI

80

PARLIAMENTARYSOVEREIGNTY

AND FEDERAUSM

South Carolina could of its own will amend the Constitution, theauthority of the central government would (from a legal point ofview) be illusory; the United States would sink from a nation into acollection of independent countries united by the bond of a more orless permanent alliance. Hence the power of amending the Constitution has been placed, so to speak, outside the Constitution, and one
may say, with sufficient accuracy for our present purpose, that thelegal sovereignty of the United States resides in the States' governments as forming one aggregate body represented by three-fourths ofthe several States at any time belonging to the Union. is Now fromthe necessity for placing ultimate legislative authority in some bodyoutside the Constitution a remarkable consequence ensues. Under afederal as under a unitarian system there exists a sovereign power,
but the sovereign is in a federal state a despot hard to rouse. He is
not, like the English Parliament, an ever-wakeful legislator, but amonarch who slumbers and sleeps. The sovereign of the UnitedStates has been roused to serious action but once during the course of
more than a century. It needed the thunder of the Civil War to breakhis repose, and it may be doubted whether anything short of impending revolution will ever again arouse him to activity. But amonarch who slumbers for years is like a monarch who does notexist. A federal constitution is capable of change, but for all that afederal constitution is apt to be unchangeable. 16_5 "The Congress, whenever two-thirds of both houses shall deem it necessary, shallpropose amendments
to this Constitution,or, on the application of the legislatures of
two-thirds of the several States, shall call a convention for proposing amendments,
which,
in either case, shall be valid to all intents and purposes, as part of this Constitution, when
ratified by the legislatures of three-fourthsof the several States, or by conventions inthree-fourths thereof, as the one or the other mode of ratification may be proposed by theCongress; provided that no amendments
which may be made prior to the year one
thousand eight hundred and eight shall in any manner affect the first and fourth clauses in
the ninth section of the first arfide; and that no State, without its consent, shall be deprivedof its equal suffrage in the Senate."--Constitutionof United States, art. 5- Compare
Austin, i. p. 278, and see Bryce, American Commonwealth, i. (3rd ed.), chap. xxxii., on the
Amendment of the Constitution.
_6 [Note, however, the ease with which the provisions of the Constitution of the U.S., withregard to the election of Senators by the Legislature and the transference of such election to
the people of each State, have been carried through by Amendment xvii., passed in _913.]

CHAPTER 111

81

LAW OF THE CONSTITUTION

Every
Every legislative assembly existing under a federal constitution isunderfed- merely17 a subordinate law-making body, whose laws are of the naeralconas_tution
subordi- _s ture of bye-laws, valid whilst within the authority conferred upon it
n_te_aw-by the constitution, but invalid or unconstitutional if they go beyond
makingbodythe limits of such authority.
There is an apparent absurdity 18in comparing the legislature of theUnited States to an English railway company or a municipal corporation, but the comparison is just. Congress can, within the limits of
its legal powers, pass laws which bind every man throughout theUnited States. The Great Eastern Railway Company can, in likemanner, pass laws which bind every man throughout the British
dominions. A law passed by Congress which in in excess of its legal
powers, as contravening the Constitution, is invalid; a law passed by
the Great Eastern Railway Company in excess of the powers given by
Act of Parliament, or, in other words, by the legal constitution of thecompany, is also invalid; a law passed by Congress is called an "Act"of Congress, and if ultra vires is described as "unconstitutional";
a lawpassed by the Great Eastern Railway Company is called a "bye-law,"and if ultra vires is called, not "unconstitutional,"
but "invalid."
Differences, however, of words must not conceal from us essential
legmlaturesimilarity in things. Acts of Congress, or of the Legislative Assemblyof New York or of Massachusetts, are at bottom simply "bye-laws,"
depending for their validity upon their being within the powers given
to Congress or to the state legislatures by the Constitution. The byelaws of the Great Eastern Railway Company, imposing fines upon
passengers who travel over their line without a ticket, are laws, butthey are laws depending for their validity upon their being within the
powers conferred upon the Company by Act of Parliament, i.e. by theCompany's constitution. Congress and the Great Eastern Railway
Company are in truth each of them nothing more than subordinate
law-making bodies. Their power differs not in degree, but in kind,
17 This is so in the United States, but it need not necessarily be so. The Federal Legislature
may be a sovereign power but may be so constituted that the rights of the States under theConstitution are practically protected. This condition of things exists in the German Empire.
18 See p. 40, note 4, ante.

PARTI

82

PARLIAMENTARYSOVEREIGNTY

AND FEDERALISM

from the authority of the sovereign Parliament of the United Kingdom. 19,,,tr,_u- The distribution of powers is an essential feature of federalism. Theo,,°_'"_.r,object for which a federal state is formed involves a division of authority between the national government and the separate States.
The powers given to the nation form in effect so many limitations
upon the authority of the separate States, and as it is not intended
that the central government should have the opportunity of encroaching upon the rights retained by the States, its sphere of action
necessarily becomes the object of rigorous definition. The Constitution, for instance, of the United States delegates special and closely
defined powers to the executive, to the legislature, and to the judiciary of the Union, or in effect to the Union itself, whilst it provides
that the powers "not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States
respectively or to the people. ''2°),,,s,o,o_ This is all the amount of division which is essential to a federal_ower_•n_tadr,_d constitution. But the principle of definition and limitation of powers,_,ona harmonises so well with the federal spirit that it is generally carried_ecesqar):m,_ much farther than is dictated by the mere logic of the constitution.
Thus the authority assigned to the United States under the Constitution is not concentrated in any single official or body of officials. The_9 See as to bye-laws made by municipal corporations, and the dependence of their validity
upon the powers conferred upon the corporation: Johnson v. Mayor of Croydon, I6 Q. B. D.
7o8;Reg. v. Powell, 5_ L. T. 92; Munro v. Watson, 57 L. T. 366. See Bryce, American Comraonwealth, i. (3rd ed.), pp. 244, 245.
2o Constitution of United States, Amendments,
art. _o. See provisions of a similar characterin the Swiss Constitution, Constitution FM&ale, art. 3. Compare the Constitution of theCanadian Dominion, British North America Act, 1867, secs. 91, 92.
There exists, however, one marked distinction in principle between the Constitution of
the United States and the Constitution of the Canadian Dominion. The Constitution of theUnited States in substance reserves to the separate States all powers not expressly conferred upon the national government. The Canadian Constitution in substance confers upon
the Dominion government all powers not assigned exclusively to the Provinces. In thismatter the Swiss Constitution follows that of the United States.
The Constitution of the Australian Commonwealthfollows in effect the example of theConstitution of the United States. The powers conferred upon the Commonwealth Parliament are, though very large, definite; the powers reserved to the Parliaments of the States
are indefinite. See Commonwealth
Act, ss. 5_, 52, and _o7, and Appendix, Note II., Division of Powers in Federal States, and Note IX., Australian Federalism.

CHAPTER III

8_

LAW OF THE CONSTITUTION

President has definite rights, upon which neither Congress nor the
judicial department can encroach. Congress has but a limited, indeed
a very limited, power of legislation, for it can make laws upon eighteen topics only; yet within its own sphere it is independent both of
the President and of the Federal Courts. So, lastly, the judiciary havetheir own powers. They stand on a level both with the President andwith Congress, and their authority (being directly derived from theconstitution) cannot, without a distinct violation of law, be trenched
upon either by the executive or by the legislature. Where, further,
States are federally united, certain principles of policy or of justicemust be enforced upon the whole confederated body as well as upon
the separate parts thereof, and the very inflexibility of the constitution
tempts legislators to place among constitutional articles maxims
which (though not in their nature constitutional) have special claims
upon respect and observance. Hence spring additional restrictions on
the power both of the federation and of the separate states. The
United States Constitution prohibits both to Congress 21and to theseparate States 22the passing of a bill of attainder or an ex post facto
law, the granting of any title of nobility, or in effect the laying of any
tax on articles exported from any State, 23enjoins that full faith shallbe given to the public acts and judicial proceedings of every otherState, hinders any State from passing any law impairing the obligation of contracts, 24and prevents every State from entering into any
treaty, alliance, or confederation; thus it provides that the elementary
principles of justice, freedom of trade, and the rights of individual
property shall be absolutely respected throughout the length andbreadth of the Union. It further ensures that the right of the people tokeep and bear arms shall not be infringed, while it also provides thatno member can be expelled from either House of Congress without
the concurrence of two-thirds of the House. Other federal constitutions go far beyond that of the United States in ascribing among
21 Constitutionof United States, art. _, sec. 9.

22/b/d., art. _, sec. 10.
23 fin'd, art. 1, sec. 9. But conf. art. 1, sec. io.
24 Ibid., art. _, sec. lo.

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AND FEDERALISM

constitutional articles either principles or petty rules which are supposed to have a claim of legal sanctity; the Swiss Constitution is full of"guaranteed" rights.
Nothing, however, would appear to an English critic to afford so
striking an example of the connection between federalism and the"limitation of powers" as the way in which the principles of thefederal Constitution pervade in America the constitutions of the separate States. In no case does the legislature of any one State possess all
the powers of "state sovereignty" left to the States by the Constitution of the Republic, and every state legislature is subordinated to theconstitution of the State.2S The ordinary legislature of New York or
Massachusetts can no more change the state constitution than it canalter the Constitution of the United States itself; and, though the topic
cannot be worked out here in detail, it may safely be asserted thatstate government throughout the Union is formed upon the federal
model, and (what is noteworthy) that state constitutions have carriedmuch further than the Constitution of the Republic the tendency todothe with constitutional immutability any rules which strike thepeople as important. Illinois has embodied, among fundamental
laws, regulations as to elevators. 26
But here, as in other cases, there is great difficulty in distinguishingcause and effect. If a federal form of government has affected, as itprobably has, the constitutions of the separate States, it is certain thatfeatures originally existing in the State constitutions have been reproduced in the Constitution of the Union; and, as we shall see in a
moment, the most characteristic institution of the United States, theFederal Court, appears to have been suggested at least to the founders of the Republic, by the relation which before 1789 already existed
between the state tribunals and the state legislatures.27
25 Contrast with this the indefinite powers left to State Parliaments under the Commonwealth of Australia Conslitution Act, ss. 206, 207. The Constitutionalistsof Australia who
created the Commonwealthhave been as much influenced by the traditions of English
Parliamentary sovereignty as American legislators have in their dealings with the State
Constitutions been influenced by the spirit of federalism.
26 See Munn v. Illinois, 4 Otto, _23.
27 European critics of American federalism have, as has been well remarked by an eminent
French writer, paid in general too little attention to the working and effect of the state

CHAPTER
Ill

8_

LAW OF THE CONSTITUTION

D,v,_,onof The tendency of federalism to limit on every side the action of
d_t_nand to split up the strength of the state among CO_eU_Shes government
fromdera_un,_rordinate and independent authorities is specially noticeable, becauseJansystemit
forms the essential distinction between a federal system such asof governmentthat of America or Switzerland, and a unitarian system of government such as that which exists in England or Russia. We talk indeedof the English constitution as resting on a balance of powers, and as
maintaining a division between the executive, the legislative, and the
judicial bodies. These expressions have a real meaning. But they havequite a different significance as applied to England from the sense
which they bear as applied to the United States. All the power of the
English state is concentrated in the Imperial Parliament, and all departments of government are legally subject to Parliamentary despotism. Our judges are independent, in the sense of holding theiroffice by a permanent tenure, and of being raised above the direct
influence of the Crown or the Ministry; but the judicial department
does not pretend to stand on a level with Parliament; its functions
might be modified at any time by an Act of Parliament; and such a
statute would be no violation of the law. The Federal Judiciary, on theother hand, are co-ordinate with the President and with Congress,and cannot without a revolution be deprived of a single right by
President or Congress. So, again, the executive and the legislature arewith us distinct bodies, but they are not distinct in the sense in which
the President is distinct from and independent of the Houses ofCongress. The House of Commons interferes with administrative
matters, and the Ministry are in truth placed and kept in office by thepowe]'sconstitutions,and have overlooked the great importance of the action of the state legislatures. See Boutmy, _tudes de Droit Constitutionnel (and ed.), pp. _o3-_i.
"It has been truly said that nearly every provision of the Federal Constitution that has
worked well is one borrowed from or suggested by some State Constitution; nearly every
provision that has worked badly is one which the Convention, for want of a precedent, wasobliged to devise for itself."--Bryce,
American Commonwealth, i. (3rd ed.), p. 35- One capital
merit of Mr. Bryce's book is that it for the first time reveals, even to those who had alreadystudied American institutions,the extent to which the main features of the Constitution of
the Unitedments.

PART1

States were suggested

to its authors by the characteristics

86of the State govern-

PARLIAMENTARYSOVEREIGNTY

AND FEDERALISMHouse. A modem Cabinet would not hold power for a week if censured by a newly elected House of Commons. An American President may retain his post and exercise his very important functions
even though his bitterest opponents command majorities both in the
Senate and in the House of Representatives. Unitarianism, in short,means the concentration of the strength of the state in the hands of
one visible sovereign power, be that power Parliament or Czar.
Federalism means the distribution of the force of the state among a
number of co-ordinate bodies each originating in and controlled by
the constitution.
_th_ty Whenever there exists, as in Belgium or in France, a more or less
Courtsrigid constitution, the articles of which cannot be amended by theordinary legislature, the difficulty has to be met of guarding against
legislation inconsistent with the constitution. As Belgian and Frenchstatesmen have created no machinery for the attainment of this object, we may condude that they considered respect for the constitution to be sufficiently secured by moral or political sanctions, andtreated the limitations placed on the power of Parliament rather as
maxims of policy than as true laws. During a period, at any rate ofmore than sixty years, no Belgian judge has (it is said) ever pronounced a Parliamentary enactment unconstitutional. No French tribunal, as has been already pointed out, would hold itself at liberty todisregard an enactment, however unconstitutional, passed by the
National Assembly, inserted in the Bulletin des Lois, and supported by
the force of the government; and French statesmen may well havethought, as Tocqueville certainly did think, that in France possible
Parliamentary invasions of the constiCation were a less evil than theparticipation of the judges in political conflicts. France, in short, andBelgium being governed under unitarian constitutions, the nonsovereign character of the legislature is in each case an accident, notan essential property of their polity. Under a federal system it isotherwise. The legal supremacy of the constitution is essential to theexistence of the state; the glory of the founders of the United States is
to have devised or adopted arrangements under which the Constitution became in reality as well as name the supreme law of the land.

CHAPTERm

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LAW OF THE CONSTITUTION

This end they attained by adherence to a very obvious prindple, andby the invention of appropriate machinery for carrying this principle
into effect.
How

authority
Courtsofthe isexerted.

The principle is dearly expressed in the Constitution
States(artide 6):
The Constitutionof the United

and the laws of the United States which shall be made inpursuance thereof..,shall be the supreme law of the land, and the judges
in every State shall be bound thereby, anything in the constitution or laws of
any State to the contrary notwithstanding.
2s

The import of these expressions
writes:is unmistakable.

Chancellor Kent

Every Act of Congress and every Act of the legislatures of the States, andevery part of the constitution of any State, which are repugnant to the Constitution of the United States, are necessarily void. This is a dear and settled
principle of [our] constitutional jurisprudence. 29

The legal duty therefore of every judge, whether he act as a judge of
the State of New York or as a judge of the Supreme Court of theUnited States, is dear. He is bound to treat as void every legislativeact, whether proceeding from Congress or from the state legislatures,
which is inconsistent with the Constitution of the United States. His
duty is as dear as that of an English judge called upon to determine
the validity of a bye-law made by the Great Eastern or any other
Railway Company. The American judge must in giving judgment
obey the terms of the Constitution, just as his English brother must in
giving judgment obey every ACt of Parliament bearing on the case.
Supremacy
To have laid down the principle with distinctness is much, butofconshtu_on
sethe
great problem was how to ensure that the principle should be
cured by_roa_onthat judges depending on theSupreme of obeyed; for there existed a danger
Court federal government should wrest the Constitution in favour of thecentral power, and that judges created by the States should wrest it infavour of State rights or interests. This problem has been solved by
the creation of the Supreme Court and of the Federal Judiciary.
28 Constitution of United States, art. 6.
29 Kent, Commentaries,i. (_.fl_ed.), p. 3_4, and conf. Ibid., p. 449.

P,4RTI88

PARLIAMENTARYSOVEREIGNTY

AND FEDERALISM

Of the nature and position of the Supreme Court itself thus much_r,_m_alone need for our present purpose be noted. The Court derives its,u_t existence from the Constitution, and stands therefore on an equality
with the President and with Congress; the members thereof (incommon with every judge of the Federal Judiciary) hold their places
during good behaviour, at salaries which cannot be diminished during a judge's tenure of office. 3°The Supreme Court stands at thehead of the whole federal judicial department, which, extending by
its subordinate Courts throughout the Union, can execute its judgments through its own officers without requiring the aid of state
officials. The Supreme Court, though it has a certain amount of original jurisdiction, derives its importance from its appellate character; itis on every matter which concerns the interpretation of the Constitution a supreme and final Court of Appeal from the decision of every
Court (whether a Federal Court or a State Court) throughout theUnion. It is in fact the final interpreter of the Constitution, and therefore has authority to pronounce finally as a Court of Appeal whether
a law passed either by Congress or by the legislature of a State, e.g.
New York, is or is not constitutional. To understand the position of
the Supreme Court we must bear in mind that there exist throughout
the Union two classes of Courts in which proceedings can be commenced, namely, the subordinate federal Courts deriving their authority from the Constitution, and the state Courts, e.g. of New Yorkor Massachusetts, created by and existing under the state constitutions; and that the jurisdiction of the federal judiciary and the state
judiciary is in many cases concurrent, for though the jurisdiction of
the federal Courts is mainly confined to cases arising under the Constitution and laws of the United States, it is also frequently dependent
upon the character of the parties, and though there are cases withwhich no state Court can deal, such a Court may often entertain cases
which might be brought in a federal Court, and constantly has toconsider the effect of the Constitution on the validity either of a law
passed by Congress or of state legislation. That the Supreme Court
should be a Court of Appeal from the decision of the subordinate
ture andon of

30 Constitution of United States, art. 3, secs. _, 2.

CHAPTER III

89

LAW OF THE CONSTITUTION

federal tribunals is a matter which excites no surprise. The point to be
noted is that it is also a Court of Appeal from decisions of the Supreme Court of any State, e.g. New York, which turn upon or interpretthe artides of the Constitution or Acts of Congress. The particularcases in which a party aggrieved by the decision of a state Court has aright of appeal to the Supreme Court of the United States are regulated by an Act of Congress of 24th September 1789, the twenty-fifth
section of which provides thata final judgment or decree, in any suit in the highest court of law or equity ofa State, may be brought up on error in point of law, to the Supreme Court of
the United States, provided the validity of a treaty, or statute of, or authority
exercised under the United States, was drawn in question in the state court,
and the decision was against the validity; or provided the validity of any
state authority was drawn in question, on the ground of its being repugnant
to the Constitution, treaties, or laws of the United States, and the decision
was in favour of its validity; or provided the construction of any clause of
the Constitution or of a treaty, or statute of, or commission held under theUnited States, was drawn in question, and the decision was against the rifle,
right, privilege, or exemption, specially claimed under the authority of theUnion. 31

Strip this enactment of its technicalities and it comes to this. A party
to a case in the highest Court, say of New York, who bases his claim
or defence upon an article in the Constitution or law made under it,
stands in this position: If judgment be in his favour there is no further
appeal; if judgment goes against him, he has a right of appeal to theSupreme Court of the United States. Any lawyer can see at a glance
how well devised is the arrangement to encourage state Courts inthe performance of their duty as guardians of the Constitution, andfurther that the Supreme Court thereby becomes the ultimate arbiterof all matters affecting the Constitution.
Let no one for a moment fancy that the right of every Court, andultimately of the Supreme Court, to pronounce on the constitutionality of legislation and on the rights possessed by different authorities
under the Constitution is one rarely exercised, for it is in fact a rightwhich is constantly exerted without exciting any more surprise on the
31 Kent, Commentaries,i. (12th ed.), pp. 299, 3o0.

PARTI

9°

PARLIAMENTARYSOVEREIGNTY

AND FEDERALISM

part of the citizens of the Union than does in England a judgment of
the King's Bench Division treating as invalid the bye-law of a railway
company. The American tribunals have dealt with matters of supreme consequence; they have determined that Congress has theright to give priority to debts due to the United States, 32can lawfully
incorporate a bank, 33 has a general power to levy or collect taxes
without any restraint, but subject to definite principles of uniformity
prescribed by the Constitution; the tribunals have settled what is thepower of Congress over the militia, who is the person who has a rightto command it, 34 and that the power exercised by Congress during
the War of Secession of issuing paper money was valid. 3s The Courts
againhave controlled the power of the separate States fully as vigorously as they have defined the authority of the United States. The
judiciary have pronounced unconstitutional every ex post facto law,every law taxing even in the slightest degree artides exported fromany State, and have again deprived of effect state laws impairing theobligation of contracts. To the judiciary in short are due the maintenance of justice, the existence of internal free trade, and the general
respect for the rights of property; whilst a recent decision shows that
the Courts are prepared to uphold as consistent with the Constitution
any laws which prohibit modes of using private property, which
seem to the judges inconsistent with public interest. 36The power
moreover of the Courts which maintains the artides of the Constitution as the law of the land, and thereby keeps each authority within
its proper sphere, is exerted with an ease and regularity which has
astounded and perplexed continental critics. The explanation is thatwhile the judges of the United States control the action of the Constitution, they nevertheless perform purely judicial functions, since
they never decide anything but the cases before them. It is natural to
32 Kent, Commentaries, i. (_2th ed.), pp. 244-248.
33 Ibid., pp. 248-254.
34 Ibid., pp. 262-266.
35 Story, Commentaries on the Constitution (4th ed.), ii. secs. _26, _a27. See Hepburn v. Griswold, 8 Wallace, 603, Dec. 2869, and Knox v. Lee, 22 Wallace, 457.
36 Munn v. Illinois, 4 Otto, Rep. _23. See especially the Judgments of Marshall, C. J.,
collected in The Writings of ]ohn Marshall upon the Federal Constitution (2839).

CHAPTER
II1

91

LAW OF THE CONSTITUTION

say that the Supreme Court pronounces Acts of Congress invalid, but
in fact this is not so. The Court never directly pronounces any opinion whatever upon an Act of Congress. What the Court does do issimply to determine that in a given case A is or is not entitled torecover judgment against X; but in determining that case the Court
may decide that an Act of Congress is not to be taken into account,since it is an Act beyond the constitutional powers of Congress. 3_
The trueIf any one thinks this is a distinction without a difference he shows
meritof thefoundersofsome
ignorance of politics, and does not understand how much thethe Uvuteds_t_
authority of a Court is increased by confining its action to purely
judicial business. But persons who, like TocqueviUe, have fully appreciated the wisdom of the statesmen who created the Union, haveformed perhaps an exaggerated estimate of their originality. Their
true merit was that they applied with extraordinary skill the notions
which they had inherited from English law to the novel circumstances of the new republic. To any one imbued with the traditions ofEnglish procedure it must have seemed impossible to let a Court
decide upon anything but the case before it. To any one who had
inhabited a colony governed under a charter the effect of which on
the validity of a colonial law was certainly liable to be considered by
the Privy Council, there was nothing startling in empowering the
judiciary to pronounce in given cases upon the constitutionality ofActs passed by assemblies whose powers were limited by the Constitution, just as the authority of the colonial legislatures was limited
by charter or by Act of Parliament. To a French jurist, indeed, filledwith the traditions of the French Parliaments, all this might well beincomprehensible,
but an English lawyer can easily see that thefathers of the republic treated Acts of Congress as English Courts
treat bye-laws, and in forming the Supreme Court may probably
have had in mind the functions of the Privy Council. It is still morecertain that they had before their eyes cases in which the tribunals ofparticular States had treated as unconstitutional, and therefore pronounced void, Acts of the state legislature which contravened thestate constitution. The earliest case of declaring a law unconstitutional
37 See Chap. II. pp. 42-45, ante.

PARTI

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PARLIAMENTARYSOVEREIGNTY

AND FEDERALISM

dates (it is said) from 1786, and took place in Rhode Island, which wasthen, and continued _ _842, to be governed under the charter ofCharles II. An Act of the legislature was dedared unconstitutional by
the Courts of North Carolina in 178738 and by the Courts of Virginia in
1788, 39 whilst the Constitutionof the United States was not adopted
fill 2789, and Marbury v. Madison, the first case in which the Supreme
Court dealt with the question of constitutionality, was decided in
2803.40
But if their notions were conceptions derived from English law, thegreat statesmen of America gave to old ideas a perfectly new expansion, and for the first time in the history of the world formed aconstitution which should in strictness be "'the law of the land,"and in so doing created modern federalism. For the essential characteristics of federalismwthe
supremacy of the constitution--thedistribution of powers m the authority of the judidary--reappear,though no doubt with modifications, in every true federal state.
._
Turn for a moment to the Canadian Dominion. The preamble tond.ddl_o_n
the British North America ACt, 1867, asserts with diplomatic inaccuracy that the Provinces of the present Dominion have expressed their
desire to be united into one Dominion "with a constitution similar inprinciple to that of the United Kingdom." If preambles were intended
to express anything like the whole truth, for the word "'Kingdom'"
ought to have been substituted "States": since it is dear that theConstitution of the Dominion is in its essential features modelled onthat of the Union. This is indeed denied, but in my judgment without
adequate grounds, by competent Canadian critics. 41The differences
38 Martin, 421.
39 2Va. Cas. 298.
4o 2 Cranch, 237. For the facts as to the early action of the State Courts in declaring
legislative enactments unconstitutional
I am indebted, as for much other useful criticism, tothat eminent constitutionalist
my friend the late Professor Thayer of Harvard University.
42 The difference between the judgment as to the character of the Canadian Constitution
formed by myself, and the judgment of competent and friendly Canadian critics, may easily
be summarised and explained. If we look at the federal character of the Constituton of the
Dominion, we must inevitably regard it as a copy, though by no means a servile copy, of
the Constitution of the United States. Now in the present work the Canadian Constitution
is regarded exdusively as a federal government. Hence my assertion, which I still hold to be

CHAPTERm

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LAW OF THE CONSTITUTION

between the institutions of the United States and of the Dominion areof course both considerable and noteworthy. But no one can study
the provisions of the British North America Act, 1867, without seeingthat its authors had the American Constitution constantly before theireyes, and that if Canada were an independent country it would be a
Confederacy governed under a Constitution very similar to that of
the United States. The Constitution is the law of the land; it cannot bechanged (except within narrow limits allowed by the British North
America
Act, 1867) either by the Dominion Parliament 42or by theProvincial Parliaments; 43it can be altered only by the sovereign
power of the British Parliament. _ Nor does this arise from the Canadian Dominion being a dependency. New Zealand is, like Canada, acolony, but the New Zealand Parliament can with the assent of the
Crown do what the Canadian Parliament cannot do mchange thecolonial constitution. Throughout the Dominion, therefore, the Constitution is in the strictest sense the immutable law of the land. Under
this law again, you have, as you would expect, the distribution of
powers among bodies of co-ordinate authority; 4s though undoubtedly the powers bestowed on the Dominion Government and Parliament are greater when compared with the powers reserved to thecorrect, that the government of the Dominion is modelled on that of the Union. If, on theother hand, we compare the Canadian Executive with the American Executive, we perceiveat once that Canadian government is modelled on the system of Parliamentary cabinet
government as it exists in England, and does not in any wise imitate the Presidential
government of America. This, it has been suggested to me by a friend well acquainted with
Canadian institutions, is the point of view from which they are looked upon by my Canadian critics, and is the justification for the description of the Constitution of the Dominion
given in the preamble to the British North America Act, 1867. The suggestion is a just andvaluable one; in deference to it some of the expressions used in the earlier editions of thisbook have undergone a slight modification.
42 See, however, British North America Act, 1867 (3oVict. c. 3), s. 94, which gives the
Dominion Parliament a limited power (when acting in conjunction with a Provincial legislature) of changing to a certain extent the provisions of the British North America ACt, 1867.
43 The legislatures of each Province have, nevertheless, authority to make laws for "theamendment from time to time, notwithstanding
anything [in the British North America
Act, 1867] of the Constitution of the Province, except as regards the office of Lieutenant
Governor." See British North America Act, _867, s. 92.
44 See for an example of an amendment of the Dominion
statute, the ParLiament of Canada Act, _875.
45 British North America Act, 1867, secs. 91, 92,

PARTl

94

Constitution

by an Imperial

PARLIAMENTARY SOVEREIGNTY AND FEDERALISM

Provinces than are the powers which the Constitution of the UnitedStates gives to the federal government. In nothing is this more noticeable than in the authority given to 46the Dominion Government todisallow Provincial Acts. 47
This right was possibly given with a view to obviate altogether thenecessity for invoking the law Courts as interpreters of the Constitution; the founders of the Confederation appear in fact to have believed thatthe care taken to define the respective powers of the several legislative
bodies in the Dominion would prevent any troublesome or dangerous conflict of authority arising between the central and local governments. 4sThe futility, however, of a hope grounded on a misconception of thenature of federalism is proved by the existence of two thick volumesof reports filled with cases on the constitutionality of legislative
enactments, and by a long list of decisions as to the respective powers
possessed by the Dominion and by the Provincial Parliaments-judgments given by the true Supreme Court of the Dominion,
namely, the Judicial Committee of the Privy Council. In Canada, as in
the United States, the Courts inevitably become the interpreters of
the Constitution.
h0s_s_
onledera-

Swiss federalism repeats, though with noteworthy variations, theessential traits of the federal polity as it exists across the Atlantic. The
Constitution is the law of the land, and cannot be changed either by
the federal or by the cantonal legislative bodies; the Constitution
enforces a distribution of powers between the national government
and the Cantons, and directly or indirectly defines and limits thepower of every authority existing under it. The Common Government has in Switzerland, as in America, three organs--a Federal
Legislature, a Federal Executive (Bundesrath), and a Federal Court(Bundesgericht).
Of the many interesting and instructive peculiarities which give to
Swiss federalism an individual character, this is not the occasion to46 Ibid., secs. 36, 9o.
47 Bourinot, ParliamentaryProcedureand Practicein the Dominion of Canada,p. 76.
48 Bourinot, ParliamentaryProcedureand Practicein the Dominion of Canada,p. 694.

CHAPTER
111

95

LAW OF THE CONSTITUTION

write in detail. It lies, however, within the scope of this chapter tonote that the Constitution of the Confederation differs in two mostimportant respects from that of the United States. It does not, in thefirst place, establish anything like the accurate division between theexecutive and the judicial departments of government which exists
both in America and in Canada; the Executive exercises, under thehead of "administrative law," many functions 49of a judicial character, and thus, for example, till _893 dealt in effect with questions s°
having reference to the rights of religious bodies. The Federal Assembly is the final arbiter on all questions as to the respective jurisdiction of the Executive and of the Federal Court. The judges of that
Court are elected by the Federal Assembly, they are occupied greatly
with questions of public law (Staatsrecht), and so experienced astatesman as Dr. Dubs laments that the Federal Court should possess
jurisdiction in matters of private law. s_ When to this it is added thatthe judgments of the Federal Court are executed by the government,
it at once becomes dear that, according to any English standard,
Swiss statesmanship has failed as distinctly as American statesmanship has succeeded in keeping the judicial apart from the executive
department of government, and that this failure constitutes a serious
flaw in the Swiss Constitution. That Constitution, in the second
place, does not in reality place the Federal Court on an absolute levelwith the Federal Assembly. That tribunal cannot question the constitutionality of laws or decrees passed by the Federal Parliament. s2
From this fact one might suppose that the Federal Assembly is (unlike
Congress) a sovereign body, but this is not so. The reason why all
Acts of the Assembly must be treated as constitutional by the Federal
Tribunal is that the Constitution itself almost predudes the possibilityof encroachment upon its artides by the federal legislative body. No
49 Constitution Feddrale, art. _13, Loi; 27 June 1874, art. 59; and Dubs, Das _ffentliche Recht derschweizerischen Eidgen_senschafl, ii. (2nd ed.), p. 9 o.
50 The decision thereof belonged till 1893 to the Assembly, guided by the Federal Council; it
now belongs to the Federal Court. See Dubs, ii. pp. 92-95; Lowell, Governments and Parties,
ii. pp. 217, 218.
51 Constitution F_d_rale, art. 1_3;and Dubs, ii. (and ed.), pp. 92-95.
52 Constitution F_df'rale, art. 113; and Dubs, ii. (and ed.), pp. 92-95.

PARTI

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PARLIAMENTARYSOVEREIGNTY

AND FEDERALISM

legal revision can take place without the assent both of a majority of
Swiss citizens and of a majority of the Cantons, and an ordinary law
duly passed by the Federal Assembly may be legally annt_ed by apopular veto. The authority of the Swiss Assembly nominally exceeds the authority of Congress, because in reality the Swiss legislative body is weaker than Congress. For while in each case there lies inthe background a legislative sovereign capable of controlling the action of the ordinary legislature, the sovereign power is far moreeasily brought into play in Switzerland than in America. When thesovereign power can easily enforce its will, it may trust to its own
action for maintaining its rights; when, as in America, the same
power acts but rarely and with difficulty, the Courts naturally become
the guardians of the sovereign's will expressed in the artides of theConstitution.
,_pa_Our survey from a legal point of view of the characteristics com_be_ens,,- mon to all federal governments forcibly suggests condusions of moreof "as to the comparative merits of federal'_ral,sm_ of par- than merely legal interest,
v_e_g_V
government, and the system of Parliamentary sovereignty.
_
Federal government means weak government, s3_"J-,
The distribution of all the powers of the state among co-ordinate
authorities necessarily leads to the result that no one authority canwield the same amount of power as under a unitarian constitution as
53 This weakness springs from two different causes: first, the division of powers between
the central government and the States; secondly, the distribution of powers between the
different members (e.g. the President and the Senate) of the national government. The firstcause of weakness is inherent in the federal system; the second cause of weakness is not(logically at least) inherent in federalism. Under a federal constitution the whole authorityof the national government might conceivably be lodged in one person or body, but we may
feel almost certain that in practice the fears entertained by the separate States of encroachments by the central government on their State fights will prohibit such a concentration of
authority.
The statement that federal government means weak government should be qualified orbalanced by the consideration that a federal system sometimes makes it possible fordifferent communities to be united as one state when they otherwise could not be united atall. The bond of federal union may be weak, but it may be the strongest bond which
circumstances allow.
The failure and the calamities of the Helvetic Republic are a warning against the attempt
to force upon more or less independent
states a greater degree of political unity than they
will tolerate.

CHAPTER III

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LAW OF THE CONSTITUTION

possessed by the sovereign. A scheme again of checks and balancesin which the strength of the common government is so to speak
pitted against that of the state governments leads, on the face of it, toa certain waste of energy. A federation therefore will always be at a
disadvantage in a contest with unitarian states of equal resources.
Nor does the experience either of the United States or of the Swiss
confederation invalidate this conclusion. The Union is threatened byno powerful neighbours and needs no foreign policy, s, Circumstances unconnected with constitutional arrangements enable Switzerland to preserve her separate existence, though surroundedby powerful and at times hostile nations. The mutual jealousies
moreover incident to federalism do visibly weaken the Swiss Republic. Thus, to take one example only, each member of the Executive
must belong to a different canton.SS But this rule may exclude fromthe government statesmen of high merit, and therefore diminish theresources of the state. A rule that each member of the Cabinet shouldbe the native of a different county would appear to Englishmen palpably absurd. Yet this absurdity is forced upon Swiss politicians, andaffords one among numerous instances in which the efficiency of the
public service is sacrificed to the requirements of federal sentiment.
Switzerland, moreover, is governed under a form of democratic
federalism which tends towards unitarianism. Each revision increases
the authority of the nation at the expense of cantonal independence.
This is no doubt in part due to the desire to strengthen the nation
against foreign attack. It is perhaps also due to another circumstance.
Federalism, as it defines, and therefore limits, the powers of eachdepartment of the administration, is unfavourable to the interferenceor to the activity of government. Hence a federal government canhardly render services to the nation by undertaking for the national
benefit functions which may be performed by individuals. This may
be a merit of the federal system; it is, however, a merit which does
not commend itself to modern democrats, and no more curious instance can be found of the inconsistent
54 The latter part of statement

is perhaps

less true in _9o8 than it was in 2885.

55 Constitution F_d_rale, art. 96.

PARTI

currents of popular opinion

98

PARLIAMENTARYSOVEREIGNTY

AND FEDERALISM

which may at the same time pervade a nation or a generation thanthe coincidence in England of a vague admiration for federalism
alongside with a far more decided feeling against the doctrines of
so-called laissezfaire. A system meant to maintain the status quo inpolitics is incompatible with schemes for wide social innovation.
_.,erFederalism tends to produce conservatism.
tlsra of"_e_,_m This tendency is due to several causes. The constitution of a Fed::

eral state must, as we have seen, generally be not only a written but arigid constitution, that is, a constitution which cannot be changed byany ordinary process of legislation. Now this essential rigidity offederal institutions is almost certain to impress on the minds of citizens the idea that any provision included in the constitution is immutable and, so to speak, sacred. The least observation of American
politics shows how deeply the notion that the Constitution is something placed beyond the reach of amendment has impressed popularimagination. The difficulty of altering the Constitution produces conservative sentiment, and national conservatism doubles the difficultyof altering the Constitution. The House of Lords has lasted for centuries; the American Senate has now existed for more than one
hundred years, yet to abolish or alter the House of Lords might turnout to be an easier matter than to modify the constitution of the
Senate.S6 To this one must add that a federal constitution always lays
down general principles which, from being placed in the constitution, gradually come to command a superstitious reverence, and thus
are in fact, though not in theory, protected from change or criticism.
The principle that legislation ought not to impair obligation of contracts has governed the whole course of American opinion. Of theconservative effect of such a maxim when forming an artide of theconstitution we may form some measure by the following reflection.
If any principle of the like kind had been recognised in England as
legally binding on the Courts, the Irish Land Act would have been
unconstitutional and void; the Irish Church Act, ,869, would, in greatpart at least, have been from a legal point of view so much waste
paper, and there would have been great difficulty in legislating in the
56 See, however,

CHAPTER
111

note _6, p. 81, ante.

99

LAW OF THE CONSTITUTION

way in which the English Parliament has legislated for the reform of
the Universities. One maxim only among those embodied in theConstitution of the United States would, that is to say, have been
sufficient if adopted in England to have arrested the most vigorous
efforts of recent Parliamentary legislation.
L_ga_
sp,nt
Federalism, lastly, means legalism--thepredominance of theoffederalismjudiciary in the constitution-- the prevalence of a spirit of legality
among the people.
That in a confederation like the United States the Courts become
the pivot on which the constitutional arrangements of the country
turn is obvious. Sovereignty is lodged in a body which rarely exerts
its authority and has (so to speak) only a potential existence; nolegislature throughout the land is more than a subordinate lawmaking body capable in strictness of enacting nothing but bye-laws;
the powers of the executive are again limited by the constitution; theinterpreters of the constitution are the judges. The Bench therefore
can and must determine the limits to the authority both of the government and of the legislature; its decision is without appeal; theconsequence follows that the Bench of judges is not only the guardian
but also at a given moment the master of the constitution.S7 Nothing
57 The expression "master of the constitution" has been criticised on the ground of exaggeration (Sidgwick, Elements of Politics, p. 6_6). The expression, however, though undoubtedly strong, is, it is submitted, justifiable, if properly understood.
It is true, as myfriend Mr. Sidgwick well pointed out, that the action of the Supreme Court is restrained,
first, by the liability of the judges to impeachment
for misconduct, and, secondly, by thefear of provoking disorder. And to these restraints a third and more efficient check must be
added. The numbers of the Court may be increased by Congress, and its decision in a given
case has not even in theory that force as a decisive precedent which is attributable to adecision of the House of Lords; hence if the Supreme Court were to pronounce judgments
which ran permanently
counter to the opinion of the party which controlled the government of the Union, its action could be altered by adding to the Court lawyers who shared
the convictions of the ruling party. (See Davis, American Constitutions; the Relations of theThree Departments as adjusted by a Century, pp. 52- 54-) It would be idle therefore to maintain,
what certainly cannot be asserted with truth, that the Supreme Court is the sovereign of theUnited States. It is, however, I conceive, true that at any given moment the Court may, on acase coming before it, pronounce a judgment which determines the working of the Constitution. The decision in the Dred Scott Case for example, and still more the judicial opinions
delivered in deciding the case, had a distinct influence on the interpretationof the Constitution both by slave-owners and by Abolitionists. In terming the Court the "master of theconstitution" it was not my intention to suggest the exercise by it of irregular or revolu-

PART I100

PARLIAMENTARYSOVEREIGNTY

AND FEDERALISM

puts in a stronger light the inevitable connection between federalism
and the prominent position of the judicial body than the history ofmodern Switzerland. The statesmen of _848 desired to give the Bundesgericht a far less authoritative position than is possessed by theAmerican Supreme Court. They in effect made the Federal Assembly
for most, what it still is for some purposes, a final Court of Appeal.
But the necessities of the case were too strong for Swiss statesmanship; the revision of _874 greatly increased the power of the Federal
Tribunal.
_n_r_ From the fact that the judicial Bench supports under federal institu,mpo,_tions the whole stress of the constitution, a special danger arises lest_,o,r,. the judiciary should be unequal to the burden laid upon them. In no
country has greater skill been expended on constituting an augustand impressive national tribunal than in the United States. Moreover,as already pointed out, the guardianship of the Constitution is in
America confided not only to the Supreme Court but to every judge
througtCout the land. Still it is manifest that even the Supreme Court
can hardly support the duties imposed upon it. No one can doubtthat the varying decisions given in the legal-tender cases, or in theline of recent judgments of which Munn v. Illinois is a specimen, show
thatthe most honest judges are after all only honest men, and when
set to determine matters of policy and statesmanship will necessarily
be swayed by political feeling and by reasons of state. But the moment that this bias becomes obvious a Court loses its moral authority,and decisions which might be justified on grounds of policy excite
natural indignation and suspicion when they are seen not to be fully
justified on grounds of law. American critics indeed are to be found%ragtionary powers. No doubt, again, the Supreme Court may be influenced in delivering its
judgments by fear of provoking violence. This apprehension is admittedly a limit to the full
exercise of its theoretical powers by the most absolute of despots. It was never my intention
to assert that the Supreme Court, which is certainly not the sovereign of the United States,
was in the exercise of its functions free from restraints which limit the authority of even asovereign power. It must further be noted, in considering how far the Supreme Court couldin fact exert all the authority theoretically vested in it, that it is hardly conceivable that theopinions of the Court as to, say, the constitutional limits to the authority of Congressshould not be shared by a large number of American citizens. Whenever in short the Court
differed in its view of the Constitution from that adopted by the President or the Congress,
the Court, it is probable, could rely on a large amount of popular support.

CHAPTER Ill

lOl

LAW OF THE CONSTITUTION

who allege that the Supreme Court not only is proving but always
has proved too weak for the burden it is called upon to bear, and thatit has from the first been powerless whenever it came into conflictwith a State, or could not count upon the support of the Federal
Executive. These allegations undoubtedly hit a weak spot in the constitution of the great tribunal. Its judgments are without force, at any
rate as against a State if the President refuses the means of putting
them into execution. "John Marshall," said President Jackson, according to a current story, ss "has delivered his judgment; let him
now enforce it, if he can"; and the judgment was never put into force.
But the weight of criticisms repeated from the earliest days of theUnion may easily be exaggerated.S9 Laymen are apt to mistake thegrowth of judicial caution for a sign of judicial weakness. Foreignobservers, moreover, should notice that in a federation the causes
which bring a body such as the Supreme Court into existence, also
supply it with a source of ultimate power. The Supreme Court andinstitutions like it are the protectors of the federal compact, and thevalidity of that compact is, in the long run, the guarantee for therights of the separate States. It is the interest of every man who
wishes the federal constitution to be observed, that the judgments ofthe federal tribunals should be respected. It is therefore no bold assumption that, as long as the people of the United States wish to
keep up the balanced system of federalism, they will ultimately compel the central government to support the authority of the federal
Court. Critics of the Court are almost driven to assert that the American people are indifferent to State Rights. The assertion may or may
not be true; it is a matter on which no English critic should speak withconfidence. But censures on the working of a federal Court tell very
little against such an institution if they establish nothing more than
the almost self-evident proposition that a federal tribunal will beineffective and superfluous when the United States shall have ceased
58 See W. G. Sumner, Andrew Jackson, American

Statesmen

Series, p. _82.

59 See Davis, American Constitutions; the Relations of the Three Departments as adjusted by aCentury. Mr. Davis is distinctly of opinion that the power of the Courts both of the UnitedStates and of the separate States has increased steadily since the foundation of the Union.
See Davis, American Constitutions, pp. 55-57-

PARTI

102

PARLIAMENTARY::SOVEREIGNTYAND

FEDERALISM

to be in reality a federation. A federal Court has no proper place in aunitarian Republic.
Judges, further, must be appointed by some authority which is notjudidal, and where decisions of a Court control the action of government there exists an irresistible temptation to appoint magistrates
who agree (honestly it may be) with the views of the executive. A
strong argument pressed against Mr. Blaine's election was, that hewould have the opportunity as President of nominating four judges,
and that a politician allied with railway companies was likely to packthe Supreme Court with men certain to wrest the law in favour of
mercantile corporations. The accusation may have been baseless; thefact that it should have been made, and that even "Republicans"should declare that the time had come when "'Democrats" should nolonger be exduded from the Bench of the United States, tells plainly
enough of the special evils which must be weighed against the undoubted benefits of making the Courts rather than the legislature thearbiters of the constitution.
That a federal system again can flourish only among communities
imbued with a legal spirit and trained to reverence the law is ascertain as can be any conclusion of political speculation. Federalism
substitutes litigation for legislation, and none but a law-fearing
people will be inclined to regard the decision of a suit as equivalent to
the enactment of a law. The main reason why the United States has
carried out the federal system with unequalled success is that thepeople of the Union are more thoroughly imbued with legal ideas
than any other existing nation. Constitutional questions arising out ofeither the constitutions of the separate States or the articles of thefederal Constitution are of daily occurrence and constantly occupy
the Courts. Hence the citizens become a people of constitutionalists,
and matters which excite the strongest popular feeling, as, for instance, the right of Chinese to settle in the country, are determinedby the judicial Bench, and the decision of the Bench is acquiesced inby the people. This acquiescence or submission is due to the Americans inheriting the legal notions of the common law, i.e. of the "mostlegal system of law" (if the expression may be allowed) in the world.
Tocqueville long ago remarked that the Swiss fell far short of the

CHAPTERIII

10 3

LAW OF THE CONSTITUTION

Americans in reverence for law and justice. 6° The events of the last
sixty years suggest that he perhaps underrated Swiss submission tolaw. But the law to which Switzerland is accustomed recognises wide
discretionary power on the part of the executive, and has never fully
severed the functions of the judge from those of the government.
Hence Swiss federalism fails, just where one would expect it to fail, inmaintaining that complete authority of the Courts which is necessary
to the perfect federal system. But the Swiss, though they may notequal the Americans in reverence for judicial decisions, are a lawrespecting nation. One may well doubt whether there are manystates to be found where the mass of the people would leave so muchpolitical influence to the Courts. Yet any nation who cannot acquiesce
in the finality of possibly mistaken judgments is hardly fit to form
part of a federal state. 61
60 See passage cited, pp. lO8-_o9, post.
61 See Appendix,

PART 1

Note VIII., Swiss Federalism.

104

PAR T II
THE RULE OF LAWiChapter IV

THE RULE OF LAW: ITS NATURE AND
GENERAL APPUCA TIONS

h_Ru,e_WO_'

features have at all times since the Norman Conquest char-lacterisedThe firsttheof politicalinstitutions
England.
these features
is the ofomnipotenceor undisputed
supremacy throughout the whole country of the central government.
This authority of the state or the nation was during the earlier periodsof our history represented by the power of the Crown. The King was
the source of law and the maintainer of order. The maxim of the
Courts, "'toutfuit in luy et vient de lui al commencement,"' was originallythe expression of an actual and undoubted fact. This royal supremacy
has now passed into that sovereignty of Parliament which hasformed the main subject of the foregoing chapters. 2
The second of these features, which is dosely connected with thefirst, is the rule or supremacy of law. This peculiarity of our polity iswell expressed in the old saw of the Courts, "La ley est le plus hauteinheritance, que le roy ad; carpar la ley it m_me et toutes ses sujets sont rul_s,
et si la ley ne fuit, nul roi, et nul inheritance sera. ''3
This supremacy of the law, or the security given under the English
constitution to the rights of individuals looked at from various pointsof view, forms the subject of this part of this treatise.
1 Year Books, xxiv. Edward
2 See Part I.

III.; cited Gneist,

3 Year Books, xix. Henry VI., cited Gneist,

CHAPTERIV

Englische Verwaltungsrecht,

i. p. 454.

Englische Verwaltungsrecht, i. p. 455.

10 7

LAW OF THE CONSTITUTION

Ther_leoflaw in Englandnoticedbyforeignobservers.

Tocq
on the.... ,_wantofrelawSpeCt,
nf°r
Sv*_tzerland andcontrastwith England.

Foreign observers of English manners, such for example as VO1taire, De Lolme, Tocqueville, or Gneist, have been far more struck
than have Englishmen themselves with the fact that England is acountry governed, as is scarcely any other part of Europe, under therule of law; and admiration or astonishment at the legality of English
habits and feeling is nowhere better expressed than in a curious
passage from Tocqueville's writings, which compares the Switzerland and the England of _836 in respect of the spirit which pervades
their laws and manners. He writes:
I am not about to compare Switzerland 4 with the United States, but with
Great Britain. When you examine the two countries, or even if you only passthrough them, you perceive, in my judgment, the most astonishing differences between them. Take it all in all, England seems to be much more
republican than the Helvetic Republic. The principal differences are found in
the institutions of the two countries, and especially in their customs (moeurs).
1. In almost all the Swiss Cantons liberty of the press is a very recent
thing.
2. In almost all of them individual liberty is by no means completely guaranteed, and a man may be arrested administratively and detained in prison
without much formality.
3- The Courts have not, generally speaking, a perfectly independent
position.
4. In all the Cantons trial by jury is unknown.
5- In several Cantons the people were thirty-eight years ago entirely
without political rights. Aargau, Thurgau, Tessin, Vaud, and parts of the
Cantons of Zurich and Berne were in this condition.
The preceding
institutions.

observations

apply even more strongly

to customs

than toi. In many of the Swiss Cantons the majority of the citizens are quite
without the taste or desire for self-government, and have not acquired thehabit of it. In any crisis they interest themselves about their affairs, but you
never see in them the thirst for political rights and the craving to take part inpublic affairs which seem to torment Englishmen throughout their lives.
ii. The Swiss abuse the liberty of the press on account of its being a recent
form of liberty, and Swiss newspapers are much more revolutionary andmuch less practical than English newspapers.
iii. The Swiss seem still to look upon associations from much the same
point of view as the French, that is to say, they consider them as a means
4 Many of Tocqueville's remarks are not applicable to the Switzerland of 29o2;they refer to aperiod before the creation in 2848 of the Swiss Federal Constitution.

PARTI!

108

THE RULE OF LAW: ITS NATURE AND GENERAL APPLICATIONS
of revolution, and not as a slow and sure method for obtaining redress ofwrongs. The art of associating and of making use of the right of association
but little understood in Switzerland.

isiv. The Swiss do not show the love of justice which is such a strong characteristic of the English. Their Courts have no place in the political arrangements of the country, and exert no influence on public opinion. The love ofjustice, the peaceful and legal introduction of the judge into the domain ofpolitics, are perhaps the most standing characteristics of a free people.
v. Finally, and this really embraces all the rest, the Swiss do not show atbottom that respect for justice, that love of law, that dislike of using force,
without which no free nation can exist, which strikes strangers so forcibly inEngland.
I sum up these impressions in a few words.
Whoever travels in the United States is involuntarily and instinctively
so impressed with the fact that the spirit of liberty and the taste for it havepervaded all the habits of the American people, that he cannot conceive ofthem under any but a Republican government. In the same way it is impossible to think of the English as living under any but a free government. But if
violence were to destroy the Republican institutions in most of the Swiss
Cantons, it would be by no means certain that after rather a short state oftransition the people would not grow accustomed to the loss of liberty. In the
United States and in England there seems to be more liberty in the customs
than in the laws of the people. In Switzerland there seems to be more liberty
in the laws than in the customs of the country, s_0r,
ngot Tocqueville's language has a twofold bearing on our present topic.
)cqtle_,,reark_on
His words point in the dearest manner to the rule, predominance, or
lie
at
la,a
0_ngofsupremacy of law as the distinguishing characteristic of English institutions. They further direct attention to the extreme vagueness of atrait of national character which is as noticeable as it is hard to portray. Tocqueville, we see, is dearly perplexed how to define a featureof English manners of which he at once recognises the existence; hemingles or confuses together the habit of self-government, the love oforder, the respect for justice and a legal turn of mind. All thesesentiments are intimately allied, but they cannot without confusion
be identified with each other. If, however, a critic as acute as TocqueviUe found a difficulty in describing one of the most marked peculiarities of English life, we may safely conclude that we ourselves,whenever we talk of Englishmen as loving the government of law, or
5 See Tocqueville, OEuvresCompletes,viii. pp. 455-457.

CHAPTER

IV

10 9

LAW

OF THE CONSTITUTION

of the supremacy of law as being a characteristic of the English constitution, are using words which, though they possess a real significance, are nevertheless to most persons who employ them full ofvagueness and ambiguity. If therefore we are ever to appreciate thefull import of the idea denoted by the term "rule, supremacy, or
predominance of law," we must first determine precisely what wemean by such expressions when we apply them to the British constitution.
Three
When we say that the supremacy or the rule of law is a characterismearungs
ofru_eof tiC of the English constitution, we generally indude under one exlaw.
pression at least three distinct though kindred conceptions.
Absenceof We mean, in the first place, that no man is punishable or can bearbitrarypower
onlawfully made to suffer in body or goods except for a distinct breachpart of thementg°vern"of law established in the ordinary legal manner before the ordinary
Courts of the land. In this sense the rule of law is contrasted withevery system of government based on the exercise by persons inauthority of wide, arbitrary, or discretionary powers of constraint.
Contrast
Modem Englishmen may at first feel some surprise that the "rule ofbetweenEnglandlaw" (in the sense in which we are now using the term) should beandtheCon,nentconsidered
as in any way a peculiarity of English institutions, since,atpresent
day.
at the present day, it may seem to be not so much the property of any
one nation as a trait common to every civilised and orderly state.
Yet, even if we confine our observation to the existing condition ofEurope, we shall soon be convinced that the "rule of law" even in thisnarrow sense is peculiar to England, or to those countries which, likethe United States of America, have inherited English traditions. In
almost every continental community the executive exercises far wider
discretionary authority in the matter of arrest, of temporary imprisonment, of expulsion from its territory, and the like, than is either
legally claimed or in fact exerted by the government in England; and astudy of European politics now and again reminds English readersthat wherever there is discretion there is room for arbitrariness, andthat in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal
freedom on the part of its subjects.

PARTI1

110

THE RULE OF LAW: ITS NATURE AND GENERAL APPLICATIONS_,_t
If, however, we confined our observation to the Europe of the,_,dtwentieth century, we might well say that in most European coundCont__,, tries the rule of law is now nearly as well established as in England,:,,_0nthhtarv and that private individuals at any rate who do not meddle in politics
have little to fear, as long as they keep the law, either from theGovernment or from any one else; and we might therefore feel somedifficulty in understanding how it ever happened that to foreigners
the absence of arbitrary power on the part of the Crown, of theexecutive, and of every other authority in England, has always
seemed a striking feature, we might almost say the essential characteristic, of the English constitution.6
Our perplexity is entirely removed by carrying back our minds tothe time when the English constitution began to be criticised andadmired by foreign thinkers. During the eighteenth century many of
the continental governments were far from oppressive, but there wasno continental country where men were secure from arbitrary power.
The singularity of England was not so much the goodness or theleniency as the legality of the English system of government. When
Voltaire came to England--and Voltaire represented the feeling of
his age--his predominant sentiment dearly was that he had passedout of the realm of despotism to a land where the laws might beharsh, but where men were ruled by law and not by caprice. 7He had
good reason to know the difference. In 2717Voltaire was sent to theBastille for a poem which he had not written, of which he did notknow the author, and with the sentiment of which he did not agree.
What adds to the oddity, in English eyes, of the whole transaction is,t_een6 "La libert6 est le droit de faire tout ce que les lois permettent; et si un citoyen pouvoit fairece qu'elles d6fendent, il n'auroit plus de libert6, paree que les autres auroient tout de m6me
ce pouvoir."--Montesquieu,
De l'Esprit des Lois, Livre XI. chap. iii.
"I1y a aussi une nation clans le monde qui a pour objet direct de sa constitution la libert6
politique."--/b/d,chap. v. The English are this nation.
7 "Les circonstances qui contraignaient Voltaire/_ chercher un refuge chez nos voisinsdevaient lui inspirer une grande sympathie pour des institutions off il n'y avait nulle place/!
l'arbitraire. 'La raison est libre ici et n'y connait point de contrainte.' On y respire un air plus
g6nbreux, l'on se sent au milieu de citoyens qui n'ont pas tort de porter le front haut, demarcher fibrement, sdrs qu'on n'efit pu toucher/_ un seul cheveu de leur t6te, et n'ayant
redoubter ni lettres de cachet, ni captivit6 immotiv6e."--Desnoiresterres,
Voltaire, i. p. 365.

CHAPTERFv"

111

LAW OF THE CONSTITUTION

that the Regent treated the affair as a sort of joke, and, so to speak,"chaffed" the supposed author of the satire "I have seen" on being
about to pay a visit to a prison which he "had not seen."8 In 1725
Voltaire, then the literary hero of his country, was lured off from thetable of a Duke, and was thrashed by lackeys in the presence of theirnoble master; he was unable to obtain either legal or honourable
redress, and because he complained of this outrage, paid a second
visit to the Bastille. This indeed was the last time in which he waslodged within the walls of a French gaol, but his whole life was aseries of contests with arbitrary power, and nothing but his fame, his
deftness, his infinite resource, and ultimately his wealth, saved himfrom penalties far more severe than temporary imprisonment.
Moreover, the price at which.Voltaire saved his property and his life
was after all exile from France. Whoever wants to see how exceptional a phenomenon was that supremacy of law which existed inEngland during the eighteenth century should read such a book as
Morley's Life of Diderot. The effort lasting for twenty-two years to get
the Encyclop_die published was a struggle on the part of all the distinguished literary men in France to obtain utterance for their thoughts.
It is hard to say whether the difficulties or the success of the contest
bear the strongest witness to the wayward arbitrariness of the French
Government.
Royal lawlessness was not peculiar to specially detestable monarchs such as Louis the Fifteenth: it was inherent in the French system of administration. An idea prevails that Louis the Sixteenth atleast was not an arbitrary, as he assuredly was not a cruel ruler. But it
is an error to suppose that up to 1789 anything like the supremacy oflaw existed under the French monarchy. The folly, the grievances,and the mystery of the Chevalier D'Eon made as much noise little
more than a century ago as the imposture of the Claimant in our own
day. The memory of these things is not in itself worth reviving. What
does deserve to be kept in remembrance is that in _778, in the days ofJohnson, of Adam Smith, of Gibbon, of Cowper, of Burke, and of
Mansfield, during the continuance of the American war and within
8 Desnoiresterres,

PARTIIi. pp. 344-364 .

112

THE RULE OF LAW: ITS NATURE AND GENERAL APPLICATIONS

eleven years of the assembling of the States General, a brave officer
and a distinguished diplomatist could for some offence still unknown, without trial and without conviction, be condemned toundergo a penance and disgrace which could hardly be rivalled by
the fanciful caprice of the torments inflicted by Oriental despotism. 9
Nor let it be imagined that during the latter part of the eighteenth
century the government of France was more arbitrary than that ofother countries. To entertain such a supposition is to misconceiveutterly the condition of the continent. In France, law and public
opinion counted for a great deal more than in Spain, in the petty
States of Italy, or in the Principalities of Germany. All the evils ofdespotism which attracted the notice of the world in a great kingdom
such as France existed under worse forms in countries where, justbecause the evil was so much greater, it attracted the less attention.
The power of the French monarch was criticised more severely thanthe lawlessness of a score of petty tyrants, not because the French
King ruled more despotically than other crowned heads, but because
the French people appeared from the eminence of the nation to havea special daim to freedom, and because the ancient kingdom ofFrance was the typical representative of despotism. This explains thethrill of enthusiasm with which all Europe greeted the fall of theBastille. When the fortress was taken, there were not ten prisoners
within its walls; at that very moment hundreds of debtors languishedin English goals. Yet all England hailed the triumph of the French
populace with a fervour which to Englishmen of the twentieth century is at first sight hardly comprehensible. Reflection makes dearenough the cause of a feeling which spread through the length andbreadth of the civilised world. The Bastille was the outward andvisible sign of lawless power. Its fall was felt, and felt truly, to herald
in for the rest of Europe that rule of law which already existed inEngland. 10
9 Itis worth notice that even after the meeting of the States General the King was apparently reluctant to give up altogether the powers exercised by lettres de cachet. See "D6claration des intentions du Roi," art. 15, Plouard, Les Constitutions Fran_aises, p. 1o.
Io For English sentiment with reference to the servitude of the French, see Goldsmith,
Citizen of the World, iii. Letter iv.; and see/b/d., Letter xxxvii, p. I43, for a contrast between

CHAPTERIV

113

LAW OF THE CONSTITUTION

We mean in the second place, 11when we speak of the "rule of law"ora,nary
as a characteristic of our country, not only that with us no man islawadmmister*aabove the law, but (what is a different thing) that here every man,by ordinary tnwhatever be his rank or condition, is subject to the ordinary law ofbunals.
the realm and amenable to the jurisdiction of the ordinary tribunals.
In England the idea of legal equality, or of the universal subjectionof all dasses to one law administered by the ordinary Courts, hasbeen pushed to its utmost limit. With us every official, from the Prime
Minister down to a constable or a collector of taxes, is under the same
Every mansubject toresponsibility for every act done without legal justification as anyother citizen. The Reports abound with cases in which officials havebeen brought before the Courts, and made, in their personal capacity,
liable to punishment, or to the payment of damages, for acts done intheir official character but in excess of their lawful authority. A colonial governor, 12a secretary of state, 13a military officer, 14and all
subordinates, though carrying out the commands of their official
superiors, are as responsible for any act which the law does not
authorise as is any private and unofficial person. Officials, such forexample as soldiers is or clergymen of the Established Church, are, it
is true, in England as elsewhere, subject to laws which do not affectthe rest of the nation, and are in some instances amenable to tribunals
which have no jurisdiction over their fellow-countrymen; officials,
that is to say, are to a certain extent governed under what may betermed official law. But this fact is in no way inconsistent with thethe execution of Lord Ferrers and the impunity with which a French nobleman was allowed
to commit murder because of his relationship to the Royal family; and for the general stateof feeling throughout Europe, Tocqueville, CEuvres Completes, viii. pp. 57-72. The idea ofthe rule of law in this sense implies, or is at any rate dosely connected with, the absence ofany dispensing power on the part either of the Crown or its servants. See Bill of Rights,
Preamble 1, Stubbs, Select Charters (2rid ed.), p. 523. Compare Miller v. Knox, 6 Scott, 2;
Attorney-General v. Kissane, 32 L.R. Ir. 22o.
11 For first meaning

see p. 12o, ante.

Mostyn v. Fabregas, Cowp. 261;Musgrave v. Pulido, 5 App. Cas. 2o2; Governor Wall's Case,
28 St. Tr. 52.
_3 Entick v. Carrington, 29 St. Tr. 2o3o.
14 Phillips v. Eyre, L. R., 4 Q. B. 225.
15 As to the legal position

PARTllof soldiers,

see Chaps.

_14

VIII. and IX., post.

THE RULE OF LAW: ITS NATURE AND GENERAL APPLICATIONS

principle that all men are in England subject to the law of the realm;
for though a soldier or a dergyman incurs from his position legal
liabilities from which other men are exempt, he does not (speaking
generally) escape thereby from the duties of an ordinary citizen.
,_r_,,n An Englishman naturally imagines that the Me of law (in the senses respect.,,,_n in which we are now using the term) is a trait common to all civilised/_a societies. But this supposition is erroneous. Most European nations'_
had indeed, by the end of the eighteenth century, passed throughthat stage of development (from which England emerged before theend of the sixteenth century) when nobles, priests, and others could
defy the law. But it is even now far from universally tree that incontinental countries all persons are subject to one and the same law,or that the Courts are supreme throughout the state. If we takeFrance as the type of a continental state, we may assert, with substantial accuracy, that officials--underwhich word should be induded all
persons employed in the service of the state--are, or have been, in
their official capacity, to some extent exempted from the ordinary lawof the land, protected from the jurisdiction of the ordinary tribunals,
and subject in certain respects only to official law administered by
official bodies. 16,ner_ There remains yet a third and a different sense in which the "rulen+tu. of law" or the predominance of the legal spirit may be described as a_nallawr,_ulL;of English institutions. We may say that the constitu0rdlna
D' special attribute;'ld°t the tion is pervaded
by the rule of law on the ground that the generalprinciples of the constitution (as for example the right to personal
liberty, or the right of public meeting) are with us the result of judicial
decisions determining the rights of private persons in particular cases
brought before the Courts; 17whereas under many foreign constitutions the security (such as it is) given to the rights of individuals
results, or appears to result, from the general prindples of the constitution.
le', o!

_6 See Chapter XII. as to the contrast between
law.

the Me of law and foreign administrative_7 Compare Calvin's Case, 7 Coke, Rep. _;Campbell v. Hall, Cowp. 204; Wilkes v. Wood, 19 St.
Tr. 1_53;Mostyn v. Fabregas, Cowp. _61. Parliamentary declarations of the law such as thePetition of Right and the Bill of Rights have a certain affinity to judicial decisions.

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This is one portion at least of the fact vaguely hinted at in thecurrent but misguiding statement that "the constitution has not been
made but has grown." This dictum, if taken literally, is absurd.
Political institutions (however the proposition may be at times ignored) are
the work of men, owe their origin and their whole existence to human will.
Men did not wake up on a summer morning and find them sprung up.
Neither do they resemble trees, which, once planted, are "aye growing"
while men "are sleeping." In every stage of their existence they are madewhat they are by human voluntary agency. 18

Yet, though this is so, the dogma that the form of a government isa sort of spontaneous growth so dosely bound up with the life of apeople that we can hardly treat it as a product of human will andenergy, does, though in a loose and inaccurate fashion, bring intoview the fact that some politics, and among them the English constitution, have not been created at one stroke, and, far from being theresult of legislation, in the ordinary sense of that term, are the fruit ofcontests carried on in the Courts on behalf of the rights of individuals.
Our constitution, in short, is a judge-made constitution, and it bears
on its face all the features, good and bad, of judge-made law.
Contrast Hence flow noteworthy distinctions between the constitution of
betweenthoEnglishEngland and the constitutions of most foreign countries.
constatution
andThere is in the English constitution an absence of those dedarations
Foreign_o_.tu- or definitions of rights so dear to foreign constitutionalists. Such
principles, moreover, as you can discover in the English constitution
are, like all maxims established by judicial legislation, mere generalisations drawn either from the decisions or dicta of judges, or fromstatutes which, being passed to meet special grievances, bear a dose
resemblance to judicial decisions, and are in effect judgments pronounced by the High Court of Parliament. To put what is really thesame thing in a somewhat different shape, the relation of the rights ofindividuals to the principles of the constitution is not quite the samein countries like Belgium, where the constitution is the result of alegislative act, as it is in England, where the constitution itself is based
upon legal decisions. In Belgium, which may be taken as a type of_8 1Vflll,RepresentativeGovernment, p. 4.

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OF LAW: ITS NATURE

AND

GENERALAPPLICATIONS

countries possessing a constitution formed by a deliberate act oflegislation, you may say with truth that the rights of individuals topersonal liberty flow from or are secured by the constitution. In England the right to individual liberty is part of the constitution, because
it is secured by the decisions of the Courts, extended or confirmed asthey are by the Habeas Corpus Acts. If it be allowable to apply theformulas of logic to questions of law, the difference in this matter
between the constitution of Belgium and the English constitution
may be described by the statement that in Belgium individual fights
are deductions drawn from the principles of the constitution, whilst
in England the so-called principles of the constitution are inductions
or generalisations based upon particular decisions pronounced by the
Courts as to the rights of given individuals.
This is of course a merely formal difference. Liberty is as wellsecured in Belgium as in England, and as long as this is so it mattersnothing whether we say that individuals are free from all risk ofarbitrary arrest, because liberty of person is guaranteed by the constitution, or that the right to personal freedom, or in other words toprotection from arbitrary arrest, forms part of the constitution because it is secured by the ordinary law of the land. But though thismerely formal distinction is in itself of no moment, provided always
that the rights of individuals are really secure, the question whether
the fight to personal freedom or the right to freedom of worship islikely to be secure does depend a good deal upon the answer to theinquiry whether the persons who consciously or unconsciously build
up the constitution of their country begin with definitions or dedarations of rights, or with the contrivance of remedies by which rights
may be enforced or secured. Now, most foreign constitution-makers
have begun with declarations of rights. For this they have often been
in nowise to blame. Their course of action has more often than notbeen forced upon them by the stress of circumstances, and by theconsideration that to lay down general principles of law is the properand natural function of legislators. But any knowledge of history
suffices to show that foreign constitutionalists have, while occupied
in defining rights, given insufficient attention to the absolute necessity for the provision of adequate remedies by which the rights they

CHAPTER IV

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LAW OF THE CONSTITUTION

proclaimed might be enforced. The Constitution of _79_ proclaimed
liberty of conscience, liberty of the press, the right of public meeting,the responsibility of government officials. 19But there never was aperiod in the recorded annals of mankind when each and all of theserights were so insecure, one might almost say so completely nonexistent, as at the height of the French Revolution. And an observer
may well doubt whether a good number of these liberties or rights areeven now so well protected under the French Republic as under the
English Monarchy. On the other hand, there runs through the English constitution that inseparable connection between the means ofenforcing a right and the right to be enforced which is the strength of
judicial legislation. The saw, ubi jus ibi remedium, becomes from thispoint of view something much more important than a mere tautologous proposition. In its bearing upon constitutional law, it meansthat the Englishmen whose labours gradually framed the complicatedset of laws and institutions which we call the Constitution, fixed theirminds far more intently on providing remedies for the enforcement ofparticular rights or (what is merely the same thing looked at from theother side) for averting definite wrongs, than upon any declaration of
the Rights of Man or of Englishmen. The Habeas Corpus Acts dedare
no principle and define no rights, but they are for practical purposes
worth a hundred constitutional articles guaranteeing individual liberty. Nor let it be supposed that this connection between rights andremedies which depends upon the spirit of law pervading English
institutions is inconsistent with the existence of a written constitution, or even with the existence of constitutional dedarations ofrights. The Constitution of the United States and the constitutions of
the separate States are embodied in written or printed documents,
and contain declarations of rights.2° But the statesmen of America
19 See Plouard, Les Constitutions Fran_aises, pp. _4-16; Duguit and Monnier,de la France (and ed.), pp. 4, 5.

Les Constitutions

2o The Petition of Right, and the Bill of Rights, as also the American Declarations of Rights,
contain, it may be said, proclamations of general principles which resemble the declarationsof rights known to foreign const_tutionalists,and especially the celebrated Declaration of
the Rights of Man (Declaration des Droits de l'Hornme et du Citoyen) of 1789. But the English
and American Dedarations
on the one hand, and foreign declarations of rights on theother, though bearing an apparent resemblance to each other, are at bottom remarkable

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THE RULE OF LAW: ITS NATURE AND GENERAL APPLICATIONS

have shown unrivalled skill in providing means for giving legal seclarity to the rights declared by American constitutions. The rule oflaw is as marked a feature of the United States as of England.
The fact, again, that in many foreign countries the rights of individuals, e.g. to personal freedom, depend upon the constitution,whilst in England the law of the constitution is little else than ageneralisation of the rights which the Courts secure to individuals,
has this important result. The general fights guaranteed by the constitution may be, and in foreign countries constantly are, suspended.
They are something extraneous to and independent of the ordinary
course of the law. The declaration of the Belgian constitution, that
individual liberty is "guaranteed," betrays a way of looking at thefights of individuals very different from the way in which such rights
are regarded by English lawyers. We can hardly say that one right ismore guaranteed than another. Freedom from arbitrary arrest, theright to express one's opinion on all matters subject to the liability to
pay compensation for libellous or to suffer punishment for seditiousor blasphemous statements, and the right to enjoy one's own property, seem to Englishmen all to rest upon the same basis, namely, on
the law of the land. To say that the "constitution guaranteed" oneclass of rights more than the other would be to an Englishman an
unnatural or a senseless form of speech. In the Belgian constitution
the words have a definite meaning. They imply that no law invading
personal freedom can be passed without a modification of the constitution made in the special way in which alone the constitution canbe legally changed or amended. This, however, is not the point towhich our immediate attention should be directed. The matter to be
noted is, that where the right to individual freedom is a result derather by way of contrast than of similarity. The Petition of Right and the Bill of Rights are
not so much "dedarationsof fights" in the foreign sense of the term, as judicial condemnations of claims or practices on the part of the Crown, which are thereby pronounced illegal.
It will be found that every, or nearly every, clause in the two celebrated documents negatives some distinct claim made and put into force on behalf of the prerogative. No doubt the
Declarations contained in the American Constitutions have a real similarity to the continental declarations of rights. They are the product of eighteenth-century
ideas; they have,
however, it is submitted, the distinct purpose of legally controlling the action of the legislature by the Articles of the Constitution.

CHAPTERIV

I 19

LAW OF THE CONSTITUTION

duced from the principles of the constitution, the idea readily occursthat the right is capable of being suspended or taken away. Where,on the other hand, the right to individual freedom is part of theconstitution because it is inherent in the ordinary law of the land, theright is one which can hardly be destroyed without a thoroughrevolution in the institutions and manners of the nation. The socalled "suspension of the Habeas Corpus Act" bears, it is true, a certain
similarity to what is called in foreign countries "suspending the constitutional guarantees." But, after all, a statute suspending the Habeas
Corpus Act fails very far short of what its popular name seems to
imply; and though a serious measure enough, is not, in reality, morethan a suspension of one particular remedy for the protection of
personal freedom. The Habeas Corpus Act may be suspended and yet
Englishmen may enjoy almost all the rights of citizens. The constitution being based on the rule of law, the suspension of the constitution, as far as such a thing can be conceived possible, would mean
with us nothing less than a revolution.
Summary
That "rule of law," then, which forms a fundamental principle ofofmean,ng_oftheconstitution, has three meanings, or may be regarded from three
Rule ofca,,.
different points of view.
It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power,
and exdudes the existence of arbitrariness, of prerogative, or evenof wide discretionary authority on the part of the government.
Englishmen are ruled by the law, and by the law alone; a man may
with us be punished for a breach of law, but he can be punished fornothing else.
It means, again, equality before the law, or the equal subjection of
all classes to the ordinary law of the land administered by the ordinary Law Courts; the "rule of law" in this sense excludes the idea ofany exemption of officials or others from the duty of obedience to thelaw which governs other citizens or from the jurisdiction of the ordinary tribunals; there can be with us nothing really corresponding to
the "administrative law" (droit administratif) or the "administrative
tribunals" (tribunaux administratifs) of France. 21The notion which lies
22 See Chap.
PART II

XII.
12o

THE RULE OF LAW: ITS NATURE AND GENERAL APPLICATIONS

at the bottom of the "administrative law" known to foreign countries
is, that affairs or disputes in which the government or its servants areconcerned are beyond the sphere of the civil Courts and must be
dealt with by special and more or less official bodies. This idea isutterly unknown to the law of England, and indeed is fundamentallyinconsistent with our traditions and customs.
The "rule of law," lastly, may be used as a formula for expressing
the fact that with us the law of the constitution, the rules which inforeign countries naturally form part of a constitutional code, are not
the source but the consequence of the rights of individuals, as defined and enforced by the Courts; that, in short, the principles ofprivate law have with us been by the action of the Courts and Parliament so extended as to determine the position of the Crown and of its
servants; thus the constitution is the result of the ordinary law of theland.
_uence General propositions, however, as to the nature of the rule of law
0,,oncarry us but a very little way. If we want to understand what thatadln_
f "Rule of_,o,_;_principle in all its different aspects and developments really means,on
we must try to trace its influence throughout some of the main provi:sions of the constitution. The best mode of doing this is to examinewith care the manner in which the law of England deals with thefollowing topics, namely, the right to personal freedom; 22the right tofreedom of discussion; 23the right of public meeting; 24the use ofmartial law; _-sthe rights and duties of the army; 26the collection and
expenditure of the public revenue; 27and the responsibility of Ministers. 28The true nature further of the rule of law as it exists in England
will be illustrated by contrast with the idea of droit administratif, or
administrative law, which prevails in many continental countries. 29
These topics will each be treated of in their due order. The object,however, of this treatise, as the reader should remember, is not toprovide minute and full information, e.g. as to the Habeas Corpus Acts,
or other enactments protecting the liberty of the subject; but simply
to show that these leading heads of constitutional law, which have
22 Chap. V.

25 Chap, VIII.

28 Chap. XI.

23 Chap, Vl.

26 Chap, IX.

29 Chap. XII,

24 Chap, VII.

27 Chap, X.

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LAW OF THE CONSTITUTION

been enumerated, these "artides," so to speak, of the constitution,
are both governed by, and afford illustrations of, the supremacy
throughout English institutions of the law of the land. 3° If at somefuture day the law of the constitution should be codified, each of the
topics I have mentioned would be dealt with by the sections of thecode. Many of these subjects are actually dealt with in the written
constitutions of foreign countries, and notably in the artides of theBelgian constitution, which, as before noticed, makes an admirable
summary of the leading maxims of English constitutionalism. It will
therefore often be a convenient method of illustrating our topic totake the article of the Belgian, or it may be of some other constitution,
which bears on the matter in hand, as for example the right to personal freedom, and to consider how far the principle therein embodied is recognised by the law of England; and if it be so recognised,
what are the means by which it is maintained or enforced by our
Courts. One reason why the law of the constitution is imperfectly
understood is, that we too rarely put it side by side with the constitutional provisions of other countries. Here, as elsewhere, comparison
is essential to recognition.
3° The rule of equal law is in England now exposed to a new peril. "The Legislature hasthought fit," writes Sir F. Pollock, "by the Trade Disputes Act, 1906 , to confer extraordinary
immunities on combinations both of employers and of workmen, and to some extent on
persons acting in their interests. Legal science has evidently nothing to do with this violent
empirical operation on the body politic, and we can only look to jurisdictions beyond seas
for the further judicial consideration of the problems which our Courts were endeavouring(it is submitted, not without a reasonable measure of success) to work out on principles oflegal justice."-- Pollock, Law of Torts (8th ed.), p. v.

PARTH

I22

i

I

Chapter V

THE RIGHT TO PERSONAL FREEDOM

he seventh article of the Belgian constitution establishes in thatcountry principles which have long prevailed in England. The
terms thereof so curiously illustrate by way of contrast somemarked features of English constitutional law as to be worth quotation.
Art 7. La libert_ individuelle est garantie.
Nul ne peut _tre poursuivi que dans les cas pr_ous par la loi, et clansla forme qu'elle
prescrit.
Hors le cas de flagrant d_lit, mul ne peut _tre arr_tf qu' en vertu de rordonnancemotiv_e du juge, qui dolt _tre signifi_e au moment de rarrestation, ou au plus tard
dans les vingt-quatre heures. 1

o_so
The security which an Englishman enjoys for personal freedom
red in_and does not really depend upon or originate in any general proposition
contained in any written document. The nearest approach which our
statute-book presents to the statement contained in the seventh artide of the Belgian constitution is the celebrated thirty-ninth artide 2ofthe Magna Charta:
Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur, aut
exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terra.e,] Constitution dela Belgique,art. 7.
a See Stubbs, Charters (and ed.), p. 3ol.

CHAPTER V:I23

LAW OF THE CONSTITUTION

which should be read in combination with the declarations of thePetition of Right. And these enactments (if such they can be called)
are rather records of the existence of a right than statutes which
confer it. The expression again, "guaranteed," is, as I have alreadypointed out, extremely significant; it suggests the notion that personal liberty is a special privilege insured to Belgians by some power
above the ordinary law of the land. This is an idea utterly alien to
English modes of thought, since with us freedom of person is not a
special privilege but the outcome of the ordinary law of the land
enforced by the Courts. Here, in short, we may observe the application to a particular case of the general principle that with us individual rights are the basis, not the result, of the law of the constitution.
The prodamation in a constitution or charter of the right to personal freedom, or indeed of any other right, gives of itself but slightsecurity that the right has more than a nominal existence, and students who wish to know how far the right to freedom of person is inreality part of the law of the constitution must consider both what is
the meaning of the right and, a matter of even more consequence,
what are the legal methods by which its exerdse is secured.
The right to personal liberty as understood in England means in
substance a person's right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not adrn_tof
legal justification. That anybody should suffer physical restraint is in
England prima fade illegal, and can be justified (speaking in very
general terms) on two grounds only, that is to say, either because theprisoner or person suffering restraint is accused of some offence andmust be brought before the Courts to stand his trial, or because hehas been duly convicted of some offence and must suffer punishment
for it. Now personal freedom in this sense of the term is secured inEngland by the strict maintenance of the principle that no man can bearrested or imprisoned except in due course of law, i.e. (speaking
again in very general terms indeed) under some legal warrant orauthority, 3 and, what is of far more consequence, it is secured by the
3 See as to arrests, Stephen,

PARTII

Commentaries, iv. (_4th ed.), pp. 3o3-3z2.

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THE RIGHT TO PERSONAL FREEDOM

provision of adequate legal means for the enforcement of this principle. These methods are twofold; 4 namely, redress for unlawful arrest
or imprisonment by means of a prosecution or an action, and deliverance from unlawful imprisonment by means of the writ of habeascorpus. Let us examine the general character of each of these
remedies.
REDRESS FOR ARREST
feed-

If we use the term redress in a wide sense, we may say that a_iu_ person who has suffered a wrong obtains redress either when he getsthe wrongdoer punished or when he obtains compensation for thedamage inflicted upon him by the wrong.
Each of these forms of redress is in England open to every one
whose personal freedom has been in any way unlawfully interferedwith. Suppose, for example, that X without legal justification assaults
A, by knocking him down, or deprives A of his freedom--as thetechnical expression goes, "imprisons" him--whether
it be for alength of time, or only for five minutes; A has two courses open tohim. He can have X convicted of an assault and thus cause him to be_t•punished for his crime, or he can bring an action of trespass against X
and obtain from X such compensation for the damage which A has
sustained from X's conduct as a jury think that A deserves. Supposethat in 2725 Voltaire had at the instigation of an English lord beentreated in London as he was treated in Paris. He would not haveneeded to depend for redress upon the goodwill of his friends orupon the favour of the Ministry. He could have pursued one of two
courses. He could by taking the proper steps have caused all his
assailants to be brought to trial as criminals. He could, if he had
preferred it, have brought an action against each and all of them: hecould have sued the nobleman who caused him to be thrashed, thefootmen who thrashed him, the policemen who threw him into gaol,
4 Another means by which personal liberty or other rights may be protected is the allowing
a man to protect or assert his rights by force against a wrongdoer without incurring legal
liability for injury done to the aggressor. The limits within which English law permits
so-rolled "self-defence,"or, more accurately, "the assertion of legal fights by the use of aperson's own force," is one of the obscurest among legal questions. See Appendix, NoteIV., Right of Self-Defence.

CHAPTERV

I2 5

LAW OF THE CONSTITUTION

and the gaoler or lieutenant who kept him there. Notice particularlythat the action for trespass, to which Voltaire would have had recourse, can be brought, or, as the technical expression goes, "lies,"
against every person throughout the realm. It can and has beenbrought against governors of colonies, against secretaries of state,against officers who have tried by Court-martial persons not subject
to military law, against every kind of official high or low. Here thenwe come across another aspect of the "rule of law." No one of Voltaire's enemies would, if he had been injured in England, have beenable to escape from responsibility on the plea of acting in an official
character or in obedience to his official superiors, s Nor would any oneof them have been able to say that the degree of his guilt could in any
way whatever be determined by any more or less official Court.
Voltaire, to keep to our example, would have been able in England tohave brought each and all of his assailants, including the officials who
kept him in prison, before an ordinary Court, and therefore before
judges and jurymen who were not at all likely to think that official
zeal or the orders of official superiors were either a legal or a moral
excuse for breaking the law.
Before quitting the subject of the redress afforded by the Courts forthe damage caused by illegal interference with any one's personal
freedom, we shall do well to notice the strict adherence of the judges
in this as in other cases to two maxims or principles which underlie
the whole law of the constitution, and the maintenance of which hasgone a great way both to ensure the supremacy of the law of the land
and ultimately to curb the arbitrariness of the Crown. The first ofthese maxims or principles is that every wrongdoer is individually
responsible for every unlawful or wrongful act in which he takes part,
and, what is really the same thing looked at from another point ofview, cannot, if the act be unlawful, plead in his defence that he did it
under the orders of a master or superior. Voltaire, had he been arrested in England, could have treated each and all of the persons
engaged in the outrage as individually responsible for the wrong
done to him. Now this doctrine of individual responsibility is the real
5 Contrast the French Code Pd,nal, art. I_.

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THE RIGHT TO PERSONAL FREEDOM

foundation of the legal dogma that the orders of the King himself are
no justification for the commission of a wrongful or illegal act. The
ordinary rule, therefore, that every wrongdoer is individually liable
for the wrong he has committed, is the foundation on which rests the:great constitutional doctrine of Ministerial responsibility. The secondof these noteworthy maxims is, that the Courts give a remedy for the
infringement of a right whether the injury done be great or small. The
assaults and imprisonment from which Voltaire suffered were serious
wrongs; but it would be an error to fancy, as persons who have noexperience in the practice of the Courts are apt to do, the proceedings
for trespass or for false imprisonment can be taken only where personal liberty is seriously interfered with. Ninety-nine out of every
hundred actions for assault or false imprisonment have reference toinjuries which in themselves are trifling. If one ruffian gives another ablow, if a policeman makes an arrest without lawful authority, if aschoolmaster keeps a scholar locked up at school for half an hour
after he ought to have let the child go home, 6if in short X interferes
unlawfully to however slight a degree with the personal liberty of A,
the offender exposes himself to proceedings in a Court of law, andthe sufferer, if he can enlist the sympathies of a jury, may recoverheavy damages for the injury which he has or is supposed to havesuffered. The law of England protects the right to personal liberty, as
also every other legal right, against every kind of infringement, andgives the same kind of redress (I do not mean, of course, inflicts thesame degree of punishment or penalty) for the pettiest as for thegravest invasions of personal freedom. This seems to us so mucha matter of course as hardly to call for observation, but it may besuspected that few features in our legal system have done more to
maintain the authority of the law than the fact that all offences greatand small are dealt with on the same principles and by the same
Courts. The law of England now knows nothing of exceptional offences punished by extraordinary tribunals, v
6 Hunter v. Johnson, _3 Q. B. D. 225.
7 Contrast with this the extraordinary remedies adopted under the old French monarchy
for the punishment of powerful criminals. As to which see Fl6chier, M_moires sur lesGrand-Jours tenues _ Clermont en 1665-66.

CHAPTER V

12 7

LAW OF THE CONSTITUTION

The right of a person who has been wrongfully imprisoned onregaining his freedom to put his oppressor on trial as a criminal, or bymeans of an action to obtain pecuniary compensation for the wrong
which he has endured, affords a most insufficient security for personal freedom. If X keeps A in confinement, it profits A little to knowthat if he could recover his freedom, which he cannot, he could
punish and fine X. What A wants is to recover his liberty. Till this isdone he cannot hope to punish the foe who has deprived him of it. It
would have been little consolation for Voltaire to know that if hecould have got out of the Bastille he could recover damages from his
enemies. The possibility that he might when he got free have obtained redress for the wrong done him might, so far from being abenefit, have condemned him to lifelong incarceration. Liberty is notsecure unless the law, in addition to punishing every kind of interference with a man's lawful freedom, provides adequate security thatevery one who without legal justification is placed in confinement
shall be able to get free. This security is provided by the celebrated
writ of habeas corpus and the Habeas Corpus Acts.
WRIT OF HABEAS CORPUS 8
w_tof
covz,_
habeas

It is not within the scope of these lectures to give a history of thewrit of habeas corpus or to provide the details of the legislation withregard to it. For minute information, both about the writ and aboutthe Habeas Corpus Acts, you should consult the ordinary legal textbooks. My object is solely to explain generally the mode in which thelaw of England secures the right to personal freedom. I shall therefore
call attention to the following points: first, the nature of the writ;secondly, the effect of the so-called Habeas Corpus Acts; thirdly, theprecise effect of what is called (not quite accurately) the Suspension of
the Habeas Corpus Act; and, lastly, the relation of any Act suspending
the operation of the Habeas Corpus Act to an Act of Indemnity. Each ofthese matters has a close bearing on the law of the constitution.
8 See Stephen, Commentaries (_4th ed.), iii. pp. 697-7o7; _6 Car. I. c. so; 31Car. II. c. 2; 56
George III. c. lOO;Forsyth, Opinions, 436-452, 481.

PARTII

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THE RIGHT TO PERSONAL FREEDOM

Nature of Writ
_0o_ Legal documents constantly give the best explanation and illustra'_tion of legal principles. We shall do well therefore to examine withcare the following copy of a writ of habeascorpus:
Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland
Queen, Defender of the Faith,
To J. K., Keeper of our Gaol of Jersey, in the Island of Jersey, and to J. C. Viscountof said Island, greeting. We command you that you have the body of C. C. W. detained in our prison under your custody, as it is said, together with the day andcause of his being taken and detained, by whatsoever name he may becalled or known,
in our Court before us, at Westminster, on the iSth day of January next, to undergo
and receive all and singular such matters and things which our said Court shallthen and there consider of him in this behalf; and have there then this Writ. Witness
THOMASLord DENMAN, at Westminster, the 23rd day of December in the 8th yearof our reign.

By the Court,
Robinson. 9

At the instance of C. C. W.

R. M. R.

W. A. L., 7 Gray' s Inn Square, London,
Attorney for the said C. C. W.

The character of the document is patent on its face. It is an orderissued, in the particular instance, by the Court of Queen's Bench,calling upon a person by whom a prisoner is alleged to be kept in
confinement to bring such prisoner--to "have his body," whence thename habeascorpus--before the Court to let the Court know on what
ground the prisoner is confined, and thus to give the Court theopportunity of dealing with the prisoner as the law may require. The
essence of the whole transaction is that the Court can by the writ ofhabeascorpus cause any person who is imprisoned to be actually
brought before the Court and obtain knowledge of the reason why heis imprisoned; and then having him before the Court, either then andthere set him free or else see that he is dealt with in whatever way thelaw requires, as, for example, brought speedily to trial.
9 CarusWilson'sCase, 7 Q. B. 984, 988. In this particular case the writ calls upon the gaolerof the prison to have the body of the prisoner before the Court by a given day. Itmore
ordinarilycalls upon him to have the prisoner before the Court "immediately after thereceiptof this writ."

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The w_t can be issued on the application either of the prisoner
himself or of any person on his behalf, or (supposing the prisoner
cannot act) then on the application of any person who believes him to
be unlawfully imprisoned. It is issued by the High Court, or during
vacation by any judge thereof; and the Court or a judge should andwill always cause it to be issued on being satisfied by affidavit that
there is reason to suppose a prisoner to be wrongfully deprived of his
liberty. You cannot say with strictness that the writ is issued "as amatter of course," for some ground must be shown for supposingthat a case of illegal imprisonment exists. But the writ is granted "as amatter of right,"-- that is to say, the Court will always issue it if pr/mafacie ground is shown for supposing that the person on whose behalf
it is asked for is unlawfully deprived of his liberty. The writ or orderof the Court can be addressed to any person whatever, be he anofficial or a private individual, who has, or is supposed to have,another in his custody. Any disobedience to the writ exposes theoffender to summary punishment for contempt of Court, l° andalso in many cases to heavy penalties recoverable by the party aggrieved, n To put the matter, therefore, in the most general terms, thecase stands thus. The High Court of Justice possesses, as the tribunals which make up the High Court used to possess, the power bymeans of the writ of habeas corpus to cause any person who is alleged
to be kept in unlawful confinement to be brought before the Court.
The Court can then inquire into the reason why he is confined, andcan, should it see fit, set him then and there at liberty. This power
moreover is one which the Court always will exercise wheneverground is shown by any applicant whatever for the belief that any
man in England is unlawfully deprived of his liberty.
The Habeas Corpus Acts
_ab___
Cot- The right to the Writ of habeas corpus existed at common law long
before the passing in 2679 of the celebrated Habeas Corpus Act, 1231

pus Acts

lo Rex v. Winton, 5 T. R. 89, and conf. 56 Geo. IlI. c. lOO,s. 2; see Comer, Practice of the
Crown Side of the Court of Queen's Bench.
i1 31Car. II. c. 2, s. 4.
12 See also 16 Car. I. c. _o, s. 6.

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Car. II. c. 2, and you may wonder how it has happened that this andthe subsequent Act, 56 Geo. lII. c. _oo, are treated, and (for practical
purposes) rightly treated, as the basis on which rests an Englishman's
security for the enjoyment of his personal freedom. The explanationis, that prior to _679 the right to the writ was often under various
pleas and excuses made of no effect. The aim of the Habeas Corpus
Acts has been to meet all the devices by which the effect of the writ
can be evaded, either on the part of the judges, who ought to issue
the same, and if necessary discharge the prisoner, or on the part of
the gaoler or other person who has the prisoner in custody. The
earlier Act of Charles the Second applies to persons imprisoned on acharge of crime; the later Act of George the Third applies to persons
deprived of their liberty otherwise than on a criminal accusation.
Take these two dasses of persons separately.
b_._;c,,r A person is imprisoned on a charge of crime. If he is imprisoned•AcL;__, without any legal warrant for his imprisonment, he has a right to be_ set at liberty. If, on the other hand, he is imprisoned under a legal
warrant, the object of his detention is to ensure his being brought totrial. His position in this case differs according to the nature of theoffence with which he is charged. In the case of the lighter offences
known as misdemeanours he has, generally 13the right to his liberty
on giving security with proper sureties that he will in due course
surrender himself to custody and appear and take his trial on such
indictment as may be found against him in respect of the matter withwhich he is charged, or (to use technical expressions) he has the rightto be admitted to bail. In the case, on the other hand, of the more
serious offences, such as felonies or treasons, a person who is once
committed to prison is not entitled to be let out on bail. The right ofthe prisoner is in this case simply the right to a speedy trial. The effectof the writ of habeas corpus would be evaded either if the Court did not
examine into the validity of the warrant on which the prisoner was
detained, and if the warrant were not valid release him, or if the
Court, on ascertaining that he was legally imprisoned, did not cause
13 See Stephen, Digest of the Law of Criminal Procedure, art. 276 , note _, and also art. _36 andp. 89, note 1. Compare the Indictable Offences Act, _848 (n & _2 Vict. c. 42), s. 23.

CHAPTER V

13I

LAW OF THE CONSTITUTION

him according to circumstances either to go out on bail or to be
speedily brought to trial.
The Act provides against all these possible failures of justice. The
law as to persons imprisoned under accusations of crime stands
through the combined effect of the rules of the common law and of
the statute in substance as follows. The gaoler who has such person
in custody is bound when called upon to have the prisoner before the
Court with the true cause of his commitment. If the cause is insuffident, the prisoner must of course be discharged; if the cause is suffident, the prisoner, in case he is charged with a misdemeanour, can ingeneral insist upon being bailed till trial; in case, on the other hand,the charge is one of treason or felony, he can insist upon being triedat the first sessions after his committal, or if he is not then tried, upon
being bailed, unless the witnesses for the Crown cannot appear. If he
is not tried at the second sessions after his commitment, he can insist
upon his release without bail. The net result, therefore, appears to bethat while the Habeas Corpus Act is in force no person committed toprison on a charge of crime can be kept long in confinement, for hehas the legal means of insisting upon either being let out upon bail or
else of being brought to a speedy trial.
H_beo_A person, again, who is detained in confinement but not on apus Act,cot18_6,
56 charge of crime needs for his protection the means of readily obtainGeo
Ill.
c.1oo
ing a legal decision on the lawfulness of his confinement, and also ofgetting an immediate release if he has by law a right to his liberty.
This is exactly what the writ of habeas corpus affords. Whenever any
Englishman or foreigner is alleged to be wrongfully deprived of liberty, the Court will issue the writ, have the person aggrieved brought
before the Court, and if he has a right to liberty set him free. Thus if achild is fordbly kept apart from his parents, 14if a man is wrongfully
14 See The Queen v. Nash, 2o Q. B. D. (C. A.) 454; and compare Re Agar-Ellis, 24 Ch. D. (C.
A.) 327. For recent instances of effect of Habeas Corpus Act see Barnardo v. Ford [2892], A. C.
326; Barnardo v. McHugh [289_], A. C. 388; Reg. v. ]ackson [1891], 2 Q. B. (C. A.) 671; Cox v.
Hakes, 25 App. Cas. 5o6; Reg. v. Barnardo, 24 Q. B. D. (C. A.) 283; and 23 Q. B. D. (C. A.)
305. Compare as to power of Court of Chancery for protection of children independently ofHabeas Corpus Acts, Reg. v. Gyngall [1893], 2 Q. B. (C. A.) 232.
As to appeal to Privy Council, seeAtt. Gen. forHong Kong v. Kwok-A-Sing (1873), L. R.
5P. C. 179.

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I32

THE RIGHT TO PERSONAL FREEDOM

kept in confinement as a lunatic, if a nun is alleged to be prevented
from leaving her convent, wif, in short, any man, woman, or child is,
or is asserted on apparently good grounds to be, deprived of liberty,
the Court will always issue a writ of habeascorpus to any one who has
the aggrieved person in his custody to have such person brought
before the Court, and if he is suffering restraint without lawful cause,
set him flee. Till, however, the year 1816(56 Geo. III.) the machineryfor obtaining the writ was less perfect is in the case of persons notaccused of crime than in the case of those charged with criminal
offences, and the effect of 56 Geo. III. c. lOO,was in substance toapply to non-criminal cases the machinery of the great Habeas Corpus
Act, 31Car. II. c. 2.
At the present day, therefore, the securities for personal freedom
are in England as complete as laws can make them. The right to its
enjoyment is absolutely acknowledged. Any invasion of the rightentails either imprisonment or fine upon the wrongdoer; and any
person, whether charged with crime or not, who is even suspected tobe wrongfully imprisoned, has, if there exists a single individual
willing to exert himself on the victim's behalf, the certainty of having
his case duly investigated, and, if he has been wronged, of recovering
his freedom. Let us return for a moment to a former illustration, andsuppose that Voltaire has been treated in London as he was treated in
Paris. He most certainly would very rapidly have recovered his freedom. The procedure would not, it is true, have been in 1726quite aseasy as it is now under the Act of George the Third. Still, even then it
would have been within the power of any one of his friends to put
the law in motion. It would have been at least as easy to release
Voltaire in i726 as it was in 1772 to obtain by means of habeascorpus
the freedom of the slave James Sommersett when actually confined inirons on board a ship lying in the Thames and bound for Jamaica. 16
15 The inconvenience ultimately remedied by the Habeas Corpus Act, 1816, was in practicesmall, for the judges extended to all cases of unlawful imprisonment the spirit of the Habeas
Corpus Act, 1679, and enforced immediate obedience to the writ of habeas corpus, even whenissued not under the statue, but under the common law authority of the Courts. Blackstone, Comm. iii. p. 138.
16 Sommersett's Case, 20 St. Tr. I.

CHAPTER V

13 3

LAW OF THE CONSTITUTION

The whole history of the writ of habeascorpus illustrates the predominant attention paid under the English constitution to "remedies,"that is, to modes of procedure by which to secure respect for a legal
right, and by which to turn a merely nominal into an effective or real
right. The Habeas Corpus Acts are essentially procedure Acts, andsimply aim at improving the legal mechanism by means of which theacknowledged right to personal freedom may be enforced. They areintended, as is generally the case with legislation which proceeds
under the influence of lawyers, simply to meet actual and experienced difficulties. Hence the Habeas Corpus Act of Charles the Second's reign was an imperfect or very restricted piece of legislative
work, and Englishmen waited nearly a century and a half (_679-_8_6)
before the procedure for securing the right to discharge from unlawful confinement was made complete. But this lawyer-like mode of
dealing with a fundamental right had with all its defects the one great
merit that legislation was directed to the right point. There is nodifficulty, and there is often very little gain, in declaring the existenceof a right to personal freedom. The true difficulty is to secure its
enforcement. The Habeas Corpus Acts have achieved this end, andhave therefore done for the liberty of Englishmen more than could
have been achieved by any declaration of rights. One may evenventure to say that these Acts are of really more importance not only
than the general proclamations of the Rights of Man which haveoften been put forward in foreign countries, but even than such verylawyer-like documents as the Petition of Right or the Bill of Rights,
though these celebrated enactments show almost equally with theHabeas Corpus Act that the law of the English constitution is at bottom
judge-made law. 1T
EffectEverycritic of the constitution has observed the effect of the Habeas
writ
ofof
hab_cotpus onau- Corpus Acts in securing the liberty of the subject; what has received
thority
as much attention is the way in which the right tojudges. o_ less and deserves
issue a writ of habeas corpus, strengthened as that right is by statute,determines the whole relation of the judicial body towards the execu17 Compare Imperial Constitution of 18o4, ss. 6o-63, under which a committee of the
Senate was empowered to take steps for putting an end to illegal arrests by the Government. See Plouard, Les Const!tutions Franfaises, p. _61.

PARTll_34

THE RIGHT TO PERSONAL FREEDOM

five. The authority to enforce obedience to the writ is nothing lessthan the power to release from imprisonment any person who in theopinion of the Court is unlawfully deprived of his liberty, and hencein effect to put an end to or to prevent any punishment which the
Crown or its servants may attempt to inflict in opposition to the rulesof law as interpreted by the judges. The judges therefore are in truth,
though not in name, invested with the means of hampering or
supervising the whole administrative action of the government, andof at once putting a veto upon any proceeding not authorised by theletter of the law. Nor is this power one which has fallen into disuse by
want of exercise. It has often been put forth, and this too in matters of
the greatest consequence; the knowledge moreover of its existence
governs the conduct of the administration. An example or two will
best show the mode in which the "judiciary" (to use a convenient
Americanism) can and do by means of the writ of habeascorpus keep ahold on the acts of the executive. In I839 Canadian rebels, foundguilty of treason in Canada and condemned to transportion, arrived
in official custody at Liverpool on their way to Van Diemen's Land.
The friends of the convicts questioned the validity of the sentence
under which they were transported; the prisoners were thereupon
taken from prison and brought upon a writ of habeascorpus before the
Court of Exchequer. Their whole position having been considered by
the Court, it was ultimately held that the imprisonment was legal.
But had the Court taken a different view, the Canadians would at
once have been released from confinement. 18In 1859an English officer serving in India was duly convicted of manslaughter and sentenced to four years' imprisonment: he was sent to England in military custody to complete there his term of punishment. The orderunder which he was brought to this country was technically irregular,
and the convict having been brought on a writ of habeascorpus before
the Queen's Bench, was on this purely technical ground set at liberty. 19So, to take a very notorious instance of judicial authority inmatters most nearly concerning the executive, the Courts have again
18 The Case of the Canadian Prisoners, 5 M & W. 32.
19In reAllen, 3oL. J. (Q. B.), 38.

CHAPTERV

ij5

LAW OF THE CONSTITUTION

and again considered, in the case of persons brought before them by
the writ of habeas corpus, questions as to the legality of impressment,
and as to the limits within which the right of impressment may be
exercised; and if, on the one hand, the judges have in this particularinstance (which by the way is almost a singular one) supported thearbitrary powers of the prerogative, they have also strictly limited theexercise of this power within the bounds prescribed to it by custom orby statute. 2oMoreover, as already pointed out, the authority of thecivil tribunals even when not actually put into force regulates theaction of the government. In _854 a body of Russian sailors were
found wandering about the streets of Guildford, without any visiblemeans of subsistence; they were identified by a Russian naval officer
as deserters from a Russian man-of-war which had put into an English port; they were thereupon, under his instructions and with theassistance of the superintendentof police, conveyed to Portsmouth
for the purpose of their being carried back to the Russian ship.
Doubts arose as to the legality of the whole proceeding. The law
officers were consulted, who thereupon gave it as their opinion that"the delivering-up of the Russian sailors to the Lieutenant and theassistance offered by the police for the purpose of their being conveyed back to the Russian ship were contrary to law. ''21 The sailors
were presumably released; they no doubt would have been deliveredby the Court had a writ of habeas corpus been applied for. Here thenwe see the judges in effect restraining the action of the executive in amatter which in most countries is considered one of administration orof policy lying beyond the range of judicial interference. The strongest examples, however, of interference by the judges with administrative proceedings are to be found in the decisions given under the
Extradition Acts. Neither the Crown nor any servant of the Crown
has any right to expel a foreign criminal from the country or to sur-

20 See Case of Pressing Mariners, 18 St. Tr. _323; Stephen, Commentaries, h. (Mth ed.), p. 574;
conf. Corner, Forms of Writs on Crown Side of Court of Queen's Bench, for form of habeas corpus
for an impressed seaman.
2_ See Forsyth, Opinions, p. 468.

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THE RIGHT TO PERSONAL FREEDOM

render him to his own government for trial.22 A French forger, robbet, or murderer who escapes from France to England cannot, independently of statutory enactments, be sent back to his native land fortrial or punishment. The absence of any power on the part of the
Crown to surrender foreign criminals to the authorities of their own
state has been found so inconvenient, that in recent times Extradition
Acts have empowered the Crown to make treaties with foreign states
for the mutual extradition of criminals or of persons charged withcrime. The exercise of this authority is, however, hampered by restrictions which are imposed by the statute under which alone itexists. It therefore often happens that an offender arrested under the
warrant of a Secretary of State and about to be handed over to theauthorities of his own country conceives that, on some ground orother, his case does not fall within the precise terms of any Extradition Act. He applies for a writ of habeas corpus; he is brought up before
the High Court; every technical plea he can raise obtains full consideration, 23and if on any ground whatever it can be shown that theterms of the Extradition Act have not been complied with, or thatthey do not justify his arrest and surrender, he is as a matter of course
at once set at liberty. 24It is easy to perceive that the authority of thejudges, exercised, as it invariably must be, in support of the strictroles of law, cuts down the discretionary powers of the Crown. It
22 See, however, Rex, v. Lundy, 2 Ventris, 314;Rex v. Kimberley, 2 Stra., 848; East India
Company v. Campbell, _ Ves. Senr., 246; Mure v. Kaye, 4 Taunt. 34; and Chitty, Criminal Law(1826), pp. 14, i6, in support of the opinion that the Crown possessed a common law right ofextradition as regards foreign criminals. This opinion may possibly once have been correct.
(Compare, however, Reg. v. Bernard, Annual Register for 2858, p. 328, for opinion ofCampbell, C. J., cited In re Castioni [2892], 1 Q. B. 149, 153, by Sir C. Russell, arguendo.) It has,
however, in any case (to use the words of a high authority) "ceased to be law now. If any
magistrate were now to arrest a person on this ground, the validity of the commitment
would certainly be tested, and, in the absence of special legislative provisions, the prisoner
as certainly discharged upon application to one of the superior Courts."--Clarke,
Extradition (3rd ed.), p. 27. The case ofMusgrove v. Chun Teeong Toy [189a], A. C. 272, which
establishes that an alien has not a legal right, enforceable by action, to enter British territory,suggests the possible existence of a common law right on the part of the Crown to expel analien from British territory.
23 In re Bellencontre [2891], 2 Q. B. 222.
24 In re Coppin, L. R. 2 Ch. 47; The Queen v. Wilson, 3 Q. B. D. 42.

CHAPTER
V

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LAW OF THE CONSTITUTION

often prevents the English government from meeting public danger
by measures of precaution which would as a matter of course be
taken by the executive of any continental country. Suppose, forexample, that a body of foreign anarchists come to England and arethought by the police on strong grounds of suspicion to be engaged
in a plot, say for blowing up the Houses of Parliament. Suppose alsothat the existence of the conspiracy does not admit of absolute proof.
An English Minister, if he is not prepared to put the conspirators on
their trial, has no means of arresting them, or of expelling them fromthe country.2S In case of arrest or imprisonment they would at once
be brought before the High Court on a writ of habeascorpus, andunless some specific legal ground for their detention could be shown
they would be forthwith set at liberty. Of the political or, to use
foreign expressions, of the "administrative" reasons which mightmake the arrest or expulsion of a foreign refugee highly expedient,the judges would hear nothing; that he was arrested by order of theSecretary of State, that his imprisonment was a simple administrativeact, that the Prime Minister or the Home Secretary was prepared tomake affidavit that the arrest was demanded by the most urgent
considerations of public-safety, or to assure the Court that the wholematter was one of high policy and concerned national interests,
would be no answer whatever to the demand for freedom under awrit of habeascorpus. All that any judge could inquire into would be,whether there was any rule of common or of statute law which would
authorise interference with a foreigner's personal freedom. If nonesuch could be found, the applicants would assuredly obtain theirliberty. The plain truth is that the power possessed by the judges ofcontrolling the administrative conduct of the executive has been, ofnecessity, so exercised as to prevent the development with us of any
system corresponding to the "administrative law" of continental
states. It strikes at the root of those theories as to the nature of administrative acts, and as to the "separation of powers," on which,as will be shown in a later chapter, 26the droit administratif of France
25 Contrast the dealings of Louis Philippe's Government
for which see Gr6goire, Histoire de France, i. pp. 356-36_.
26 See Chap. XII.

PARTII138

in _833 with the Duchesse de Berry,

THE RIGHT TO PERSONAL FREEDOM

depends, and it deprives the Crown, which now means the Ministryof the day, of all discretionary authority. The actual or possible intervention, in short, of the Courts, exercisable for the most part bymeans of the writ of habeascorpus, confines the action of the government within the strict letter of the law; with us the state can punish,
but it can hardly prevent the commission of crimes.
_te_t_ofWe can now see why it was that the political conflicts of the sevenit_0nteenth century often raged round the position of the judges, and why_about_0nofthe battle might turn on a point so technical as the inquiry, whatmight be a proper return to a writ of habeascorpus. 2vUpon the degreeof authority and independence to be conceded to the Bench depended the colour and working of our institutions. To supporters, on
the one hand, of the prerogative who, like Bacon, were not unfrequently innovators or reformers, judicial independence appeared
to mean the weakness of the executive, and the predominancethroughout the state of the conservative legalism, which found a
representative in Coke. The Parliamentary leaders, on the other
hand, saw, more or less distinctly, that the independence of the•
Bench was the sole security for the maintenance of the common law,:which was nothing else than the rule of established customs modified
only by Acts of Parliament, and that Coke in battling for the power ofthe judges was asserting the rights of the nation; they possibly alsosaw, though this is uncertain, that the maintenance of rigid legality,
inconvenient as it might sometimes prove, was the certain road to
Parliamentary sovereignty. _Suspension of the Habeas Corpus Act>_on
During periods of political excitement the power or duty of theabcas•,,;A_ Courts to issue a writ of habeas corpus, and thereby compel the speedy
trial or release of persons charged with crime, has been found aninconvenient or dangerous limitation on the authority of the executive government. Hence has arisen the occasion for statutes which
are popularly called Habeas Corpus Suspension Acts. I say "popularly
27 Darnel's Case, 3 St. Tr. _.
28 See Gardiner, History of England, ii. chap. xxii., for an admirable
different views entertained as to the position of the judges.

CHAPTERV_39

statement of theLAW OF THE CONSTITUTION

called," because if you take (as you may) the Act 34 Geo. llI. c. 5429asa type of such enactments, you will see that it hardly correspondswith its received name. The whole effect of the Act, which does noteven mention the Habeas Corpus Act, is to make it impossible for any
person imprisoned under a warrant signed by a Secretary of State ona charge of high treason, or on suspicion of high treason, to insist
upon being either discharged or put on trial. No doubt this is a great
diminution in the securities for personal freedom provided by theHabeas Corpus Acts; but it falls very far short of anything like a generalsuspension of the right to the writ of habeas corpus; it in no way affects
the privileges of any person not imprisoned on a charge of hightreason; it does not legalise any arrest, imprisonment, or punishment
which was not lawful before the Suspension Act passed; it does notin any wise touch the daim to a writ of habeas corpus possessed byevery one, man, woman, or child, who is held in confinement otherwise than on a charge of crime. The particular statute 34 Geo. III. c. 54
is, and (I believe) every other Habeas Corpus Suspension Act affecting
29 Of which s. _ enacts "that every person or persons that are or shall be in prison within
the kingdom of Great Britain at or upon the day on which this Act shall receive his
Majesty's royal assent, or after, by warrant of his said Majesty's most honorable Privy
Council, signed by six of the said Privy Council, for high treason, suspicion of high treason,or treasonable practices, or by warrant, signed by any of his Majesty's secretaries of state,
for such causes as aforesaid, may be detained in safe custody, without bail or rnainprize,
until the first day of February one thousand seven hundred and ninety-five; and that nojudge or justice of the peace shall bail or try any such person or persons so committed,
without order from his said Majesty's Privy Council, signed by six of the said Privy Council,
fill the said first day of February one thousand seven hundred and ninety-five; and law or
statute to the contrary notwithstanding."
The so-called suspension of the Habeas Corpus Act under a statute such as 34 Geo. III. c.
54, produces both less and more effect than would the total repeal of the Habeas Corpus Acts.
The suspension, while it lasts, makes it possible for the government to arrest and keep inprison any persons declared in effect by the government to be guilty or suspected oftreasonable practices, and such persons have no means of obtaining either a discharge or atrial. But the suspension does not affect the position of persons not detained in custodyunder suspicion of treasonable practices. It does not therefore touch the ordinary liberty ofordinary citizens. The repeal of the Habeas Corpus Acts, on the other hand, would deprive
every man in England of one security against wrongful imprisonment,
but since it would
leave alive the now unquestionableauthority of the judges to issue and compel obedience
to a writ of habeas corpus at common law, it would not, assuming the Bench to do their duty,
increase the power of the government to imprison persons suspected of treasonable practices, nor materially diminish the freedom of any dass of Englishmen. Compare Blackstone,
Comm. iii. p. 138.

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THE RIGHT TO PERSONAL FREEDOMEngland, has been an annual Act, and must, therefore, if it is tocontinue in force, be renewed year by year. The sole, immediate, anddirect result, therefore, of suspending the Habeas Corpus Act is this:the Ministry may for the period during which the Suspension Act
continues in force constantly defer the trial of persons imprisoned on
the charge of treasonable practices. This increase in the power of theexecutive is no trifle, but it falls far short of the process known insome foreign countries as "suspending the constitutional guarantees," or in France as the "prodamafion of a state of siege"; 3° it,indeed, extends the arbitrary powers of the government to a far lessdegree than many so-called Coercion Acts. That this is so may beseen by a mere enumeration of the chief of the extraordinary powers
which were conferred by comparatively recent enactments on the
Irish executive. Under the Act of _88_(44 Vict. c. 4) the Irish executive
obtained the absolute power of arbitrary and preventive arrest, andcould without breach of law detain in prison any person arrested on
suspicion for the whole period for which the Act continued in force. It
is true that the Lord Lieutenant could arrest only persons suspectedof treason or of the commission of some act tending to interfere withthe maintenance of law and order. But as the warrant itself to beissued by the Lord Lieutenant was made under the Act conclusive
evidence of all matters contained therein, and therefore (inter alia) of
the truth of the assertion that the arrested person or "suspect" wasreasonably suspected, e.g. of treasonable practices, and therefore liable to arrest, the result dearly followed that neither the Lord
Lieutenant nor any official acting under him could by any possibility
be made liable to any legal penalty for any arrest, however groundless or malicious, made in due form within the words of the Act. The
Irish government, therefore, could arrest any person whom the Lord
Lieutenant thought fit to imprison, provided only that the warrant
was in the form and contained the allegations required by the statute.
Under the Prevention of Crime (Ireland) Act, _882--45 & 46 Vict. c.
25--theIrish executive was armed with the following (among other)
extraordinary powers. The government could in the case of certain
3o See Duguit, Manuel de Droit Constitutionnel, pp. 51o- 523, and arfide 'q_tat de Si6ge" in
Ch6ruel, Dictionnaire Historique des Institutions de laFrance (6th ed.).

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V

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LAW OF THE CONSTITUTION

crimes 31abolish the right to trial by jury, 32could arrest strangers
found out of doors at night under suspicious circumstances,
33 cottld
seize any newspaper which, in the judgment of the Lord Lieutenant,contained matter inciting to treason or violence, 34and could prohibit
any public meeting which the Lord Lieutenant believed to be dangerous to the public peace or safety. Add to this that the Prevention of
Crime Act, 1882, re-enacted (incidentally as it were) the Alien Act of
i848, and thus empowered the British Ministry to expel from theUnited Kingdom any foreigner who had not before the passing of the
Act been resident in the country for three years. 3s Not one of these
extraordinary powers flows directly from a mere suspension of the
Habeas Corpus Act; and, in truth, the best proof of the very limited
legal effect of such so-called suspension is supplied by the fact that
before a Habeas Corpus Suspension Act runs out its effect is, almost
invariably, supplemented by legislation of a totally different character, namely, an Act of Indemnity.
An Act of Indemnity
Actof

Indemnity.

Reference has already been made to Acts of Indemnity as the SUpreme instance of Parliamentary sovereignty.36 They are retrospective statutes which free persons who have broken the law from responsibility for its breach, and thus make lawful acts which when
they were committed were unlawful. It is easy enough to see theconnection between a Habeas Corpus Suspension Act and an Act ofIndemnity. The Suspension Act, as already pointed out, does not free
any person from civil or criminal liability for a violation of the law.
Suppose that a Secretary of State or his subordinates should, during
the suspension of the Habeas Corpus Act, arrest and imprison a per32 Viz, (a) treason or treason-felony;(b) murder or manslaughter; (c) attempt to murder; (d)aggravated crime of violence against the person; (e) arson, whether by law or by statute;attack on dwelling-house.
32 Sect. 1.
33 Sect. 12.
34

Sect.

13 .

35 Sect. 15.
36 See pp. so, n, ante.
PARTII

I42

THE RIGHT TO PERSONAL FREEDOM

fectly innocent man without any cause whatever, except (it may be)
the belief that it is conducive to the public safety that the particularperson--say, an influential party leader such as Wilkes, Fox, orO'Connell--should be at a particular crisis kept in prison, andthereby deprived of influence. Suppose, again, that an arrest should
be made by orders of the Ministry under circumstances which involve the unlawful breaking into a private dwelling-house, the destruction of private property, or the like. In each of these instances,and in many others which might easily be imagined, the Secretary ofState who orders the arrest and the officials who carry out his commands have broken the law. They may have acted under the bonafide
belief that their conduct was justified by the necessity of providing forthe maintenance of order. But this will not of itself, whether the
HabeasCorpus Act be suspended or not, free the persons carrying out
the arrests from criminal and civil liability for the wrong they havecommitted. The suspension, indeed, of the Habeas Corpus Act may
prevent the person arrested from taking at the moment any proceedings against a Secretary of State or the officers who have acted
under his orders. For the sufferer is of course imprisoned on the
charge of high treason or suspicion of treason, and therefore will not,while the suspension lasts, be able to get himself discharged fromprison. The moment, however, that the Suspension Act expires hecan, of course, apply for a writ of habeascorpus, and ensure that, either
by means of being put on his trial or otherwise, his arbitrary imprisonment shall be brought to an end. In the cases we have supposed
the prisoner has been guilty of no legal offence. The offenders are in
reality the Secretary of State and his subordinates. The result is thaton the expiration of the Suspension Act they are liable to actions orindictments for their illegal conduct, and can derive no defence whatever from the mere fact that, at the time when the unlawful arrest
took place, the Habeas Corpus Act was, partially at any rate, not inforce. It is, however, almost certain that, when the suspension of the
HabeasCorpus Act makes it possible for the government to keep suspected persons in prison for a length of time without bringing themto trial, a smaller or greater number of unlawful acts will be committed, if not by the members of the Ministry themselves, at any rate by
their agents. We may even go farther than this, and say that theCHAPTER
V

i43

LAW

OF THE CONSTITUTION

unavowed object of a Habeas Corpus Suspension Act is to enable thegovernment to do acts which, though politically expedient, may not
be strictly legal. The Parliament which destroys one of the main
guarantees for individual freedom must hold, whether wisely or not,that a crisis has arisen when the rights of individuals must be postponed to considerations of state. A Suspension Act would, in fact,
fail of its main object, unless officials felt assured that, as long as they
bonafide, and uninfluenced by malice or by corrupt motives, carriedout the policy of which the Act was the visible sign, they would beprotected from penalties for conduct which, though it might be technically a breach of law, was nothing more than the free exertion forthe public good of that discretionary power which the suspension of
the Habeas Corpus Act was intended to confer upon the executive.
This assurance is derived from the expectation that, before the Suspension Act ceases to be in force, Parliament will pass an Act ofIndemnity, protecting all persons who have acted, or have intended
to act, under the powers given to the government by the statute. This
expectation has not been disappointed. An Act suspending theHabeas Corpus ACt, which has been continued for any length of time,
has constantly been followed by an Act of Indemnity. Thus the Act towhich reference has already been made, 34 Geo. HI. c. 54, was continued in force by successive annual re-enactments for seven years,
from 1794 to 18m. In the latter year an Act was passed, 42 Geo. HI. c.
66, "indemnifying such persons as since the first day of February,2793, have acted in the apprehending, imprisoning, or detaining incustody in Great Britain of persons suspected of high treason ortreasonable practices." It cannot be disputed that the so-called suspension of the Habeas Corpus Act, which every one knows will probably be followed by an Act of Indemnity, is, in reality, a far greaterinterference with personal freedom than would appear from the very
limited effect, in a merely legal point of view, of suspending the rightof persons accused of treason to demand a speedy trial. The Suspension Act, coupled with the prospect of an Indemnity Act, does intruth arm the executive with arbitrary powers. Still, there are one or
two considerations which limit the practical importance that can fairly
be given to an expected Act of Indemnity. The relief to be obtained

PARTII

144

THE RIGHT TO PERSONAL FREEDOM

from it is prospective

and uncertain.

Any suspicion on the part of the

public, that officials had grossly abused their powers, might make it
difficult to obtain a Parliamentary indemnity for things done while
the Habeas Corpus Act was suspended. As regards, again, the protection to be derived from the Act by men who have been guilty ofirregular, illegal, oppressive, or cruel conduct, everything depends
on the terms of the Act of Indemnity. These may be either narrow or
wide. The Indemnity Act, for instance, of 18o_, gives a very limited
amount of protection to official wrongdoers. It provides, indeed, adefence against actions or prosecutions in respect of anything done,
commanded, ordered, directed, or advised to be done in Great Britain for apprehending, imprisoning, or detaining in custody any person charged with high treason or treasonable practices. Any no doubt
such a defence would cover any irregularity or merely formal breachof the law, but there certainly could be imagined acts of spite or
extortion, done under cover of the Suspension Act, which would
expose the offender to actions or prosecutions, and could not bejustified under the terms of the Indemnity Act. Reckless cruelty to apolitical prisoner, or, still more certainly, the arbitrary punishment or
the execution of a political prisoner, between 1793 and 18o_,would, inspite of the Indemnity Act, have left every man concerned in thecrone liable to suffer punishment. Whoever wishes to appreciate themoderate character of an ordinary Act of Indemnity passed by theImperial Parliament, should compare such an Act as 41 Geo. 1II. c. 66,
with the enactment whereby the Jamaica House of Assembly attempted to cover Governor Eyre from all liability for unlawful deeds
done in suppressing rebellion during _866. An Act of Indemnity,
again, though it is the legalisation of illegality, is also, it should be
noted, itself a law. It is something in its essential character, therefore,
very different from the proclamation of martial law, the establishmentof a state of siege, or any other proceeding by which the executive
government at its own will suspends the law of the land. It is no
doubt an exercise of arbitrary sovereign power; but where the legalsovereign is a Parliamentary assembly, even acts of state assume theform of regular legislation, and this fact of itself maintains in no small
degree the real no less than the apparent supremacy of law.

CHAPTERV_45

ChapterVI

THE RIGHT TO FREEDOM OF DISCUSSION

he Declarationof the Rights of Man 1and the French Constitution of x791prodaim
freedom of discussion and the liberty ofthe press in terms which are still cited in text-books 2 as embodying maxims of French jurisprudence.
Principles
La libre oommunicationdespensEeset desopinionsest un des droitslesplus prEhiddown
cieuxde l'homme; tout citoyenpeut doncparler, Ecrire,imprimerlibrement, sauf ain foreign
cons_tu_on, rd,pondre de l"abus de cette libertEdans lescasdEterminEspar la loi."3
La constitutiongarantit, coramedroit naturel et civil.., la libretE_ tout homme deparler,d'Ecrire,d'imprimer et publierses pensEes,sans que sesEcritspuissent _tre
soumis a aucune censureou inspectionavant leurpublication.4
Belgian law, again, treats the liberty of the press
artide of the constitution.

as a fundamental

Art. _8. Lapresse est libre;lacensure nepourrajamais EtreEtablie:il ne peut _tre
exigEde cautionnement desEcrivains,Editeursou imprimeurs.
Lorsquel'auteur est connu et domiciliEen Belgique,l'Editeur,l'imprimeur ou ledistributeurne peut Etrepoursuivi, sDuguit et Monnier,
2 Bourguignon,

Les Constitutions de la France, p. 1.

l_l_ments G_nEraux de LEgislation Fran¢aise, p. 468.

3 D_dar. des droits, art. x_, Plouard,

p. 16, Duguit et Monnier,

4 Constitution de 279_, Tit. I; Plouard, p. 28, Duguit et Monnier,
5 Constitution de la Belgique, art. 28.

PARTII

_46

p. 2.
p. 4.

THE RIGHT TO FREEDOM OF DISCUSSION

pnnO•0ttree-

Both the revolutionistsof France and the consfitufionalistsof Bel-o_dl_gium borrowed their ideas about freedom of opinion and the liberty_,_eaof the press from England, and most persons form such loose notions"Englishas to English law that the idea prevails in England itself that the fightto the free expression of opinion, and especially that form of it which
is known as the "liberty of the press," are fundamental doctrines ofthe law of England in the same sense in which they were part of theephemeral constitution of _79_ and still are embodied in the artides ofthe existing Belgian constitution; and, further, that our Courts recog:
nise the right of every man to say and write what he pleases, espedally on social, political, or religious topics, without fear of legal
penalties. Yet this notion, justified though it be, to a certain extent, by
the habits of modem English life, is essentially false, and conceals
from students the real attitude of English law towards what is called"freedom of thought," and is more accurately described as the "fightto the free expression of opinion." As every lawyer knows, thephrases "freedom of discussion" or '_berty of the press" are rarely
found in any part of the statute-book nor among the maxims of thecommon law.6 As terms of art they are indeed quite unknown to our
Courts. At no time has there in England been any prodamation of theright to liberty of thought or to freedom of speech. The true state ofthings cannot be better described than in these words from an excellent treatise on the law of libel:
i_10II;h_h
Our present law permits any one to say, write, and publish what he_•°rnl_'pleases; but if he make a bad use of this liberty he must be punished. If hetnounjustly attack an individual, the person defamed may sue for damages; if,
11beoneuqhed on the other hand, the words be written or printed, or if treason or immoral'ept.
mentsf°rity be thereby inculcated, the offender can be tried for the misdemeanour,,_ato_reacheither by information or indictment. 7

Any man may, therefore, say or write whatever he likes, subject tothe risk of, it may be, severe punishment if he publishes any statement (either by word of mouth, in writing, or in print) which he is
not legally entitled to make. Nor is the law of England specially
6 It appears, however, in the Preamble to Lord Campbell's Act, x843,6 & 7 Vict. c. 96.
70dgers, Libeland Slander, Introd. (3rd ed.), p. I2.

CHAPTER VI_4 7

LAW OF THE CONSTITUTION

L,belson
mch_duals.

favourable to free speech or to free writing in the rules which it
maintains in theory and often enforces in fact as to the kind of statements which a man has a legal right to make. Above all, it recognises
in general no special privilege on behalf of the "press," if by that term
we mean, in conformity with ordinary language, periodical literaturein general, and particularly the newspapers. In truth there is little inthe statute-book which can be called a "press law."8 The law of thepress as it exists here is merely part of the law of libel, and it is well
worth while to trace out with some care the restrictions imposed by
the law of libel on the "freedom of the press," by which expression I
mean a person's right to make any statement he likes in books ornewspapers.
There are many statements with regard to individuals which no
man is entitled to publish in writing or print; it is a libel (speaking
generally) thus to publish any untrue statement about another whichis calculated to injure his interests, character, or reputation. Every
man who directly or indirectly makes known or, as the technicalexpression goes, "publishes" such a statement, gives currency to alibel and is liable to an action for damages. The person who makes adefamatory statement and authorises its publication in writing, theperson who writes, the publisher who brings out for sale, the printerwho prints, the vendor who distributes a libel, are each guilty of
publication, and may each severally be sued. The gist of the offence
being the making public, not the writing of the libel, the person who
having read a libel sends it on to a friend, is a libeller; and it would
seem that a man who reads aloud a libel, knowing it to be such, may
be sued. This separate liability of each person concerned in a wrongful act is, as already pointed out, a very noticeable characteristic of
our law. Honest belief, moreover, and good intentions on the part of
8 For exceptions to this, see e.g. 8 & 9 Vict. c. 75; 44 & 45 Vict. c. 6o, s. 2. It is, however, true,as pointed out by one of my critics (see the Law of the Press, by Fisher & Strahan, 2nd ed. p.
iii.), that "there is slowly growing up a distinct law of the press." The tendency of recent
press legislation is to a certain extent to free the proprietors of newspapers from the fullamount of liability which attaches to other persons for the bonafide publication of defamatory statements made at public meetings and the like. See especially the Libel Law
Amendment Act, 1888 (51 & 52Vict. c. 64), s. 4- Whether this deviation from the principlesof the common law is, or is not, of benefit to the public, is an open question which can be
answered only by experience.
PART[I

148

THE RIGHT TO FREEDOM OF DISCUSSION

a libeller, are no legal defence for his conduct. Nor will it avail him toshow that he had good reason for thinking the false statement which•

he made to be true. Persons often must pay heavy damages for giving
currency to statements which were not meant to be falsehoods, andwhich were reasonably believed to be true. Thus it is libellous to
publish of a man who has been convicted of felony but has worked
out his sentence that he "is a convicted felon." It is a libel on the partofX if X publishes that B has told him that A's bank has stopped
payment, if, though B in fact made the statement to X, and X believed the report to be true, it turns out to be false. Nor, again, areexpressions of opinion when injurious to another at all certain not to
expose the publisher of them to an action. A "fair" criticism, it is often
said, is not libellous; but it would be a grave mistake to suppose thatcritics, either in the press or elsewhere, have a right to publish whatever criticisms they think true. Every one has a right to publish fairand candid criticism. But "a critic must confine himself to criticism,and not make it the veil for personal censure, nor allow himself to run
into reckless and unfair attacks merely from the love of exercising his
power of denunciation."9 A writer in the press and an artist or actor
whose performances are criticised are apt to draw the line between"candid criticism" and "personal censure" at very different points.
And when on this matter there is a difference of opinion between acritic and his victim, the delicate question what is meant by fairness
has to be determined by a jury, and may be so answered as greatly tocurtail the free expression of critical judgments. Nor let it be supposed that the mere "truth" of a statement is of itself sufficient toprotect the person who publishes it from liability to punishment. For
though the fact that an assertion is true is an answer to an action forlibel, a person may be criminally punished for publishing statements
which, though perfectly true, damage an individual without being of
any benefit to the public. To write, for example, and with truth of A
that he many years ago committed acts of immorality may very well
expose the writer X to criminal proceedings, and X if put on his trial
will be bound to prove not only that A was in fact guilty of the faults
imputed to him, but also that the public had an interest in the knowl9 Whistler v. Ruskin, "The Times,"
CHAPTER VI

Nov. 27, 1878, per Huddleston,
149

B.

LAW

OF THE CONSTITUTION

edge of A's misconduct. If X cannot show this, he will find that no
supposed right of free discussion or respect for liberty of the press
will before an English judge save him from being found guilty of amisdemeanour and sent to prison.
Libelsgovern-on
ment.

We have spoken so far in very general terms of the limits placed by
the law of libel on freedom of discussion as regards the character ofindividuals. Let us now observe for a moment the way in which thelaw of libel restricts in theory, at least, the right to criticise the conductof the government.
Every person commits a misdemeanour who publishes (orally orotherwise) any words or any document with a seditious intention.
Now a seditious intention means an intention to bring into hatred orcontempt, or to excite disaffection against the King or the government and constitution of the United Kingdom as by law established,or either House of Parliament, or the administration of justice, or to
excite British subjects to attempt otherwise than by lawful means thealteration of any matter in Church or State by law established, or topromote feelings of illwil_land hostility between different classes. 10
And if the matter published is contained in a written or printed
document the publisher is guilty of publishing a seditious libel. The
law, it is true, permits the publication of statements meant only toshow that the Crown has been misled, or that the government has
committed errors, or to point out defects in the government or theconstitution with a view to their legal remedy, or with a view torecommend alterations in Church or State by legal means, and, inshort, sanctions criticism on public affairs which is bonafide intended
to recommend the reform of existing institutions by legal methods.
But any one will see at once that the legal definition of a seditious libel
might easily be so used as to check a great deal of what is ordinarily
considered allowable discussion, and would if rigidly enforced beinconsistent with prevailing forms of political agitation.
E_pr_sion
The case is pretty much the same as regards the free expression ofof opimon
onreliopinion
on religious or moral questions. 11Of late years circumstances
gious or
moral
questaons.

_0 See Stephen,

Digest of the Crffninal

the law (6th ed.),Ibid., arts. 179-183.

PARTII150

arts. 96, 97, 98.

THE RIGHT TO FREEDOMOF DISCUSSION

have recalled attention to the forgotten law of blasphemy. But it
surprises most persons to learn that, on one view of the law, any one
who publishes a denial of the truth of Christianity in general or of theexistence of God, whether the terms of such publication are decent orotherwise, commits the misdemeanour of publishing a blasphemous
libel, and is liable to imprisonment; that, according to another view ofthe law, any one is guilty of publishing a blasphemous libel who
publishes matter relating to God, Jesus Christ, or the Book of Common Prayer intended to wound the feedings of mankind, or to excite
contempt against the Church by law established, or to promote
immorality; and that it is at least open to grave doubt how far the
publications which thus wound the feelings of mankind are exempt
from the character of blasphemy because they are intended in goodfaith to propagate opinions which the person who publishes themregards as true. 12Most persons, again, are astonished to find that thedenial of the truth of Christianity or of the authority of the Scriptures,by "writing, printing, teaching, or advised speaking" on the part ofany person who has been educated in or made profession of Christianity in England, is by statute a criminal offence entailing very
severe penalities. 13When once, however, the principles of the common law and the force of the enactments still contained in the statutebook are really appreciated, no one can maintain that the law ofEngland recognises anything like that natural right to the free comrnunication of thoughts and opinions which was proclaimed in
France a little over a hundred years ago to be one of the most valuable
Rights of Man. It is quite dear, further, that the effect of English law,whether as regards statements made about individuals, or the expression of opinion about public affairs, or speculative matters, depends wholly upon the answer to the question who are to detel:i_-finewhether a given publication is or is not a libel. The reply (as we all
12 See especially Stephen, Digest of the Criminal Law (6th ed.), art. _79, and contrast Odgers(3rd ed.), pp. 475-49 o, where a view of the law is maintained differing from that of Sir J. F.
Stephen.
23 See 9 & _o Will. m. c. 35, as altered by 53 Geo. 111.c. _6o, and Stephen's Digest of the
CrirainalLaw, art. _8_. Conf. Attorney-General v. Bradlaugh, M Q. B. D. (C. A.), 667, p. 719,
judgment of Lindley, L. J.

CH_'_R V/

15_

LAW OF THE CONSTITUTION

know) is, that in substance this matter is referred to the decision of ajury. Whether in any given case a particular individual is to be convicted of libel depends wholly upon their judgment, and they have todetermine the questions of truth, fairness, intention, and the like,which affect the legal character of a published statement. 14
Freedom of discussion is, then, in England little else than the rightto write or say anything which a jury, consisting of twelve shopkeepers, think it expedient should be said or written. Such "liberty" mayvary at different times and seasons from unrestricted license to very
severe restraint, and the experience of English history during the lasttwo centuries shows that under the law of libel the amount of latitudeconceded to the expression of opinion has, in fact, differed greatly
according to the condition of popular sentiment. Until very recent
times the law, moreover, has not recognized any privilege on the partof the press. A statement which is defamatory or blasphemous, if
made in a letter or upon a card, has exactly the same character if
made in a book or a newspaper. The protection given by the Belgian
constitution to the editor, printer, or seller of a newspaper involves a
recognition of special rights on the part of persons connected with thepress which is quite inconsistent with the general theory of English
law. It is hardly an exaggeration to say, from this point of view, thatliberty of the press is not recognised in England.
Why theWhy then has the liberty of the press been long reputed as a special
hberty ofthepre_sfeatureof English institutions?
has been
thought
The answer to this inquiry is, that for about two centuries thepeculiar toE,g_and relation between the government and the press has in England beenmarked by all those characteristics which make up what we havetermed the "rule" or "supremacy" of law, and that just because ofthis, and not because of any favour shown by the law of England
towards freedom of discussion, the press, and especially the newspaper press, has practically enjoyed with us a freedom which till
14 "The truth of the matter is very simple when stripped of all ornaments of speech, and aman of plain common sense may easily understand it. It is neither more nor less than this:that a man may publish anything which twelve of his countrymen think is not blamable,
but that he ought to be punished if he publishes that which is blamable [i.e. that which
twelve of his countrymen think is blamable]. This in plain common sense is the substance of
all that has been said on the matter."mRex
v. Cutbill, 27 St. Tr. 642, 675.

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THE RIGHT TO FREEDOM OF DISCUSSION

recent years was unknown in continental states. Any one will see that
this is so who examines carefully the situation of the press in modem
England, and then contrasts it either with the press law of France orwith the legal condition of the press in England during the sixteenthand seventeenth centuries.
r..... The present position of the English press is marked by two fea._o!the-'"_tures.
Jern
dand
First, "the liberty of the press," says Lord Mansfield, "consists in
cen_orr

printing without any previous license, subject to the consequences oflaw. ''is Lord Ellenborough says:
The law of England is a law of liberty, and consistently with this liberty wehave not what is called an imprimatur; there is no such preliminary licensenecessary; but if a man publish a paper, he is exposed to the penal consequences, as he is in every other act, if it be illegal. 16

These dicta show us at once that the so-called liberty of the press isa mere application of the general principle, that no man is punishable
except for a distinct breach of the law. 17This principle is radicallyinconsistent with any scheme of license or censorship by which a
man is hindered from writing or printing anything which he thinks
fit, and is hard to reconcile even with the right on the part of the
Courts to restrain the circulation of a libel, until at any rate the publisher has been convicted of publishing it. It is also opposed in spirit
to any regulation requiring from the publisher of an intending newspaper a preliminary deposit of a certain sum of money, for the sake
either of ensuring that newspapers should be published only bysolvent persons, or that if a newspaper should contain libels there
shall be a certainty of obtaining damages from the proprietor. No
sensible person will argue that to demand a deposit from the ownerof a newspaper, or to impose other limitations upon the right ofpublishing periodicals, is of necessity inexpedient or unjust. All thatis here insisted upon is, that such checks and preventive measures
are inconsistent with the pervading principle of English law, that
15Rexv. Deanof St. Asaph, 3 T. R. 431 (note).
i6 Rexv. Cobbett,29 St. Tr. 49; see Odgers, Libeland Slander (3rd ed.), p. m.
17See p. 11o,ante.

CHAPTER Vl

153

LAWOf THECONSTITU_ON
men are to be interfered with or punished, not because they may orwill break the law, but only when they have committed some definite
assignable legal offence. Hence, with one exception, la which is aquaint survival from a different system, no such thing is known withus as a license to print, or a censorship either of the press or ofpolitical newspapers. Neither the government nor any other authority has the right to seize or destroy the stock of a publisher because it
consists of books, pamphlets, or papers which in the opinion of thegovernment contain seditious or libellous matter. Indeed, the Courts
themselves will, only under very special circumstances, even for thesake of protecting an individual from injury, prohibit the publication
or republication of a libel, or restrain its sale until the matter has gone
before a jury, and it has been established by their verdict that thewords complained of are libellous. 19Writers in the press are, in short,
like every other person, subject to the law of the realm, and nothingelse. Neither the government nor the Courts have (speaking generally) any greater power to prevent or oversee the publication of anewspaper than the writing and sending of a letter. Indeed, thesimplest way of setting forth broadly the position of writers in thepress is to say that they stand in substantially the same position as
letterwriters. A man who scribbles blasphemy on a gate 2° and a man
who prints blasphemy in a paper or in a book commit exactly thesame offence, and are dealt with in England on the same principles.
Hence also writers in and owners of newspapers have, or rather had
until very recently, no special privilege protecting them from liability. 21Look at the matter which way you will, the main feature ofliberty of the press as understood in England is that the press (which
28 I.e. the licensing of plays. See the Theatres
tar/es (_4th ed.), iii. p. 227.

Act, 2843, 6 & 7Vict. c. 68; Stephen,

Commen-19 Compare Odgers, Libel and Slander (3rd ed.), chap. xiii., especially pp. 388- 399, with thefirst edition of Mr. Odgers" work, pp. 23-26.
20 Reg. v. Pool_, cited Stephen,

Digest of the Criminal Law (6th ed.), p. 225.

2.i This statement must be to a certain extent qualified in view of the Libel Act, 2843, 6 & 7
Vict. c. 96, the Newspaper Libel and Registration Act, 2882, 44 & 45 Vict. c. 60, and the Lawof Libel Amendment
Act, 2888, 52 & 52 Vict. c. 64, which do give some amount of special
protection to bona fide reports, e.g. of public meetings, in newspapers.

PARTI1z54

THE RIGHT TO FREEDOM OF DISCUSSION

means, of course, the writers in it) is subject only to the ordinary lawof the land.
,,01- Secondly, press offences, in so far as the term can be used with_;_,_t,reference to English law, are tried and punished only by the ordinary_ra,- Courts of the country, that is, by a judge and jury.22.r,_Since the Restoration,23 offences committed through the newspapers, or, in other words, the publication therein of libels whether
defamatory, seditious, or blasphemous, have never been tried by any
special tribunal. Nothing to Englishmen seems more a matter ofcourse than this. Yet nothing has in reality contributed so much to
free the periodical press from any control. If the criterion whether apublication be libellous is the opinion of the jury, and a man may
publish anything which twelve of his countrymen think is not blamable, it is impossible that the Crown or the Ministry should exert any
stringent control over writings in the press, unless (as indeed may
sometimes happen) the majority of ordinary citizens are entirely opposed to attacks on the government. The times when persons in
power wish to check the excesses of public writers are times at whicha large body of opinion or sentiment is hostile to the executive. But
under these circumstances it must, from the nature of things, be atleast an even chance that the jury called upon to find a publisher
guilty of printing seditious libels may sympathise with the language
which the officers of the Crown deem worthy of punishment, andhence may hold censures which are prosecuted as libels to be fair andlaudable criticism of official errors. Whether the control indirectly
exercised over the expression of opinion by the verdict of twelve
commonplace Englishmen is at the present day certain to be as greata protection to the free expression of opinion, even in political matters, as it proved a century ago, when the sentiment of the governing
22 The existence, however, of process by criminal information, and the rule that truth was
no justification, had the result that during the eighteenth century seditious libel rose almost
to the rank of a press offence, to be dealt with, if not by separate tribunals, at any rate byspecial rules enforced by a special procedure.
23 See as to the state of the press under the Commonwealth,
Masson, Life of Milton, i_. pp.
265-297. Substantially the possibility of trying press offences by special tribunals was put
an end to by the abolition of the Star Chamber in 164_, _6 Car. I. c. _o.

CHAPTER
VI

15.5

LAW OF THE CONSTITUTION

body was different from the prevalent feeling of the class from which
jurymen were chosen, is an interesting speculation into which there
is no need to enter. What is certain is, that the practical freedom of
the English press arose in great measure from the trial with us of"press offences,'" like every other kind of libel, by a jury.
The liberty of the press, then, is in England simply one result of theuniversal predominance of the law of the land. The terms "'liberty ofthe press," "press offences, .... censorship of the press," and the like,are all but unknown to English lawyers, simply because any offence
which can be committed through the press is some form of libel, andis governed in substance by the ordinary law of defamation.
These things seem to us at the present day so natural as hardly to
be noticeable; let us, however, glance as I have suggested at the press
law of France both before and since the Revolution; and also at thecondition of the press in England up to nearly the end of the seventeenth century. Such a survey will prove to us that the treatment inmodern England of offences committed through the newspapers affords an example, as singular as it is striking, of the legal spirit which
now pervades every part of the English constitution.
CoO_wP_-

An Englishman who consults French authorities is struck withat two facts: press law 24has long constituted and still
France. COnstitutes to a certain extent a special department of French legislation, and press offences have been, under every form of government
which has existed in France, a more or less special dass of crimes. The
Acts which have been passed in England with regard to the press
since the days of Queen Elizabeth do not in number equal one-tenth,thepre_samazement
lawof

24 The press is now governed in France by the Loi sur la liberte de lapresse, 29-3oJuill. 1881.
This law repeals all earlier edicts, decrees, laws, ordinances, etc. on the subject. Immediately before this law was passed there were in force more than thirty enactments
regulating the position of the French press, and inflicting penalties on offences which could
be committed by writers in the press; and the three hundred and odd closely printed pagesof Dalloz, treating of laws on the press, show that the enactments then in vigour under theRepublic were as nothing compared to the whole mass of regulations, ordinances, decrees,
and laws which, since the earliest days of printing down to the year _88_, have been issued
by French rulers with the object of controlling the literary expression of opinion andthought. See Dalloz, Rdpertoire, vol. xxxvi., "Presse," pp. 384-776, and especially Tit. I.
chap. i., Tit. 11. chap. iv.; Roger et Sorel, Codes et Loi Usuelles, "Presse,'" 637-652; Duguit,
Manuel de Droit Constitutionnel, pp. 575-582.

PARTII_56

THE RIGHTTO FREEDOMOF DISCUSSION

or even one-twentieth, of the laws enacted during the same periodon the same subject in France. The contrast becomes still moremarked if we compare the state of things in the two countries since
the beginning of the eighteenth century, and (for the sake of avoiding
exaggeration) put the laws passed since that date, and which were till
_881in force in France, against every Act which, whether repealed or
unrepealed, has been passed in England since the year 17oo. It will befound that the French press code consisted, till after the establishment of the present Republic, of over thirty enactments, whilst the
English Acts about the press passed since the beginning of the lastcentury do not exceed a dozen, and, moreover, have gone very little
way towards touching the freedom of writers.
The ground of this difference lies in the opposite views taken in thetwo countries of the proper relation of the state to literature, or, morestrictly, to the expression of opinion in print.
In England the doctrine has since 17ooin substance prevailed thatthe government has nothing to do with the guidance of opinion, andthat the sole duty of the state is to punish libels of all kinds, whether
they are expressed in writing or in print. Hence the government
has (speaking generally) exercised no special control over literature,and the law of the press, in so far as it can be said to have existed,
has been nothing else than a branch or an application of the lawof libel.
In France, literature has for centuries been considered as the particular concern of the state. The prevailing doctrine, as may begathered from the current of French legislation, has been, and still toa certain extent is, that it is the function of the administration not only
to punish defamation, slander, or blasphemy, but to guide the courseof opinion, or, at any rate, to adopt preventive measures for guarding
against the propagation in print of unsound or dangerous doctrines.
Hence the huge amount and the special and repressive character ofthe press laws which have existed in France.
Up to the time of the Revolution the whole literature of the country
was avowedly controlled by the state. The right to print or sell books
and printed publications of any kind was treated as a special privilege
or monopoly of certain libraries; the regulations (rdglements) of 1723

CHAPTERVl_57

LAW OF THE CONSTITUTION(some part of which was till quite recently in force) 2s and of 2767
confined the right of sale and printing under the severest penalties oflibrarians who were duly licensed. 26The right to publish, again, wassubmitted to the strictest censorship, exercised partly by the University (an entirely ecdesiastical body), partly by the Parliaments, partly
by the Crown. The penalties of death, of the galleys, of the pillory,
were from time to time imposed upon the printing or sale of forbidden worEs. These punishments were often evaded; but they after all
retained practical force till the very eve of the Revolution. The mostcelebrated literary works of France were published abroad. Montesquieu's Esprit des Lois appeared at Geneva. Voltaire's Henriade wasprinted in England; the most remarkable of his and of Rousseau's
writings were published in London, in Geneva, or in Amsterdam. In
I775 a work entitled Philosophie de la Nature was destroyed by theorder of the Parliament of Paris, the author was decreed guilty oftreason against God and man, and would have been burnt if he could
have been arrested. In _78_, eight years before the meeting of theStates General, Raynal was pronounced by the Parliament guilty of
blasphemy on account of his Histoire des Indes. 27The point, however,to remark is, not so much the severity of the punishments which
under the Ancien R_gime were intended to suppress the expression ofheterodox or false beliefs, as the strict maintenance down to i789 of
the right and duty of the state to guide the literature of the country. Itshould further be noted that down to that date the government madeno marked distinction between periodical and other literature. Whenthe Lettres Philosophiques could be burnt by the hangman, when the
publication of the Henriade and the Encyclop_die depended on the
goodwill of the King, there was no need for establishing special restrictions on newspapers. The daily or weekly press, moreover,hardly existed in France till the opening of the States General. _25 See Dalloz, Rdpertoire, vol. xxxvi., "Presse," Tit. I. chap. i. Compare Roger et Sorel, Codeset Lois, "Presse," pp. 637-652.
26/b/d.

27 See Dalloz, _toire,
vol. xxxvi., "Presse," "fit. I. chap. i. Compare Roger et Sorel, Codeset Lois, "'Presse,'"pp. 6.37-652.
28 See Rocquain, L'Esprit RZ,valutionnaire avant la Rd_volution, for a complete list of "Livres
Condamn_s'" from _7_5 to 1789. Rocquain's book is fill of information on the arbitrariness ofthe French Government during the reigns of Louis XV. and Louis XVI.
PARTII

i58

THE RIGHT TO FREEDOM OF DISCUSSION

The Revolution (it may be fancied) put an end to restraints upon
the press. The Declaration of the Rights of Man prodaimed the fightof every citizen to publish and print his opinions, and the language
has been cited z9in which the Constitution of 2791guaranteed to every
man the natural right of speaking, printing, and publishing histhoughts without having his writings submitted to any censorship or
inspection prior to publication. But the Dedaration of Rights and thisguarantee were practically worthless. They enounced a theory which
for many years was utterly opposed to the practice of every Frenchgovernment.
The Convention did not establish a censorship, but under the pleaof preventing the circulation of seditious works it passed the law of
29th March 1793, which silenced all free expression of opinion. The
Directory imitated the Convention. Under the First Empire the newspaper press became the property of the government, and the sale,printing, and publication of books was wholly submitted to imperial
control and censorship. 30
The years which elapsed from i789 to 1825were, it may be suggested, a revolutionary era which provoked or excused exceptional
measures of state interference. Any one, however, who wants to see
how consonant to the ideas which have permanently governed
French law and French habits is the notion that the administration
should by some means keep its hand on the national literature of thecountry, ought to note with care the course of legislation from the
Restoration to the present day. The attempt, indeed, to control the
publication of books has been by slow degrees given up; but one
government after another has, with curious uniformity, prodaimed
the freedom and ensured the subjection of the newspaper press.
From ,8_4 to I83o the censorship was practically established (21stOct. 28_4),was partially abolished, was abolished (2829),was reestablished and extended (i82o), and was re-abolished (1828).31The
Revolution of July i83o was occasioned by an attempt to destroy theliberty of the press. The Charter made the abolition of the censorshippart of the constitution, and since that date no system of censorship
29 See p. 146, ante.
3o DaUoz, R@ertoire, xxxvi., "Presse," Tit. I. chap. i.
31 See Duguit, Trait_ de Droit Constitutionnel,

i. pp. 9_, 92.

CHAPTER
VI

159

LAW OF THE CONSTITUTION

has been in name re-established. But as regards newspapers, thecelebrated decree of 17th February _852 enacted restrictions more rigid
than anything imposed under the name of/a censure by any government since the fall of Napoleon I. The government took to itself under
this law, in addition to other discretionary powers, the right to suppress any newspaper without the necessity of proving the commission of any crime or offence by the owner of the paper or by any
writer in its columns. 32No one, further, could under this decree set
up a paper without official authorisation. Nor have different forms ofthe censorship been the sole restrictions imposed in France on theliberty of the press. The combined operations of enactments passed
during the existence of the Republic of _848, and under the Empire,was (among other things) to make the signature of newspaper artides
by their authors compulsory, 33to require a large deposit from any
person who wished to establish a paper, 34to withdraw all press
offences whatever from the cognisance of a jury, 3s to re-establish or
reaffirm the provision contained in the r#glement of 2723by which no
one could carry on the trade of a librarian or printer (commerce de la
librairie) without a license. It may, in fact, be said with substantial
truth that between _852 and _87o the newspapers of France were as
much controlled by the government as was every kind of literature
before 1789, and that the Second Empire exhibited a retrogression
towards the despotic principles of the Ancien R#girne. The Republic, 36
32 D6cret, 17F6vrier,1852 , sec,

32, Roger et Sorel, Codes et Lois, p. 648.

33 Roger et Sorel, Codes et LO/s, p. 646. Lois, 16 Julliet 185o.
34 Roger et Sorel, Codes et Lois, p. 646. Lois, 16 JuiUet 185o.
35 Lois, 31 D6c. 1852.
36 One thing is perfectly dear and deserves notice. The legislation of the existing Republic
was not till 1881, any more than that of the Restoration or the Empire, based on the view ofthe press which pervades the modern law of England. "Press law" still formed a special
department of the law of France. "Press offences" were a particular class of crimes, andthere were at least two provisions, and probably several more, to be found in French laws
which conflicted with the doctrine of the liberty of the press as understoodin England. A
law passed under the Republic (6th July 187_. Roger et Sorel, Codes et Lois, p. 652) reimposedon the proprietors of newspapers the necessity of making a large deposit, with the proper
authorities, as a security for the payment of fines or damages incurred in the course of the
managementof the paper. A still later law (a9th December 1875, s. 5. Roger et Sorel, Codes etLois, p. 652), while it submitted some press offences to the judgment of a jury, subjected

PARTII

160

THE RIGHT TO FREEDOMOF DISCUSSION

it is true, has abolished the restraints on the liberty of the press whichgrew up both before and under the Empire. But though for the lasttwenty-seven years the ruling powers in France have favoured theliberty or license of the press, nothing is more plain than that until
quite recently the idea that press offences were a peculiar dass ofoffences to be dealt with in a special way and punished by special
courts was accepted by every party in France. This is a matter ofextreme theoretical importance. It shows how foreign to French notions is the idea that every breach of law ought to be dealt with by theordinary law of the land. Even a cursory survey--and no other ispossible in these lectures--of French legislation with regard to literature proves, then, that from the time when the press came into
existence up to almost the present date the idea has held ground thatthe state, as represented by the executive, ought to direct or control
the expression of opinion, and that this control has been exercised by
an official censorship--byrestrictions on the right to print or sell
books--and by the subjection of press offences to special laws administered by special tribunals. The occasional relaxation of theseirestrictions is of importance. But their recurring revival is of far moresignificance than their temporary abolition. 37_trastLet us now turn to the position of the English press during the_,_ sixteenth and seventeenth centuries.
_'n_
ing

The Crown originally held all presses in its own hands, allowed noitehcen- one to print except under special license, and kept all presses subject:
to regulations put forward by the Star Chamber in virtue of the royalprerogative: the exdusive privilege of printing was thus given toothers to the cognisance of Courts of which a jury formed no part. The law of 29th July _881
establishes the freedom of the press. Recent French legislation exhibits, no doubt, a violent
reaction against all attempts to check the freedom of the press, butin its very effort to secure
this freedom betrays the existence of the notion that offences committed through the press
require in some sort exceptional treatment.
37 Note the several laws passed since _88_ to repress the abuse of freedom in one form or
another by the press, e.g. the law of and August 1882, modified and completed by the law of
16th March _898, for the suppression of violations of moral principles (outrages aux bonnes
ma'urs) by the press, the law of 28th July _894, to suppress the advocacy of anarchicalprinciples by the press, and the law of 16th March _893, giving the French government
special powers with regard to foreign newspapers, or newspapers published in a foreign
language. Conf. Duguit, Manuel de Droit Constitutionnel, p. 582.

CHAPTER

Vt

z6_

LAW OF THE CONSTITUTION

ninety-seven London stationers and their successors, who, as theStationers" Company, constituted a guild with power to seize all
publications issued by outsiders; the printing-presses
ultimately
conceded to the Universities existed only by a decree of the Star
Chamber.
Side by side with the restrictions on printing--whichappear tohave more or less broken down--there
grew up a system of licensing
which constituted a true censorship.3S
Press offences constituted a special class of crimes cognisable by aspecial tribunal-- the Star Chamber-- which sat without a jury andadministered severe punishments. 39The Star Chamber indeed fell in
1642, never to be revived, but the censorship survived the Commonwealth, and was under the Restoration (2662) given a strictly legal
foundation by the statute 13& 14 Car. II. c. 33, which by subsequent
enactments was kept in force till 1695.4°_e_a_There existed, in short, in England during the sixteenth and sevenandsubteenth
centuries every method of curbing the press which was thensequent
unliken_spractised in France, and which has prevailed there almost up to thebetweenpresoak,"presentday. In England, as on the Continent, the book trade was aofEnglandandof
Francemonopoly, the censorship was in full vigour, the offences of authors
and printers were treated as special crimes and severely punished byspedal tribunals. This similarity or identity of the principles withregard to the treatment of literature originally upheld by the government of England and by the government of France is striking. It isrendered still more startling by the contrast between the subsequent
history of legislation in the two countries. In France (as we havealready seen) the censorship, though frequently abolished, has almost as frequently been restored. In England the system of licensing,which was the censorship under another name, was terminatedrather than abolished in 1695. The House of Commons, which refused to continue the Licensing Act, was certainly not imbued withany settled enthusiasm for liberty of thought. The English statesmen
38 See for the control exercised over the press down to 1695, Odgers, Libel and Slander (3rded.), pp. lO-13.
39 Gardiner, History of England, vii. pp. 51, 13o; ibid., viii. pp. 225, 234.
40 See Macaulay, History of England, iv. chaps, xix, xxi.

PARTII

162

THE RIGHT TO FREEDOM OF DISCUSSION
of 1695 neither
avowednor entertained
municationof thoughts and opinions

the belief

that the "freecom-

was one of the most valuable of

the rights of man. ''41They refused to renew the Licensing Act, andthus established freedom of the press without any knowledge of theimportance of what they were doing. This can be asserted with confidence, for the Commons delivered to the Lords a document whichcontains the reasons for their refusing to renew the Act.

:

This paper completely x_.ndicates the resolution to which the Commons
had come. But it proves at the same time that they knew not what they were
doing, what a revolution they were making, what a power they were calling
into existence. They pointed out concisely, cldearly, forcibly, and sometimes
with a grave irony which is not unbecoming, the absurdities and iniquities ofthe statute which was about to expire. But all their objections will be found to
relate to matters of detail. On the great question of principle, on the question
whether the liberty of unlicensed printing be, on the whole, a blessing or acurse to society, not a word is said. The Licensing Act is condemned, not as athing essentially evil, but on account of the petty grievances, the exactions,the jobs, the commercial restrictions, the domiciliary visits, which were incidental to it. It is pronounced mischievous because it enables the Company ofStationers to extort money from publishers, because it empowers the agentsof the government to search houses under the authority of general warrants,
because it confines the foreign book trade to the port of London; because it
detains valuable packages of books at the Custom House till the pages are
mildewed. The Commons complain that the amount of the fee which thelicenser may demand is not fixed. They complain that it is made penal in an
officer of the Customs to open a box of books from abroad, except in thepresence of one of the censors of the press. How, it is very sensibly asked, isthe officer to know that there are books in the box till he has opened it? Suchwere the arguments which did what Milton's Areopagitica had failed to do. 42

How slight was the hold of the principle of the liberty of the press
on the statesmen who abolished the censorship is proved by theirentertaining, two years later, a bill (which, however, never passed) toprohibit the unlicensed publication of news. 43Yet while the solemn
dedaration by the National Assembly of I78 9 of the right to the free
expression of thought remained a dead letter, or at best a speculative
41See Declarationof the Rights ofMan, art. 1_,p. 146,ante.
42 Macaulay,History of England, iv. pp. 542, 542.
43 Macaulay, History of England, iv. pp. 771,772.

CHAPTER__6 3

LA W OF THE CONSTITUTION

maxim of French jurisprudence which, though not without influence,
was constantly broken in upon by the actual law of France, the refusalof the English Parliament in 1695 to renew the Licensing Act did
permanently establish the freedom of the press in England. The fifty
years which followed were a period of revolutionary disquiet fairly
comparable with the era of the Restoration in France. But the censorship once abolished in England was never revived, and all idea ofrestrictions on the liberty of the press other than those contained in
the law of libel have been so long unknown to Englishmen, that therare survivals in our law of the notion that literature ought to becontrolled by the state appear to most persons inexplicable anomalies, and are tolerated only because they produce so little inconvenience that their existence is forgotten.
_es_ons
TO a student who surveys the history of the liberty of the press insuggestedb_.ong.na_France and in England two questions suggest themselves. How does
sfmilanty
anddifferencef,nal it happen that down to the end of the seventeenth century the prinbetween
ciples upheld by the Crown in each country were in substance the
press
law
of France
ando_ same? What, again, is the explanation of the fact that from the beginEngland.
ning of the eighteenth century the principles governing the law of thepress in the two countries have been, as they still continue to be,essentially different? The similarity and the difference each seems at
first sight equally perplexing. Yet both one and the other admit ofexplanation, and the solution of an apparent paradox is worth giving
because of its dose bearing on the subject of this lecture, namely, thepredominance of the spirit of legality which distinguishes the law of
the constitution.
Reasons The ground of the similarity between the press law of England and
s.r_,a_ty of France from the beginning of the sixteenth till the beginning of theeighteenth century, is that the governments, if not the people, of
each country were during that period influenced by very similar admirdstrative notions and by similar ideas as to the relation between
the state and individuals. In England, again, as in every European
country, the belief prevailed that a King was responsible for the religious belief of his subjects. This responsibility involves the necessity
for regulating the utterance and formation of opinion. But this direction or control cannot be exercised without governmental interference
for original

PARTII

I64

THE RIGHT TO FREEDOM OF DISCUSSION

with that liberty of the press which is at bottom the right of every man
to print any opinion which he chooses to propagate, subject only torisk of punishment if his expressions contravene some distinct legal
maxim. During the sixteenth and seventeenth centuries, in short, theCrown was in England, as in France, extending its administrative
powers; the Crown was in England, as in France, entitled, or rather
required by public opinion, to treat the control of literature as an affair
of state. Similar circumstances produced similar results; in each country the same principles prevailed; in each country the treatment of thepress assumed, therefore, a similar character.
Reason_The reason, again, why, for nearly two centuries, the press has
for laterd,_lbeen treated in France on principles utterly different from those]arlty.
which have been accepted in England, lies deep in the difference ofthe spirit which has governed the customs and laws of the two countries.
In France the idea has always flourished that the government,
whether Royal, Imperial, or Republican, possesses, as representing
the state, rights and powers as against individuals superior to andindependent of the ordinary law of the land. This is the real basis ofthat whole theory of adroit administratif, _ which it is so hard forEnglishmen fully to understand. The increase, moreover, in the authority of the central government has at most periods both before andsince the Revolution been, or appeared to most Frenchmen to be, themeans of removing evils which oppressed the mass of the people.
The nation has in general looked upon the authority of the state withthe same favour with which Englishmen during the sixteenth century
regarded the prerogative of the Crown. The control exercised indifferent forms by the executive over literature has, therefore, in themain fully harmonised with the other institutions of France. The
existence, moreover, of an elaborate administrative system, the actionof which has never been subject to the control of the ordinary tribunals, has always placed in the hands of whatever power was supreme in France the means of enforcing official surveillance of literature. Hence the censorship (to speak of no other modes of checking
44 See Chap. Xll. post.

CHAPTER

VI

i65

LAW OF THE CONSTITUTION

the liberty of the press) has been on the whole in keeping with thegeneral action of French governments and with the average sentiment of the nation, whilst there has never been wanting appropriate
machinery by which to carry the censorship into effect.
No doubt there were heard throughout the eighteenth century,and have been heard ever since, vigorous protests against the censorship, as against other forms of administrative arbitrariness; and at the
beginning of the Great Revolution, as at other periods since, efforts
were made in favour of free discussion. Hence flowed the abolition of
the censorship, but this attempt to limit the powers of the government in one particular direction was quite out of harmony with thegeneral reverence for the authority of the state. As long, moreover, as
the whole scheme of French administration was left in force, thegovernment, in whatever hands it was placed, always retained themeans of resuming its control over the press, whenever popularfeeling should for a moment favour the repression of free speech.
Hence arose the constantly recurring restoration of the abolishedcensorship or of restraints which, though not called by the unpopularname of la censure, were more stringent than has ever been any
Licensing Act. Restrictions, in short, on what Englishmen understand by the liberty of the press have continued to exist in France andare hardly now abolished, because the exercise of preventive anddiscretionary authority on the part of the executive harmonises withthe general spirit of French law, and because the administrative
machinery, which is the creation of that spirit, has always placed (as it
still places) in the hands of the executive the proper means for enforcing discretionary authority.
In England, on the other hand, the attempt made by the Crown
during the sixteenth and seventeenth centuries to form a strong central administration, though it was for a time attended with success,because it met some of the needs of the age, was at bottom repugnant
to the manners and traditions of the country; and even at a time
when the people wished the Crown to be strong, they hardly liked
the means by which the Crown exerted its strength.
Hundreds of Englishmen who hated toleration and cared little for
freedom of speech, entertained a keen jealousy of arbitrary power,

PART II

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THE RIGHT TO FREEDOMOF DISCUSSION

and a fixed determination to be ruled in accordance with the law of
the land. 4s These sentiments abolished the Star Chamber in _64_, andmade the re-establishment of the hated Court impossible even for the
frantic loyalty of 2660. But the destruction of the Star Chamber meantmuch more than the abolition of an unpopular tribunal; it meant therooting up from its foundations of the whole of the administrative
system which had been erected by the Tudors and extended by the
Stuarts. This overthrow of a form of administration which contradicted the legal habits of Englishmen had no direct connection
with any desire for the uncontrolled expression of opinion. The Parliament which would not restore the Star Chamber or the Court ofHigh Commission passed the Licensing Act, and this statute, which
in fact establishes the censorship, was, as we have seen, continued inforce for some years after the Revolution. The passing, however, ofthe statute, though not a triumph of toleration, was a triumph oflegality. The power of licensing depended henceforward, not on any
idea of inherent executive authority, but on the statute law. The rightof licensing was left in the hands of the government, but this power
was regulated by the words of a statute; and, what was of moreconsequence, breaches of the Act could be punished only by proceedings in the ordinary Courts. The fall of the Star Chamber deprived the executive of the means for exercising arbitrary power.
Hence the refusal of the House of Commons in _695 to continue theLicensing Act was something very different from the proclamation of
freedom of thought contained in the French Declaration of Rights, orfrom any of the laws which have abolished the censorship in France.
To abolish the right of the government to control the press, was, inEngland, simply to do away with an exceptional authority, which
was opposed to the general tendency of the law, and the abolition
was final, because the executive had already lost the means by which
the control of opinion could be effectively enforced.
To sum the whole matter up, the censorship though constantly
abolished has been constantly revived in France, because the exertionof discretionary powers by the government has been and still is in
45 See Selden's remarks on the illegality of the decrees of the Star Chamber, cited Gardiner,
History of England, vii. p. 52.

CHAPTERVl

167

LAW

OF THE CONSTITUTION

harmony with French laws and institutions. The abolition of the censorship was final in England, because the exercise of discretionary
power by the Crown was inconsistent with our system of administration and with the ideas of English law. The contrast is made the morestriking by the paradoxical fact, that the statesmen who tried withlittle success to establish the liberty of the press in France really intended to proclaim freedom of opinion, whilst the statesmen who
would not pass the Licensing Act, and thereby founded the liberty ofthe press in England, held theories of toleration which fell far short offavouring unrestricted liberty of discussion. This contrast is not only
striking in itself, but also affords the strongest illustration that can befound of English conceptions of the rule of law.

PART 1]168

Chapter VII

THE RIGHT OF PUBLIC MEETING 1

Right
of Y'T'Ihe law of Belgium 2 with regard to public meetings is contained
mee_ngpUbhc_in
the nineteenth artide of the constitution, which is probably.Lintended in the main to reproduce the law of England, andruns as follows:
RulesofArt. x9. Les Belges on t le droit de s'assembler paisiblemen t et sans armes, en se
Belgiancons_m_on conformant aux lois, qui peuvent rOglerl'exercice de ce droit, sans n_anmoins lesoumettre _ une autorisation pr_alable.
Cette disposition ne s"applique point aux rassemblements en plein air, qui restententi_rement soumis aux lois de police. 3_nap_es
The restrictions on the practice of public meeting appear to be moreof Eng-hsh_w_s
to stringent in Belgium than in England, for the police have with us noright ofrub_
special authority to control open-air assemblies. Yet just as it cannot
meetingwith strict accuracy be asserted that English law recognises the libertyof the press, so it can hardly be said that our constitution knows ofsuch a thing as any specific right of public meeting. No better in1 See generally as to the fight of public meeting, Stephen, Cammentar/es,iv. (14th ed.),pp. _74-x78, and Kenny, Outlines of CriminalLaw (3rd ed.), pp. 28o-286. See Appendix,
Note V., Questions connected with the Right of Public Meeting.
2 See Law QuarterlyReview, iv. p. x59. See also as to right of public meeting in Italy, ibid.
p. 78; in France,zt,/d,p. x65;in Switzerland, &'d.p. 169;in United States, ibid. p. 257. See as
to history of law of public meeting in France, Duguit, Manuel de Droit Constitutionnel, pp.
554-559.
3 Constitutionde la Belgique,art. 19.

CHAPTER

VII_69

LAW OF THE CONSTITUTION

stance can indeed be found of the way in which in England theconstitution is built up upon individual rights than our rules as to
public assemblies. The right of assembling is nothing more than aresult of the view taken by the Courts as to individual liberty of
person and individual liberty of speech. There is no special law allowing A, B, and C to meet together either in the open air or elsewhere for a lawful purpose, but the right of A to go where he pleases
so that he does not commit a trespass, and to say what he likes to B sothat his talk is not libellous or seditious, the right of B to do the like,and the existence of the same rights of C, D, E, and F, and so on ad
infinitum, lead to the consequence thatA, B, C, D, and a thousand or
ten thousand other persons, may (as a general rule) 4 meet together inany place where otherwise they each have a right to be for a lawful
purpose and in a lawful manner. A has a right to walk down the HighStreet or to go on to a common. B has the same right. C, D, and alltheir friends have the same right to go there also. In other words, A,
B, C, and D, and ten thousand such, have a right to hold a public
meeting; and as A may say to B that he thinks an Act ought to bepassed abolishing the House of Lords, or that the House of Lords arebound to reject any bill modifying the constitution of their House,
and as B may make the same remark to any of his friends, the result
ensues that A and ten thousand more may hold a public meeting
either to support the government or to encourage the resistance of
the Peers. Here then you have in substance that right of public meeting for political and other purposes which is constantly treated inforeign countries as a special privilege, to be exercised only subject tocareful restrictions. The assertion, however, that A, B, C, and D, anda hundred thousand more persons, just because they may each go
where they like, and each say what they please, have a right to holdmeetings for the discussion of political and other topics, does not of
course mean that it is impossible for persons so to exercise the right ofmeeting as to break the law. The object of a meeting may be tocommit a crime by open force, or in some way or other to break the
4 It is not intended here to express any opinion on the point whether an agreement on thepart of A, B, and C to meet together may not under exceptional circumstances be a conspiracy.

PARTII

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THE RIGHT OF PUBLIC MEETING

peace, in which case the meeting itself becomes an unlawful assembly.5 The mode in which a meeting is held may threaten a breach of
the peace on the part of those holding the meeting, and therefore
inspire peaceable citizens with reasonable fear; in which case, again,
the meeting will be unlawful. In either instance the meeting may
lawfully be broken up, and the members of it expose themselves to all
the consequences, in the way of arrest, prosecution, and punishment, which attend the doing of unlawful acts, or, in other words,
the commission of crimes.
Meeting A public meeting which, from the conduct of those engaged in it,
fulbecauseas,for example, through their marching together in arms, or throughitwill exo,0un_awtheir intention to excite a breach of the peace on the part of oppotul opposition
nents, 6fills peaceable citizens with reasonable fear that the peace will
be broken, is an unlawful assembly. But a meeting which in nototherwise illegal does not 7become an unlawful assembly solely because it will excite violent and unlawful opposition, and thus may
indirectly lead to a breach of the peace. Suppose, for example, thatthe members of the Salvation Army propose to hold a meeting at
Oxford, suppose that a so-called Skeleton Army announce that they
will attack the Salvationists and disperse them by force, suppose,
lastly, that thereupon peaceable citizens who do not like the quiet of
the town to be disturbed and who dread riots, urge the magistrates tostop the meeting of the Salvationists. This may seem at first sight a
reasonable request, but the magistrates cannot, it is submitted, 8 legally take the course suggested to them. That under the present stateof the law this must be so is on reflection pretty dear. The right of A
not unlaw-

5 For the meaning of the term "unlawful assembly"
connected with the Right of Public Meeting.

see Appendix,

Note V., Questions

6 Compare O'Kelly v. Harvey, 14 L. R. Ir. _o5, Humphries v. Connor, _TIr. C. L. R. 1, 8, 9,
judgment of Fitzgerald, J.
7 This statement

must be read subject to the limitations

stated, p. 174, post.

8 1 assume, of course, that the Salvationists meet together, as they certainly do, for a lawful
purpose, and meet quite peaceably, and without any intent either themselves to break thepeace or to indte others to a breach thereof. The magistrates, however, could require themembers of the Skeleton Army, or perhaps even the members of the Salvation Army, tofind sureties for good behaviour or to keep the peace. Compare Kenny, Outlines of Crirainal
Law (3rd ed.), pp. 282, 486; Wise v. Dunning [19o2], 1 K. B. _67.

CHAPTER

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LAW OF THE CONSTITUTION

to walk down the High Street is not, as a Ixlle, 9 taken away by thethreat of X to knock A down if A takes his proposed walk. Itis truethat A's going into the High Street may lead to a breach of the peace,
but A no more causes the breach of the peace than a man whose
pocket is picked causes the theft by wearing a watch. A is the victim,
not the author of a breach of the law. Now, if the right of A to walk
down the High Street is not affected by the threats of X, the rightof A, B, and C to march down the High Street together is not diminished by the proclamation of X, Y, and Z that they will not suffer
A, B, and C to take their walk. Nor does it make any difference that A,
B, and C call themselves the Salvation Army, or that X, Y, and Z callthemselves the Skeleton Army. The plain principle is that A's right to
do a lawful act, namely, walk down the High Street, cannot be diminished by X's threat to do an unlawful act, namely, to knock A
down. This is the principle established, or rather illustrated, by thecase of Beatty v. Gillbanks. lo The Salvation Army met together at
Weston-super-Mare with the knowledge that they would be opposedby the Skeleton Army. The magistrates had put out a notice intended
to forbid the meeting. The Salvationists, however, assembled, weremet by the police, and told to obey the notice. X, one of the members,
declined to obey and was arrested. He was subsequently, withothers, convicted by the magistrates of taking part in an unlawful
assembly. It was an undoubted fact that the meeting of the Salvation
Army was likely to lead to an attack by the Skeleton Army, and in
this sense cause a breach of the peace. The conviction, however, of X
by the magistrates was quashed on appeal to the Queen's Bench
Division.
Field, J. says:
What has happened here is that an unlawful organisation[the Skeleton
Army] has assumed to itself the right to prevent the appellants and othersfrom lawfully assembling
together, and the finding of the justices amounts
to this, that a man may be convicted for doing a lawful act if he knows that
9 Seep. 178,post, and compareHumphries

v. Connor, _7Ir. C. L. R. 1.

5o 9 Q. B. D. 3o8.

PARTII

172

THE RIGHT OF PUBLICMEETING
his doing it may cause another to do an unlawful act. There is no authority
for such a proposition. 11

The principle here laid down is thus expressed by an Irish judge ina case which has itself received the approval of the English King's
Bench Division. 12
Much has been said on both sides in the course of the argument about thecase of Beatty v. Gitlbanks. 131am not sure that I would have taken the sameview of the facts of that case as was adopted by the Court that decided it; but
I agree with both the law as laid down by the Judges, and their application of
it to the facts as they understood them. The principle underlying the decision seems to me to be that an act innocent in itself, done with innocent
intent, and reasonably incidental to the performance of a duty, to the carrying on of business, to the enjoyment of legitimate recreation, or generally tothe exercise of a legal right, does not become criminal because it may provoke persons to break the peace, or otherwise to conduct themselves in an
illegal way. 14

Nor is it in general an answer to the claim of, e.g. the Salvationists,
to exercise their right of meeting, that whilst such exercise may excite
wrongdoers to break the peace, the easiest way of keeping it is toprevent the meeting, for "if danger arises from the exercise of lawfulrights resulting in a breach of the peace, the remedy is the presence ofsufficient force to prevent that result, not the legal condemnation of
those who exercise those rights. ''is
11 Beatty v. Gillbanks,9 Q- B. D. 3o8, at p. 314.Beatyv. Glenister, W. N. 1884,p. 93;Reg. v.
Justicesof Londonderry,28 L. R. Ir. 440; with which contrast Wisev. Dunning [19o2],1K. B.
_67, and the Irishcases, Humphries v. Connor, _7Ir. C. L. R. _;Reg. v. M'Naghton, 14 Cox C.
C. 572; O'Kelly v. Harvey, 14L. R. Ir. _o5.
It is to noted that the King's Bench Division in deciding Wise v. Dunning did not mean tooverrule Beatty v. GiUbanks,and apparently conceived that they were following Reg. v.
Justicesof Londonderry.
See also Appendix, Note V., Questions connected with the Rightof Public Meeting.
I2 See Reg. v. Justicesof Londonderry,28 L. R. Ir.440; Wisev. Dunning [19o2],1K. B. x67,379,
judgment of Darling, J.
13 9Q. B. D. 3o8.
14 The Queen v. Justicesof Londonderry,28 L. R. Ir. 440, pp. 461, 462, judgment of Holmes, J.
15 Reg. v. Justicesof Londonderry,28 L. R. Ir. 440, p. 450, judgment of O'Brien, J.

CHAPTER

VII

173

LAW OF THE CONSTITUTION

The principle, then, that a meeting otherwise in every respect lawful and peaceable is not rendered unlawful merely by the possible orprobable misconduct of wrongdoers, who to prevent the meeting aredetermined to break the peace, is, it is submitted, 16well established,whence it follows that in general an otherwise lawful public meeting
cannot be forbidden or broken up by the magistrates simply because
the meeting may probably or naturally lead to a breach of the peaceon the part of wrongdoers.
To the application of this principle there exist certain limitations or
exceptions. They are grounded on the absolute necessity for preserving the King's peace.
FIRST UMITA TION(_)WhereIf there is anything unlawful in the conduct of the persons coninm_,ngveningor addressing a meeting, and the illegality is of a kind which
provokes
breachot naturally provokes opponents to a breach of the peace, the speakers
peace
at and the members of the meeting may be held to cause the breach of
the peace, and the meeting itself may thus become an unlawful
meeting. If, for example, a Protestant controversialist surrounded byhis friends uses in some public place where there is a large Roman
Catholic population, abusive language which is in fact slanderous ofRoman Catholics, or which he is by a local by-law forbidden to use in
the streets, and thereby provokes a mob of Roman Catholics to break
the peace, the meeting may become an unlawful assembly. And thesame result may ensue where, though there is nothing in the mode inwhich the meeting is carried on which provokes a breach of theillegahty_6 Wise v. Dunning [19o2], 1 K. B. _67, or rather some expressions used in the judgments inthat case, may undoubtedly be cited as laying down the broader rule, that a public meetingin itself lawful, and carried on, so far as the promoters and the members of it are concerned,
perfectly peaceably, may become unlawful solely because the natural consequence of themeethng will be to produce an unlawful act, viz. a breach of the peace on the part of
opponents (see pp. _75, 176, judgment of Alverstone, C. J.; p. I78, judgment of Darling, J.;
PP. _79, 18o, judgment of Channell, J.). It should be noted, however, that Wise v. Dunning
has reference, not to the circumstances under which a meeting becomes an unlawful
assembly, but to the different question, what are the circumstances under which a person
may be required to find sureties for good behaviour? (see Kenny, Outlines of Criminal Law,
p. 486).

PARTII

174

THE RIGHT OF PUBLIC MEETING

peace, yet the object of the meeting is in itself not strictly lawful, andmay therefore excite opponents to a breach of the peace. 17
SECOND LIMITATION
t2/Where
Where a public meeting, though the object of the meeting and themee_ng_aw_butconduct of the members thereof are strictly lawful, provokes a breach
p_f_ynof the peace, and it is impossible to preserve or restore the peace by
keptby&spersing
any other means than by dispersing the meeting, then magistrates,
constables, and other persons in authority may call upon the meeting
to disperse, and, if the meeting does not disperse, it becomes anunlawful assembly, is Let us suppose, for example, that the Salvation
Army hold a meeting at Oxford, that a so-called Skeleton Army cometogether with a view to preventing the Salvationists from assembling,
and that it is in strictness impossible for the peace to be preserved byany other means than by requiring the Salvationists to disperse.
Under these circumstances, though the meeting of the Salvation
Army is in itself perfectly lawful, and though the wrongdoers are themembers of the Skeleton Army, yet the magistrates may, it would
seem, if they can in no other way preserve the peace, require theSalvatiortists to disperse, and if the Salvationists do not do so, themeeting becomes an unlawful assembly; and it is possible that, if themagistrates have no other means of preserving the peace, i.e. cannot
protect the Salvationists from attack by the Skeleton Army, they may
lawfully prevent the Salvationists from holding the meeting. 19But
the only justification for preventing the Salvationists from exercising
their legal rights is the necessity of the case. If the peace can be preserved, not by breaking up an otherwise lawful meeting, but byarresting the wrongdoers--in
this case the Skeleton Army--the17 Compare Wise v. Dunning [x9o2], x K. B. x67, and O'Kelly v. Harvey, a4 L. R. Ir. xos.
_8 See especially O'Kelly v. Harvey, a4 L. R. Ir. xo5.
x9 It is particularly to be noted that in O'Kelly v. Harvey, a4 L. R. Ir. io5, the case in which iscarried furthest the right of magistrates to preserve the peace by dispersing a lawful meeting, X, the magistrate against whom an action for assault was brought, believed that there
would be a breach of the peace if the meeting broken up continued assembled, and that
there was no other way by which the breach of the peace could be avoided but by stoppingand dispersing the meeting./b/d, p. _o9, judgment of Law, C.

CHAPTERVII

175

LAW OF THE CONSTITUTION

magistrates or constables are bound, it is submitted, to arrest thewrongdoers and to protect the Salvationists in the exercise of theirlawful rights. 20
One point, however, deserves special notice since it is apt to beoverlooked.
Limitationso.,_htof
The limitations or restrictions which arise from the paramountpubhc
necessity for preserving the King's peace are, whatever their extent,
meehn_
arereany
hn_t_.o._--andas to their exact extent some fair doubt exists,--in reality
on indlv_dua_
nothing else than restraints, which, for the sake of preserving thefreedompeace, are imposed upon the ordinary freedom of individuals.
Thus if A, a religious controversialist, acting alone and unaccompanied by friends and supporters, addresses the public in, say, thestreets of Liverpool, and uses language which is defamatory or abusive, or, without being guilty of defamation, uses terms of abuse
which he is by a local by-law forbidden to use in the streets, andthereby, as a natural result of his oratory, excites his opponents to abreach of the peace, he may be held liable for the wrongful acts ofwhich his language is the cause though not the legal justification, andthis though he does not himself break the peace, nor intend to cause
others to violate it. He may, certainly, be called upon to find sureties
for his good behaviour, and he may, probably, be prevented by thepolice from continuing addresses which are exciting a breach of thepeace, forthe cases with respect to apprehended
breaches of the peace show that thelaw does regard the infirmity of human temper to the extent of consideringthat a breach of the peace, althoughan illegal act, may be the natural consequence of insulting or abusive language
or conduct.-21

So again it may, where the public peace cannot otherwise be preserved, be lawful to interfere with the legal rights of an individual andto prevent him from pursuing a course which in itself is perfectlylegal. Thus A, a zealous Protestant lady, walks through a crowd of
Roman Catholics wearing a party emblem, namely, an orange lily,
20 This is particularly well brought
21 Wise v. Dunning

PARTII

outin O'Kelly v. Harvey, 14 L. R. Ir. m 5.

[_9o2], _ K. B. _67, at pp. _79, _8o, judgment of Channell, J.

176

THE RIGHT OF PUBLIC MEETING

which under the circumstances of the case is certain to excite, anddoes excite, the anger of the mob. She has no intention of provoking
a breach of the peace, she is doing nothing which is in itself unlawful;
she exposes herself, however, to insult, and to pressing danger ofpublic attack. A riot has begun; X, a constable who has no othermeans of protecting A, or of restoring the peace, requests her toremove the lily. She refuses to do so. He then, without use of any
needless force, removes the flower and thereby restores the peace.
The conduct of X is apparently legal, and A has no ground of action
for what would otherwise have been an assault. The legal vindicationof X's conduct is not that A was a wrongdoer, or that the rioters were
within their rights, but that the King's peace could not be restored
without compelling A to remove the lily. 22
Meetm_
No public meeting, further, which would not otherwise be illegal,no( maae
unhwfu_becomesso (unless in virtue of some special ACt of Parliament) inby
oftldalpi'odamaconsequenceof any prodamation or notice by a Secretary of State, by
tmn of its
dlegahty
a magistrate, or by any other official. Suppose, for example, that theSalvationists advertise throughout the town that they intend holdinga meeting in a field which they have hired near Oxford, that they
intend to assemble in St. Giles's and march thence with banners
flying and bands playing to their proposed place of worship. Suppose that the Home Secretary thinks that, for one reason or another,
it is undesirable that the meeting should take place, and serves formal
notice upon every member of the army, or on the officers who aregoing to conduct the so-called "campaign" at Oxford, that the gath22 Humphries v. Connor, 27 Ir. C. L. R. 2. The case is very noticeable; it carries the right ofmagistrates or constables to interfere with the legal conduct of A, for the sake of preventing
or terminating a breach of the peace by X, to its very furthest extent. The interference, if
justifiable at all, can be justified only by necessity, and an eminent Irish judge has doubted
whether it was not in this case carried too far. "I do not see where we are to draw the line. If[X] is at liberty to take a lily from one person [A] because the wearing of it is displeasing toothers, who may make it an excuse for a breach of the peace, where are we to stop? It seems
to me that we are making, not the law of the land, but the law of the mob supreme, andrecognising in constables a power of interference with the rights of the Queen's subjects,
which, if carried into effect to the full extent of the principle, might be accompanied byconstitutional danger. If it had been alleged that the lady wore the emblem with an intent toprovoke a breach of the peace, it would render her a wrongdoer; and she might be chargeable as a person creating a breach of the peace," Humphries v. Connor, _7 Ir. C. L. R. 2, at
pp. 8, 9, per Fitzgerald, J.

CHAPTER

VII

177

LAW OF THE CONSTITUTION

ering must not take place. This notice does not alter the characterof the meeting, though, if the meeting be illegal, the notice makes any
one who reads it aware of the character of the assembly, and thus
affects his responsibility for attending it. z3Assume that the meeting
would have been lawful if the notice had not been issued, and it
certainly will not become unlawful because a Secretary of State has
forbidden it to take place. The proclamation has under these circumstances as little legal effect as would have a proclamation from theHome Office forbidding me or any other person to walk down theHigh Street. It follows, therefore, that the government has little or no
power of preventing meetings which to all appearance are lawful,even though they may in fact turn out when actually convened to be
unlawful because of the mode in which they are conducted. This iscertainly a singular instance of the way in which adherence to theprinciple that the proper function of the state is the punishment, notthe prevention, of crimes, deprives the executive of discretionary
authority.
Meeting
A meeting, lastly, may be lawful which, nevertheless, any wise or
may be_awfu_
person would hesitate to convene. For A, B, and C
though its public-spirited
hold;ng
contrary
to may have a right to hold a meeting, although their doing so will as ainterest.
rubhc matter of fact probably excite opponents to deeds of violence, andpossibly produce bloodshed. Suppose a Protestant zealot were toconvene a meeting for the purpose of denouncing the evils of theconfessional, and were to choose as the scene of the open-air gathering some public place where meetings were usually held in the midstof a large town filled with a population of Roman Catholic poor. The
meeting would, it is conceived, be lawful, but no one can doubt that it
might provoke violence on the part of opponents. Neither the government, however, nor the magistrates could (it is submitted), as arule, at any rate, prohibit and prevent the meeting from taking place.
They might, it would seem, prevent the meeting if the Protestantcontroversialist and his friends intended to pursue a course of conduct, e.g. to give utterance to libellous abuse, which would be both
illegal and might naturally produce a breach of the peace, or if the
23 SeeRex

PART IIv. Fursey,

6 C. & P. 8_; 3 St. Tr. (n.s.)

178

543.

THE RIGHT OF PUBLIC MEETING

circumstances were such that the peace could not be preserved
otherwise than by preventing the meeting. _ But neither the government nor the magistrates can, it is submitted, solely on the groundthat a public meeting may provoke wrongdoers to a breach of thepeace, prevent loyal citizens from meeting together peaceably and fora lawful purpose. Of the policy or of the impolicy of denying to thehighest authority in the state very wide power to take in their discretion precautionary measures against the evils which may flow fromthe injudicious exercise of legal fights, it is unnecessary here to sayanything. The matter which is worth notice is the way in which therules as to the right of public meeting illustrate both the legal spirit of
our institutions and the process by which the decisions of the courts
as to the rights of individuals have in effect made the right of public
meeting a part of the law of the constitution.
24 See pp. _71-_72, ante, and compare O'Kelly v. Harvey, 14 L. R. Ir. io5, with Reg. v. Just/cesof Londonderry, 28 L. R. Ir. 440, and Wise v. Dunning [_9o2], _ K. B. 167, with Beatty v.
Gillbanks, 9 Q- B. D. 3o8. And the magistrates might probably bind over the conveners ofthe meeting to find sureties for their good behaviour. The law on this point may, it appears,
be thus summed up: "Even a person who has not actually committed any offence at all may
be required to find sureties for good behaviour, or to keep the peace, if there be reasonablegrounds to fear that he may commit some offence, or may incite others to do so, or eventhat he may act in some manner which would naturally tend to induce other people (against
his desire) to commit one."--Kenny,
Outlines of Criminal Law, p. 486.

CHAPTERVII

179

Chapter VIII

MART/AL LAW

No
Y"IF_he rights already treated of in the foregoing chapter, as forhne sharp
can be_rawn
b*example the right to personal freedom or the right to free ext_nf law
pression of opinion, do not, it may be suggested, properly
privateorofc_nal
law and belong to the province of constitutionallaw at all, but form part either
tionallawcons_uof private law strictly so called, or of the ordinary criminal law. Thus
A's right to personal freedom is, it may be said, only the right of A not
to be assaulted, or imprisoned, by X, or (to look at the same thingfrom another point of view) is nothing else than the right of A, if
assaulted by X, to bring an action against X, or to have X punished asa criminal for the assault. Now in this suggestion there lies an element of important truth, yet it is also undoubted that the right topersonal freedom, the right to free discussion, and the like, appear in
the forefront of many written constitutions, and are in fact the chiefadvantages which citizens hope to gain by the change from a despotic
to a constitutional form of government.
The truth is that these rights may be looked upon from two pointsof view. They may be considered simply parts of private or, it may
be, of criminal law; thus the right to personal freedom may, as already pointed out, be looked at as the right of A not to have thecontrol of his body interfered with by X. But in so far as these rights
hold good against the governing body in the state, or in other words,
in so far as these fights determine the relation of individual citizens

1

PARTII

18o

MARTIAL

LAW

towards the executive, they are part, and a most important part, ofthe law of the constitution.
Now the noticeable point is that in England the rights of citizens asagainst each other are (speaking generally) the same as the rights ofcitizens against any servant of the Crown. This is the significance of
the assertion that in this country the law of the constitution is part ofthe ordinary law of the land. The fact that a Secretary of State cannot
at his discretion and for reasons of state arrest, imprison, or punish
any man, except, of course, where special powers are conferred upon
him by statute, as by an Alien Act or by an Extradition Act, is simply
a result of the principle that a Secretary of State is governed in his
official as in his private conduct by the ordinary law of the realm.
Were the Home Secretary to assault the leader of the Opposition in a
fit of anger, or were the Home Secretary to arrest him because hethought his political opponent's freedom dangerous to the state, theSecretary of State would in either case be liable to an action, and allother penalties to which a person exposes himself by committing anassault. The fact that the arrest of an influential politician whose
speeches might excite disturbance was a strictly administrative act
would afford no defence to the Minister or to the constables whoobeyed his orders.
The subjects treated of in this chapter and in the next three chapters dearly belong to the field of constitutional law, and no one would
think of objecting to their treatment in a work on the law of theconstitution that they are really part of private law. Yet, if the matterbe looked at carefully, it will be found that, just as rules which at firstsight seem to belong to the domain of private law are in reality thefoundation of constitutional principles, so topics which appear tobelong manifestly to the law of constitution depend with us at bottomon the principles of private or of criminal law. Thus the position of asoldier is in England governed, as we shall see, by the principle, thatthough a soldier is subject to special liabilities in his military capacity,
he remains while in the ranks, as he was when out of them, subject toall the liabilities of an ordinary citizen. So, from a legal point of view,
ministerial responsibility is simply one application of the doctrine

CHAPTER VIII

181

LAW OF THE CONSTITUTION

which pervades English law, 1that no one can plead the command of
a superior, were it the order of the Crown itself, in defence of conduct
otherwise not justified by law.
Turn the matter which way you will, you come back to the allimportant consideration on which we have already dwelt, that
whereas under many foreign constitutions the rights of individuals
flow, or appear to flow, from the artides of the constitution, in England the law of the constitution is the result, not the source of therights of individuals. It becomes, too, more and more apparent thatthe means by which the Courts have maintained the law of the constitution have been the strict insistence upon the two principles, firstof "equality before the law," which negatives exemption from theliabilities of ordinary citizens or from the jurisdiction of the ordinary
Courts, and, secondly, of "personal responsibility of wrongdoers,"
which excludes the notion that any breach of law on the part of asubordinate can be justified by the orders of his superiors; the legal
dogma, as old at least as the time of Edward the Fourth, that, if any
man arrest another without lawful warrant, even by the King's command, he shall not be excused, but shall be liable to an action for false
imprisonment, is not a special limitation imposed upon the royalprerogative, but the application to acts done under royal orders ofthat principle of individual responsibility which runs through thewhole law of torts. 2
Martial"r_/Iartiallaw, ''3in the proper sense of that term, in which it meansLaw.
the suspension of ordinary law and the temporary government of acountry or parts of it by military tribunals, is unknown to the law ofEngland. 4 We have nothing equivalent to what is called in France the2 See Mommsen, Romische Staatsrecht, p. 672, for the existence of what seems to have been asimilar principle in early Roman law.
2 See Hearn,
pp. 144,145.

Government of England (2nd ed.), chap. iv.; and compare

Gardiner,

History, x.

3 See Forsyth, Opinions, pp. 188-226, 482-563; Stephen, History of the Criminal Law, i. pp.
2_-2_6; Rex v. Pinney, 5 C. & P. 254; 3 St. Tr. (n. s.) 2_;Reg. v. Vincent, 9 C. & P. 91; 3 St. Tr.
(n. s.) 2o37;,Reg. v. Neale, 9 C. & P. 432.
4 This statement has no reference to the law of any other country than England, eventhough such country may form part of the British Empire. With regard to England in time ofpeace the statement is certainly true. As to how far, ff at all, it ought to be qualified withPARTII

I82

MART/AL LAW"Declaration of the State of Siege, ''s under which the authority ordinarily vested in the civil power for the maintenance of order andpolice passes entirely to the army (autorit_ miIitaire). This is an unmistakable proof of the permanent supremacy of the law under ourconstitution.
The assertion, however, that no such thing as martial law exists
under our system of government, though perfectly true, will mislead
any one who does not attend carefully to the distinction between two
utterly different senses in which the term "martial law" is used by
English writers.
_nwha_
Martial law is sometimes employed as a name for the common law
sense
mar.a_
lawrightof the Crown and its servants to repel force by force in the caserecognised_zEng
hSh of invasion, insurrection, riot, or generally of any violent resistance tothe law. This right, or power, is essential to the very existence oforderly government, and is most assuredly recognised in the mostample manner by the law of England. It is a power which has in itself
no special connection with the existence of an armed force. The
Crown has the right to put down breaches of the peace. Every subject, whether a dvi_an or a soldier, whether what is called a "servantof the government," such for example as a policeman, or a person in
no way connected with the administration, not only has the right,
but is, as a matter of legal duty, 6bound to assist in putting down
breaches of the peace. No doubt policemen or soldiers are the persons who, as being speciaUy employed in the maintenance of order,
are most generally called upon to suppress a riot, but it is dear that all
loyal subjects are bound to take their part in the suppression of riots.
Itis also clear that a soldier has, as such, no exemption from liability to the law for his conduct in restoring order. Officers, magistrates,
regard to a state of war, see Appendix, Note X., MaledalLaw in England during Time ot War
orInsurrection.
5 See Loi sur l'_tat desi_ge,9Aout 1849,Roger et Sore1,Codeset Lo/s, p. 436;Lo/3 Avril i878,
art. 1,and generally Duguit, Manuel de Droit Conslitutionnel, s. 76,pp. _o-5x3, 926. Seep.
186,post.
6 Compare Millerv. Knox, 6 Scott 1. See statement of Commissioners including Bowen, L.
J., and R. B.Haldane, Q. C., for Inquiring into the Disturbances at Featherstone in 1893[C.
7234], and see Appendix, Note VI., Duty of Soldiers called upon to disperse Unlawful
Assembly.

CHAPTER VIII

I8 3

LAW OF THE CONSTITUTION

soldiers, policemen, ordinary citizens, all occupy in the eye of the law
the same position; they are, each and all of them, bound to withstandand put down breaches of the peace, such as riots and other disturbances; they are, each and all of them authorised to employ so muchforce, even to the taking of life, as may be necessary for that purpose,and they are none of them entitled to use more; they are, each and allof them, liable to be called to account before a jury for the use ofexcessive, that is, of unnecessary force; they are each, it must be
added--forthis is often forgotten--liable,in theory at least, to becalled to account before the Courts for non-performance of their duty
as citizens in putting down riots, though of course the degree andkind of energy which each is reasonably bound to exert in the maintenance of order may depend upon and differ with his position
as officer, magistrate, soldier, or ordinary civilian. Whoever doubts
these propositions should study the leading case of Rex v. Pinney, 7 inwhich was fully considered the duty of the Mayor of Bristol in reference to the Reform Riots of 183_.
So accustomed have people become to fancy that the maintenanceof the peace is the duty solely of soldiers or policemen, that many
students will probably feel surprise on discovering, from the doctrine
laid down in Rex v. Pinney, how stringent are the obligations of amagistrate in time of tumult, and how unlimited is the amount offorce which he is bound to employ in support of the law. A student,
further, must be on his guard against being misled, as he well mightbe, by the language of the Riot Act. s That statute provides, in substance, that if twelve rioters continue together for an hour after amagistrate has made a prodamation to them in the terms of the Act(which proclamation is absurdly enough called reading the Riot Act)ordering them to disperse, he may command the troops to fire upon
the rioters or charge them sword in hand.9 This, of course, is not thelanguage, but it is the effect of the enachnent. Now the error into
which an uninstructed reader is likely to fall, and into which magis7 5 C. &P. 254; 3 St" Tr. (n. s.) 1_.
8 1Geo. I. stat. 2, c. 5.
9 See Stephen,

PARTII

History of the Criminal Law, i. pp. 2o2-2o 5.

184

MARTIAL

LAW

trates and officers have from time to time (and notably during theGordon riots of _78o) in fact fallen, is to suppose that the effect of the
Riot Act is negative as well as positive, and that, therefore, the military cannot be employed _ithout the fulfilment of the conditions
imposed by the statute. This notion is now known to be erroneous;the occasion on which force can be employed, and the kind anddegree of force which it is lawful to use in order to put down a riot, isdetermined by nothing else than the necessity of the case.
If, then, by martial law be meant the power of the government or of
loyal dtizens to maintain public order, at whatever cost of blood orproperty may be necessary, martial law is assuredly part of the law ofEngland. Even, however, as to this kind of martial law one should
always bear in mind that the question whether the force employed
was necessary or excessive will, especially where death has ensued,
be ultimately determined by a judge and jury, 10and that the estimateof what constitutes necessary force formed by a judge and jury, sitring in quiet and safety after the suppression of a riot, may differ
considerably from the judgment formed by a general or magistrate,
who is surrounded by armed rioters, and knows that at any momenta riot may become a formidable rebellion, and the rebellion if unchecked become a successful revolution.
In whatsense mar-tlal
lawnotre¢o_rused
byEnglish
Idw

Martial law is, however, more often used as the name for thegovernment of a country or a district by military tribunals, whichmore or less supersede the jurisdiction of the Courts. The proclamation of martial law in this sense of the term is, as has been alreadypointed out, 11nearly equivalent to the state of things which in France
and many other foreign countries is known as the declaration of aso This statement does not contradict anything decided by Ex parte D. F. Marais [_9o2], A. C.
_o9, nor is it inconsistent with the language used in the judgment of the Privy Council, if
that language be strictly construed, as it ought to be, in accordance with the importantprinciples that, first, "a case is only an authority for what it actually decides" (Quinn v.
Leathern [_9ol], A, C. 5o6, judgment of Halsbury, L. C.), and, secondly, "every judgment
must be read as applicable to the particular facts proved, or assumed to be proved, since thegenerality of the expressions which may be found there are not intended to be expositionsof the whole law, but governed and qualified by the particular facts of the case in whichsuch expressions are to be found" (ibid.).
11 Seep.

_8a, ante.

CHAPTER

VIII

18 5

LAW OF THE CONSTITUTION"state of siege," and is in effect the temporary and recognised government of a country by military force. The legal aspect of this condition of affairs in states which recognise the existence of this kind ofmartial law can hardly be better given than by citing some of theprovisions of the law which at the present day regulates the state ofsiege in France:
FrenchLaw as tostateofs,ege.

7" Aussit6t l'_tat de si_ge d_clar_,les pouvoirs dont l'autorit_ civite _tait rev_tue
pour le maintien de l"ordre et de la police passent tout entiers ?_l'autorit_ militaire.
--L" autorit_ civile continue neanmoins _ exercer ceux de ces pouvoirs dont l'autorit_
militaire ne l"a pas dessaisie.
8. Lest ribunaux militaires peuvent _tre saisis de la connaissance des crimes etddlits contre la sziret_de la Rd'publique, contre la constitution, contre l"ordre et la paix
publique, quelle que soit la qualit_ des auteurs principaux et des complices.
9. L 'autorit_ militaire ale droit,-- _° De faire des perquisitions, de jour et de nuit,dans le domicile des citoyens;--2 ° D'_loigner les repris de justice et les individus quin' ont pas leur domicile dans Ies lieux, soumis _ l'_tat de si_ge;-- 3° D"ordonner laremise des armes et munitions, et de proced_r ?:leur recherche et_ leur enl_eraent;--4 ° D'interdire les publications et les r_unions qu'dle juge de nature a exciter ou
entretenir le desordre. 12

We may reasonably, however, conjecture that the terms of the law
give but a faint conception of the real condition of affairs when, inconsequence of tumult or insurrection, Paris, or some other part ofFrance, is dedared in a state of siege, and, to use a significant expression known to some continental countries, "the constitutional
guarantees are suspended." We shall hardly go far wrong if we assume that, during this suspension of ordinary law, any man whatever is liable to arrest, imprisonment, or execution at the will of amilitary tribunal consisting of a few officers who are excited by thepassions natural to civil war. However this may be, it is dear that inFrance, even under the present Republican government, the suspension of law involved in the prodamation of a state of siege is a thing
fully recognised by the constitution, and (strange though the fact may
appear) the authority of military Courts during a state of siege isgreater under the Republic than it was under the monarchy of Louis
Philippe. 13
12 Roger et Sorel, Codeset Lois, pp. 436, 437.
23 See Geoffroy'sCase,24]ournaldu Palais,p. 1228,cited by Forsyth, Opinions, p. 483. Conf.,

PARTII186

MARTIAL

LAW

Now, this kind of martial law is in England utterly unknown to theconstitution. Soldiers may suppress a riot as they may resist an invasion, they may fight rebels just as they may fight foreign enemies, butthey have no right under the law to inflict punishment for riot orrebellion. During the effort to restore peace, rebels may be lawfully
killed just as enemies may be lawfully slaughtered in battle, or prisoners may be shot to prevent their escape, but any execution (independently of military law) inflicted by a Court-martial is illegal, andtechnically murder. Nothing better illustrates the noble energy
with which judges have maintained the rule of regular law, even atperiods of revolutionary violence, than Wolfe Tone's Case. 14In _798,
Wolfe Tone, an Irish rebel, took part in a French invasion of Ireland.
The man-of-war in which he sailed was captured, and Wolfe Tone
was brought to trial before a Court-martial in Dublin. He was thereupon sentenced to be hanged. He held, however, no commission as
an English officer, his only commission being one from the French
Republic. On the morning when his execution was about to takeplace application was made to the Irish King's Bench for a writ ofhabeascorpus. The ground taken was that Wolfe Tone, not being a
military person, was not subject to punishment by a Court-martial,or, in effect, that the officers who tried him were attempting illegallyto enforce martial law. The Court of King's Bench at once granted thewrit. When it is remembered that Wolfe Tone's substantial guilt wasadmitted, that the Court was made up of judges who detested therebels, and that in _798Ireland was in the midst of a revolutionary
crisis, it will be admitted that no more splendid assertion of thesupremacy of the law can be found than the protection of Wolfe Toneby the Irish Bench.
however, for statement of limits imposed by French law on action of military authorilies
during state of siege, Duguit, Manuel de Droit Constitutionnel, pp. 512, 5_3.
_4 27 St. Tr. 6_4.

CHAPTERVIII

I87

Chapter IX

THE ARMY'

TheArmy,_he

English army may for the purposes of this treatise be treatedas consisting of the Standing Army or, in technical language,
the Regular Forces 2 and of the Territorial Force, 3which, like theMilitia, 4 is a territorial army for the defence of the United Kingdom.
Each of these forces has been rendered subordinate to the law ofIthe land. My object is not to give even an outline of the enactments
affecting the army, but simply to explain the legal principles on which
this supremacy of the law throughout the army has been secured.
1 See Stephen, Commentaries, ft. book iv. chap. viii.; Gneist, Das Englische Verwaltungsrecht,
ii. 952-966; Manual of Military Law.
As to Standing Army, _ Will. & Mary, c. 5; see the Army Discipline and Regulation Act,
1879, 42 & 43 Vict. c. 33; the Army Act, i.e. the Army Act, 188,, 44 & 45 Vict. c. 58, with theamendments made up to 19o7 .
2 "The expressions 'regular forces' and 'His Majesty's regular forces' mean officers andsoldiers who by their commission, terms of enlistment, or otherwise, are liable to render
continuously for a term military service to His Majesty in any part of the world, induding,
subject to the modifications in this Act mentioned, the Royal Marines and His Majesty's
Indian forces and the Royal Malta Artillery, and subject to this qualification, that when thereserve forces are subject to military law such forces become during the period of their being
so subject part of the regular forces" (Army Act, s. 19° (8)).
3 See the Territorial and Reserve Forces Act, 19o7 (7 Edw. VII. c. 9), especially s. 6, s. 1,
sub-s. (6), and the Army Act.
4 The Militia--theTerritorial and Reserve Forces Act, 19o7, does not repeal the various
Militia Acts. Until these Acts are repealed the statutory power of raising the militia, either
regular or local, and of forming thereof regiments and corps will continue to exist. (For thelaw regulating the militia see 13 Car. II. star. 2. c. 6; 14 Car. II. c. 3; 15 Car. II. c. 4; the Militia

PARTII

I88

THE ARMY

It will be convenient in considering this matter to reverse the orderpursued in the common text-books; these contain a great deal about
the militia, the territorial force of its day, and comparatively tittle
about the regular forces, or what we now call the "army." The reasonof this is that historically the militia is an older institution than thepermanent army, and the existence of a standing army is historically,
and according to constitutional theories, an anomaly. Hence thestanding army has often been treated by writers of authority as a sortof exceptional or subordinate topic, a kind of excrescence, so to
speak, on the national and constitutional force known as the militia.S
As a matter of fact, of course, the standing army is now the real
national force, and the territorial force is a body of secondary importance.
THE STANDING ARMY
Stanchng
A permanent army of paid soldiers, whose main duty is one ofArmy. Its
ex,st_nce
absolute obedience to commands, appears at first sight to be an inreconciled_lth
Parstitution inconsistent with that rule of law or submission to the civil
hamentarygo,,emauthorities, and especially to the judges, which is essential to popular
ment bythe annual
MuttnyActs.

1802, 42 Geo. III. c. 90; Militia Act, _882, 45 & 46 Vict. c. 49; and Regulation of the Forces
Act, 1881, 44 & 45 Vict. c. 57-) The militia as long as it exists is in theory a local force levied byconscription, but the power of raising it by ballot has been for a considerable time suspended, and the militia has been in fact recruited by voluntary enlistment. Embodimentconverts the militia into a regular army, but an army which cannot be called upon to serveabroad. Embodiment can lawfully take place only in case "of imminent national danger orof great emergency,'" the occasion being first communicated to Parliament ff sitting, or if not
si_ng, proclaimed by Order in Council (Militia Act, 1882, s. 18; 2 Steph. Comm. (14th ed.)p. 469). The maintenance of discipline among the members of the militia when embodied
depends on the passing of the Army (Annual) Act, or in popular language, on the continuance of the Mutiny Act (see p. 232 , post).
The position of the militia, however, is affected by the Territorial and Reserve Forces Act,
_9o7, in two ways:(_) All the units of the general (or regular) militia may, and will, it is said, in a short time
have either been transferred to the Army Reserve (under s. 34) or have been disbanded.
(2) The personnel of the regular militia will shortly, it is said, cease to exist as such.
The actual position of the militia, however, until the Acts on which its existence depends
have been repealed, is worth noting, as it is conceivable that Parliament may think it worth
while to keep alive the historical right of the Crown to raise the militia.
Act,

5 In the seventeenth century Parliament apparently meant to rely for the defence of England upon this national army raised from the counties and placed under the guidance ofcountry gentlemen. See 14 Car. II. c. 3.

CHAPTER IX

18 9

LAWOf THECONSTITUTION
or Parliamentary government; and in truth the existence of permanent paid forces has often in most countries and at times in England- notably under the Commonwealth--beenfound inconsistent
with the existence of what, by a lax though intelligible mode ofspeech, is called a free government.6 The belief, indeed, of ourstatesmen down to a time considerably later than the Revolution of
1689was that a standing army must be fatal to English freedom, yetvery soon after the Revolution it became apparent that the existenceof a body of paid soldiers was necessary to the safety of the nation.
Englishmen, therefore, at the end of the seventeenth and the beginning of the eighteenth centuries, found themselves placed in thisdilemma. With a standing army the country could not, they feared,
escape from despotism; without a standing army the country could
not, they were sure, avert invasion; the maintenance of national liberty appeared to involve the sacrifice of national independence. Yet
English statesmanship found almost by accident a practical escapefrom this theoretical dilemma, and the Mutiny Act, though anenactment passed in a hurry to meet an immediate peril, contains thesolution of an apparently insolvable problem.
In this instance, as in others, of success achieved by what is called
the practical good sense, the political instinct, or the statesmanlike
taa of Englishmen, we ought to be on our guard against two errors.
We ought not, on the one hand, to fancy that English statesmen
acted with some profound sagacity or foresight peculiar to themselves, and not to be found among the politicians of other countries.
Still less ought we, on the other, to imagine that luck or chance helps
Englishmen out of difficulties with which the inhabitants of othercountries cannot cope. Political common sense, or political instinct,
means little more than habitual training in the conduct of affairs; this
6 See, e.g. Macaulay, History, iii. pp. 42-47 . "Throughout the period [of the Civil War andthe Interregnum] the military authorities maintained with great strictness their exclusive
jurisdiction over offences committed both by officers and soldiers. More than once conflicts
took place between the civil magistrates and the commanders of the army over thisquestion."--Firth,
Cromwell's Army, p. 320, Mr. Firth gives several examples (pp. 3_o-3x2)of the assertion or attempted assertion of the authority of the civil power even during aperiod of military predominance.

PARTII

19o

THE ARMY

practical acquaintance with public business was enjoyed by educatedEnglishmen a century or two earlier than by educated Frenchmen or
Germans; hence the early prevalence in England of sounder prindpies of government than have till recently prevailed in other lands.
The statesmen of the Revolution succeeded in dealing with difficult
problems, not because they struck out new and brilliant ideas, or
because of luck, but because the notions of law and government
which had grown up in England were in many points sound, andbecause the statesmen of _689 applied to the difficulties of their time
the notions which were habitual to the more thoughtful Englishmenof the day. The position of the army, in fact, was determined by anadherence on the part of the authors of the first Mutiny Act to thefundamental principle of English law, that a soldier may, like a clergyman, incur special obligations in his offidal character, but is notthereby exempted from the ordinary liabilities of citizenship.
The object and principles of the first Mutiny Act 7of _689are exactly
the same as the object and principles of the Army Act, a under which
the English army is in substance now governed. A comparison of thetwo statutes shows at a glance what are the means by which themaintenance of military discipline has been reconciled with themaintenance of freedom, or, to use a more accurate expression, withthe supremacy of the law of the land.
The preamble to the first Mutiny Act has reappeared with slightalterations in every subsequent Mutiny Act, and recites that
Whereas no man may be forejudged of life or limb, or subjected to any kindof punishment by martial law, or in any other manner than by the judgmentof his peers, and according to the known and established laws of this realm;
yet, nevertheless, it [is] requisite for retaining such forces as are, or shall be,raised during this exigence of affairs, in their duty an exact discipline beobserved; and that soldiers who shall mutiny or stir up sedition, or shalldesert their majesties' service, be brought to a more exemplary and speedy
punishment than the usual forms of law will allow. 9
7 _Will. &Mary, c. 5.
8 Combined with the Army (Annual) Act, passed each year.
9 See Clocle,Military Forcesof the Crown, i. p. 499. Compare 47Vict. c. 8. The variations in
the modem Acts, though slight, are instructive.

CH,_TERIX

19_

LAW OF THE CONSTITUTION

This recital states the precise difficulty which perplexed the statesmen in 2689. Now let us observe the way in which it has been met.
A soldier, whether an officer or a private, in a standing army, or (touse the wider expression of modern Acts) "a person subject to military law, ''1°stands in a two-fold relation: the one is his relation
towards his fellow-citizens outside the army; the other is his relation
towards the members of the army, and especially towards his military
superiors; any man, in short, subject to military law has duties andrights as a citizen as well as duties and rights as a soldier. His position
is each respect is under English law governed by definite principles.
A SOLDIER'S POSITION AS A CITIZEN
Sold,
er's
The fixed doctrine of English law is that a soldier, though a memPciOSlfion as_zen ber of a standing army, is in England subject to all the duties andliabilities of an ordinary citizen. "Nothing in this Act contained" (soruns the first Mutiny Act) "shall extend or be construed to exempt
any officer or soldier whatsoever from the ordinary process of law. ''1_
These words contain the due to all our legislation with regard to thestanding army whilst employed in the United Kingdom. A soldier by
his contract of enlistment undertakes many obligations in addition to
the duties incumbent upon a civilian. But he does not escape fromany of the duties of an ordinary British subject.
The results of this principle are traceable throughout the Mutiny
Acts.
lO Part V. of the Army Act points out who under English law are "persons subject tomilitary law," that is to say, who are liable to be tried and punished by Court-martial for
military, and in some circumstances for civil, offences under the provisions of the Act.
For our present purpose such persons (speaking broadly at any rate) appear to comewithin three descriptions:--first,
persons belonging to the regular forces, or, in popular
language, the standing army (see Army Act, ss. _75 _), 19o (8)); secondly, persons belonging to the territorial force, in certain circumstances, viz. when they are being trained, whenacting with any regular forces, when embodied, and when called out for actual military
service for purposes of defence (Army Act, ss. 176, _9o (6) (a)); thirdly, persons not belonging to the regular forces or to the auxiliary forces who are either employed by, or followers
of, the army on active service beyond the seas (ibid. s. I76 (9) (lO)). The regular forces
indude the Royal Marines when on shore and the reserve forces when called out. See Army
Act, secs. 175, _76; conf. Marks v. Frogley [_898], 1 Q. g. (C. A.) 888.
11 Will. & Mary, c. 5, s. 6; see Clode, Military Forcesof the Crown, i. p. 5oo.

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THE ARMY

Cr.m,n_'hablhtyc,,,,_ab,_,_,

A soldier is subject to the same criminal liability as a civilian. 12He
may when in the British dominions be put on trial before any competent "civil" q.e. non-military) Court for any offence for which hewould be triable if he were not subject to military law, and there arecertain offences, such as murder, for which he must in general betried by a civil tribunal. ,3 Thus, if a soldier murders a companion orrobs a traveller whilst quartered in England or in Van Diemen's Land,
his military character will not save him from standing in the dock on
the charge of murder or theft.
A soldier cannot escape from civil liabilities, as, for example, responsibility for debts; the only exemption which he can claim is that
he cannot be forced to appear in Court, and could not, when arrestfor debt was allowable, be arrested for any debt not exceeding £3o. _'_No one who has entered into the spirit of continental legislation
can believe that (say in France or Prussia) the rights of a private
individual would thus have been allowed to override the daims of the

public service.
In all conflicts of jurisdiction between a military and a civil Court
the authority of the civil Court prevails. Thus, if a soldier is acquitted
or convicted of an offence by a competent civil Court, he cannot be
tried for the same offence by a Court-martial; 's but an acquittal orconviction by a Court-martial, say for manslaughter or robbery, is noplea to an indictment for the same offence at the Assizes. ,6
Orderof
When a soldier is put on trial on a charge of crime, obedience to_upenors
no defence
superior orders is not of itself a defence.'7
to charge<_ cnme12 Compare Army Act, secs. 41, 144, _62.
13 Compare, however, the Jurisdiction in Homicide
Clode, Military Forces of the Crown, i. pp. 2o6, 2o7.
14 See Army Act, s. 144. Compare
Thurston v. Mills, 16 East, 254.

Act, 1862, 25 & 26Vict. c. 65, andClode, Military Forcesof the Crown, i. pp. 2o 7, 2o8, and

15 Army Act, s. 162, sub-ss. 1-6.
16 Ibid. Contrast the position of the army in relation to the law of the land in France. The
fundamental principle of French law is, as it apparently always has been, that every kind ofcrime or offence comn'utted by a soldier or person subject to military law must be tried by amilitary tribunal. See Code de Justice Militaire, arts. 55, 56, 76, 77, and Le Faure, Les Lois
Militaires, pp. 167, 173.
17 Stephen, History of the Criminal Law, i. pp. 2o4-2o6, and compare Clode, Military Forces of
the Crown, ii. pp. 125-155. The position of a soldier is curiously illustrated by the following

CHAPTER IX

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LAW OF THE CONSTITUTION

This is a matter which requires explanation.
A soldier is bound to obey any lawful order which he receives fromhis military superior. But a soldier cannot any more than a civilian
avoid responsibility for breach of the law by pleading that he broke
the law in bonafide obedience to the orders (say) of the commanderin-chief. Hence the position of a soldier is in theory and may be inpractice a difficult one. He may, as it has been well said, be liable tobe shot by a Court-martial if he disobeys an order, and to be hanged
by a judge and jury if he obeys it. His situation and the line of his
duty may be seen by considering how soldiers ought to act in thefollowing cases.
During a riot an officer orders his soldiers to fire upon rioters. The
command to fire is justified by the fact that no less energetic course ofaction would be sufficient to put down the disturbance. The soldiersare, under these circumstances, dearly bound from a legal, as well asfrom a military, point of view to obey the command of their officer. It
is a lawful order, and the men who carry it out are performing their
duty both as soldiers and as citizens.
An officer orders his soldiers in a time of political excitement thenand there to arrest and shoot without trial a popular leader against
whom no crime has been proved, but who is suspected of treasonable
designs. In such a case there is (it is conceived) no doubt that thecase. X was a sentinel on board theAchille when she was paying off. 'q31e orders to himfrom the preceding sentinel were, to keep off all boats, unless they had officers withuniforms in them, or unless the officer on deck allowed them to approach; and he received
a musket, three blank cartridges, and three balls. The boats pressed; upon which he called
repeatedly to them to keep off; but one of them persisted and came dose under the ship;and he then fired at a man who was in the boat, and killed him. It was put to the jury tofind, whether the sentinel did not fire under the mistaken impression that it was his duty;
and they found that he did. But a case being reserved, the judges were unanimous that it
was, nevertheless, murder. They thought it, however, a proper case for a pardon; andfurther, they were of opinion, that if the act had been necessary for the preservation of theship, as if the deceased had been stirring up a mutiny, the sentinel would have been
justified."--Russell,Crimes
and Misdemeanors (4th ed.), i. p. 823, on the authority of Rex v.
Thomas, East, T., _8_6, MS., Bayley, J. The date of the decision is worth noticing; no one can
suppose that the judges of _816 were disposed to underrate the rights of the Crown and its
servants. The judgment of the Court rests upon and illustrates the incontrovertible principle of the common law that the fact of a person being a soldier and of his acting strictly
under orders, does not of itself exempt him from criminal liability for acts which would be
crimes if done by a civilian.

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THE ARMY

soldiers who obey, no less than the officer who gives the command,
are guilty of murder, and liable to be hanged forit when convicted indue course of law. In such an extreme instance as this the duty ofsoldiers is, even at the risk of disobeying their superior, to obey thelaw of the land.
An officer orders his men to fire on a crowd who he thinks could
not be dispersed without the use of firearms. As a matter of fact theamount of force which he wishes to employ is excessive, and ordercould be kept by the mere threat that force would be used. The order,
therefore, to fire is not in itself a lawful order, that is, the colonel, orother officer, who gives it is not legally justified in giving it, and willhimself be held criminaUy responsible for the death of any person
killed by the discharge of firearms. What is, from a legal point ofview, the duty of the soldiers? The matter is one which has neverbeen absolutely decided; the following answer, given by Mr. Justice
Stephen, is, it may fairly be assumed, as nearly correct a reply as thestate of the authorities makes it possible to provide:
I do not think, however, that the question how far superior orders would
justify soldiers or sailors in making an attack upon civilians has ever beenbrought before the Courts of law in such a manner as to be fully considered
and determined. Probably upon such an argument it would be found thatthe order of a military superior would justify his inferiors in executing anyorders for giving which they might fairly suppose their superior officer tohave good reasons. Soldiers might reasonably think that their officer had
good grounds for ordering them to fire into a disorderly crowd which tothem might not appear to be at that moment engaged in acts of dangerous
violence, but soldiers could hardly suppose that their officer could have any
good grounds for ordering them to fire a volley down a crowded street whenno disturbance of any kind was either in progress or apprehended. The
doctrine that a soldier is bound under all circumstances whatever to obey his
superior officer would be fatal to military discipline itself, for it would justify
the private in shooting the colonel by the orders of the captain, or in deserting to the enemy on the field of battle on the order of his immediate superior.
I think it is not less monstrous to suppose that superior orders would justify
a soldier in the massacre of unoffending civilians in time of peace, or in theexercise of inhuman cruelties, such as the slaughter of women and children,
during a rebellion. The only line that presents itself to my mind is that asoldier should be protected by orders for which he might reasonably believe
his officer to have good grounds. The inconvenience of being subject to twojurisdictions, the sympathies of which are not unlikely to be opposed to each

CHAPTER

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19._LAW OF THE CONSTITUTION
other, is an inevitable consequenceof the double necessity of preservingon
the one hand the supremacyof the law, and on the other the discipline of thearmy. 18
The hardship of a soldier's position resulting from this inconvenience is much diminished by the power of the Crown to nullify theeffect of an unjust conviction by means of a pardon. 19While, however, a soldier runs no substantial risk of punishment for obedience
to orders which a man of common sense may honestly believe to
involve no breach of law, he can under no circumstances escape thechance of his military conduct becoming the subject of inquiry before
a dvfl tribunal, and cannot avoid liability on the ground of obedience
to superior orders for any act which a man of ordinary sense musthave known to be a crime.2°
A SOLDIER'S POSITION AS A MEMBER OF THE ARMY
Soldier's A citizen on entering the army becomes liable to special duties as
position as
memberof being "a person subject to military law." Hence acts which if done byarmy.
a civilian would be either no offence at all or only slight misdemeanours, e.g. an insult or a blow offered to an officer, may when done bya soldier become serious crimes and expose the person guilty of themto grave punishment. A soldier's offences, moreover, can be triedand punished by a Court-martial. He therefore in his military character of a soldier occupies a position totally different from that of acivilian; he has not the same freedom, and in addition to his duties as
18 Stephen, History of the Criminal Law of England, i. pp. 205, 206. Compare language ofWilles, J., in Keighly v. Bell, 4 F. & F. 763. See also opinion of Lord Bowen, cited inAppendix, Note VI., Duty of Soldiers called upon to disperse an Unlawful Assembly.
19 As also by the right of the Attorney-General as representing the Crown to enter a nolle
prosequL See Stephen, History of the Criminal Law, i. p. 496, and Archbold, Pleading in
Criminal Cases (22rid ed.), p. I25.
20 Buron v. Denman, 2 Ex. 167, is sometimes cited as showing that obedience to the ordersof the Crown is a legal justification to an officer for commit0ng a breach of law, but thedecision in that case does not, in any way, support the doctrine erroneously grounded
upon it. What the judgment in Buron v. Denman shows is, that an act done by an English
military or naval officer in a foreign country to a foreigner, in discharge of orders received
from the Crown, may be an act of war, but does not constitute any breach of law for which
an action can be brought against the officer in an English Court. Compare Feather v. The
Queen, 6B. & S. 257, 295, per Curiam.

PARTII_96THE ARMY

a citizen is subject to all the liabilities imposed by military law; butthough this is so, it is not to be supposed that, even as regards asoldier's own position as a military man, the rule of the ordinary law
is, at any rate in time of peace, exduded from the army.
The general principle on this subject is that the Courts of law havejurisdiction to determine who are the persons subject to military law,
and whether a given proceeding, alleged to depend upon mih'tarylaw, is really justified by the rules of law which govern the army.
Hence flow the following (among other) consequences.
The civil Courts determine 21whether a given person is or is not "aperson subject to military law. ''22
Enlistment, which constitutes the contract 23by which a person
becomes subject to military law, is a civil proceeding, and a civil Court
may sometimes have to inquire whether a man has been duly enlisted, or whether he is or is not entitled to his discharge. 24
If a Court-martial exceeds its jurisdiction, or an officer, whether
acting as a member of a Court-martial or not, does any act not authorised by law, the action of the Court, or of the officer, is subject tothe supervision of the Courts.
The proceedings by which the Courts of law supervise the acts of Courtsmartial and of officers may be criminal or civil. Criminal proceedings take theform of an indictment for assault, false imprisonment,
manslaughter,or
21 See WolfeTone's Case,27 St. Tr. 6_4;Douglas'sCase, 3 Q- B,825; Fry v. Ogle, cited Manual of
Military Law, chap. vii. s. 41.
22 See Army Act, ss, 275-184.
23 "The enlistment of the soldier is a species of contract between the sovereign and thesoldier, and under the ordinary principles of law cannot be altered without the consent ofboth parties. The result is that the conditions laid down in the Act under which a man wasenlisted cannot be varied without his consent."--Manual of Military Law, chap. x. s. x8.
24 See Army Act, s. 96, for special provisions as to the delivering to a master of anapprentice who, being under twenty-one, has enlisted as a soldier. Under the present law,at any rate, it can very rarely happen that a Court should be called upon to consider
whether a person is improperly detained in military custody as a soldier. See Army Act, s.
Ioo, sub-ss. 2, 3-The Courts used to interfere, when soldiers were impressed, in cases ofimproper impressment. See Clode, Military Forces,ii. pp. 8, 587.
A civil Court may also be called upon to determine whether a person subject to military
law has, or has not, a right to resign his commission, Hearsonv. Churchill [x892], 2 Q. B. (C.

A.)_44.

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LAW OF THE CONSTITUTION
even murder. Civil proceedings
may either be preventive,
i.e. to restrain thecommission
or continuanceof an injury; or remedial, i.e. to afford a remedy
for injury actually suffered. Broadly speaking, the civil jurisdiction of the
Courts of law is exercised as against the tribunal of a Court-martial
by writsof prohibitionor certiorari; and as against individual officers by actions fordamages. A writ of habeas corpus also may be directed to any officer, governor
of a prison, or other, who has in his custody any person alleged to be
improperly detained under colour of military law.2S

Lastly, the whole existence and discipline of the standing army,
at any rate in time of peace, depends upon the passing of what is
known as an annual Mutiny Act, 26or in strict correctness of the Army
(Annual) Act. If this Act were not in force a soldier would not bebound by military law. Desertion would be at most only a breach ofcontract, and striking an officer would be no more than an assault.
THE TERRITORIAL FORCE
Temtor_l
Force.

This force in many respects represents the militia and the volunteers. It is, as was in fact the militia in later times, raised by voluntaryenlistment. It cannot be compelled to serve outside the United Kingdom. It is from its nature, in this too like the militia, a body hardly
capable of being used for the overthrow of Parliamentary government. But even with regard to the territorial force, care has beentaken to ensure that it shall be subject to the rule of law. The membersof this local army are (speaking in general terms) subject to military
law only when in training or when the force is embodied. 27Embodi25 Manual of Military Law, chap. viii. s. 8. It should, however, be noted that the Courts oflaw will not, in general at any rate, deal with rights dependent on military status andmilitary regulations.
26 The case stands thus: The discipline of the standing army depends on the Army Act,x88x, 44 & 45 Vict. c. 58, which by s. 2 continues in force only for such time as may be
spedfied in an annual Act, which is passed yearly, and called the Army (Annual) Act. ThisAct keeps in existence the standing army and continues the Army Act in force. It istherefore, in strictness, upon the passing of the Army (Annual) Act that depends theexistence and the discipline of the standing army.
27 But in one case at least, i.e. failure to attend on embodiment, a man of the territorial force
may be liable to be tried by Court-martial, though not otherwise subject to military law.
(Territorial and Reserve Forces Act, x9o7, s. 2o; see also as to cases of concurrent jurisdictionof a Court-martial and a Court of summary jurisdiction, ibM. ss. 24, 25.)

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THE ARMY

ment indeed converts the territorial force into a territorial army,
though an army which cannot be required to serve abroad,But the embodiment can lawfully take place only in case of imminent national danger or great emergency, or unless the emergency
requires it, until Parliament has had an opportunity of presenting an
address against the embodiment of the territorial force. The generaleffect of the enactments on the subject is that, at any rate when there
is a Parliament in existence, the embodiment of the territorial force
cannot, except under the pressure of urgent necessity, be carried out
without the sanction of Parliament. 2s Add to this, that the maintenance of discipline among the members of the territorial force when it
is embodied depends on the continuance in force of the Army Act
and of the Army (Annual) Act. 29
28 Compare the Territorial and Reserve F_ces Act, _9o7, s. 7, the Reserve Forces Act, fl_82,
ss. 12, i 3, and the Militia Act, z882, s. _8, and see note 4, P- _88, ante.
29 There exists an instructive analogy between the position of persons subject to militarylaw, and the position of the clergy of the Established Church.
A clergyman of the National Church, like a soldier of the National Army, is subject toduties and to Courts to which other Englishmen are not subject. He is bound by restrictions, as he enjoys privileges peculiar to his class, but the clergy are no more than soldiersexempt from the law of the land. Any deed which would be a crime or a wrong when done
by a layman, is a crime or a wrong when done by a clergyman, and is in either case dealt
with by the ordinary tribunals.
M_eover, as the Common Law Courts determine the legal limits to the jurisdiction of
Courts-martial, so the same Courts in reality determine (subject, of course, to Acts of
Parliament) what are the limits to the jurisdiction of ecclesiastical Courts.
The original difficulty, again, of putting the clergy on the same footing as laymen, was atleast as great as that of establishing the supremacy of the civil power in all matters regarding
the army. Each of these difficulties was met at an earlier date and had been overcome withmore completeness in England than in some other countries. We may plausibly conjecturethat this triumph of law was due to the acknowledged supremacy of the King in Parliament,
which itself was due to the mode in which the King, acting together with the two Houses,
manifestly represented the nation, and therefore was able to wield the whole moral authority of the state.

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Chapter X

THE REVENUE'

Revenue Asin

treating of the army my aim was simply to point out what
were the principles determining the relation of the armed
forces of the country to the law on the land, so in treatingof the revenue my aim is not to give even a sketch of the mattersconnected with the raising, the collection, and the expenditure of thenational income, but simply to show that the collection and expenditure of the revenue, and all things appertaining thereto, are governedby strict rules of law. Attention should be fixed upon three points,the source of the public revenue--theauthority for expending the
public revenue--andthe securities provided by law for the due
appropriation of the public revenue, that is, for its being expended in
the exact manner which the law directs.
SOURCE OF PUBLIC REVENUE

SourcoIt is laid down by Blackstone and other authorities that the revenue
consists of the hereditary or "ordinary" revenue of the Crown and of
the "extraordinary" revenue depending upon taxes imposed by Parliament. Historically this distinction is of interest. But for our purpose
we need hardly trouble ourselves at all with the hereditary revenue of
the Crown, arising from Crown lands, droits of admiralty, and the1 Stephen, Commentaries, ii. bk. iv. chap. vii.; Heam, Government of England (2nd ed.), c. 13,
pp. 351-388; May, Parliamentary Practice, chap. xxi.; see Exchequer and Audit Act, _866, a 9& 3o Vict. c. 39, and 1 & 2 Vict. c. 2, s. 2.

PARTII

2O0

THE REVENUE

like. It forms an insignificant portion of the national resources,
amounting to not much more than £500,0o0 a year. It does not,moreover, at the present moment belong specially to the Crown, forit was commuted at the beginning of the reign of the present King,2
as it was at the beginning of the reign of William W. and of the reignof Queen Victoria, for a fixed "civil list, ''3 or sum payable yearly forthe support of the dignity of the Crown. The whole then of thehereditary revenue is now paid into the national exchequer and forms
part of the income of the nation. We may, therefore, putting thehereditary revenue out of our minds, direct our whole attention towhat is oddly enough called the "extraordinary," but is in reality theordinary, or Parliamentary, revenue of the nation.
The whole of the national revenue had come to amount in a normal
year to somewhere about £_44,000,000.4 It is (if we put out of sight thesmall hereditary revenue of the Crown) raised wholly by taxes imposed by law. The national revenue, therefore, depends wholly uponlaw and upon statute-law; it is the creation of Acts of Parliament.
While no one can nowadays fancy that taxes can be raised otherwise than in virtue of an Act of Parliament, there prevails, it may besuspected, with many of us a good deal of confusion of mind as to theexact relation between the raising of the revenue and the sitting of
Parliament. People often talk as though, if Parliament did not meet,no taxes would be legally payable, and the assembling of Parliament
were therefore secured by the necessity of filling the national exchequer. This idea is encouraged by the study of periods, such as thereign of Charles I., during which the Crown could not legally obtainnecessary supplies without the constant intervention of Parliament.
But the notion that at the present day no money could legally belevied if Parliament ceased to meet is unfounded. Millions of money
would come into the Exchequer even though Parliament did not sit at
2 Civil List Act, _9(n, _ Ed. VII. c. 4"3 See as to civil list, May, Constitutional Hist. i. chap. iv.
4 The Chancellor of the Exchequer, in his Budget speech of xSth April _9o7 (_72 Hansard(4th set.), col. 118o), gave the total revenue for the year (Exchequer receipts) x9o6- 7 at
£H4,814,ooo. [See as to the burden of taxes and rates in later years, Law and Opinion (anded.), pp. lxxxiv.-lxxxvii.]

CHAPTER X

20I

LAW OF THE CONSTITUTION

all. For though all taxation depends upon Act of Parliament, it is far
from being the case that all taxation now depends upon annual or
temporary Acts.
Taxes are made payable in two different ways, i.e. either by permanent or by yearly Acts.
Taxes, the proceeds of which amounted in the year 19o6- 7 to atleast three-fourths of the whole yearly revenue, are imposed by permanent Acts; such taxes are the land tax, s the excise, 6 the stamp
duties, 7and by far the greater number of existing taxes. These taxes
would continue to be payable even though Parliament should not be
convened for years. We should all, to take an example which comeshome to every one, be legally compellable to buy the stamps for ourletters even though Parliament did not meet again till (say) A.D. 1910.
Other taxes--and notably the income tax--the proceeds of whichmake up the remainder of the national income, are imposed by yearlyActs.a If by any chance Parliament should not be convened for a year,
no one would be under any legal obligation to pay income tax.
This distinction between revenue depending upon permanent Acts
and revenue depending upon temporary Acts is worth attention, but
the main point, of course, to be borne in mind is that all taxes are
imposed by statute, and that no one can be forced to pay a single
shilling by way of taxation which cannot be shown to the satisfactionof the judges to be due from him under Act of Parliament.
AUTHORITY FOR EXPENDING REVENUE
guthonty
for
expen_t_re.

At one time revenue once raised by taxation was in truth and inreality a grant or gift by the Houses of Parliament to the Crown. Such
grants as were made to Charles the First or James the First were

5 38 George HI. c. 5.
6 See Stephen, Commentaries, ii. pp. 552, 553.
7 Stamp Act, 1891, 54 & 55 Vict. c. 39.
8 The only taxes imposed annually or by yearly Acts are the customs duty on tea, which forthe year ending 31st March _9o7 amounted to £5,888,288, and the income tax, which for thesame year amounted to £31,89_,949, giving a total of annual taxation raised by annual grantof £37,78o,237.

PARTII

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THE REVENUE

moneys truly given to the King. He was, as a m_atterof moral duty,
bound, out of the grants made to him, as out of the heredilary revenue, to defray the expenses of government;, and the gifts made to
the King by Parliament were never intended to be "money to put into
his own pocket," as the expression goes. S_ll it was in _ath money ofwhich the King or his Ministers could and did regulate the distribution. One of the singularities which mark the English constitution is
the survival of medi_e,val notions, which more or less identified theKings's property with the national revenue, after the passing away ofthe state of society to which such ideas naturally belonged; in thetime of George the Third many public expenses, as, for example, thesalaries of the judges, were charged upon the civil list, and thus weremixed up with the King's private expenditure. At the present day,however, the whole public revenue is treated, not as the King's property, but as public income; and as to this two matters deserve special
observation.
First, the whole revenue of the nation is paid into the Bank ofEngland 9 to the "account of his Majesty's Exchequer, ''1°mainly
through the Inland Revenue Office. That office is a mere place forthe receipt of taxes; it is a huge money-box into which day by day
moneys paid as taxes are dropped, and whence such moneys aretaken daily to the Bank. What, I am told, takes place is this. Each day
large amounts are received at the Inland Revenue Office; two gentlemen come there each afternoon in a cab from the Bank; they gothrough the accounts for the day with the proper officials; they do notleave till every item is made perfectly dear; they then take all themoney received, and drive off with it and pay it into the Bank of

En and.
Secondly, not a penny of revenue can be legally expended except
under the authority of some Act of Parliament.
9 Or into the Bank of Ireland. See Exchequer and Audit Departments
Vict. c. 39), s. so.

Act, _866 (29 & 30

so Ibid. and Control and Audit of Public Receipts and Expenditure, pp. 7, 8. But a system ofappropriations in aid has been introduced during the last few years under which certain
moneys which before were treated as extra receipts, and paid into the Exchequer, are notpaid into the Exchequer, but are applied by the department where they are received in
reduction of the money voted by Parliament.

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LAW OF THE CONSTITUTION

This authority may be given by a permanent Act, as, for example,
by the Civil List Act, _ & 2 Vict. c. 2, or by the National Debt and Local
Loans Act, 1887; or it may be given by the Appropriation ACt, that is,
the annual Act by which Parliament "appropriates" or fixes the sums
payable to objects (the chief of which is the support of the army andnavy) which are not provided for, as is the payment of the National
Debt, by permanent Acts of Parliament.
The whole thing, to express it in general terms, stands thus.
There is paid into the Bank of England in a normal year 11a national
income raised by different taxes amounting to nearly £144,ooo, ooo per
annum. This £1AA,ooo,ooo constitutes the revenue or "consolidated
fund."
Every penny of it is, unless the law is broken, paid away in accordance with Act of Parliament. The authority to make payments from it
is given in many cases by permanent Acts; thus the whole of theinterest on the National Debt is payable out of the Consolidated Fundunder the National Debt and Local Loans Act, 1887. The order orauthority to make payments out of it is in other cases given by ayearly Act, namely, the Appropriation Act, which determines themode in which the supplies granted by Parliament (and not otherwise appropriated by permanent Acts) are to be spent. In either case,and this is the point to bear in mind, payments made out of thenational revenue are made by and under the authority of the law,
namely, under the directions of some special Act of Parliament.
The details of the method according to which supplies are annually
voted and appropriated by Parliament are amply treated of in works
which deal with Parliamentary practice. 12The matter which requires
our attention is the fact that each item of expenditure (such, forexample, as the wages paid to the army and navy) which is notdirected and authorised by some permanent Act is ultimately authorised by the Appropriation Act for the year, or by special Acts
which for convenience are passed prior to the Appropriation Act andn See p. 2ol, ante (3).
i2 See especiaUy May, Parliamentary Practice, chap. xxi.

PARTII

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THE REVENUE

are enumerated therein. The expenditure, therefore, no less than theraising of taxation, depends wholly and solely upon Parliamentaryenactment.
SECURITY FOR THE PROPERAPPROPRIATION OF THE REVENUE
s_c_,_.
What, it may be asked, is the real security that moneys paid by thefor propere,p_n_,_re,taxpayers are expended by the government in accordance with theintention of Parliament?
The answer is that this security is provided by an elaborate schemeof control and audit. Under this system not a penny of public money
can be obtained by the government without the authority or sanctionof persons (quite independent, be it remarked, of the Cabinet) whose
duty it is to see that no money is paid out of the Exchequer except
under legal authority. To the same official ultimately comes theknowledge of the way in which money thus paid out is actuallyexpended, and they are bound to report to Parliament upon any
expenditure which is or may appear to be not authorised by law.
The centre of this system of Parliamentary control is the Comptroller and Auditor General. 13
He is a high official, absolutely independent of the Cabinet; he cantake no part in politics, for he cannot be either a member of the Houseof Commons, or a peer of Parliament. He in common with his subordinate--the Assistant Comptroller and Auditor General--is
appointed by a patent under the Great Seal, holds his office during
good behaviour, and can be removed only on an address from bothHouses of Parliament. 14He is head of the Exchequer and Audit Department. He thus combines in his own person two characters which
formerly belonged to different officials. He is controller of the issue of
public money; he is auditor of public accounts. He is called upon,
therefore, to perform two different functions, which the reader
ought, in his own mind, to keep carefully distinct from each other.
_3 Control and Audit of Public Receipts and Expenditure, _885.
14 The Exchequer and Audit Departments

CHAPTERX

Act, _886 (29 & 3o Vict. c. 39), sec. 3.

205

LAW OF THE CONSTITUTION

In exercise of his duty of control the Comptroller General is bound,with the aid of the officials under him, to see that the whole of thenational revenue, which, it will be remembered, is lodged in the Bankof England to the account of the Exchequer, is paid out under legal
authority, that is, under the provisions of some Act of Parliament.
The Comptroller General is enabled to do this because, whenever
the Treasury (through which office alone the public moneys are
drawn out from the Bank) needs to draw out money for the public
service, the Treasury must make a requisition to the Comptroller
General authorising the payment from the public moneys at the Bankof the definite sum required, is
The payments made by the Treasury are, as already pointed out,
made either under some permanent Act, for what are technicallycalled "Consolidated Fund services," as, for example, to meet theinterest on the National Debt, or under the yearly Appropriation Act,for what are technically called "'supply services," as, for example, tomeet the expenses of the army or the navy.
In either case the Comptroller General must, before granting thenecessary credit, satisfy himself that he is authorised in doing so by
the terms of the Act under which it is demanded. He must also satisfy
himself that every legal formality, necessary for obtaining publicmoney from the Bank, has been duly complied with. Unless, anduntil, he is satisfied he ought not to grant, and will not grant, a credit
for the amount required; and until this credit is obtained, the money
required cannot be drawn out of the Bank.
The obtaining from the Comptroller General of a grant of credit
may appear to many readers a mere formality, and we may supposethat it is in most cases given as a matter of course. It is, however, aformality which gives an opportunity to an official, who has no interest in deviating from the law, for preventing the least irregularity on
the part of the government in the drawing out of public money.
The Comptroller's power of putting a check on government expenditure has, oddly enough, been pushed to its extreme length in
15 See Control and Audit of Pubhc Receipts and Expenditure, 2885, pp. 61-64, and Forms, No. 8
to No. 12.

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THE REVENUE

comparatively modem times. In _8_ England was in the midst of thegreat war with France; the King was a lunatic, a Regency Bill was not
yet passed, and a million pounds were required for the payment of
the navy. Lord Grenville, the then Auditor of the Exchequer, whose
office corresponded to a certain extent with that of the present Comptroller and Auditor General, refused to draw the necessary order on
the Bank, and thus prevented the million, though granted by Parliament, from being drawn out. The ground of his lordship's refusal
was that he had received no authority under the Great Seal or the
Privy Seal, and the reason why there was no authority under the
Privy Seal was that the King was incapable of affixing the Sign Manual, and that the Sign Manual not being affixed, the clerks of the
Privy Seal felt, or said they felt, that they could not consistently with
their oaths allow the issue of letters of Privy Seal upon which thewarrant under the Privy Seal was then prepared. All the world knew
the true state of the case. The money was granted by Parliament, andthe irregularity in the issue of the warrants was purely technical, yet
the law officerswmembers
themselves of the Ministrymadvised that
Lord Grenville and the derks of the Privy Seal were in the right. This
inconvenient and, as it seems to modem readers, unreasonable display of legal scrupulosity masked, it may be suspected, a good deal ofpolitical byplay. If Lord Grenville and his friends had not been anxious that the Ministry should press on the Regency Bill, the offÉcialsof
the Exchequer would perhaps have seen their way through the technical diffi___tltieswhich, as it was, appeared insurmountable, and it is
impossible not to suspect that Lord Grenville acted rather as a party
leader than as Auditor of the Exchequer. But be this as it may, thedebates of _8_16 prove to demonstration that a Comptroller Generalcan, if he chooses, put an immediate check on any irreg_!!ar dealings
with public moneys.
In exercise of his duty as Auditor the Comptroller General audits
all the public accounts; iv he reports annually to Parliament upon the
16 Cobbett's Parl. Debates, xvFfi, pp. 678, 734, 787.
17 In auditing the accounts he inquires into the legality of the purposes for which publicmoney has been spent, and in his report to Parliament calls attention to any expenditure of
doubtful legality.

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LAW OF THE CONSTITUTION

accounts of the past year. Accounts of the expenditure under the
Appropriation Act are submitted by him at the beginning of every
session to the Public Accounts Committee of the House of Commons--a Committee appointed for the examination of the accounts-showing the appropriation of the sums granted by Parliament tomeet the public expenditure. This examination is no mere formal or
perfunctory supervision; a glance at the reports of the Committee
shows that the smallest expenses which bear the least appearance of
irregularity, even if amounting only to a pound or two, are gone intoand discussed by the Committee. The results of their discussions are
published in reports submitted to Parliament.
The general result of this system of control and audit is, that in
England we possess accounts of the national expenditure of an accuracy which cannot be rivalled by the public accounts of other countries, and that every penny of the national income is expended under
the authority and in accordance with the provisions of some Act ofParliament. isHow, a foreign critic might ask, is the authority of the Comptroller
General compatible with the orderly transaction of public business;how, in short, does it happen that difficulties like those which arose
in _8_ are not of constant recurrence?
x8 The main features of the system for the control and audit of national expenditure havebeen authoritatively summarised as follows:"The gross revenue collected is paid into the Exchequer.
"Issues from the Exchequer can only be made to meet expenditure which has been
sanctioned by Parliament, and to an amount not exceeding the sums authorised.
"The issues from the Exchequer and the audit of Accounts are under the control of theComptroller and Auditor General, who is an independent officer responsible to the Houseof Commons, and who can only be removed by vote of both Houses of Parliament.
"Such payments only can be charged against the vote of a year as actually came in courseof payment within the year.
"The correct appropriation of each item of Receipt and Expenditure is ensured.
"All unexpended balances of the grants of a year are surrendered
to the Exchequer, as
also are all extra Receipts and the amount of Appropriations-in-Aid
received in excess of thesum estimated to be taken in aid of the vote.
'q'he accounts of each year are finally reviewed by the House of Commons, through theCommittee of Public Accounts, and any excess of expenditure over the amount voted by
Parliament for any service must receive legislative sanction."IControl
and Audit of Public
Receipts and Expenditure, _885, pp. 24, 25.

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The general answer of course is, that high English officials, andespecially officials removed from the sphere of politics, have no wish
or temptation to hinder the progress of public business; the Auditorof the Exchequer was in a8_, be it noted, a peer and a statesman. The
more technical reply is, that the law provides two means of overcoming the perversity or factiousness of any Comptroller who should
without due reason refuse his sanction to the issue of public money.
He can be removed from office on an address of the two Houses, andhe probably might, it has been suggested, be coerced into the proper
fulfilment of his duties by a mandamus 19from the High Court ofJustice. The worth of this suggestion, made by a competent lawyer,
has never been, and probably never will be tested. But the possibility
that the executive might have to seek the aid of the Courts in order to
get hold of moneys granted by Parliament, is itself a curious proof ofthe extent to which the expenditure of the revenue is governed bylaw, or, what is the same thing, may become dependent on thedecision of the judges upon the meaning of an Act of Parliament.
19 See Bowyer, Commentaries on Constitutional Law, p. 2_o; Hearn, Government of England(2nd ed.), p. 375.

CHAPTERX

2O9

Chapter XI

THE RESPONSIBILITY OF MINISTERS_r_ste,a_ "iresponsibility.

finisterial
responsibility means two utterly different things.
It means in ordinary parlance the responsiblity of Ministers to Parliament, or, the liability of Ministers to lose theiroffices if they cannot retain the confidence of the House of Commons.
This is a matter depending on the conventions of the constitution
with which law has no direct concern.

IVI

It means, when used in its strict sense, the legal responsibility of
every Minister for every act of the Crown in which he takes part.
This responsibility, which is a matter of law, rests on the following
foundation. There is not to be found in the law of England, as there isfound in most foreign constitutions, an explicit statement that the actsof the monarch must always be done through a Minister, and that allorders given by the Crown must, when expressed in writing, as theygenerally are, be countersigned by a Minister. Practically, however,
the rule exists.
In order that an act of the Crown may be recognised as an expression of the Royal will and have any legal effect whatever, it must in
general be done with the assent of, or through some Minister or
Ministers who will be held responsible for it. For the Royal will can,speaking generally, be expressed only in one of three different ways,
viz. (_) by order in Council; (2) by order, commission, or warrant
under the sign-manual; (3) by proclamations, writs, patents, letters,
or other documents under the Great Seal.

PARTII

21o

THE RESPONSIBILITY

OF MINISTERS

An order in Council is made by the King "by and with the advice of
his Privy Council"; and those persons who are present at the meetingof the Council at which the order was made, bear the responsibility
for what was there done. The sign-manual warrant, or other document to which the sign-manual is affixed, bears in general the countersignature of one responsible Minister or of more than one; though
it is not unfrequently authenticated by some one of the seals for theuse of which a Secretary of State is responsible. The Great Seal isaffixed to a document on the responsibility of the Chancellor, andthere may be other persons also, who, as well as the Chancellor, aremade responsible for its being affixed. The result is that at least one
Minister and often more must take part in, and therefore be responsible for, any act of the Crown which has any legal effect, e.g. themaking of a grant, the giving of an order, or the signing of a treaty. 1
The Minister or servant of the Crown who thus takes part in giving
expression to the Royal will is legally responsible for the act in which
he is concerned, and he cannot get rid of his liability by pleading thathe acted in obedience to royal orders. Now supposing that the act
done is illegal, the Minister concerned in it becomes at once liable tocriminal or civil proceedings in a Court of Law. In some instances, it
is true, the only legal mode in which his offence could be reached
may be an impeachment. But an impeachment itself is a regularthough unusual mode of legal procedure before a recognised tribunal, namely, the High Court of Parliament. Impeachments indeed
may, though one took place as late as _8o5, be thought now obsolete,
but the cause why this mode of enforcing Ministerial responsibility isalmost out of date is partly that Ministers are now rarely in a position
where there is even a temptation to commit the sort of crimes forwhich impeachment is an appropriate remedy, and partly that theresult aimed at by impeachment could now in many cases be better
obtained by proceedings before an ordinary Court. The point,
2 On the whole of this subject the reader should consult Anson, Law and Custom of theConstitution, vol. ii., The Crown (3rd ed.), App. to ch. i. pp. 50-59. Anson gives by far thebest and fullest account with which I am acquainted of the forms for the expression of theRoyal pleasure and of the effect of these forms in enforcing the legal responsibility of
Ministers. See also Clode, Military Forces of the Crown, ii. pp. 320, 321;Buron v. Denman, 2 Ex.
167, 289, and the Great Seal Act, 2884, 47 & 48 Vict. c. 3o.

CHAPTERXI

211

LAW

OF THE CONSTITUTION

however, which should never be forgotten is this: it is now wellestablished law that the Crown can act only through Ministers andaccording to certain prescribed forms which absolutely require theco-operation of some Minister, such as a Secretary of State or the
Lord Chancellor, who thereby becomes not only morally but legally
responsible for the legality of the act in which he takes part. Hence,indirectly but surely, the action of every servant of the Crown, andtherefore in effect of the Crown itself, is brought under the supremacy of the law of the land. Behind Parliamentary responsibility lies
legal liability, and the acts of Ministers no less than the acts of subordinate officials are made subject to the rule of law.

PARTII212

Chapter XII

RULE OF LAW COMPARED WITH
DROIT ADMINISTRATIF 1

No,_on7"n many continental countries, and notably in France, there exists_ a scheme of administrative law2nknown to Frenchmen as droit
J. administrafifmwhich rests on ideas foreign to the fundamental
assumptions of our English common law, and especiany to what wehave termed the rule of law. This opposition is specially apparent in
the protection given in foreign countries to servants of the State, or,as we say in England, of the Crown, who, whilst acting in pursuance
I On droit administratif see Aucoc, Conferences sur l'administration et te droit administratif (3rded.); Berth61emy, Trait_ l_lg?nentairede Droit Administratif (5th ed. 19o8); Chardon, L'Administration de la France, Les Fonctionnaires (_9o8); Duguit, Manuel de Droit Constitutionnel (_9o7);
Duguit, Trait_ de Droit Constitutionnel (19_); Duguit, L'f3tat, les gouvernants et les agents (_9o3);
Esmein, _lg_rnentsde Droit Constitutionnel (_896); Hauriou, Precis de Droit Administratif; Jacquelin, La Juridiction Administrative (_89_); Jacquelin, Les Principes Dominants du Contentieux
Administratif (_899); J6ze, Les Principes G_n_raux du Droit Administratif 09o4); Laferri_re. Trait_de la Juridiction Administrative, 2 vols. (2nd ed. _896); Teissier, La Responsabilit_ de la Puissance
Publique 0906).
It is not my aim in this chapter to give a general account of droit administratif. My object
is to treat of droit administratif in so far as its fundamental principles conflict with modern
English ideas of the rule of law, and especially to show how it always has given, and still
does give, special protection or privileges to the servants of the state. I cannot, however,avoid mentioning some other aspects of a noteworthy legal system or omit some no_ce ofthe mode in which the administrative law of France, based as it originally was on the
prerogatives of the Crown under the ancien r_gime, has of recent years, by the genius of
French legists, been more or less "judicialised"--if
so I may render the French term
"juridictionnaliser"--andincorporated with the law of the land.
2 Known in different countries by different names, e.g. in Germany as Vent_ltungsrecht.
The administrative law of France comes nearer than does the Verwaltungsrecht of Germany

CHAPTERXII213

LAW OF THE CONSTITUTION

of official orders, or in the bonafide attempt to discharge official duties,
are guilty of acts which in themselves are wrongful or unlawful. The
extent of this protection has in France--withwhich country we arefor the most part concernedmvaried
from time to time. It was once
all but complete; it is now far less extensive than it was thirty-six
years ago.3 It forms only one portion of the whole system of droit
administratif, but it is the part of French law to which in this chapter I
wish to direct particularly the attention of students. I must, however,impress upon them that the whole body of droit administratif is well
worth their study. It has been imitated in most of the countries ofcontinental Europe. It illustrates, by way of contrast, the full meaningof that absolute supremacy of the ordinary law of the land--a foreign
critic might say of that intense legalism--which
we have found to bea salient feature of English institutions. It also illustrates, by way of
analogy rather than of contrast, some phases in the constitutional
history, of England. For droit administratif has, of recent years, been so
developed as to meet the requirements of a modern and a democraticsociety, and thus throws light upon one stage at least in the growth ofEnglish constitutional law.4
Our subject falls under two main heads. The one head embraces
the nature and the historical growth of droit administratif, and espedally of that part thereof with which we are chiefly concerned. The
other head covers a comparison between the English rule of law andthe droit administratif of France.
(A)Dro.t For the term droit administratif English legal phraseology supplies
Admmtstra,:no proper equivalent. The words "administrative law," which are its
most natural rendering, are unknown to English judges and counsel,
and are in themselves hardly intelligible without further explanation.
(conf. Otto Mayer, Le Droit AdministratifAllemand,i. (French translation), p. 293 s. 17), to therule of law as understood by Englishmen. Here, as elsewhere, it is the similarity as much as
the dissimilarity between France and England which prompts comparison. The historicalglories of French arms conceal the important fact that among the great States of Europe,
France and England have the most constantly attempted, though with unequal success, tomaintain the supremacy of the civil power against any class which defies the legitimate
sovereignty of the nation.
3 Or than it still is throughout

the German

Empire. See Duguit, L'_tat, p. 624, note 1.

4 See pp. 246-251, post.

PARTII214

RULE OF LAW COMPAREDWITH DROIT ADMINISTRATIFThis absence from our language of any satisfactory equivalent for
the expression droit administratif is significant; the want of a namearises at bottom from our non-recognition of the thing itself. In England, and in countries which, like the United States, derive theircivilisation from English sources, the system of administrative law
and the very principles on which it rests are in truth unknown. Thisabsence from the institutions of the American Commonwealth ofanything answering to droit administratif arrested the observation of
Tocqueville from the first moment when he began his investigations
into the characteristics of American democracy. In _83mhe writes to an
experienced French judge (magistrat), Monsieur De Blosseville, to ask
both for an explanation of the contrast in this matter between Frenchand American institutions, and also for an authoritative explanationof the general ideas (notions g_n_ales) governing the droit administratifof his country, s He grounds his request for information on his own
ignorance 6about this special branch of French jurisprudence, anddearly implies that this want of knowledge is not uncommon among
French lawyers.
When we know that a legist of Tocqueville's genius found it necessary to ask for instruction in the "general ideas" of administrativelaw, we may safely assume that the topic was one which, even in theeyes of a French lawyer, bore an exceptional character, and need not
wonder that Englishmen find it difficult to appreciate the nature ofrules which are, admittedly, foreign to the spirit and traditions of our
5 Tocqueville's language is so remarkable and bears so closely on our topic that it deserves
quotation: "'Cequi m' emp_che le plus, je vous avoue, de savoir ce qui se fait sur ces diff_rents points
en Am_rique, c'est d'ignorer, _ peu pros compl_tement, ce qui existe en France. Vous savez que, chez
nous, le droit administratif et le droit civil forment comme deux mondes s_ar_s, qui ne vivent point
toujours en paix, mais qui ne sont ni assez amis ni assez ennemis pour se bien connaftre. ]"ai toujours
v_cu dans l'un et suis fort ignorant de ce qui se passe darts l'autre. En m_ae temps que j"ai senti lebesoin d"aotu_rir les notions g_n_rales qui me manquent _ cet dgard, j"ai pens_ que je ne pouvais mieux
faire que de m"adresser _ vous. "-- Tocqueville, CEuvres Completes, v_. pp. 67, 68.
6 This want of knowledge is explainable, if not justifiable. In 1832 Tocqueville was a youth of
not more than twenty-six years of age. There were at that date already to be found books
on droit administratif written to meet the wants of legal practitioners. But the mass of interesting constitutional literature represented by the writings of Laferri6re, Hauriou, Duguit,J6ze, or Berth61emy which now elucidates the theory, and traces the history of a particularand most curious branch of French law, had not come into existence.

CHAPTERXII215

LAWOFTHECONSTITUTION
institutions. It is, however, this very contrast between administrative
law as it exists in France, and still more as it existed during by far thegreater part of the nineteenth century, and the notions of equality
before the law of the land which are firmly established in modem
England, that mainly makes it worth while to study, not of course thedetails, but what TocqueviUe calls the notions gdndrales of French droit
administratif. Our aim should be to seize the general nature of administrative law and the principles on which the whole system ofdroit administratif depends, to note the salient characteristics by which
this system is marked, and, lastly, to make dear to ourselves how it isthat the existence of a scheme of administrative law makes the legal
situation of every government official in France different from thelegal situation of servants of the State in England, and in fact establishes a condition of things fundamentally inconsistent with what
Englishmen regard as the due supremacy of the ordinary law of theland.
(,)Nature Droit administratif, or "administrative law," has been defined by
m_,,s,at¢.French authorities in general terms as "the body of rules which regulate the relations of the administration or of the administrative auof drolt ad-

thority towards private citizens"; 7 and Aucoc in his work on droit
administratif describes his topic in this very general language: sAdministrative law determines (1) the constitution and the relations of thoseorgans of society which are charged with the care of those social interests(int_r_ts collectifs) which are the object of public administration,by whichterm is meant the different representativesof society among which the Stateis the most important, and (2) the relation of the administrative authorities
toward the citizens of the State.

These definitions are wanting in precision, and their vagueness is
not without significance. As far, however, as an Englishman may
venture to deduce the meaning of droit administratif from foreign
treatises, it may, for our present purpose, be best described as that
7 "On led_h'nitordinairementl'ensembledes r_glesqui r_gissentles rapportsde l'administrationoude I"autonte" " admmlstratwe
....
.....
aveclesatoyens. " --Aucoc, DroltAdmmlstratif,
1.s. 6.
8 "'Nousprdf_rerionsdire, pour notre part:Le droit administratifd_termine:i°la constitution et les
rapportsdes organesde la soci_t_chargesdu soin des intdr_tscollectffsqui font l'objetde l'administrationpublique,c'est-a-diredes diff_rentespersonnificationsdela societY,dont l'l_tatest laplus
importante;2° les rapportsdes autorit6sadministrativesaveclescitoyens."_/b/d.
PARTII216

RULE OF LAW COMPAREDWITH DROIT ADMINISTRATIF

portion of French law which determines, (i.) the position and liabilities of all State officials, (ii.) the civil rights and liabilities of private
individuals in their dealings with officials as representatives of theState, and (iii.) the procedure by which these rights and liabilities are
enforced.
An English student will never, it should particularly be noticed,
understand this branch of French law unless he keeps his eye firmly
fixed upon its historical aspect, and carefully notes the changes, almost amounting to the transformation, which droit administratif has
undergone between 28ooand 29o8, and above all during the last thirty
or forty years. The fundamental ideas which underlie this department of French law are, as he will discover, permanent, but they
have at various times been developed in different degrees and indifferent directions. Hence any attempt to compare the administrative law of France with our English rule of law will be deceptive
unless we note carefi_y what are the stages in the law of each country which we bring into comparison. If, for instance, we compare thelaw of England and the law of France as they stand in 2908, we arelikely to fancy (in my judgment erroneously) that, e.g. in regard to theposition or privileges of the State and its servants when dealing withprivate citizens, there may be little essential difference between thelaws of the two countries. Itis only when we examine the administrative law of France at some earlier date, say between 2800and 28_5, or
between the accession to the throne of Louis Philippe (z83o) and thefall of the Second Empire (187o), that we can rightly appreciate theessential opposition between our existing English rule of law and thefundamental ideas which lie at the basis of administrative law not
only in France but in any country where this scheme of State or
official law has obtained recognition.
(2)Hlstori- The modern administrative law of France has grown up, or at any_td_elop-rate taken its existing form, during the nineteenth century; it is theoutcome of more than a hundred years of revolutionary and constitutional conflict. 9 Its development may conveniently be divided into
three periods, marked by the names of the Napoleonic Empire and
9 For the history of droit administratif see especially Laferri6re, i. (and ed.), bk. i. c. i.-iv.
pp. 137-3on. The Second Republic (1848-1851) produced little permanent effect on Frenchadministrative law. I have included it in the second of our three periods.
CHAPTERXII217

LAW OF THE CONSTITUTION

the Restoration (_8oo-_83o), the Orleanist Monarchy and the Second
Empire (183o-187o), the Third Republic (_87o-_9o8).
FIRST PERIOD: NAPOLEONAND THE RESTORATION,,8oo-,83o

Nopo_eon In the opinion of Frenchandthemen true droit administratif owes its origin
Re_tora_on
to the consular constitution of the Year VIII. (18oo) created by Bonaparte after the coup d'_tat of the _8th of Brumaire. But legists, 1° no lessthan historians, admit that the ideas on which droit administratif rests,
may be rightly traced back, as they have been by Tocqueville, 11to theancien r_gime; every feature of Bonaparte's governmental fabric recalls
some characteristic of the ancient monarchy; his Conseil d'_:tat revives
the Conseil du Roi, his Prefects are copies of the royal Intendants. Yetin this instance public opinion has come to a right condusion. It wasfrom Bonaparte that modern droit administratifreceived its form. If he
was the restorer of the ancien r_gime, he was also the preserver of the
Revolution. Whatever he borrowed from the traditions of old France
he adapted to the changed conditions of the new France of 2800. At
his touch ancient ideas received a new character and a new life. He
fused together what was strongest in the despotic traditions of themonarchy with what was strongest in the equally despotic creed of
Jacobinism. Nowhere is this fusion more dearly visible than in themethods by which Bonaparte's legislation and policy gave full exlo "'Aussi haut que l"on remonte dans notre histoire, depuis que des juridictions r_guli_res ont _t_
institutes, on ne trouve p chargds d'_poque o_ les corps judiciaires chargds d'appliquer les lois civiles etcriminelles aient _t_en mhne temps appel_s _ statuer sur les difficultds en matibre d'administration
publique."--Laferri6re,
i. p. 139, and compare ibid. p. 640.
_ "'Cequi appara_t . . . quand on _tudie les paperasses administratives, c"est l'intervention continuelle
du pouvoir administratif dans la sphere judiciaire. Les l_gistes administratifs nous disent sans cesse,que Ieplus grand vice du gouvernement intdrieur de l'ancien r_gime _tait que les juges administraient.
On pourrait se plaindre avec au tant de raison de ce que les administrateurs jugeaient. La seuledifference est que nous avons corrig_ l"ancien rdgime sur le premier point, et l"avons imitd sur lesecond, l'avais eu jusqu "dpr_sen t la simplicit_ de croire que ce que nous appelons lajustice administrative _tait une creation de Napol_on. C'est du pur ancien r6g/me conserv6; et le principe que lorsmhne qu'il s'agit de contrat, c'est-a-dire d'un engagement formel et r_guili_rement pris entre unparticulier et l'_tat, c'est _ l'_tat a juger la cause, cet axiome, inconnu chez la plupart des nations
modernes, _tait tenu pour aussi sacr_ par un intendant de l'ancien r_gime, qu'il pourrait l'_tre de nos
jours par le personnage qui ressemble le plus _ celui-l& je veux dire un prffet."-- Tocqu eville,
CEuvres Completes, vi. pp. 22,, 222.

PARTH

218

RULE OF LAW COMPAREDWITH DRO1T ADMINISTRATIF

pression to the ideas or conceptions of royal prerogative underlying
the administrative practice of the ancien r_gime, and emphasised thejealousy felt in _8ooby every Frenchman of the least interference by
the law Courts with the free action of the government. This jealousy
itself, though theoretically justified by revolutionary dogma, was inherited by the Revolution from the statecraft of the monarchy.
_r0,t
Any one who considers with care the nature of the droit adminisadt_ilms,rat,_--,ts
trat_f of France, or the topics to which it applies, will soon discover
two lead,ngp,nthat it rests, and always has rested, at bottom on two leading ideas
aples.
alien to the conceptions of modem Englishrnen.
Privileges
The first of these ideas is that the government, and every servant ofof thes_te.
the government, possesses, as representative of the nation, a wholebody of special rights, privileges, or prerogatives as against private
citizens, and that the extent of these rights, privileges, or prerogatives
is to be determined on principles different from the considerations
which fix the legal rights and duties of one citizen towards another.
An individual in his dealings with the State does not, according to
French ideas, stand on anything like the same footing as that on
which he stands in dealings with his neighbour. 12
SeparationThe second of these general ideas is the necessity of maintainingof powers
the so-called "separation of powers" (s_parationdes pouvoirs), or, inother words, of preventing the government, the legislature, and the
Courts from encroaching upon one another's province. The expression, however, separation of powers, as applied by Frenchmen to therelations of the executive and the Courts, with which alone we arehere concerned, may easily mislead. It means, in the mouth of a
12 "'Un particulier qui n"exdcu te pas un march_ doit _ l"entrepreneur une indemnitd proportionn& augain dont il le prive; le Code civil l'_tablit ainsi. L'administration qui rompt un tel marchd ne doitd'indemnitd qu"en raison de la perte dprouvde. C"est la r_gle de lajurisprudence administrative. A
moins que le droit ne s"y oppose, elle tient que l'l_taL c'est-a-dire la collection de tousles citoyens, et letrdsorpublic, c'est-_-dire l"ensemble de tousles contn'buables, doivent passer avant le citoyen ou lecontribuable isolds, ddfendant un intdr_t individuel."--Vivien,l_tudes Administratives, i. pp.
z4_-142. This was the language of a French lawyer of high authority writing in _853. The
particular doctrine which it contains is now repudiated by French lawyers. Vivien's teaching, however, even though it be no longer upheld, illustrates the general view taken in
France of the relation between the individual and the state. That Vivien's application of thisview is now repudiated, illustrates the change which French droit administratif and theopinion of Frenchmen has undergone during the last fifty-five years.

CHAPTER XII

219

LAW OF THE CONSTITUTION

French statesman or lawyer, somef_mng different from what we meanin England by the "independence of the judges," or the like expressions. As interpreted by French history, by French legislation,and by the decisions of French tribunals, it means neither more nor
less than the maintenance of the principle that while the ordinary
judges ought to be irremovable and thus independent of the execufive, the government and its officials ought (whilst acting officially) to
be independent of and to a great extent free from the jurisdiction of
the ordinary Courts. 13It were curious to follow out the historical
growth of the whole theory as to the "separation of powers.'" It rests
apparently upon Montesquieu's Esprit des Lois, Book XI. c. 6, and is insome sort the offspring of a double misconception; Montesquieu
misunderstood on this point the principles and practice of the English
constitution, and his doctrine was in turn, if not misunderstood,
exaggerated, and misapplied by the French statesmen of the Revolution. Their judgment was biassed, at once by knowledge of the inconveniences and indeed the gross evils which had resulted from theinterference of the French "parliaments" in matters of State and by
the belief that these Courts would offer opposition, as they had done
before, to fundamental and urgently needed reforms. Nor were theleaders of French opinion uninfluenced by the traditional desire, felt
as strongly by despotic democrats as by despotic kings, to increase
the power of the central government by curbing the authority of the
law Courts. The investigation, however, into the varying fate of adogma which has undergone a different development on each side of
the Atlantic would lead us too far from our immediate topic. All that
we need note is the extraordinary influence exerted in France, and in
all countries which have followed French examples, by this part ofMontesquieu's teaching, and the extent to which it still underlies thepolitical and legal institutions of the French Republic.
CharacTO the combination of these two general ideas may be traced four
tenstics.
distinguishing characteristics of French administrative law.
c1)
_g,_
The first of these characteristics is, as the reader will at once perof
Statedeter_in_ceive,that the relation of the government and its officials towards
by speaal
rules.

_3 See Aucoc, Droit Administratif,

PARTIIss. 2o, 24.

220

RULE OF LAW COMPAREDWITH DROIT ADMINISTRATIF

private citizens must be regulated by a body of rules which are in
reality laws, but which may differ considerably from the laws whichgovern the relation of one private person to another. This distinction
between ordinary law and administrative law is one which since2800 has been fully recognised in France, and forms an essential partof French public law, as it must form a part of the public law of any
country where administrative law in the true sense exists. 14_2)
Law
The second of these characteristics is that the ordinary judicial
Courts,,thout
tribunals which determine ordinary questions, whether they be civil
lunsdlctlon,n_att_rsor criminal, between man and man, must, speaking generally, haveconcerning,hoS_teandadrmn- no concern whateverwith matters at issue between a private person,_tr_v_l_and
gatlonto be
the State, i.e. with questions of administrative law, but that such]etermined
byad_- questions, in so far as they form at all matter of litigation (content/_x,_V_co_ts.
administratif), must be determined by administrative Courts in someway connected with the government or the administration.
No part of revolutionary policy or sentiment was more heartily
accepted by Napoleon than the conviction that the judges must neverbe allowed to hamper the action of the government. He gave effect tothis conviction in two different ways.
In the first place, he constituted, or reconstituted, two classes of
Courts. The one class consisted of "judicial" or, as we should say,"common law" Courts. They performed, speaking generally, but twofunctions. The one function was the decision of disputes in strictness
between private persons; this duty was discharged by such Courts as
the Courts of First Instance and the Courts of Appeal. The otherfunction was the trial of all criminal cases; this duty was discharged
by such Courts as the Correctional Courts (Tribunaux Correctionnels) or
the Courts of Assize is (Cours d'Assises). At the head of all these judicial tribunals was placed, and still stands, the Court of Cassation(Cour de Cassation), whereof it is the duty to correct the errors in law of
the inferior judicial Courts. 16The other dass of so-called Courts wereand are the administrative Courts, such as the Courts of the Prefects
14 Of course it is possible that rules of administrative law may exist in a country, e.g. in
Belgium, where these rules are enforced only by the ordinary Courts.
15 The Courts of Assize are the only Courts in France where there is trial by jury.
_6 The Cour de Cassation is not in strictness a Court of Appeal.

CHAPTER

XII

221

LAW OF THE CONSTITUTION(Conseil de Prf,fecture) 17and the Council of State. The function of thesebodies, in so far as they acted judicially (for they fulfilled many duties
that were not judicial), was to determine questions of administrativelaw. The two kinds of Courts stood opposed to one another. The
judicial Courts had, speaking generally,18 no concern with questionsof administrative law, or, in other words, with cases in which theinterest of the State or its servants was at issue; to entrust any judicial
Court with the decision of any administrative suit would have been
deemed in 2800, as indeed it is still deemed by most Frenchmen, aviolation of the doctnne of the separation of powers, and would haveallowed the interference by mere judges with cases in which theinterest of the State or its servants was at issue. The administrative
Courts, on the other hand, had, speaking generally, no direct concern with matters which fell within the jurisdiction of the judicial
tribunals, but when we come to examine the nature of the Council ofState we shall find that this restriction on the authority of a bodywhich in Napoleon's time formed part of the government itself was
far less real than the strict limitations imposed on the sphere of action
conceded to the common law Courts.
Napoleon, in the second place, displayed towards the ordinary
judges the sentiment of contemptuous suspicion embodied in revolutionary legislation. The law of 26-24 August 179 O19is one among ascore of examples which betray the true spirit of the Revolution. The
judicial tribunals are thereby forbidden to interfere in any way whatever with any acts of legislation. Judicial functions, it is laid down,
must remain separate from administrative functions. The judges
must not, under penalty of forfeiture, disturb or in any way interfere
17 With the Courts, or Councils, of the Prefects an English student need hardly concern
himself.
18 There existed even under Napoleon exceptional instances, and their number has been
increased, in which, mainly from motives of immediate convenience, legislation has given
to judicial Courts the decision of matters which from their nature should fall within thesphere of the administrative
tribunals, just as legislation has exceptionally given to administrative tribunals matters which would naturally fall within the jurisdiction of the judicial
Courts. These exceptional instances cannot be brought within any one clear principle, andmay for our purpose be dismissed from consideration.
19 Tit. ii. arts. I1-13.

PART II

222

RULE OF LAW COMPAREDWITH DROIT ADMINISTRATIF

with the operations of administrative bodies, or summon before themadministrative officials on account of anything done by reason of theiradministrative duties. Napoleon had imbibed to the utmost the spiritof these enactments. He held, as even at a much later date did all
persons connected with the executive government, thatthe judges are the enemies of the servants of the State, and that there is always
reason to fear their attempts to compromise
the public interests by their
malevolent,
or at best rash, interference in the usual course of government
business. 20

This fear was during the Empire, at any rate, assuredly groundless.
Administrative officials met with no resistance from the Courts. Afterthe Revolution the judges exhibited boundless humility and servile
submission, they trembled before the power and obeyed the orders,often insolent enough, of the government. 21Itis difficult, however,to see how in the days of Napoleon the ordinary judges could, whatever their courage or boldness, have interfered with the conduct of
the government or its agents. They are even now, as a rule, without
jurisdiction in matters which concern the State. They have no right todetermine, for instance, the meaning and legal effect in case it beseriously disputed of official documents, as, for example, of a letter
addressed by a Minister of State to a subordinate, or by a general to aperson under his command. They are even now in certain cases
without jurisdiction as to questions arising between a private person
and a department of the government. In Napoleon's time 22they
could not, without the consent of the government, have entertained
criminal or civil proceedings against an official for a wrong done or a
20 "'On a sutn"l'influence de ce prf'jugd dominant chez les gouvernants, dans l' administration et m_nechez laplupart des jurisconsultes, que les agents judidaires _nt les ennemis n_s des agents administratifs, qu'il y a toujours _ craindre leurs tentatives de wmpromettre la chose publique par leurintervention--malveillante
ou tout au moins inwnsid&_e--dans la marche normale de l"administration."--J6_ze(ed. 19o4), p. 239.

2_ "Les agents administratifs, dans leur artn"traire v_ritablement inou'L ne recontr_rent aucune r_sistance chez les agents judidaires. Ceux-ci, apr_s laRdvolution, ont montr_ une humilit_ sans limite etune soumission servile. C'est en tremblant qu'ils ont toujours _ aux ordres parfois insolents duGouvernement."--J6ze,
p. 128.
22 See Constitution of Year VIII., art. 75, P- 227, post.

CHAPTERXII223

LAW OF THE CONSTITUTION

crime committed by such offidal in respect of private individuals
when acting in discharge of his official duties. The incompetence,
however, of the judicial Courts did not mean, even under Napoleon,
that a person injured by an agent of the government was without aremedy. He might bring his grievance before, and obtain redress
from, the administrative tribunals, i.e. in substance the Council ofState, or proceedings might, where a crime or a wrong was complained of, be, with the permission of the government, taken before
the ordinary Courts.
_,)Co_The co-existence of judicial Courts and of administrative Courts
cts ofjun_dJct,
on.results of necessity in raising questions of jurisdiction. A, for example, in some judicial Court claims damages against X for a breach ofcontract, or it may be for what we should term an assault or false
imprisonment. X's defence in substance is that he acted merely as aservant of the State, and that the case raises a point of administrative
law determinable only by an administrative tribunal, or, speaking
broadly, by the Council of State. The objection, in short, is that the
judicial Court has no jurisdiction. How is this dispute to be decided?
The natural idea of an Englishman is that the conflict must be determined by the judicial Courts, i.e. the ordinary judges, for that thejudges of the land are the proper authorities to define the limits of
their own jurisdiction. This view, which is so natural to an English
lawyer, is radically opposed to the French conception of the separation of powers, since it must, if systematically carried out, enable the
Courts to encroach on the province of the administration. It contradicts the principle still recognised as valid by French law that administrative bodies must never be troubled in the exercise of theirfunctions by any act whatever of the judicial power; 23 nor can an
Englishman, who recollects the cases on general warrants, deny that
our judges have often interfered with the action of the administration. The worth of Montesquieu's doctrine is open to question, but if
his theory be sound, it is dear that judicial bodies ought not to beallowed to pronounce a final judgment upon the limits of their own
authority.
23 See Aucoc, Droit Administratif,

PARTIIs. 24.

224

RULE OF LAW COMPARED

W/TH DROIT ADMINISTRATIF

Under the legislation of Napoleon the right to determine suchquestions of jurisdiction was in theory reserved to the head of theState, but was in effect given to the Council of State, that is, to thehighest of administrative Courts. Its authority in this matter was, as it
still is, preserved in two different ways. If a case before an ordinary or
judicial Court dearly raised a question of administrative law, theCourt was bound to see that the inquiry was referred to the Councilof State for decision. Suppose, however, the Court exceeded, or thegovernment thought that it exceeded, its jurisdiction and trenched
upon the authority of the administrative Court, a prefect, who, be it
remarked, is a mere government official, could raise a conflict, that is
to say, could, by taking the proper steps, insist upon the question ofjurisdiction being referred for decision to the Council of State. We canhardly exaggerate the extent of the authority thus conferred upon theCouncil. It has the right to fix the limits of its own power, it could in
effect take out of the hands of a judicial Court a case of which the
Court was already seised.24_4_
ProThe fourth and most despotic characteristic of droit administratif lies
tenon ofof,oal_ in its tendency to protect 2s from the supervision or control of theordinary law Courts any servant of the State who is guilty of an act,
however illegal, whilst acting in bonaf/de obedience to the orders of
his superiors and, as far as intention goes, in the mere discharge of
his official duties.

n_of
State

Such an official enjoyed from 18oo fill x872 a triple protection (garantie des fonctionnaires).
In the first place, he could not be made responsible before any
Court, whether judicial or administrative, for the performance of any
act of State (actede gouvernement).
24 Up to _828 it was possible to raise a conflict (_leverun conflit) in any criminal no less thanin any civil case. Nor is it undeserving of notice that, whilst a conflict could be raised inorder to prevent a judicial Court from encroaching on the sphere of an administrative
Court, there was in Napoleon's time and still is no legal means for raising a conflict with aview to prevent an administrative Court from encroaching on the sphere of a judicial
Court.
25 This protection of officials may be displayed in parts of French law (e.g. Code P6nal, art.
z14)which do not technically belong to droit administratif, but it is in reality connected withthe whole system of administrative law.

CHAPTER

XII

225

LAWof:THECONSnTUTXONThe law of France has always recognised an indefinite class of acts,
i.e. acts of State, which, as they concern roarers of high policy or of
public security, or touch upon foreign policy or the execution oftreaties, or concern dealings with foreigners, must be left to the uncontrolled discretion of the government, and lie quite outside thejurisdiction of any Court whatever. What may be the exact definitionof an act of State is even now, it would appear in France, a moot point
on which hi S authorities are not entirely agreed. It is therefore impossible for any one but a French lawyer to determine what are theprecise qualities which turn conduct otherwise illegal into an act ofState of which no French Court could take cognisance. Of recent
years the tendency of French lawyers has certainly been to narrow
down the sense of an ambiguous term which lends itself easily to thejustification of tyranny. We may feel sure, however, that during the
Napoleonic era and for long afterwards any transaction on the part of
the government or its servants was deemed to be an act of State
which was carried out bonafide with the object of furthering theinterest or the security of the country.
Ob_d.enceIn the second place, the French Penal Code, Art. 114,26protected,
toorders.
as it still protects, an official from the penal consequences of any
interference with the personal liberty of fellow citizens when the act
complained of is done under the orders of his official superior.27
26 "Art. 114. Lorsqu' un fonctionnaire public, un agent ou un pr_pos_ du Gouvernement, aura
ordonn_ ou fait quelque acte arbitraire, et attentatoire soit ?zla libert_ individuelle, soit aux droits
dviques d' un ou de plusieurs citoyens, soit fzla Charte, il sera condamn_ _ la peine de la d2gradation
civique.
"'Si n_anrnoins il justifie qu'il a agi par ordre de ses sup&rieurs pour des objets du ressort de ceux-ci,
sur lesquels il leur Ptait dr1ob_issance hi_rarchique, il sera exempt_ de lawine, laquelle sera, dans ce
cas, appliqude seulement aux sup_rieurs qui auront donn_ l'ordre. "--Code Pdnal, art. 214;andGarqon, Code Poml annot_, p. 245- With this read Garqon, Code P_nal, arts. 34 and 87,
compare Code d'instruction criminelle, art. xo;Duguit, Manuel, pp. 524-527, and generally
Duguit, L'Etat. ch. v. s. lo, pp. &5-634.
27 None but a French criminalist can pronounce with anything like certainty on the full
effect of Art. 114, but Gar_on's comment thereon (Code P_nal, pp. 245-255) suggests to an
English lawyer that an offender who brings himself within the exemption mentioned in thesecond clause of the Article, though he may be found guilty of the offence charged, cannot
be punished for it under Art. x14, or any other Article of the Penal Code, and that Art. 114
protects a very wide dass of public servants. (See Garcon, comment under heads D and E,
pp. 249-252, and under G, p. 253, and para. 200, p. 254. Read also Duguit, Manuel, ss.
75-77, especially pp. 504, 527; Duguit, L'_tat, pp. 615-634. )PARTII226

RULE OF LAW COMPAREDWITH DROIT ADMINISTRATIF

In the third place, under the celebrated Article 75_ of the Constitution of the Year VIII., i.e. of 18oo, no official could, without the permission of the Council of State, be prosecuted or otherwise be proceeded against, for any act done in relation to his official duties.
The protection given was ample. Artide 75 reads indeed as if it
applied only to prosecutions, but was construed by the Courts so as
to embrace actions for damages. 29Under the Napoleonic Constitution no servant of the State, whether a prefect, a mayor, or a policeman, whose conduct, however unlawful, met with the approval of
the government, ran any real risk of incurring punishment or of
paying damages for any act which purported to be done in dischargeof his official duties.
The effect practically produced by the four characteristics of droit
administratif, and especially the amount of the protection provided for
officials acting in obedience to the orders of their superiors, depends
in the main on the answer to one question: What at a given time isfound to be the constitution and the character of the Council of State?
Was it then under Napoleon a law Court administering judicially aparticular branch of French law, or was it a department of the executive government? The answer is plain. The Council, as constituted orrevived by Bonaparte, was the very centre of his whole governmental
fabric. It consisted of the most eminent administrators whom Napoleon could gather round him. The members of the Council wereentitled and were bound to give the supreme ruler advice. The Council, or some of the Councillors, took part in affairs of all descriptions.
It is hardly an exaggeration to say that, subject to the absolute will of
Napoleon, the members of the Council constituted the government.
They held office at his pleasure. The Councillors dealt with policy,
It is difficult for an Englishman to understand how under the Code P_a/a prefect, a
policeman, or any other servant of the State, acting bona fide under the orders of his proper
official superior, can be in danger of punishment for crimes such as assault, unlawful
imprisonment, and the like.
28 "Les agents du Gouvernement, autres que les ministres, ne peuvent _tre poursuivis pour des fairs
relatifs _ leurs fonctions, qu'en vertu d'une d_dsion du conseil d'_tat: en ce cas, la poursuite a lieu
devant les tribunaux ordinaires."--Duguitand Mormier, Les Constitutions de la France(deuxi6me ed.), p. I27.
29 See Jacquelin, Les Principes Dominants du Contentieux Administratif, p. LT.7.

CHAPTER XII

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LAW

OF THE CONSTITUTION

with questions of administration, with questions of administrativelaw. In 2800 it is probable that administrative suits were not very
dearly separated from governmental business. The Council, moreover, even when acting judicially, was more of a Ministry than ofa Court, and when the Council, acting as a Court, had given its
decision, or tendered its advice, it possessed no means for compellingthe executive to give effect to its decisions. As a matter of fact, years
have sometimes elapsed before the executive of the day has thought
fit to put the judgments of the Council into force, and it was not till
1872 that its decisions acquired by law the character of real judgments. It was, moreover, as we have already pointed out, originally the final Conflict-Court. It had a right to determine whether agiven case did or did not concern administrative law, and therefore
whether it fell within its own jurisdiction or within the jurisdiction of
the ordinary Courts. Thus the state of things which existed in France
at the beginning of the nineteenth century bore some likeness to what
would be the condition of affairs in England if there were no, or little,
distinction between the Cabinet as part of the Privy Council and the
Judicial Committee of the Privy Council, and if the Cabinet, in its
character of a Judicial Committee, determined all questions arising
between the government on the one side, and private individuals on
the other, and determined them with an admitted reference to considerations of public interest or of political expediency. Nor was any
material change produced by the fall of Napoleon. The restored
monarchy eagerly grasped the prerogatives created by the Empire.
There was even a sort of return to the unrestrained arbitrariness of
the Directory. It was not until _828, that is, within two years of theexpulsion of Charles X., that public opinion enforced some restriction
on the methods by which the administrative authorities, i.e. the government, invaded the sphere of the judicial Courts.
There are two reasons why it is worth while to study with care thedroit administratif of our first period. The administrative law of to-day
has been built up on the foundations laid by Napoleon. The Courts
created by him still exist; their jurisdiction is still defined in accordance, in the main, with the lines which he laid down. True it is thatmachinery invented to support a scheme of rational absolutism has inlater limes been used by legists and reformers for the promotion of
PARTII

228

RULE OF LAW COMPAREDWITH DROIT ADMINISTRATIF

legal liberty. But it is a fact never to be forgotten that the administrative law of France originated in ideas which favour the prerogatives of
the government as the proper defence for the interest of the nation.
SECOND PERIOD: THE ORLEANS MONARCHYAND THE SECOND EMPIRE I83o-187o _oMonarch,- This period deserves the special attention of English students.
c_pe_oaNapoleonic Imperiali._m was absolutism; the Restoration was reaction; neither admits of satisfactory comparison with any governmental system known to modern England. The forty years, on theother hand, which intervened between the expulsion of Charles X.
and the fall of Napoleon In., though marked by three violent changes--the Revolution of 1848, the coup d'_tat of 185_, the overthrow of theSecond Empire in _87omform, as a whole, a time of civil order. During
these forty years France was, with the exception of not more than six
months, governed under the established law of the land. An age ofpeaceful progress gives an opening for illuminafive comparison between the public law of France and the public law of England. This
remark is particularly applicable to the reign of Louis Philippe. He
was, in the eyes of Englishmen, above all things, a constitutional
king. 31His Parliamentary ministries, his House of peers, and his
House of deputies, the whole framework and the very spirit of his
government, seemed to be modelled upon the constitution of England; under his rule the supremacy of the ordinary law of the land,
administered by the ordinary law Courts, was, as Englishmen supposed, as securely established in France as in England. They learn
with surprise, that during the whole of these forty years few, if any,legislative or Parliamentary reforms 32touched the essential characteristics of droit administratif as established by Napoleon. It re30 Little account need be taken of the Second Republic, 1848-1851. Its legislative reforms in
administrative law did not outlive its brief and troubled duration.
31 His accession to the throne was aided by an obvious, but utterly superficial, analogy
between the course of the English Revolution in the seventeenth century and of the great
French Revolution in the eighteenth and nineteenth centuries. Louis Philippe, it was supposed, was exactly the man to perform in France the part which William llI. had played inEngland, and dose the era of revolution.
32 It was, however, gradually reformed to a great extent by a process of judidal legislation,i.e. by the Council of State acting in the spirit of a law Court.
CHAPTER

XII

229

LAW OF THE CONSTITUTION

mained, as it still does, a separate body of law, dealt with by administrative Courts. With this law the judicial Courts continued to have, as
they sffil have, no concern. The introduction of Parliamentary government took from the Council of State, during the reign of Louis
Philippe, many of its political functions. It remained, however, as it
does to-day, the great administrative Court. It preserved what it does
not now retain, 33 the right to define the jurisdiction of the judicial
Courts. Servants of the State remained in possession of every prerogative or privilege ensured to them by custom or by Napoleoniclegislation. Droit administratif, in short, retained till 187o all its essential
features. That this was so is apparent from two considerations:Theoun- First, the Council of State never, during the period with which we
cil notCan
absolutely
are concerned, became a thoroughly judicial body.
UoddlClal
Y
This indeed is a point on which an English critic must speak withsome hesitation. He will remember how easily a Frenchman, eventhough well acquainted with England, might at the present moment
misinterpret the working of English institutions, and imagine, forinstance, from the relation of the Lord Chancellor to the Ministry,that the Cabinet, of which the Chancellor is always a member, could
influence the judgment given in an action entered in the Chancery
Division of the High Court, whereas, as every Englishman knows,
centuries have passed since the Lord Chancellor, when acting as a
judge in Chancery, was in the slightest degree guided by the interestor the wishes of the Cabinet. An English critic will also rememberthat at the present day the Council of State commands as profoundrespect as any Court in France, and stand in popular estimation
on a level with the Court of Cassation--thehighest of judicial
tribunals--andfurther, that the repute of the Council has risen during every year since 183o. Yet, subject to the hesitation which becomes any one who comments on the working of institutions which
are not those of his own country, an English lawyer must condude
that between 183oand 187o the Council, while acting as an administrative tribunal, though tending every year to become more and morejudicialised, was to a considerable extent an official or governmental
33 See as to present

PARTII

Conflict-Court,

p. 238, post.

230

RULE OF LAW COMPAREDWITH DRO1T ADMINISTRATIF

body, the members of which, when acting in the discharge of quasijudicial functions, were likely to be swayed by ministerial or offidal
sentiment. This assertion does not imply that the Council, consisting of persons of the highest eminence and character, did not
aim at doing or did not constantly do justice. What is meant is that
the Council's idea of justice was not likely to be exactly the same asthat entertained by judicial or common law Courts.
Nod,
Secondly, the legal protection of officials suffered no diminution.
mlnUtlOn,n protecNO man could be made liable before any Court whatever for carryt_on of ofhc,a,_ ing out an act of State (actede gouvernement).34 And under the rule ofLouis Philippe, as under the Second Empire, wide was the extension
given, both in theory and in practice, to this indefinite and undefined
expression.
In i832 the Duchesse de Berry attempted to raise a civil war in La
Vend6e. She was arrested. The king dared not let her leave thecountry. He would not put on trial the niece of his wife. Republicans
and Legitimists alike wished her to be brought before a law Court.
The one class desired that "Caroline Berry" should be treated as an
ordinary criminal, the other hoped to turn the Duchess into a popularheroine. The case was debated in Parliament again and again. Petitions demanded that she should either be set at liberty or brought
before a jury. The government refused to take either course. She wasdetained in prison until private circumstances deprived her both ofcredit and of popularity. She was then quietly shipped off to Sicily.
The conduct of the government, or in fact of the king, was illegal
from beginning to end. The Ministry confessed, through the mouthof Monsieur Thiers, that the law had been violated. A vote of the
Chamber of Deputies--notbe it noted an act of legislation n
supplied, it was held, full justification for a breach of the law. ss This
was the kind of authority ascribed in 1832 by the constitutional Ministers of a constitutional monarch to an act of State. This most elastic of
34 See p. 225, ante.
35 "M. Thiers, dans/a s&nce du 2o juin, avoua hautement tout ce qu'il y avait eu d'illOgaldarts
l'arrestation, la dOtention, la mise en libertd de la duchesse; c'_ttn"
t _ la Chambre _ decider si l"on avait
agi clans l'int_r_t bien entendu du salut public. La Chambre passa _ l"ordre du jour."-- Gr6goire,
Histoire de France, i. p. 364 . See also ibid. pp. 292-3o8, 356-364.

CHAPTER XII

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LAW OF THE CONSTITUTION

pleas was, it would seem, the excuse or the defence for the dealingsof Napoleon III. with the property of the Orleans family; nor is it easy
to believe that even as late as _88o some of the proceedings against
the unauthorised congregations were not examples of the spirit
which places an act of State above the law of the land.
The Penal Code Artide 114, 36 protecting from punishment, though
not from legal condemnation, an agent of the government who
though he committed a crime acted in obedience to the commands of
his official superiors, remained, as it still remains, in full force.
The celebrated Artide 75 of the Constitution of the Year VIII. ,37
which made it impossible to take legal proceedings for a crime or awrong against any official without the permission of the Council ofState, which surely in this case must have acted in accordance withthe government of the day, still stood unrepealed.
Public opinion refused to regard the Council as a judicial tribunal,and condemned the protection extended to official wrongdoers. Hearon this point the language of Alexis de Tocqueville:
In the Year VIII. of the French Republic a constitution was drawn up inwhich the following clause was introduced: "Art. 75- All the agents of thegovernment below the rank of ministers can only be prosecuted 3afor offences relating to their several functions by virtue of a decree of the Conseil
d'Etat; in which case the prosecution takes place before the ordinary tribunals." This clause survived the "Constitution de FAn VIII.," and it isstill maintained in spite of the just complaints of the nation. I have always
found the utmost difficulty in explaining its meaning to Englishmen or
Americans. They were at once led to conclude that the Conseil d'l_tat inFrance was a great tribunal, established in the centre of the kingdom, which
exercised a preliminary and somewhat tyrannical jurisdiction in all politicalcauses. But when I told them that the Conseil d'Etat was not a judicial body,in the common sense of the term, but an administrative
council composed ofmen dependent on the Crown, so that the King, after having ordered one ofhis servants, called a Prefect, to commit an injustice, has the power of commanding another of his servants, called a Councillor of State, to prevent theformer from being punished; when I demonstrated
to them that the citizen
36 See p. 226, note 26, ante.
37 See pp. 226-22 7, ante.
38 This term was extended by legal decisions so as to cover actions for damages. See
Jacquelin,Les PrincipesDominantsdu ContentieuxAdministratif, p. _27.

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RULE OF LAW COMPARED WITH DROITADMINISTRATIF
who has been injured by the order of the sovereign is obliged to solicit fromthe sovereign permission to obtain redress, they refused to credit so flagrant
an abuse, and were tempted to accuse me of falsehood or of ignorance. It
frequently happened before the Revolution that a Parliament issued a warrant against a public officer who had committed an offence, and sometimes
the proceedings were stopped by the authority of the Crown, which enforced compliance with its absolute and despotic will. It is painful to perceive
how much lower we are sunk than our forefathers, since we allow things topass under the colour of justice and the sanction of the law which violencealone could impose upon them.a9

This classical passage from Tocqueville's Democracy in America waspublished in _835, when, at the age of 30, he had obtained a fame
which his friends compared to that of Montesquieu. His estimate ofdroit administratif assuredly had not changed when towards the end of
his life he published L'Ancien R_gime et la Rdvolution, by far the mostpowerful and the most mature of his works. He writes:
We have, it is true, expelled the judicial power from the sphere of government into which the ancien r_gime had most unhappily allowed its introduction, but at the very same time, as any one can see, the authority of thegovernment has gradually been introducing itself into the natural sphere of
the Courts, and there we have suffered it to remain as if the confusion of
powers was not as dangerous if it came from the side of the government as if
it came from the side of the Courts, or even worse. For the intervention of
the Courts of Justice into the sphere of government only impedes the management of business, whilst the intervention of government in the administration of justice depraves citizens and tums them at the same time both into
revolutionists and slaves. 40

These are the words of a man of extraordinary genius who wellknew French history, who was well acquainted with the France of hisday, who had for years sat in Parliament, who at least once had been
39 A. de Tocqueville, Democracyin America, i. (translation), p. lo_; (EuvresCompletes,i. pp.
174,175.
40 "Nous avons, il est vrai, chass_la justicede la sphereadministrativeo_ l'ancien r_gimel'avait
laiss_es'introduirefort indt_ment;mais dans lem_ae temps,commeon levoiL legouvernements'introduisaitsans cessedans la spherenaturelledelajustice, et nous l"y avons laiss_:commesi laconfusiondespouvoirsn'dtaitpasaussi dangereusedece c6t_quede l"autre,et m£mlepire;carl'interventionde lajustice dans l'administrationne nuit qu'aux affaires,tandis que l'interventiondel'administrationdans la justiced_praveles hommeset tend _les rendretout _ lafois rdvolutionnaires
et serviles."--Tocqueville, L'Ancien R_gimeet la Rdvolution, septi6me @dilion,p. 81.

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LAW OF THE CONSTITUTION

a member of the Cabinet, and to whom the public life of his own
country was as well known as the public life of England to Macaulay.
TocqueviUe's language may bear marks of an exaggeration, explainable partly by his turn of mind, and partly by the line of thought
which made him assiduously study and possibly overrate the doseness of the connection between the weaknesses of modern democracy and the vices of the old monarchy. Be this as it may, he assuredly expressed the educated opinion of his time. A writer who has
admirably brought into view the many merits of the Council of Stateand the methods by which it has in matters of administrative litigation acquired for itself more and more of a judicial character, acutely
notes that till the later part of the nineteenth century the language ofeveryday life, which is the best expression of popular feeling, applied
the terms "courts of justice" or "justice" itself only to the judicial orcommon law Courts. 41What stronger confirmation can be found of
the justice of Tocqueville's judgment for the time at least in which helived?
Effectof
We can now understand the way in which from 2830 to 2870 theml,,strot,rexistenceof adroit administratif affected the whole legal position of
on position
ofF,en_h French public servants, and rendered it quite different from that ofofflaalsEnglish officials.
Persons in the employment of the government, who formed, be it
observed, a more important part of the community than do the wholebody of English civil servants, occupied in France a situation in somerespects resembling that of soldiers in England. For the breach of
official discipline they were, we may safely assume, readily punishable in one form or another. But if like English soldiers they were
subject to official discipline, they enjoyed what even soldiers in England do not possess, a very large amount of protection against proceedings before the judicial Courts for wrongs done to private citizens. The position, for instance, of say a prefect or a policeman, whoin the over-zealous discharge of his duties had broken the law bycommitting an assault or a trespass, was practically unassailable. He
might plead that the wrong done was an act of State. If this defence
drolt ad-41 J6ze, p. _38, note 1.

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would not avail him he might shelter himself behind Article i14 of thePenal Code, and thus escape not indeed an adverse verdict but thepossibility of punishment. But after all, if the Ministry approved of
his conduct, he had no need for legal defences. He could not, without
the assent of the Council of State, be called upon to answer for his
conduct before any Court of law. Artide 75 was the palladium of
official privilege or irresponsibility. Nor let any one think that thisarm of defence had grown rusty with time and could not in practicebe used. Between _852and 1864 there were 264 applications for authorisations under Artide 75 to take proceedings against officials.
Only 34 were granted, or, in other words, 230 were refused. 42The
manifest injustice of the celebrated Article had been long felt. Even in
1815Napoleon had promised its modification.
THIRD PERIOD: THE THIRD REPUBLIC, i87o-I9o8
Within two years from the fall of the Second Empire public opinion
insisted upon three drastic reforms in the administrative or official
law of France.
Repeal
Art 75ofOn the 19th of September 187o Artide 75 was repealed.
It had survived the Empire, the Restoration, the Orleans Monarchy, the Republic of i848, and the Second Empire. The one thingwhich astonishes an English critic even more than the length of time
during which the celebrated Artide had withstood every assault, isthe date, combined with the method of its abolition. It was abolished on the 19th of September 187o, when the German armies werepressing on to Paris. It was abolished by a Government which hadcome into office through an insurrection, and which had no claim to
actual power or to moral authority except the absolute necessity forprotecting France against invasion. It is passing strange that a provisional government, occupied with the defence of Paris, should haverepealed a fundamental principle of French law. Of the motives
which led men placed in temporary authority by the accidents of arevolution to carry through a legal innovation which, in appearance
42 See Jacquelin, Les Principes Dominants du Contentieux Administratif, p. 364.
It is worth notice that the principle of Article 75 was, at any rate till lately, recognised
more than one State of the German Empire.

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LAW OF THE CONSTITUTION

at least, alters the whole position of French officials, no foreign observer can form a certain opinion. It is, however, a plausible conjecture, confirmed by subsequent events, that the repeal of Artide 75
was lightly enacted and easily tolerated, because, as many lawyers
may have suspected, it effected a change more important in appearance than in reality, and did not after all gravely touch the position of
French functionaries or the course of French administration. 43
A circumstance which fills an English lawyer with further amazement is that the repeal of Article 75 became, and still without any
direct confirmation by any legislative assembly remains, part of thelaw of the land. Here we come across an accepted principle of French
constitutional law which betrays the immense authority concededboth by the law and by the public opinion of France to any de facto andgenerally accepted government. Such a body, even if like the provisional government of 2848 it is called to office one hardly knows how,by the shouts of a mob consisting of individuals whose names for themost part no one now knows at all, is deemed to possess whilst it
continues in power the fullest legislative authority. It is, to use Frenchterms, not only a legislative but a constituent authority. It can issue
decrees, known by the technical name of decree laws (decr_tslois),44
which, until regularly repealed by some person or body with acknowledged legislative authority, are often as much law of the landas any Act passed with the utmost formality by the present French
National Assembly. Contrast with this ready acceptance of gov43 For some confirmation of this view, see Aucoc, Droit Administratif, ss. 419-426; Jacquelin,]uridiction Administrative, p. 427; Laferri6re, i. bk. iii. ch. vii.
The admission, however, involved in the repeal of Artide 75 of the general principle that
officials are at any rate prima facie liable for illegal acts, in the same way as private persons,marks, it is said by competent authorities, an important change in the public opinion ofFrance, and is one among other signs of a tendency to look with jealousy on the power of
the State.
44 See for the legal doctrine and for examples of such decree laws, Duguit, Manuel, pp.
2o37, lO38; Moreau, Le R_glement Administratif, pp. 2o3, _o4. Such decree laws were passedby the provisional government between the 24th of February and the 4th of May 1848; byLouis Napoleon between the coup d'_tat of 2nd December 1851 and 29th March _852, that is,a ruler who, having by a breach both of the law of the land and of his oaths usurped
supreme power, had not as yet received any recognition by a national vote; and lastly, by
the Governmentof National Defence between 4th September 287o and _.th February 287l,
that is, by an executive which might in strictness be called a government of necessity.

PARTll236

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emn_ntal authority the view taken by English Courts and Parliaments of every law passed from _642to _66o which did not receive theRoyal assent. Some of them were enacted by Parliaments of a ruler
acknowledged both in England and in many foreign countries as thehead of the English State; the Protector, moreover, died in peace, andwas succeeded without disturbance by his son Richard. Yet not asingle law passed between the outbreak of the Rebellion and the
Restoration is to be found in the English Statute Book. The scrupulous legalism of English lawyers acknowledged in 2660no Parliamentary authority but that Long Parliament which, under a law regularly
passed and assented to by Charles I., could not be dissolved without
its own consent. A student is puzzled whether most to admire or
to condemn the sensible but, it may be, too easy acquiescence ofFrenchmen in the actual authority of any defacto government, or thelegalism carried to pedantic absurdity of Englishmen, who in mattersof statesmanship placed technical legality above those rules of obvious expediency which are nearly equivalent to principles of justice.
This apparent digression is in reality germane to our subject. It exhibits the different light in which, even in periods of revolution,
Frenchmen and Englishmen have looked upon the rule of law.
The strange story of Artide 75 needs a few words more for its
completion. The decree law of 19th September _87oreads as if it
absolutely subjected officials accused of any breach of the law to thejurisdiction of the judicial Courts. This, moreover, was in fact theview taken by both the judicial and the administrative Courts between _87oand _872.4s But judicial decisions can in France, as elsewhere, frustrate the operation of laws which they cannot repeal.
After _87oproceedings against officials, and offidals of all ranks,
became frequent. This fact is noteworthy. The government wished toprotect its own servants. It brought before the newly constituted
Conflict-Court 46a case raising for reconsideration the effect of thedecree law of 29th September 287o. The Court held that, thoughproceedings against officials might be taken without the leave of the
45 See in support of this view, Jacquelin, Les Principes Dominants du Contentieux Administratif, pp. 127-144.
46 See pp. 239- 24o, post.

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LAW OF THE CONSTITUTION

Council of State, yet that the dogma of the separation of powers muststill be respected, and that it was for the Conflict-Court to determine
whether any particular case fell within the jurisdiction of the judicial
Courts or of the administrative Courts, that is in effect of the Councilof State. 4vThe principle of this decision has now obtained general
acceptance. Thus a judgment grounded on that doctrine of the separation of powers which embodies traditional jealousy of interferenceby ordinary judges in affairs of State has, according, at any rate, toone high authority, reduced the effect of the repeal of Arfide 75
almost to nothing. "To sum the matter up," writes Duguit, "the only
difference between the actual system and that which existed under
the Constitution of the Year VIII. is that before 2870 the prosecution ofState officials was subject to the authorisation of the Council ofState, whilst to-day it is subject to the authorisation of the ConflictCourt."48(2)DeoUnder the law of z4th May 1872, 49 the decisions of the Council ofCouno_
ofState
concerning cases of administrative law received for the first time
State beSlOnS of

j_°dm_en_"the obligatory force of judgments. They had hitherto been in theory,and from some points of view even in practice, as already pointed
out, s° nothing but advice given to the head of the State.
_)c....
The same law sl which enhanced the authority of the Council's
honof,ndedecisions diminished its jurisdiction. The Council had, since 18OO,
endentCourt
onnict- decided whether a given case, or a point that might arise in a given
case, fell within the jurisdiction of the judicial Courts or of the administrative Courts, i.e. in substance of the Council itself. This au-

47 See Pelletier's Case, decided 26th July 1873; and in support of an interpretation of the law
which has now received general approval, Laferri6re, i. pp. 637-654; Berth61emy, p. 65;
Duguit, Manuel, s. 67, pp. 463, 464; J_ze, pp. 133-135.
48 "Finaleraent la seule difference entre lesyst_me actuel et celui de la constitution de l'an VIII., c'est
qu' avant I87o lapoursuite contre les fonctionnaires _tait subordonnd,e a l'autorisat_'ondu Conseil
d'_tat, et qu"aujourd'hui die est subordonn_ _ l'autonsation du tribunal des conflits. "_Duguit,
Manuel, p. 464 .
49 Sect. 95 ° Seepp.

227-228, ante.

51 Law of 24th May 1872, Tit. iv. art. 25-28.

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RULE OF LAW COMPAREDWITH DROIT ADMINISTRATIF

thority or power was, in 1872, transferred to a separate and newly
constituted Conflict-Court.S2
This Conflict-Court has been carefully constituted so as to represent equally the authority of the Court of Cassationuthe highest
judicial Court in Francemand the authority of the Council of State-the highest administrative Court in France. It consists of nine members:uthree members of the Court of Cassation elected by theircolleagues; three members of the Council of State, also elected bytheir colleagues; two other persons elected by the above six judges of
the Conflict-Court. All these eight members of the Court hold officefor three years. They are re-eligible, and are almost invariably reelected. The Minister of Justice (gardedes sceaux) for the time being,
who is a member of the Ministry, is ex offic/oPresident of the Court.
He rarely attends. The Court elects from its own members a VicePresident who generally presides, s3 The Conflict-Court comes near toan absolutely judicial body; it commands, according to the best authorities, general confidence. But its connection with the Government of the day through the Minister of Justice (who is not necessarily a lawyer) being its President, and the absence on the part of its
members of that permanent tenure of office, s4 which is the best security for perfect judicial independence, are defects, which, in theopinion of the fairest among French jurists, ought to be removed, 5s
and which, as long as they exist, detract from the judicial character of
the Conflict-Court. An Englishman, indeed, can hardly fail to surmise that the Court must still remain a partly official body which may
occasionally be swayed by the policy of a Ministry, and still more
often be influenced by official or governmental ideas. Nor is thissuspicion diminished by the knowledge that a Minister of Justice has
52 Such a separate Conflict-Court had been created under the Second Republic, _848- _85_.
It fell to the ground on the fall of the Republic itself in consequence of thecoup d'_tat of _851.
53 See Appendix, Note XI., Constitution
88o, 881; Chardon, p. 412.

of Tribunal des Conflits; Berth61emy (Sth ed.), pp.

54 A member of the Council of State does not hold this position as Coundllor for life. He
may be removed from the Council by the government. But no Coundllor has been removed
since 1875.
55 Laferri6re, i. p. 24; Chardon,

CHAPTERXII

p. 4, note 2; J6ze, pp. 133, 134.

239

LAW OF THE CONSTITUTION

within the year _9o8 defended his position as President of the Courton the ground that it ought to contain some one who represents theinterests of the government. 56
The
reThese three thorough-going reforms were carried out by legislative
forms ther_u_tof action. They obviously met the requirements of the time.S7 They were
evolutaon
ofaro.aa-rapid; they appeared to be sudden. This appearance is delusive. They
mintstrattf.
were in reality the outcome of a slow but continuous revolution in
French public opinion and also of the perseverance with which thelegists of the Council of State, under the guidance of French jurisprudence and logic, developed out of the arbitrariness of administrative
practice a fixed system of true administrative law. To understand thisevolution of droit administratif during the lapse of more than a century(18oo-19o8) we must cast a glance over the whole development of thisbranch of French law and regard it in the fight in which it presents
itself, not so much to an historian of France as to a lawyer who looks
upon the growth of French public law from an historical point ofview. We shall then see that the years under consideration fall into
three periods or divisions, s8 They are:
The Period of Unnoticed Growth, I8oo- I8(P6riode D'61aboration Secr6te)
During these years the Council, by means of judicial precedents,
created a body of maxims, in accordance with which the Council infact acted when deciding administrative disputes.
The Period of Publication, I818-6o(P6riode de Divulgation)
During these forty-two years various reforms were carried out,
partly by legislation, but, to a far greater extent, by judge-made law.
56 See J6ze, Revue de Droit public, etc. (19o8), vol. xxv. p. 257.
57 They were either tacitly sanctioned (decree law of 19th September 187o) or enacted (lawof 24th May 1872) even before the formal establishment of the Republic (1875) by a National
Assembly of which the majority were so far from being revolutionists,
or even reformers,that they desired the restoration of the monarchy.
58 See Hauriou, pp. 245-268. These periods do not precisely correspond with the threeeras marked by political changes in the annals of France under which we have alreadyconsidered (see pp. 217- 218, ante) the history of droit administratif.

PARTII240

RULE OF LAW COMPAREDWITH DROIT ADMINISTRATIFThe judicial became more or less separated off from the administrative functions of the Council. Litigious business (/e oontent/eux administratif) was in practice assigned to and decided by a special committee (sect/on), and, what is of equal consequence, such business was
decided by a body which acted after the manner of a Court which
was addressed by advocates, heard arguments, and after public debate delivered judicial decisions. These decisions were reported, became the object of much public interest, and were, after a mannerwith which English lawyers are well acquainted, moulded into asystem of law. The judgments, in short, of the Council acquired theforce of precedent. The political revolutions of France, which haveexcited far too much notice, whilst the uninterrupted growth ofFrench institutions has received too little attention, sometimes retarded or threw back, but never arrested the continuous evolution ofdroit administratif; even under the Second Empire this branch of
French jurisprudence became less and less arbitrary and developed
more and more into a system of fixed and subtle legal rules.
The Periodof Organisation, 186o-I 9o8(P6fiode d'Organisation)
During the last forty-eight years, marked as they have been in
France by the change from the Empire to a Republic, by the German
invasion, and by civil war, the development of droit adrainistratifhas
exhibited a singular and tranquil regularity. Sudden innovations havebeen rare and have produced little effect. The reforms introduced by
the decree law of 19th September _87o, and by the law of 24th May
2872, are, taken together, considerable; but they in reality give effectto ideas which had since _8oo more or less guided the judicial legislation and practice both of the Council of State and of the Court ofCassation. If the legal history of France since i8oo be looked at as awhole, an Englishman may reasonably condude that the arbitrary
authority of the executive as it existed in the time of Napoleon, andeven as it was exercised under the reign of Louis Philippe or of Louis
Napoleon, has gradually, as far as the jurisdiction of the administrative Courts is concerned, been immensely curtailed, if not absolutely
brought to an end. Droit administratif, though administered by bodies

CHAPTERXII241

LAW OF THE CONSTITUTION

which are perhaps not in strictness Courts, and though containing
provisions not reconcilable with the modem English conception of
the rule of law, comes very near to law, and is utterly different fromthe capricious prerogatives of despotic power.
(B)
Com
A comparison between the administrative law of France and ourparison betweendroit
Englishrole of law, if taken from the right point of view, suggests
admlntstrot,rand
ruleof law some interesting points of likeness, no less than of unlikeness.
_L_ken_s It will be observed that it is "modem" English notions which we_tPoi,t have contrasted with the ideas of administrative law prevalent inDrott adm,n,strat/rFrance and other continental states. The reason why the opposition
not oppose_to between the two is drawn in this form deserves notice. At a period
Enghsh,deas
cur- Which historically is not very remote from us, the ideas as to therent in sixtse_ethandposition of the Crown which were current, if not predominant in
t_nth_e,- England, bore a very dose analogy to the doctrines which have given
tunes.
rise to the droit administratif of France. s9 Similar beliefs moreovernecessarily produced similar results, and there was a time when it
must have seemed possible that what we now call administrative law
should become a permanent part of English institutions. For from theaccession of the Tudors fill the final expulsion of the Stuarts the
Crown and its servants maintained and put into practice, with moreor less success and with varying degrees of popular approval, viewsof government essentially similar to the theories which under different fonns have been accepted by the French people. The personal
failings of the Stuarts and the confusion caused by the combination ofa religious with a political movement have tended to mask the true
character of the legal and constitutional issues raised by the politicalcontests of the seventeenth century. A lawyer, who regards the matter from an exdusively legal point of view, is tempted to assert thatthe real subject in dispute between statesmen such as Bacon andWentworth on the one hand, and Coke or Eliot on the other, waswhether a strong administration of the continental type should, orshould not, be permanently established in England. Bacon and men
like him no doubt underrated the risk that an increase in the power of
59 This is illustrated
Englandpp. 16_-164,

PARTI1by the similarityand on the continent

betweenthe views

at one time prevailingas to the relation

betweenthe government

ante.

242

both inand the press.

See

RULE OF LAW COMPAREDWITH DRO1T ADMINISTRATIF

the Crown should lead to the establishment of despotism. But advocates of the prerogative did not (it may be supposed) intend to sacrifice the liberties or invade the ordinary private rights of citizens;
they were struck with the evils flowing from the conservative legalism of Coke, and with the necessity for enabling the Crown ashead of the nation to cope with the selfishness of powerful individuals and dasses. They wished, in short, to give the government thesort of rights conferred on a foreign executive by the principles ofadministrative law. Hence for each feature of French droit administratif
one may find some curious analogy either in the claims put forward
or in the institutions favoured by the Crown lawyers of the seventeenth century.
The doctrine, propounded under various metaphors by Bacon, thatthe prerogative was something beyond and above the ordinary law
is like the foreign doctrine that in matters of high policy (actede
gouvernement) the administration has a discretionary authority whichcannot be controlled by any Court. The celebrated dictum that thejudges, though they be "lions," yet should be "lions under thethrone, being circumspect that they do not check or oppose any
points of sovereignty,"6° is a curious anticipation of the maxim formulated by French revolutionary statesmanship that the judges areunder no circumstances to disturb the action of the administration,
and would, if logically worked out, have led to the exemption of
every administrative act, or, to use English terms, of every act alleged
to be done in virtue of the prerogative, from judicial cognisance. The
constantly increasing power of the Star Chamber and of the Council
gave practical expression to prevalent theories as to the Royal prerogative, and it is hardly fancifial to compare these Courts, whichwere in reality portions of the executive government, with the Conseil
d'_tat and other Tribunaux administratifs of France. Nor is a parallelwanting to the celebrated Article 75 of the Constitution of the Year
VIII. 61This parallel is to be found in Bacon's attempt to prevent thejudges by means of the writ De non procedendoRege inwnsulto from60 Gardiner, History of England, Ffi.p. 2.
61 See p. 227, ante.

CHAPTER XII

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LAW OF THE CONSTITUTION

proceeding with any case in which the interests of the Crown wereconcerned. Mr. Gardiner observes:
The working of this writ, if Bacon had obtained his object, would have been,
to some extent, analogous to that provision which has been found in somany French constitutions, according to which no agent of the Government
can be summoned before a tribunal, for acts done in the exercise of his office,without a preliminary authorisation by the Council of State. The effect of the
English writ being confined to cases where the King was himself supposed
to be injured, would have been of less universal application, but the principle on which it rested would have been equally bad. 62

The principle moreover admitted of unlimited extension, and this, we
may add, was perceived by Bacon. He writes to the King:
The writ is a mean provided by the ancient law of England to bring any casethat may concern your Majesty in profit or power from the ordinary Benches, to betried and judged before the Chancellor of England, by the ordinary and legal partof this power. And your Majesty knoweth your Chancellor is ever a principal
counsellor and instrument of monarchy, of immediate dependence on the king; andtherefore like to be a safe and tender guardian of the regal rights. 63

Bacon's innovation would, if successful, have formally establishedthe fundamental dogma of administrative law, that administrative
questions must be determined by administrative bodies.
The analogy between the administrative ideas which still prevail on
the Continent 64and the conception of the prerogative which wasmaintained by the English crown in the seventeenth century has
considerable speculative interest. That the administrative ideas supposed by many French writers to have been originated by the statesmanship of the great Revolution or of the first Empire are to a great
extent developments of the traditions and habits of the Frenchmonarchy is past a doubt, and it is a curious inquiry how far theefforts made by the Tudors or Stuarts to establish a strong govern62Gardiner, History of England, iii. p. 7, note 2.
63 Abbot, FrancisBacon,p. 234.
64 Itis worth noting that the system of "administrative law,'"though more fully judicialised
in France than elsewhere, exists in one form or another in most of the Continental States.

PART II

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RULE OF LAW COMPAREDWITH DROIT ADMINISTRATIF

ment were influenced by foreign examples. This, however, is a problem for historians. A lawyer may content himself with noting that
French history throws light on the causes both of the partial successand of the ultimate failure of the attempt to establish in England astrong administrative system. The endeavour had a partial success,because circumstances, similar to those which made French monarchs ultimately despotic, tended in England during the sixteenthand part of the seventeenth century to augment the authority of the
Crown. The attempt ended in failure, partly because of the personal
deficiendes of the Stuarts, but chiefly because the whole scheme ofadministrative law was opposed to those habits of equality before thelaw which had long been essential characteristics of English institutions.
2nd
Fo,nt
Droit administratif is in its contents utterly unlike any branch of
Droztadm,,,_trat,_
modernEnglish law, but in the method of its formation it resembles
1Scase-law.
English law far more closely than does the codified civil law ofFrance. For droit administratif is, like the greater part of English law,"case-law," or "judge-made law."6s The precepts thereof are not to
be found in any code; they are based upon precedent: French lawyers
cling to the belief that droit administratzf cannot be codified, just as
English and American lawyers maintain, for some reason or otherwhich they are never able to make very dear, that English law, andespecially the common law, does not admit of codification. The true
meaning of a creed which seems to be illogical because its apologists
cannot, or will not, give the true grounds for their faith, is that the
devotees of droit administratif in France, in common with the devoteesof the common law in England, know that the system which theyeach admire is the product of judicial legislation, and dread thatcodification might limit, as it probably would, the essentially legislative authority of the tribunaux administratifs in France, or of the judges
in England. The prominence further given throughout every treatiseon droit administratif to the contentieux administratif recalls the importance in English lawbooks given to matters of procedure. The cause is
65 See Dicey, Law and Opinion in England, Lect. Yd. p. 359, and Appendix, Note W. p. 482. It
may be suspected that English lawyers underrate the influence at the present day exerted
by precedent (Jurisprudence) in French Courts.

CHAPTER XII

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LAW

OF THE CONSTITUTION

in each case the same, namely, that French jurists and English
lavcyers are each dealing with a system of law based on precedent.
Nor is it irrelevant to remark that the droit administratif of France,
just because it is case-law based on precedents created or sanctionedby tribunals, has, like the law of England, been profoundly influenced by the writers of text-books and commentaries. There are various branches of English law which have been reduced to a few logicalprinciples by the books of well-known writers. Stephen transformed
pleading from a set of rules derived mainly from the experience ofpractitioners into a coherent logical system. Private international law,as understood in England at the present day, has been developed
under the influence first of Story's Commentaries on the Conflict of Laws,
and next, at a later date, of Mr. Westlake's Private International Law.
And the authority exercised in every field of English law by theseand other eminent writers has in France been exerted, in the fieldof administrative law, by authors or teachers such as Cormenin,
Macarel, Vivien, Laferri6re, and Hauriou. This is no accident.
Wherever Courts have power to form the law, there writers of textbooks will also have influence. Remark too that, from the very natureof judge-made law, Reports have in the sphere of droit administratif an
importance equal to the importance which they possess in every
branch of English law, except in the rare instances in which a portionof our law has undergone codification.
3rd point.
But in the comparison between French droit administratif and the
Evolution
ofaro,
toe- law of England a critic ought not to stop at the points of likeness,,,,,,,_tr,,t¢arising from their each of them being the creation of judicial decisions. There exists a further and very curious analogy between theprocess of their historical development. The Conseil d'_tat has been
converted from an executive into a judicial or quasi-judicial body by
the gradual separation of its judicial from its executive functions
through the transference of the former to committees (sections), whichhave assumed more and more distinctly the duties of Courts. These"judicial committees" (to use an English expression) at first only advised the Conseil d'Etat or the whole executive body, though it wassoon understood that the Council would, as a general rule, follow or
ratify the decision of its judicial committees. This recalls to a student
of English law the fact that the growth of our whole judicial system
PART II

246

RULE OF LAW COMPAREDWITH DROIT ADMINISTRATIF

may historically be treated as the transference to parts of the King's
Council of judicial powers originally exercised by the King in Council;
and it is reasonable to suppose that the rather ill-defined relations
between the Conseil d'l_tat as a whole, and the Comit_ du wntentieux, 66
may explain to a student the exertion, during the earlier periods ofEnglish history, by the King's Council, of hardly distinguishable judicial and executive powers; it explains also how, by a natural process
which may have excited very little observation, the judicial functionsof the Council became separated from its executive powers, and how
this differentiation of functions gave birth at last to Courts whose
connection with the political executive were merely historical. This
process, moreover, of differentiation assisted at times, in France noless than in England, by legislation, has of quite recent years changed
the Conseil d'l_tat into a real tribunal ofdroit administratif, as it createdin England the Judicial Committee of the Privy Council for the regularand judicial decision of appeals from the colonies to the Crown inCouncil. Nor, though the point is a minor one, is it irrelevant to note
that, as the so-called judgments of the Conseil d'l_tat were, till _872,
not strictly "judgments," but in reality advice on questions of droit
administratzf given by the Conseil d'_tat to the head of the Executive,
and advice which he was not absolutely bound to follow, so the"judgments" of the Privy Council, even when acting through its
judicial committee, though in reality judgments, are in form merely
humble advice tendered by the Privy Council to the Crown. This
form, which is now a mere survival, carries us back to an earlier
period of English constitutional history, when the interference by theCouncil, i.e. by the executive, with judicial functions, was a real
menace to that supremacy of the law which has been the guarantee ofEnglish freedom, and this era in the history of England again iscuriously illustrated by the annals of droit administratif after the restoration of the Bourbons, _8_5-3o.
At that date the members of the Conseil d'l_tat, as we have seen, 67
held, as they still hold, office at the pleasure of the Executive; they
were to a great extent a political body; there existed further no Con66 See Laferri_re, i. p. 236.
67 See pp. 227-228, ante.
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LAW OF THE CONSTITUTION

flict-Court; or rather the Conseil d'l_tat was itself the Conflict-Court, orthe body which determined the reciprocal jurisdiction of the ordinary
law Courts and of the administrative Courts, i.e. speaking broadly,
the extent of the Council's own jurisdiction. The result was that theConseil d'l_tat used its powers to withdraw cases from the decision of
the law Courts, and this at a time when government functionaries
were fully protected by Artide 75 of the Constitution of the Year VIII.
from being made responsible before the Courts for official acts donein excess of their legal powers. Nevertheless, the Conseil d'/_t_t, justbecause it was to a great extent influenced by legal ideas, resisted,
and with success, exertions of arbitrary power inspired by the spirit ofRoyalist reaction. It upheld the sales of the national domain madebetween 2789and _8x4;it withstood every attempt to invalidate decisions given by administrative authorities during the period of the
Revolution or under the Empire. The King, owing, it may be assumed, to the judicial independence displayed by the Conseil d'l_tat,
took steps which were intended to transfer the decision of administrative disputes from the Council or its committees, acting as Courts,
to Councillors, acting as part of the executive. Ordinances of 1814andof _8_7 empowered the King to withdraw any administrative dispute
which was connected with principles of public interest (toutes les affaires du contentieux de l'administration qui se lieraient _ des vues d'int_r_t
g_n_ral) from the jurisdiction of the Conseil d'Etat and bring it before
the Council of Ministers or, as it was called, the Conseil d'en haut, andthe general effect of this power and of other arrangements, which weneed not follow out into detail, was that questions of droit administratif, in the decision of which the government were interested, were
ultimately decided, not even by a quasi-judicial body, but by the Kingand his Ministers, acting avowedly under the bias of political considerations. _ In _828 France insisted upon and obtained from Charles X.
changes in procedure which diminished the arbitrary power of theCouncil. 69But no one can wonder that Frenchmen feared the increase of arbitrary power, or that French liberals demanded, after the
68 See Laferri6re, i. pp. 226-234,
comme juridiction (1818).

and Cormenin, Du Conseil d'ttat envisag_ comme conseil et

69 Ordinance of _st June 1828, Laferri6re, i. p. 232.

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OF LAW COMPAREDWITH

DROIT ADMINISTRATIF

Revolution of x83o, the abolition of administrative law and of administrative Courts. They felt towards the jurisdiction of the Counseil
d'Etat the dread entertained by Englishmen of the sixteenth andseventeenth centuries with regard to the jurisdiction of the Privy
Council, whether exercised by the Privy Council itself, by the Star
Chamber, or even by the Court of Chancery. In each country there
existed an appredable danger lest the rule of the prerogative shouldsupersede the supremacy of the law.
The comparison is in many ways instructive; it impresses upon us
how nearly it came to pass that something very like administrative
law at one time grew up in England. It ought, too, to make us perceive that such law, if it be administered in a judicial spirit, has initself some advantages. It shows us also the inherent danger of its not
becoming in strictness law at all, but remaining, from its dose connection with the executive, a form of arbitrary power above or evenopposed to the regular law of the land. It is certain that in the sixteenth and seventeenth centuries the jurisdiction of the Privy Council
and even of the Star Chamber, odious as its name has remained, didconfer some benefits on the public. It should always be rememberedthat the patriots who resisted the tyranny of the Smarts were fanatics
for the common law, and could they have seen their way to do sowould have abolished the Court of Chancery no less than the Star
Chamber. The Chancellor, after all, was a servant of the Crown
holding his office at the pleasure of the King, and certainly capable,
under the plea that he was promoting justice or equity, of destroying
the certainty no less than the formalism of the common law. The
parallel therefore between the position of the English puritans, orwhigs, who, during the seventeenth century, opposed the arbitrary
authority of the Council, and the position of the French liberals who,
under the Restoration (x8x5- 3o), resisted the arbitrary authority of theConseil d'l_tat and the extension ofdroit administratif, is a dose one. In
each case, it may be added, the friends of freedom triumphed.
The result, however, of this triumph was, it will be said, as regards
the matter we are considering, markedly different. Parliament destroyed, and destroyed for ever, the arbitrary authority of the Star
Chamber and of the Council, and did not suffer any system of ad-

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ministrative Courts or of administrative law to be revived or developed in England. The French liberals, on the expulsion of the
Bourbons, neither destroyed the tribunaux administratifs nor made adean sweep of droit administratif.
The difference is remarkable, yet any student who looks beyond
names at things will find that even here an obvious difference conceals a curious element of fundamental resemblance. The Star Chamber was abolished; the arbitrary jurisdiction of the Council disappeared, but the judicial authority of the Chancellor was touchedneither by the Long Parliament nor by any of the Parliaments which
met yearly after the Revolution of 1688. The reasons for this difference
are not hard to discover. The law administered by the Lord Chancellor, or, in other words, Equity, had in it originally an arbitrary or
discretionary element, but it in fact conferred real benefits upon thenation and was felt to be in many respects superior to the common
law administered by the common-law Judges. Even before _66o acuteobservers might note that Equity was growing into a system of fixedlaw. Equity, which originally meant the discretionary, not to say
arbitrary interference of the Chancellor, for the avowed and often real
purpose of securing substantial justice between the parties in a given
case, might, no doubt, have been so developed as to shelter andextend the despotic prerogative of the Crown. But this was not thecourse of development which Equity actually followed; at any ratefrom the time of Lord Nottingham (_673) it was obvious that Equity
was developing into a judicial system for the application of principles
which, though different from those of the common law, were not lessfixed. The danger of Equity turning into the servant of despotism had
passed away, and English statesmen, many of them lawyers, were
little likely to destroy a body of law which, if in one sense an anomaly, was productive of beneficial reforms. The treatment of droit
administratif in the nineteenth century by Frenchmen bears a marked
resemblance to the treatment of Equity in the seventeenth century by
Englishmen. Droit administratif has been the subject of much attack.
More than one publicist of high reputation has advocated its abolition, or has wished to transfer to the ordinary or civil Courts (tr/bunauxjudiciaires) the authority exercised by the administrative tri-

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bunals, but the assaults upon droit administrah'f have been repulsed,
and the division between the spheres of the judic_ and the spheresof the administrative tribunals has been maintained. Nor, again, isthere much difficulty in seeing why this has happened. Droit administratif with all its peculiarities, and administrative tribunals withall their defects, have been suffered to exist because the system as awhole is felt by Frenchmen to be beneficial. Its severest critics concede that it has some great practical merits, and is suited to the spiritof French institutions. Meanwhile droit administratif has developed
under the influence rather of lawyers than of politicians; it has during
the last half-century and more to a great extent divested itself of its
arbitrary character, and is passing into a system of more or less fixed
law administered by real tribunals; administrative tribunals indeed
still lack some of the qualities, such as complete independence of theGovernment, which Englishmen and many Frenchmen also think
ought to belong to all Courts, but these tribunals are certainly very far
indeed from being mere departments of the executive government.
To any person versed in the judicial history of Enid,it would
therefore appear to be possible, or even probable, that droit administratif may ultimately, under the guidance of lawyers, become,through a course of evolution, as completely a branch of the law ofFrance (even if we use the word 'qaw" in its very strictest sense) as
Equity has for more than two centuries become an acknowledged
branch of the law of England.
4th
Po,nt
The annals of droit administratif during the nineteenth century
RapM
growthof elucidate again a point in the earlier history of English law which
case-law.
excites some perplexity in the mind of a student, namely, the rapidity
with which the mere existence and working of law Courts may create
or extend a system of law. Any reader of the History of English Law by
Pollock and Maitland may well be surpised at the rapidity with which
the law of the King's Court became the general or common law of theland. This legal revolution seems to have been the natural result of
the vigorous exertion of judicial functions by a Court of great authority. Nor can we feel certain that the end attained was deliberately
aimed at. It may, in the main, have been the almost undesigned effectof two causes: the first is the disposition always exhibited by capable

CHAPTER

xn

2 51

LAW OF THE CONSTITUTION

judges to refer the decision of particular cases to general principles,
and to be guided by precedent; the second is the tendency of inferior
tribunals to follow the lead given by any Court of great power andhigh dignity. Here, in short, we have one of the thousand illustrations of the principle developed in M. Tarde's Lois de l'imitation,that the innate imitativeness of mankind explains the spread, first,
throughout one country, and, lastly, throughout the civilised world,of any institution or habit on which success or any other circumstancehas conferred prestige. It may still, however, be urged that the creation under judicial influence of a system of law is an achievement
which requires for its performance a considerable length of time, andthat the influence of the King's Court in England in moulding thewhole law of the country worked with incredible rapidity. It is certainly true that from the Norman Conquest to the accession of Edward I. (lO66-1272) is a period of not much over two centuries, andthat by 1272 the foundations of English law were firmly laid; whilst if
we date the organisation of our judicial system from the accession ofHenry II. (7a54), we might say that a great legal revolution was carriedthrough in not much more than a century. It is at this point that thehistory of droit administratif helps the student of comparative law.
One need not, however, be greatly astonished at rapidity in thedevelopment of legal principles and of legal procedure at a period
when the moral influence or the imaginative impressiveness of powerful tribunals was much greater than during the later stages ofhuman progress. In any case it is certain--andthe fact is a most
instructive one--that under the conditions of modern civilisation
a whole body of legal rules and maxims, and a whole system ofquasi-judicial procedure, have in France grown up within not much
more than a century. The expression "grown up" is here deliberately
used; the development of droit adrninistratifbetween 18ooand 19o8
resembles a natural process. It is as true of this branch of French law, Unlike-asof the English constitution that it "has not been made but has
hess.
1st
adrnimsPoint. Drolt

grown.

,,

bet'at'fiaen-n°t
to An intelligent student soon finds that droit administratif contains
tiffed witha.ypa.of rules as to the status, the privileges, and the duties of governmentlaw of Eng_,a.
officials. He therefore thinks he can identify it with the laws, regula-

PARTII

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RULE OF LAW COMPAREDWITH DROrr ADMINISTRATIF

tions, or customs which in England determine the position of theservants of the Crown, or (leaving the army out of consideration) of
the Civil Service. Such "official law" exists, though only to a limited
extent, in England no less than in France, and it is of course possible
to identify and compare this official law of the one country with theofficial law of the other. But further investigation shows that official
law thus understood, though it may form part of, is a very different
thing from droit administratif. The law, by whatever name we term it,which regulates the privileges or disabilities of civil servants is the lawof a dass, just as military law is the law of a dass, namely, the army.
But droit administratif is not the law of a dass, but--a very different
thing-- a body of law which, under given circumstances, may affectthe rights of any French citizen, as for example, where an action isbrought by A against X in the ordinary Courts (tn'bunaux judiciaires),and the rights of the parties are found to depend on an administrativeact (acteadministratif), which must be interpreted by an administrative
tribunal (tribunal administratif). In truth, droit administratIf is not thelaw of the Civil Service, but is that part of French public law which
affects every Frenchman in relation to the acts of the public administration as the representative of the State. The relation indeed of droit
administratif to the ordinary law of France may be best compared notwith the relation of the law goveming a particular class (e.g. mi_tarylaw) to the general law of England, but with the relation of Equity to
the common law of England. The point of likeness, slight though inother respects it be, is that droit administratif in France and Equity in
England each constitute a body of law which differs from the ordinary law of the land, and under certain circumstances modifies theordinary civil rights of every citizen.
When our student finds that droit administratif cannot be identified
with the law of the Civil Service, he naturally enough imagines that it
may be treated as the sum of all the laws which confer special powers
and impose special duties upon the administration, or, in otherwords, which regulate the functions of the Government. Such laws,
though they must exist in every country, have fill recently been few
in England, simply because in England the sphere of the State's
activity has, till within the last fifty or sixty years, been extremely

CHAPTERxu

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LAW OF THE CONSTITUTION

limited. But even in England laws imposing special functions upon
government offidals have always existed, and the number thereof
has of late vastly increased; to take one example among a score, theFactory legislation, which has grown up mainly during the latter halfof the nineteenth century, has, with regard to the inspection andregulation of manufactories and workshops, given to the Government and its officials wide rights, and imposed upon them wide
duties. If, then, droit administratif meant nothing more than the sumof all the laws which determine the functions of civil servants, droit
administratif might be identified in its general character with the governmental law of England. The idea that such an identification ispossible is encouraged by the wide definitions of droit administratif tobe gathered from French works of authority, 70and by the vaguenesswith which English writers occasionally use the term "administrativelaw." But here, again, the attempted identification breaks down.
Droit administratif, as it exists in France, is not the sum of the powers
possessed or of the functions discharged by the administration; it israther the sum of the principles which govern the relation between
French citizens, as individuals, and the administration as the representative of the State. Here we touch upon the fundamental difference between English and French ideas. In England the powersof the Crown and its servants may from time to time be increased asthey may also be diminished. But these powers, whatever they are,must be exercised in accordance with the ordinary common law principles which govern the relation of one Englishman to another. A
factory inspector, for example, is possessed of peculiar powers conferred upon him by Act of Parliament; but if in virtue of the orders of
his superior officials he exceeds the authority given him by law, hebecomes at once responsible for the wrong done, and cannot plead in
his defence strict obedience of official orders, and, further, for the tort
he has committed he becomes amenable to the ordinary Courts. In
France, on the other hand, whilst the powers placed in the hands ofthe administration might be diminished, it is always assumed that therelation of individual citizens to the State is regulated by principles
7° See Aucoc, Droit AdrainistratT"f,i. s. 6; Hauriou, Precis de Droit Administratif,
242, and 6th ed., pp. 39_, 392; Laferri_re, i. pp. _-8.

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3rd ed., p.

RULE OF LAW COMPAREDWITH DROIT ADMINISTRATIF

different from those which govern the relation of one French dtizen
to another. Droit administratif, in short, rests upon ideas absolutely
foreign to English law: the one, as I have already explained, 71is thatthe relation of individuals to the State is governed by principles essentially different from those rules of private law which govern therights of private persons towards their neighbours; the other is thatquestions as to the application of these principles do not lie within thejurisdiction of the ordinary Courts. This essential difference renders
the identification of droit administratif with any branch of English law
an impossibility. Hence inquiries which rightly occupy French jurists,
such, for example, as what is the proper definition of the contentieux
administratif; what is the precise difference between actes de gestion andactes de puissance publique, and generally, what are the boundaries
between the jurisdiction of the ordinary Courts (tribunaux judiciaires)and the jurisdiction of the administrative Courts (tribunaux administrah'fs) have under English law no meaning.
2haPad-oint Has droit administratif been of recent years introduced in any sense
Drolt_,,,strat,
f into the law of England?
notm real,tv,n_roThis is an inquiry which has been raised by writers of eminence, _2
diJced mto
lawof Eng- and which has caused some perplexity. We may give thereto a deland
cided and negative reply.
The powers of the English Government have, during the last sixty
years or so, been largely increased; the State has undertaken many
new functions, such, for example, as the regulation of labour under
the Factory Acts, and the supervision of public education under the
7I Seep. 219, ante.
72 See Laferri_re, i. pp. 97-_o6. To cite such enactments as the Public Authorities Protection Act 2893, which by the way does little more than generalise provisions, to be found in a
lot of Acts extending from _6ox to 19oo, as an example of the existence of administrative law
in England, seems to me little else than playing with words. The Act assumes that every
person may legally do the act which by law he is ordered to do. It also gives a person who
acts in pursuance of his legal duty, e.g. under an Act of Parliament, special privileges as tothe time within which an action must be brought against him for any wrong committed byhim in the course of carrying out his duty, but it does not to the least extent provide that anorder from a superior official shall protect, e.g. a policeman, for any wrong done by him.
There are, indeed, one or two instances in which no legal remedy can be obtained except
against the actual wrong-doer for damage inflicted by the conduct of a servant of the
Crown. These instances are practically unimportant. See Appendix, Note XII., "Proceedings against the Crown."

CHAPTER

XII

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OF THE CONSTITUTION

Education Acts. Nor is the importance of this extension of the activityof the State lessened by the consideration that its powers are in manycases exercised by local bodies, such, for example, as County Councils. But though the powers conferred on persons or bodies who
directly or indirectly represent the State have been greatly increasedin many directions, there has been no intentional introduction into
the law of England of the essential principles of droit administratif.
Any official who exceeds the authority given him by the law incurs
the common law responsibility for his wrongful act; he is amenable tothe authority of the ordinary Courts, and the ordinary Courts havethemselves jurisdiction to determine what is the extent of his legal
power, and whether the orders under which he has acted were legal
and valid. Hence the Courts do in effect limit and interfere with theaction of the "administration,"using that word in its widest sense.
The London School Board, for example, has daimed and exercised
the right to tax the ratepayers for the support of a kind of education
superior to the elementary teaching generally provided by School
Boards; the High Court of Justice has decided that such right does notexist. A year or two ago some officials, acting under the distinct
orders of the Lords of the Admiralty, occupied some land alleged tobelong to the Crown; the title of the Crown being disputed, a court oflaw gave judgment against his officials as wrong-doers. In each ofthese cases nice and disputable points of law were raised, but noEnglish lawyer, whatever his opinion of the judgments given by the
Court, has ever doubted that the High Court had jurisdiction todetermine what were the rights of the School Board or of the Crown.
Droit administratif, therefore, has obtained no foothold in England,but, as has been pointed out by some foreign critics, recent legislation
has occasionally, and for particular purposes, given to officials something like judicial authority. It is possible in such instances, which are
rare, to see a slight approximation to droit administratif, but the innovations, such as they are, have been suggested merely by considerations of practical convenience, and do not betray the least intention
on the part of English statesmen to modify the essential principles ofEnglish law. There exists in England no true droit administratif.

PARTI1256

RULE OF LAW COMPAREDWITH DROIT ADMINISTRATIFAn English lawyer, however, who has ascertained that no branchof English law corresponds with the administrative law of foreigncountries must be on his guard against falling into the error that thedroit administratif of modern France is not "law" at all, in the sense inwhich that term is used in England, but is a mere name for maxims
which guide the executive in the exercise if not of arbitraryyet of
discretionary power. That this notion is erroneous will, I hope, be
now clear to all my readers. But for its existence there is some excuse
and even a certain amount of justification.
The French Government does in fact exercise, especially as regards
foreigners, a wide discretionary authority which is not under thecontrol of any Court whatever. For an act of State the Executive or its
servants cannot be made amenable to the jurisdiction of any tribunal,
whether judicial or administrative. Writers of high authority havediffered 73indeed profoundly as to the definition of an act of State(acredegouvernement). 74Where on a question of French law Frenchjurists disagree, an English lawyer can form no opinion; he may beallowed, however, to conjecture that at times of disturbance a French
Government can exercise discretionary powers without the dread ofinterference on the part of the ordinary Courts, and that administrative tribunals, when they can intervene, are likely to favour thatinterpretation of the term act of State which supports the authority of
the Executive. However this may be, the possession by the French
Executive of large prerogatives is apt, in the mind of an Englishman,
to be confused with the character of the administrative law enforced
by Courts composed, in part at any rate, of officials.
The restrictions, again, placed by French law on the jurisdiction of
the ordinary Courts (tribunaux judiciaires) whereby they are prevented
from interfering with the action of the Executive and its servants,
seem to an Englishman accustomed to a system under which the
Courts of law determine the limits of their own jurisdiction, to be
73 See p. 226, ante.
74 Compare Laferri_re, ii. bk. iv. ch. ii. p. 32, and Hauriou, pp. 282-287, witlh JacqueEn,
PP- 438-447.

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LAW OF THE CONSTITUTION

much the same thing as the relegating of all matters in which theauthority of the State is concerned to the discretion of the Executive.
This notion is erroneous, but it has been fostered by a circumstancewhich may be termed accidental. The nature and the very existenceof droit administratifhas been first revealed to many Englishmen, as
certainly to the present writer, through the writings of Alexis de
Tocqueville, whose works have exerted, in the England of the nineteenth century, an influence equal to the authority exerted by theworks of Montesquieu in the England of the eighteenth century.
Now Tocqueville by his own admission knew little or nothing of theactual working of droit administratif in his own day. 7s He no doubt in
his later years increased his knowledge, but to the end of his life helooked upon droit administratl"f,not as a practising lawyer but as thehistorian of the ancien r#gime, and even as an historian he studied thesubject from a very peculiar point of view, for the aim of L'Ancien
R#gime et la Rbvolution is to establish the doctrine that the institutionsof modern France are in many respects in spirit the same as theinstitutions of the ancient monarchy; and Tocqueville, moved by thedesire to maintain a theory of history which in his time sounded like aparadox, but, owing greatly to his labours, has now become a generally accepted truth, was inclined to exaggerate the similarity between
the France of the Revolution, the Empire, or the Republic, and theFrance of the ancien rbgime. Nowhere is this tendency more obvious
than in his treatment of droit administratif. He demonstrates that theideas on which droit administratif is based had been accepted by
French lawyers and statesmen long before _789;he notes the arbitrariness of droit administratif under the monarchy; he not only insists
upon but deplores the connection under the ancien r#gimebetween
the action of the Executive and the administration of justice, and hecertainly suggests that the droit administratif of the nineteenth century
was all but as dosely connected with the exercise of arbitrary poweras was the droit administrat_'fof the seventeenth or the eighteenth
century.
75 Tocqueville, vii. CEuvres Complbtes, p. 66.

PART II

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RULE OF LAW COMPAREDWITH DROIT ADMINISTRATIFHe did not recognise the change in the character of droit administratif which was quietly taking place in his own day. He could not byany possibility anticipate the reforms which have occurred during thelapse of well-nigh half a century since his death. What wonder that
English lawyers who first gained their knowlege of French institutions from Tocqueville should fail to take full account of that judidalisafion (juridictionnalisation) of administrative law which is one of themost surprising and noteworthy phenomena in the legal history ofFrance.
_iMent_
It is not uninstructive to compare the merits and defects, on the one
and dement_ hand, of our English rule of law, and, on the other, of French droit
administratif .
_,_eo_
Our rigid rule of law has immense and undeniable merits. Indilaw--its
me.t_ vidual freedom is thereby more thoroughly protected in Englandagainst oppression by the government than in any other European
country; the Habeas Corpus Acts 76protect the liberty no less offoreigners than of British subjects; martial law 77itself is reduced
within the narrowest limits, and subjected to the supervision of the
Courts; an extension of judicial power which sets at nought thedogma of the separation of powers, happily combined with judidal
independence, has begotten reverence for the bench of judges. They,rather than the government, represent the august dignity of theState, or, in accordance with the terminology of English law, of the
Crown. Trial by jury is open to much criticism; a distinguished
French thinker may be right in holding that the habit of submitting
difficult problems of fact to the decision of twelve men of not morethan average education and intelligence will in the near future beconsidered an absurdity as patent as ordeal by battle. Its success in
England is wholly due to, and is the most extraordinary sign of,
popular confidence in the judicial bench. A judge is the colleague andthe readily accepted guide of the jurors. The House of Commons
shows the feeling of the electors, and has handed over to the High76 See pp. _3o-131, ante.
77 See p. 18o, ante.

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LAW OF THE CONSTITUTION

Court of Justice the trial of election petitions. When rare occasions
arise, as at Sheffield in 1866, which demand inquiries of an exceptional character which can hardly be effected by the regular procedure of the Courts, it is to selected members of the bench that thenation turns for aid. In the bitter disputes which occur in the conflicts
between capital and labour, employers and workmen alike will often
submit their differences to the arbitration of men who have been
judges of the High Court. Reverence, in short, for the supremacy ofthe law is seen in its very best aspect when we recognise it as being in
England at once the cause and the effect of reverence for our judges.
Defects
The blessings, however, conferred upon the nation by the rule oflaw are balanced by undeniable, though less obvious, evils. Courts
cannot without considerable danger be turned into instrumentsof government. It is not the end for which they are created; it is a
purpose for which they are ill suited at any period or in any country
where history has not produced veneration for the law and for the
law Courts.78 Respect for law, moreover, easily degenerates into
legalism which from its very rigidity may work considerable injury to
the nation. Thus the refusal to look upon an agent or servant of theState as standing, from a legal point of view, in a different position
from the servant of any other employer, or as placed under obligations or entitled to immunities different from those imposed upon or
granted to an ordinary citizen, has certainly saved England from thedevelopment of the arbitrary prerogatives of the Crown, but it has
also in more ways than one been injurious to the public service.
The law, for instance, has assuredly been slow to recognise the factthat violations of duty by public officials may have an importance anddeserve a punishment far greater than the same conduct on the partof an agent of an ordinary employer. Some years ago a copyist in a
public office betrayed to the newspapers a diplomatic document of
the highest importance. Imagination can hardly picture a more flagrant breach of duty, but there then apparently existed no available
7 8 In times of revolutionary passion trial by jury cannot secure respect for justice. The worst
iniquities committed by Jeffreys at the Bloody Assize would have been impossible had he
not found willing accomplices in the jurors and freeholders of the western counties.

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means for punishing the culprit. If it could have been proved that hehad taken from the office the paper on which the communication ofstate was written, he might conceivably have been put on trialfor
larceny.79 But a prisoner put on trialfor a crime of which he was infact morally innocent, because the gross moral offence of which he
was really guilty was not a crime, might have counted on an acquittal.
The Official Secrets Act, _889,8° now, it is true, renders the particularoffence, which could not be punished in _878, a misdemeanour, but
the Act, after the manner of English legislation, does not establish
the general principle that an official breach of trust is a crime. It istherefore more than possible that derelictions of duty on the part ofpublic servants which in some foreign countries would be severely
punished may still in England expose the wrong-doer to no legal
punishment.
Nor is it at all wholly a benefit to the public that bonafide obedienceto the orders of superiors is not a defence available to a subordinate
who, in the discharge of his functions as a government officer, has
invaded the legal rights of the humblest individual, or that officials
are, like everybody else, accountable for their conduct to an ordinary
Court of law, and to a Court, be it noted, where the verdict is given

bya jury.
In this point of view few things are more instructive than an examination of the actions which have been brought against officers of
the Board of Trade for detaining ships about to proceed to sea. Under
the Merchant Shipping Acts since _876the Board have been and arebound to detain any ship which from its unsafe and unseaworthy
condition cannot proceed to sea without serious danger to human
life. 81Most persons would suppose that the officials of the Board, aslong as they, bonafide, and without malice or corrupt motive, endeavoured to carry out the provisions of the statute, would be safe
79 See Annual Register, 1878, Chronicle, p. 71.
80 Repealed and superseded by the Offidal Secrets Act, 1911, 1 & 2Geo. 5, c. 28, described
as "An Act to re-enact the Official Secrets Act, _889, with Amendments." See especially sec. 2.
81 Merchant Shipping Act, 18oA (57 & 58 Vict. c. 6o), s. 459.

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from an action at the hands of a shipowner. This, however, is not so.
The Board and its officers have more than once been sued withsuccess. 82They have never been accused of either malice or negligence, but the mere fact that the Board act in an administrative
capacity is not a protection to the Board, nor is mere obedience to theorders of the Board an answer to an action against its servants. Any
deviation, moreover, from the exact terms of the Acts--the omissionof the most unmeaning formalitymmay
make every person, highand low, concerned in the detention of the ship, a wrong-doer. The
question, on the answer to which the decision in each instance atbottom depends, is whether there was reasonable cause for detaining
the vessel, and this inquiry is determined by jurymen who sympathise more keenly with the losses of a shipowner, whose ship may
have been unjustly detained, than with the zeal of an inspector anxious to perform his duty and to prevent loss of life. The result has (it issaid) been to render the provisions of the Merchant Shipping Acts,
with regard to the detention of unseaworthy ships, nugatory. Juries
are often biassed against the Government. A technical question isreferred for decision, from persons who know something about the
subject, and are impartial, to persons who are both ignorant andprejudiced. The government, moreover, which has no concern but
the public interest, is placed in the false position of a litigant fighting
for his own advantage. These things ought to be noticed, for they
explain, if they do not justify, the tenacity with which statesmen, as
partial as Tocqueville to English ideas of government, have dung to
the conviction that administrative questions ought to be referred toadministrative Courts.
D_o,t,stra.rmerits
admm-

The merits of administrative law as represented by modern Frenchdroit administratif, that is. when seen at its very best. escape the attention, and do not receive the due appreciation of English constitutionalists. 83No jurist can fail to admire the skill with which theCouncil of State, the authority and the jurisdiction whereof as an administrative Court year by year receives extension, has worked out
8a SeeThornson v. Farrer, 9Q. B. D. (C. A.), 372.
83 One, and not the least of them, is that access to the Council of State as an administrative
Court is both easy and inexpensive.

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new remedies for various abuses which would appear to be hardly
touched by the ordinary law of the land. The Council, for instance,
has created and extended the power of almost any individual toattack, and cause to be annulled, any act done by any administrative
authority (using the term in a very wide sense) which is in excess of
the legal power given to the person or body from whom the act
emanates. Thus an order issued by a prefect or a bye-law made by acorporation which is in excess of the legal power of the prefect or of
the corporate body may, on the application of a plaintiff who has any
interest in the matter whatever, be absolutely set aside or annulled forthe benefit not only of the plaintiff, but of all the world, and this eventhough he has not himself suffered, from the act complained of, any
pecuniary loss or damage. The ingenious distinction _ again, which
has been more and more carefully elaborated by the Council of State,
between damage resulting from the personal fault (faute personnelle),e.g. spite, violence, or negligence of an official, e.g. a prefect or amayor, in the carrying out of official orders, and the damage resulting, without any fault on the part of the official, from the carrying outof official orders, illegal or wrongful in themselves (faute de service),has of recent years afforded a valuable remedy to persons who havesuffered from the misuse of official power, and has also, from one
point of view, extended or secured the responsibility of officialsua
responsibility enforceable in the ordinary Courtsmfor wrongful con84 French law draws an important distinction between an injury caused to a private individual by act of the administration or government which is in excess of its powers (Sautede
service), though duly carried out, or at any rate, carried out without any gross fault on thepart of a subordinate functionary, e.g. a policeman acting in pursuance of official orders,and injury caused to a private individual by the negligent or malicious manner (fautepersonnelle) in which such subordinate functionary carries out official orders which may be
perfectly lawful. In the first case the policeman incurs no liability at all, and the party
aggrieved must proceed in some form or other against the State in the administrative
Courts (tn'bunaux administratifs). In the second case the policeman is personally liable, andthe party aggrieved must proceed against him in the ordinary Courts (tribunaux judiciaires)(see Hauriou, pp. 17o, _7_ Laferri_re, i. p. 652), and apparently cannot proceed against theState.
French authorities differ as to what is the precise criterion by which to distinguish afautepersonneUe from afaute de service, and show a tendency to hold that there is nofautepersonnelle on the part, e.g. of a policeman, when he has bona fide attempted to carry out his
official duty. See Duguit, L'l_tat, pp. 638-640; [Duguit, Trait_de Droit Constitutionnel, i.
PP. 553- 559.]

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LAW OF THE CONSTITUTION

duct, which is in strictness attributable to their personal action. And
in no respect does this judge-made law of the Council appear to moreadvantage than in cases, mostly I conceive of comparatively recent
date, in which individuals have obtained compensation for governmental action, which might possibly be considered of technical legality, but which involves in reality the illegitimate use of power conferred upon the government or some governmental body for one object,but in truth used for some end different from that contemplated by
the law. One example explains my meaning. The State in _872had, as
it still has, a monopoly of matches. To the government was given by
law the power of acquiring existing match factories under some formof compulsory purchase. It occurred to some ingenious minister thatthe fewer factories there were left open for sale, the less would be thepurchase-money which the State would need to pay. A prefect, thedirect servant of the government, had power to dose factories onsanitary grounds. Under the orders of the minister he dosed a factory
belonging to A, nominally on sanitary grounds, but in reality tolessen the number of match factories which the State, in the maintenance of its monopoly, would require to purchase. There was no
personal fault on the part of the prefect. No action could with successbe maintained against him in the judicial Courts, 85nor, we may add,
in the administrative Courts. s6A, however, attacked the act itself
before the Council of State, and got the order of the prefect annulled,
and ultimately obtained, through the Council of State, damages fromthe State of over £2ooo for the illegal dosing of the factory, and this inaddition to the purchase-money received from the State for taking
possession of the factory, s7
DefersNO Englishman can wonder that the jurisdiction of the Council ofState, as the greatest of administrative Courts, grows apace; the extension of its power removes, as did at one time the growth of Equity
in England, real grievances, and meets the need of the ordinary
citizen. Yet to an Englishman imbued with an unshakeable faith in
85 DaUoz, _875, i. 495.
86 Dalloz, 1878, iii. 13.
87 Dalloz, i88o, iii. 41.

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RULE OF LAW COMPAREDWITH DROIT ADMINISTRATIF

the importance of maintaining the supremacy of the ordinary law of
the land enforced by the ordinary Law Courts, the droit administra_'f ofmodern France is open to some grave criticism.
The high and increasing authority of the Council of State must
detract, he surmises, from the dignity and respect of the judicial
Courts. 'Hhe more there is of the more, the less there is of the less" isa Spanish proverb of profound wisdom and wide application. There
was a time in the history of England when the judicial power of the
Chancellor, bound up as it was with the prerogative of the Crown,
might have overshadowed the Courts of Law, which have protected
the hereditary liberties of England and the personal freedom of Englishmen. It is difficult not to suppose that the extension of the Council's jurisdiction, beneficial as may be its direct effects, may depress
the authority of the judicial tribunals. More than one writer, who
ought to represent the ideas of educated Frenchmen, makes thesuggestion that if the members of the Council of State lack that absolute security of tenure which is universally acknowledged to be thebest guarantee of judicial independence, yet irremovable judges,
who, though they may defy dismissal, are tormented by the constantlonging for advancement, as are not more independent of the Goveminent at whose hands they expect promotion than are members of
the Council of State who, if legally removable, are by force of custom
hardly ever removed from their high position.
Trial by jury, we are told, is a joke, and, as far as the interests of the
public are concerned, a very bad joke. 89Prosecutors and criminals
alike prefer the Correctional Courts, where a jury is unknown, to the
Courts of Assize, where a judge presides and a jury gives a verdict.
The prosecutor knows that in the Correctional Court proved guilt willlead to condemnation. The criminal knows that though in the inferior
Court he may lose the chance of acquittal by good-natured or sentimental jurymen, he also avoids the possibility of undergoing severe
punishment. Two facts are certain. In _88_the judges were deprivedof the right of charging the jury. Year by year the number of causes
88 See Chardon,

pp. 326-328.

89_b_a.

CHAPTERXII265

LAW OF THE CONSTITUTION

tried in the Assize Courts decreases. Add to this that the procedure of
the judicial Courts, whether civil or criminal, is antiquated and cumbrous. The procedure in the great administrative Court is modelledon modern ideas, is simple, cheap, and effective. The Court of Cassation still commands respect. The other judicial Courts, one can hardly
doubt, have sunk in popular estimation. Their members neither exercise the power nor enjoy the moral authority of the judges of theHigh Court.
It is difficult, further, for an Englishman to believe that, at any rate
where politics are concerned, the administrative Courts can fromtheir very nature give that amount of protection to individual freedom which is secured to every English citizen, and indeed to every
foreigner residing in England. However this may be, it is certain thatthe distinction between ordinary law and administrative law (taken
together with the doctrine of the separation of powers, at any rate ashitherto interpreted by French jurists), implies the general belief thatthe agents of the government need, when acting in bonafide dischargeof their official duties, protection from the control of the ordinary law
Courts. That this is so is proved by more than one fact. The desire toprotect servants of the State has dictated the enactment of the CodePdrlaI,Article ll 4. This desire kept alive for seventy years Artide 75 of
the Constitution of the Year VIII. It influenced even the men bywhom that Artide was repealed, for the repeal itself is expressed inwords which imply the intention of providing some special protection for the agents of the government. It influenced the decisions
which more or less nullified the effect of the law of 19th December
187o, which was at first supposed to make the judicial Courts the solejudges of the liability of civil servants to suffer punishment or makecompensation for acts of dubious legality done in the performance of
their official duties. Oddly enough, the success with which administrative Courts have extended the right of private persons to obtaindamages from the State itself for illegal or injurious acts done by its
servants, seems, as an English critic must think, to supply a new formof protection for the agents of the government when acting in obedience to orders. There surely can be little inducement to take proceedings against a subordinate, whose guilt consists merely in carryPARTII

266

RULE OF LAW COMPARED WITH DROITADI_,_IISTRATIF

ing out a wrongful or illegal order, given him by his offiOa! superior,
if the person damaged can obtain compensation from the government, or, in other words, from the State itself. 9°But turn the matter
which way you will, the personal immunities of officials who takepart, though without other fault of their own, in any breach of thelaw, though consistent even with the modem droit administratif ofFrance, are inconsistent with the ideas which underlie the common
law of England. This essential opposition has been admirably expressed by a French jurist of eminence. Hauriou writes:
Under every legal system, the right to proceed against a servant of thegovernment for wrongs done to individuals in his official capacity exists insome form or other; the right corresponds to the instinctive impulse felt by
every victim of a legal wrong to seek compensation from the immediately
visible wrong-doer. But on this point the laws of different countries obey
utterly different tendencies. There are countries [such, for example, as England or the United States] where every effort is made to shelter the liability of
the State behind the personal responsibility of its servant. There are othercountries where every effort is made to cover the responsibility of the servantof the State behind the liability of the State itself, to protect him against, andto save him from, the painful consequences of faults committed in the service of the State. The laws of centralised countries, and notably the law ofFrance, are of this type. There you will find what is called the protection of
officials (garantie des fonctionnaries ).91
9° Consider, too, the extended protection offered to every servant of the State by thedoctrine, suggested by at least one good authority, that he cannot be held personallyresponsible forany wrong (faute)committed whilst he is acting in the spirit of his official
duty. "Si, en effet, lefonctionnairea agi dans l"esprit desafonction, c"est-a-direen poursuivant
effectivementlebut qu"avait l'Etat en _tablissantcettefonction, il nepeut _treresponsableni vis-a-vis
de l'_tat, ni vis-a-vis des particuliers,alorsmFmequ'ilait commisune faute."--Duguit, L'l_tat,
p. 638.
91 "Ceprincipeest admispar toutesles l_gislations,lapoursuite du fonctionnaireexistepartout,
d'autant qu'dle rdponda un mouvement instinctif qui est,pour la victime d"un mdgrait,
de s'enprendre?ll'autuerimm_diatementvisible.Mais les l_gislationsob_issenta deux tendan_esbienopt:il en
est qui s"efforfentd"abriterl'_tat derrierelefonctionnaire,il en est d'autres,au contraire,quis"efforlent defaire couvrirlefonctionnairepar I'_tat, de leprot_ger,de le rassurercontre lescons61uencesf_cheusesde ses erreurs.Lesl_gislationsdespays centralis_set notamment celledela Francesont de cederniertype; il y ace que l'on appdle une garantie des fonctionnaires."--Hauriou,
Precisde
Droit Administratif, Troisi6me 6dit., pp. _7o, 17_.

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267

Chapter XIU

RELATION BETWEENPARLIAMENTARY SOVEREIGNTYAND THE RULE OF LAW

he sovereignty of Parliament and the supremacy of the law of
the land--the two principles which pervade the whole of the
English constitution-- may appear to stand in opposition toeach other, or to be at best only counterbalancing forces. But thisappearance is delusive; the sovereignty of Parliament, as contrasted
with other forms of sovereign power, favours the supremacy of thelaw, whilst the predominance of rigid legality throughout our institutions evokes the exercise, and thus increases the authority, of Parliamentary sovereignty.
ParhamenThe sovereignty of Parliament favours the supremacy of the law oftary sover_gn_
the
land.
favours_eofThat
this should be so arises in the main from two characteristics orlawpeculiarities which distinguish the English Parliament from othersovereign powers.
The first of these characteristics is that the commands of Parliament(consisting as it does of the Crown, the House of Lords, and theHouse of Commons) can be uttered only through the combined action of its three constituent parts, and must, therefore, always takethe shape of formal and deliberate legislation. The will of Parliament 1
can be expressed only through an Act of Parliament.
A strong, if not the strongest, argument in favour of the so-called "bi-cameral" system, is
to be found in the consideration that the coexistence of two legislative chambers prevents
the confusion of resolutions passed by either House with laws, and thus checks the sub-PART II

268

RELATION BETWEEN PARLIAMENTARYSOVEREIGNTYAND THE RULE OF LAWThis is no mere matter of form; it has most important practicaleffects. It prevents those inroads upon the law of the land which a
despotic monarch, such as Louis XIV., Napoleon I., or Napoleon l]I.,might effect by ordinances or decrees, or which the different constituent assemblies of France, and above all the famous Convention,
carried out by sudden resolutions. The principle that Parliament
speaks only through an Act of Parliament greatly increases the authofity of the judges. A Bill which has passed into a statute immediately becomes subject to judicial interpretation, and the English
Bench have always refused, in principle at least, to interpret an Act ofParliament otherwise than by reference to the words of the enactment. An English judge will take no notice of the resolutions of either
House, of anything which may have passed in debate (a matter ofwhich officially he has no cognisance), or even of the changes which aBill may have undergone between the moment of its first introduction
to Parliament and of its receiving the Royal assent. All this, which
seems natural enough to an English lawyer, would greatly surprisemany foreign legists, and no doubt often does give a certain narrowness to the judicial construction of statutes. It contributes greatly,
however, both (as I have already pointed out) to the authority of thejudges and to the fixity of the law. 2
The second of these characteristics is that the English Parliament assuch has never, except at periods of revolution, exercised direct
executive power or appointed the officials of the executive government.
No doubt in modern times the House of Commons has in substance obtained the fight to designate for appointment the Prime
Minister and the other members of the Cabinet. But this right is,historically speaking, of recent acquisition, and is exercised in a very
stitution of the arbitrary will of an assembly for the supremacy of the ordinary law of theland. Whoever wishes to appreciate the force of this argument should weigh well thehistory, not only of the French Convention but also of the English Long Parliament.
2 The principle that the sovereign legislature can express its commands only in the particular form of an Act of Parliament originates of course in historical causes; it is due to the factthat an Act of Parliament was once in reality, what it still is in form, a law "enacted by theKing by and with the advice and consent of the Lords and Commons in Parliament assembled."

CHAPTERXII

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LAW OF THE CONSTITUTION

roundabout manner; its existence does not affect the truth of theassertion that the Houses of Parliament do not directly appoint or
dismiss the servants of the State; neither the House of Lords nor theHouse of Commons, nor both Houses combined, could even now
issue a direct order to a military officer, a constable, or a tax-collector;
the servants of the State are still in name what they once were in
reality--"servantsof the Crown"; and, what is worth careful notice,
the attitude of Parliament towards government officials was determined originally, and is s_ regulated, by considerations and feelings
belonging to a time when the "servants of the Crown" were dependent upon the King, that is, upon a power which naturally excitedthe jealousy and vigilance of Parliament.
Hence several results all indirectly tending to support the supremacy of the law. Parliament, though sovereign, unlike a sovereign
monarch who is not only a legislator but a ruler, that is, head of theexecutive government, has never hitherto been able to use the powers of the government as a means of interfering with the regularcourse of law; 3 and what is even more important, Parliament has
looked with disfavour and jealousy on all exemptions of officials fromthe ordinary liabilities of citizens or from the jurisdiction of the ordinary Courts; Parliamentary sovereignty has been fatal to the growthof "administrative law." The action, lastly, of Parliament has tended
as naturally to protect the independence of the judges, as that ofother sovereigns to protect the conduct of officials. It is worth noticethat Parliamentary care for judicial independence has, in fact, stopped
just at that point where on a priori grounds it might be expected
to end. The judges are not in strictness irremovable; they can beremoved from office on an address of the two Houses; they havebeen made by Parliament independent of every power in the State
except the Houses of Parliament.
Tendency
The idea may suggest itself to a reader that the characteristics or
to support_epeculiarities of the English Parliament on which I have just dwelt
often oflaw
notfound_n must now be common to most of the representative assemblies which
foreignrepr_en_-exist_veasin continental Europe. The French National Assembly, forsemblies

3 Contrast with this the way in which, even towards the end of the eighteenthFrench Kings interfered with the action of the Courts.

PARTII

270

century,

RELATION BETWEEN PARLIAMENTARYSOVEREIGNTYAND THE RULE OF LAW

example, bears a considerable external resemblance to our own Parliament. Itis influenced, however, by a different spirit; itis the heir, inmore ways than one, of the Bourbon Monarchy and the Napoleonic
Empire. It is apparently, though on this point a foreigner must speakwith hesitation, inclined to interfere in the details of administration. It
does not look with special favour on the independence or authority ofthe ordinary judges. It shows no disapprobation of the system of droit
administrah'f which Frenchmen--very likely with truth--regard as an
institution suited to their country, and it certainly leaves in the handsof the government wider executive and even legislative powers thanthe English Parliament has ever conceded either to the Crown or to its
servants. What is true of France is true under a different form of
many other continental states, such, for example, as Switzerland orPrussia. The sovereignty of Parliament as developed in England supports the supremacy of the law. But this is certainly not true of all thecountries which now enjoy representative or Parliamentary government.
Ru_o
of,_w

favours

ParhamentaD
eightyThe supremacy of the law necessitates the exercise of Parliamentary
sovereignty.
The rigidity of the law constantly hampers (and sometimes withgreat injury to the public) the action of the executive, and from thehard-and-fast rules of strict law, as interpreted by the judges, thegovernment can escape only by obtaining from Parliament the discretionary authority which is denied to the Crown by the law of theland. Note with care the way in which the necessity for discretionary
powers brings about the recourse to exceptional legislation. Under
the complex conditions of modem life no government can in times ofdisorder, or of war, keep the peace at home, or perform its duties
towards foreign powers, without occasional use of arbitrary authority. During periods, for instance, of social disturbance you need not
only to punish conspirators, but also to arrest men who are reasonably suspected of conspiracy; foreign revolutionists are known to be
spreading sedition throughout the land; order can hardly be maintained unless the executive can expel aliens. When two foreign nations are at war, or when civil contests divide a friendly country into
two hostile camps, it is impossible for England to perform her duties

CHAPTER XIII

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LAW OF THE CONSTITUTION

as a neutral unless the Crown has legal authority to put a summary
check to the attempts of English sympathisers to help one or other ofthe belligerents. Foreign nations, again, feel aggrieved if they areprevented from punishing theft and homicide,--if,in short, theirwhole criminal law is weakened because every scoundrel can ensure
impunity for his crimes by an escape to England. But this result must
inevitably ensue if the English executive has no authority to surrender French or German offenders to the government of France or ofGermany. The English executive needs therefore the right to exercise
discretionary powers, but the Courts must prevent, and will preventat any rate where personal liberty is concerned, the exercise by thegovernment of any sort of discretionary power. The Crown cannot,
except under statute, expel from England any alien 4 whatever, eventhough he were a murderer who, after slaughtering a whole family at
Boulogne, had on the very day crossed red-handed to Dover. The
executive therefore must ask for, and always obtains, aid from Parliament. An Alien Act enables the Ministry in times of disturbance toexpel any foreigner from the country; a Foreign Enlistment Act makes
it possible for the Ministry to check intervention in foreign contests or
the supply of arms to foreign belligerents. Extradition Acts empower
the government at the same time to prevent England from becoming
a city of refuge for foreign criminals, and to co-operate with foreignstates in that general repression of crime in which the whole civilised
world has an interest. Nor have we yet exhausted the instances inwhich the rigidity of the law necessitates the intervention of Parliament. There are times of tumult or invasion when for the sake oflegality itself the rules of law must be broken. The course which thegovernment must then take is dear. The Ministry must break the law
and trust for protection to an Act of Indemnity. A statute of this kindis (as already pointed out s) the last and supreme exercise of Parliamentary sovereignty. It legalises illegality; it affords the practicalsolution of the problem which perplexed the statesmanship of thesixteenth and seventeenth centuries, how to combine the mainte4 See, however,p. _37, note 22, ante.

5 See pp. so, _, 142-145, ante.

PARTII

272

RELATION

BETWEENPARLIAMENTARYSOVEREIGNTY

AND

THE RULE

OF LAWnance of law and the authority of the Houses of Parliament with thefree exercise of that kind of discretionary power or prerogative which,under some shape or other, must at critical junctures be wielded by
the executive government of every civilised country.
This solution may be thought by some critics a merely formal one,or at best only a substitution of the despotism of Parliament for the
prerogative of the Crown. But this idea is erroneous. The fact that themost arbitrary powers of the English executive must always be exercised under Act of Parliament places the government, even whenarmed with the widest authority, under the supervision, so to speak,of the Courts. Powers, however extraordinary, which are conferredor sanctioned by statute, are never really unlimited, for they are
confined by the words of the Act itself, and, what is more, by theinterpretation put upon the statute by the judges. Parliament is supreme legislator, but from the moment Parliament has uttered its willas lawgiver, that will becomes subject to the interpretation put upon
it by the judges of the land, and the judges, who are influenced by
the feelings of magistrates no less than by the general spirit of thecommon law, are disposed to construe statutory exceptions to common law principles in a mode which would not commend itself either
to a body of officials, or to the Houses of Parliament, if the Houses
were called upon to interpret their own enactments. In foreign countries, and especially in France, administrative ideas--notions
derivedfrom the traditions of a despotic monarchy--haverestricted the authority and to a certain extent influenced the ideas of the judges. In
England judicial notions have modified the action and influenced theideas of the executive government. By every path we come round to
the same conclusion, that Parliamentary sovereignty has favoured
the rule of law, and that the supremacy of the law of the land bothcalls forth the exertion of Parliamentary sovereignty, and leads to its
being exercised in a spirit of legality.

CHAPTER XIII

273

PAR T III
THE CONNECTION BETWEEN
THE LAW OF THE CONSTITUTION
AND THE CONVENTIONS OF
THE CONSTITUTION

Chapter XIV

NATURE OF CONVENTIONSCONSTITUTION

OF

Que_ons"fn
an earlier part of this work 1stress was laid upon the essential
remalmng
tobe
distinction between the "law of the constitution," which, conanswered sisting (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 orrecognised 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. 2In accordance with this view, the reader's attention has been
hitherto exclusively directed to the meaning and applicationsof twoprinciples which pervade the law of the constitution, namely, theSovereignty of Parliament 3 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

1 See pp. cxl-cxlvi, ante.
2 See pp. cxlv-cxlvi,

ante.

3 See Part I.
4 See Part II.

CHAPTER

XIV

277

LAW OF THE CONSTITUTION

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 thelaw 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 theconventional elements in the constitution, and to point out the way inwhich 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 twoquestions: What is the nature of the conventions or understandingsof 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 lighton the subordinate matters to which I have made reference.
Nat f
The salient characteristics, the outward aspects so to speak, of theundert,onal understandings which make up the constitutional morality of modstandings.
ern England, can hardly be better described than in the words of Mr.
Freeman:const_tu....

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 ofeither 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 speaksof the conduct of a pubhc man being constitutional or unconstitutional,
hemeans 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 theconstitution. 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 bemade 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, Ministersof the Crown, appointed during the pleasure of the Crown, committed any

PARTlll278

NATURE OF CONVENTIONSOF CONSTITUTION

breach of the Law of which the Law could take cognisance,by retaining
possessionof their offices till such time as the Crown should think good to
dismiss them from those offices. What he meant was that the general courseof 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 aconventional
code as well understoodand as effectual as the written Law
itself, they were bound to resign
longer held them to be worthy.S

offices of which

the Houseof Commonsno

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, thoughcommonly observed, are not laws in any true sense of that word atall. 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.
E_amp_es
The following are examples 6 of the precepts to which Mr. Freeman
ofconstitu_ona_ refers, and belong to the code by which public life in England is (or isunder_t_nd,ngssupposed to be) governed. "A Ministry which is outvoted in theHouse of Commons is in many cases bound to retire from office." "A
Cabinet, when outvoted on any vital question, may appeal once tothe country by means of a dissolution." "If an appeal to the electors
goes against the Ministry they are bound to retire from office, andhave no right to dissolve Parliament a second time." "The Cabinet are
responsible to Parliament as a body, for the general conduct of affairs." 'qlaey 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 theadvice 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." "qhe most influential of these leaders ought (generally speaking) to be the Premier, or
5 Freeman, Growth of the English Constitution Ost ed.), pp. lo9, 11o.
6 See, for further examples, pp. cxlii, odiii, ante.

CHAPTERXIV

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LAW OF THE CONSTITUTION

head of the Cabinet." There are precepts referring to the position andformation of the Cabinet. It is, however, easy to find constitutional
maxims dealing with other topics. 'q'reaties can be made without thenecessity 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." "Theforeign policy of the country, the prodamation 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 wishof the two Houses of Parliament or (when they differ) of the House ofCommons ought to be followed." "The action of any Ministry would
be highly unconstitutional if it should involve the prodamation ofwar, 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 andthe House of Commons, the House of Lords ought, at some point,
not definitely fixed, to give way, and should the Peers not yield, andthe 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 theopposition of the House of Lords, and thus restore harmony between
the two branches of the legislature."v "Parliament ought to be summoned for the despatch of business at least once in every year." "If asudden emergency arise, e.g. through the outbreak of an insurrection, or an invasion by a foreign power, the Ministry ought, if theyrequire additional authority, at once to have Parliament convened
and obtain any powers which they may need for the protection of thecountry. Meanwhile Ministers ought to take every step, even at theperil of breaking the law, which is necessary either for restoring orderor for repelling attack, and (if the law of the land is violated) must rely
for protection on Parliament passing an Act of Indemnity."
CommonThese rules (which I have purposely expressed in a lax and popularcharacterist,cofton manner), and a lot more of the same kind, make up the constitutional
stitutlonal
undermorality of the day. They are all constantly acted upon, and, since
standings
they cannot be enforced by any Court of law, have no claim to be
7 See however

PARTIII

Hearn, Government of England (2nd ed.), p. _78.

280

NATURE OF CONVENTIONSOF CONSTITUTION

considered laws. They are multifarious, differing, as it might at firstsight appear, from each other not only in importance but in generalcharacter and scope. They will be found however, on carefi_ 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 thediscretionary powers of the Crown (or of the Ministers as servants of
the Crown) ought to be exercised; and this characteristic will be foundon 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.
c0n_t_onal con-

The discretionary powers of the government mean every kind ofvent, onsrules
are action which can legally be taken by the Crown, or by its servants,
mainlyforgo'vernto Parliament for new statutory
Ing exercase Without the necessity for applying_,e°fPrer°g
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 thegovernment. This authority may no doubt originate in Parliamentaryenactments, and, in a limited number of cases, actually does so originate. Thus the Naturalization Act, 2870, gives to a Secretary of Statethe right under certain circumstances to convert an alien into anaturalized British subject; and the Extradition Act, 2870, 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 suchdiscretion is to be exercised is, or may be, more or less dearly definedby the ACt itself, and is often so dosely 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 tem-_which has caused more

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LAW OF THE CONSTITUTION

perplexity to students than any other expression referring to the constitution. The "prerogative" appears to be both historically and as amatter of actual fact nothing else than the residue of discretionary or
arbitrary authority, which at any given time is legally left in the handsof the Crown. The King was originally in truth what he still is inname, "the sovereign," or, if not strictly the "sovereign" in the sensein which jurists use that word, at any rate by far the most powerfulpart of the sovereign power. In 1792the 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 theprerogative of the Crown at the expense of the authority of the Houseof Commons. Among other statements for the publication of which
he was indicted, was a lengthy comparison of the Crown to thetrunk, and the other parts of the constitution to the branches andleaves of a great tree. This comparison was made with the object ofdrawing from it the conclusion that the Crown was the source of alllegal power, and that while to destroy the authority of the Crown
was to cut down the noble oak under the cover of which Englishmensought refuge from the storms of Jacobinism, the House of Commonsand other institutions were but branches and leaves which might belopped off without serious damage to the tree.a 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 itwas not seditious; for his views undoubtedly rested on a sound basisof historical fact.
The power of the Crown was in truth anterior to that of the Houseof Commons. From the time of the Norman Conquest down to the
Revolution of 2688, 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 alreadypointed out, the name for the residue of discretionary power left at
any moment in the hands of the Crown, whether such power be infact exercised by the King himself or by his Ministers. Every act which
8 See a6St. Tr. 53o-534.

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OF CONVENTIONSOF CONSTHld'DON

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 virtueof the Royal prerogative (such as the making of war or the dedarationof peace ) ought to be carried out. This statement holds good, itshould 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 thanmodern constitutionalists are disposed to admit) in which both theKing and his Ministers take a real part, and also to that large andconstantly increasing number of proceedings which, though carriedout in the King's name, are in truth wholly the acts of the Ministry.
The conventions of the constitution are in short rules intended toregulate the exercise of the whole of the remaining discretionary
powers of the Crown, whether these powers are exercised by theKing himself or by the Ministry. That this is so may be seen by theease 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 withthe 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 callthe "treaty-making power"--ought
not to be exercised in opposition
to the will of Parliament. So, again, the rule that Parliament must

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LAW OF THE CONSTITUTION

meet at least once a year, is in fact the rule that the Crown's legal rightor prerogative to call Parliament together at the King's pleasure must
be so exercised that Parliament meet once a year.
Som_
conThis analysis of constitutional understandings is open to the one
stltut_onal
t_o,_,_i_rvalid criticism, that, though true as far as it goes, it is obviouslyoft..........
Parincomplete; for there are some few constitutional customs or habits
J1_m_nt_r,
privilege " which have no reference to the exercise of the royal power. Such, forexample, is the understanding--avery vague one at best--that incase 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, thepractice by which the judicial functions of the House of Lords aredischarged solely by the Law Lords, or the understanding underwhich 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 theHouses 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 theconventions 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; theother is the historical name for the discretionary authority of eachHouse 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 bodyshould each exercise their discretionary authority. The result follows,that the conventions of the constitution, looked at as a whole, arecustoms, 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 See p. 3, ante.

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NATURE OF CONVENTIONSOF CONSTITUTION

discretionary authority, whether it be termed the prerogative of the
Crown or the privileges of Parliament. Since, however, by far themost numerous and important of our constitutional understandings
refer at bottom to the exercise of the prerogative, it will conduce tobrevity 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.
a,morHaving ascertained that the conventions of the constitution are (inconstlttlt_on_
the main) rules for determining the exercise of the prerogative, we
under._a_,,_ 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 longrun give effect to the will of that power which in modem England is
the true political sovereign of the State--the majority of the electorsor (to use popular though not quite accurate language) the nation.
At this point comes into view the full importance of the distinction
already insisted upon 1°between "legal" sovereignty and "'political"
sovereignty. Parliament is, from a merely legal point of view, theabsolute 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 ofrepresentative 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 thelegislature should be determined by rules meant to secure harmony
between the action of the legislative sovereign and the wishes of thepolitical sovereign, must appear probable from general considerations. If the true ruler or political sovereign of England were, as wasonce the case, the King, legislation might be carded out in accordancewith the King's will by one of two methods. The Crown might itself
legislate, by royal prodamations, or decrees; or some other body,so Seepp.

CHAPTER

26-29, ante.

XIV

285

LAW OF THE CONSTITUTION

such as a Council of State or Parliament itself, might be allowed tolegislate 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 forconstitutional conventions. If the second plan were adopted, the proceedings of the legislative body must inevitably be governed by somerules meant to make certain that the Acts of the legislature should
not contravene the will of the Crown. The electorate is in fact thesovereign of England. It is a body which does not, and from its nature
hardly can, itself legislate, and which, owing chiefly to historicalcauses, has left in existence a theoretically supreme legislature. The
result of this state of things would naturally be that the conduct of thelegislature, which (ex hypothesi) cannot be governed by laws, should
be regulated by understandings of which the object is to secure theconformity 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 thepresent day maintained for the sake of ensuring the supremacy of theHouse of Commons, and ultimately, through the elective House ofCommons, 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 artides of this code. The rule that thepowers of the Crown must be exercised through Ministers who aremembers of one or other House of Parliament and who "'commandthe confidence of the House of Commons," really means, that theelective portion of the legislature in effect, though by an indirectprocess, appoints the executive government; and, further, that the
Crown, or the Ministry, must ultimately carry out, or at any rate notcontravene, the wishes of the House of Commons. But as the processof representation is nothing else than a mode by which the will of therepresentative body or House of Commons is made to coincide withthe will of the nation, it follows that a rule which gives the appointment and control of the government mainly to the House of Commonsis at bottom a rule which gives the election and ultimate control of theexecutive to the nation. The same thing holds good of the underPARTm

286

NATURE OF CONVENTIONSOF CONSTITUTION

standing, or habit, in accordance with which the House of Lords are
expected in every serious politic_ controversy to give way at somepoint or other to the will of the House of Commons as expressing thedeliberate resolve of the nation, or of that further custom which,though of comparatively recent growth, forms an essential article ofmodem constitutional ethics, by which, in case the Peers should
finally refuse to acquiesce in the decision of the Lower House, theCrown is expected to nullify the resistance of the Lords by the creation of new Peerages. 11How, 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 thecreation of new Peers? The question is worth raising, because theanswer throws great light upon the nature and aim of the artides
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 ofCommons represents on the matter in dispute the deliberate decisionof the nation. The truth of this reply will hardly be questioned, but toadmit that the deliberate decision of the electorate is decisive, is in fact
to concede that the understandings as to the action of the House ofLords 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
Rules
as
to
By far the most striking example of the real sense attaching to adlssolubon
ofrarhawholemass of constitutional conventions is found in a particularmentinstance, which appears at first sight to present a marked exception to
the general principles of constitutional morality. A Ministry placed ina 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 bywhich the Ministry are supported. The prerogative, in short, of dis_ Mr. Hearn denies, as it seems to me on inadequate grounds, the existence of this rule orunderstanding.
See Hearn, Government of England (2nd ed.), p. a78.
12 Compare Bagehot, English Constitution, pp. 25-27.

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OF THE CONSTITUTION

solution may constitutionally be so employed as to override the willof the representative body, or, as it is popularly called, "The People's
House of Parliament." This looks at first sight like saying that incertain cases the prerogative can be so used as to set at nought thewill 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 ofexistence 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 theelectors. A dissolution is in its essence an appeal from the legal tothe 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.
Thed,sThis is the doctrine established by the celebrated contests of 1784
solutionsof_784and of 1834. In each instance the King dismissed a Ministry which
and
1834.
commanded the confidence of the House of Commons. In each casethere 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 hiscolleagues, who had been brought into office by the King against thewill of the House of Commons. In 1834 the appeal led to a verdict
equally decisive against Peel and Wellington, who also had beencalled 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 samething) the power of a Cabinet to retain office, namely, the nation.
Much discussion, oratorical and literary, has been expended on thequestion whether the dissolution of 1784 or the dissolution of 1834
was constitutional. 13To a certain extent the dispute is verbal, anddepends upon the meaning of the word "'constitutional." If we meanby it 'qegal," no human being can dispute that George the Third andhis son could without any breach of law dissolve Parliament. If we
13 See Appendix,

PARTIII

NoteVII., The Meaningof an Unconstitutional

288

Law.

NATURE OF CONVENTIONSOF CONSTITUTION

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 mustwithout 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 rightin this belief. No modem constitutionalist will dispute that the authority of the House of Commons is derived from its representing thewill of the nation, and that the chief object of a dissolution is toascertain that the will of Parliament coincides with the will of thenation. George the Third then made use of the prerogative of dissolution for the very purpose for which it exists. His conduct, therefore,on the modem theory of the constitution, was, as far as the dissolution went, in the strictest sense constitutional. But it is doubtful
whether in _784 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 _784a view of Parliamentary sovereignty
which made Parliament in the strictest sense the sovereign power. To
this theory Fox dung, 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 theirperceiving 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 _784 George the Third was
led by the exigencies of the moment to adopt the attitude of Chathamand Pitt. He appealed (oddly enough) from the sovereignty of Parliament, of which he had always been the ardent champion, to thatsovereignty 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,

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LAW OF THE CONSTITUTION

politically speaking, the supreme power in the State. On this very
ground the so-called "penal" dissolution was consistently enoughdenounced by Burke, who at all periods of his career was opposed todemocratic 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 thepeople.
Of William the Fourth's action it is hard to speak with decision. The
dissolution of 28M was, from a constitutional point of view, a mistake; it was justified (if at all) by the King's belief that the House ofCommons did not represent the will of the nation. The belief itself
turned out erroneous, but the large minority obtained by Peel, andthe 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 hadceased 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 isconstitutional, whenever there is valid and reasonable ground forsupposing that their Parliamentary representatives have ceased torepresent their wishes. The constitutionality therefore of the dissolution in 2834 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 confidenceof the nation. Whatever may be the answer given by historians to thisinquiry, the precedents of _784and 2834are decisive; they determine
the principle on which the prerogative of dissolution ought to be
exercised, and show that in modem 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 thePART III290

NATURE OF CONVENTIONSOF CONSTITUTION

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.
RelaOonof The necessity for dissolutions stands in dose connection with then_ht of_so_u.on
existence of Parliamentary sovereignty. Where, as in the United
to Par_,ament_y
States, no legislative assembly is a sovereign power, the right ofsovere,gnty 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 thissecurity is given by the right of dissolution, which enables the Crownor 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, theconstitutionalism of America proves of a more rigid type than theconstitutionalism of England. Still, under the conditions of modem
political life, the understandings which exist with us as to the right ofdissolution 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 constitutionsof American States. In this instance, as in others, the principles
explicitly stated in the various constitutions of the States, and in theFederal Constitution itself, are impliedly involved in the working ofEnglish political institutions. The right of dissolution is the right ofappeal to the people, and thus underlies aU those constitutional conventions which, in one way or another, are intended to produce
harmony between the legal and the political sovereign power.

CHAPTER

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Chapter XV

THE SANCTION BY WHICH THE
CONVENTIONS OF THE CONSTITUTION
ARE ENFORCED

T_
T hat is the sanction by which obedience to the conventions of_/_jf
the constitution is at bottom enforced?
••
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 theexistence of a difficulty, than to make them, when once the difficultyis perceived, understand its explanation, and in the first place try to
make dear to ourselves what is the precise nature of a puzzle ofwhich most students dimly recognise the existence.
Constitutional understandings are admittedly not laws; they arenot (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 theHouse of Commons, if he were (as did Lord Palmerston under likedrcumstances) to dissolve, or strictly speaking to get the Crown todissolve, 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 animportant bill, the King should refuse his assent to the measure, or(in popular language) put his "veto" on it. Here there would be a

PARTHI

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OF THE CONSTITUTION

gross violation of usage, but the matter could not by any proceeding
known to English law be brought before the judges. Take anotherinstance. Suppose that Parliament were for more than a year notsummoned for the despatch of business. This would be a course ofproceeding 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. 1Still 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 morethan many. The puzzle is to see what is the force which habituallycompels obedience to rules which have not behind them the coercive
power of the Courts.
_.lr_J_n
The difficulty of the problem before us cannot indeed be got rid of,._ er, that
_0ns_to-but
may be shifted and a good deal lessened, by observing that the
tt0nal under,tand,ngs
invariablenessof the obedience to constitutional understandings isoften chsobeved itself more or less fictitious. The special articles of the conventional
code are in fact often disobeyed. A Minister sometimes refuses toretire when, as his opponents allege, he ought constitutionally toresign 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; in2784 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 _834 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 inwhich constitutional maxims of long standing and high repute havebeen set at nought. The uncertain character of the deference paid tothe 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
1 See 4 Edward III. c. 14; _6 Car. II. c. 1;and 1 Will. & Mary, Sess. a, c. a. Compare thesewith the repealed I6 Car. I. c. _, which would have made the assembling of Parliament a
matter of law.

CHAPWa XV

293

LAW OF THE CONSTITUTION

not to be a portion of constitutional morality, it naturally follows thatno true constitutional rule is ever disobeyed.
ButpnnoYet, though the obedience supposed to be rendered to the separate
pie of con,or_tyto
understandings or maxims of public life is to a certain extent fictiwill of theha,onways a_- tious, the assertion that they have nearly the force of lawis not withoutobeyed,meaning. Some few of the conventions of the constitution are rigorously obeyed. Parliament, for example, is summoned year by yearwith as much regularity as though its annual meeting were provided
for by a law of nature; and (what is of more consequence) thoughparticular 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, andultimately 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 statutebook, nor is it a maxim of the common law; it will not be enforced byany 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 toits 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 disposedof. They either pass it by, or else apparently acquiesce in one of two
answers, each of which contains an element of truth, but neither ofwhich fully removes the perplexities of any inquirer who is determined not to be put off with mere words.
_2_fd_nt A reply more often suggested than formulated in so many words,_pea_his that obedience to the conventions of the constitution is ultimately
merit.
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 thetruest 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.

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OF THE CONSTITUTION

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 theTower and the block exerts any appreciable influence over the conduct of modem statesmen. No impeachment for violations of theconstitution (since for the present purpose we may leave out of account such proceedings as those taken against Lord Macclesfield,
Warren Hastings, and Lord Melville) has occurred for more than acentury and a half. The process, which is supposed to ensure theretirement from office of a modem Prime Minister, when placed in ahopeless minority, is, and has long been, obsolete. The arm by whichattacks on freedom were once repelled has grown rusty by disuse; itis 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 importantviolation 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 thedread 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.
Poworof
A second and current answer to the question under consideration
pubhc
0pl_on 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; thenation expects that a Minister who cannot retain the confidence of theHouse of Commons, shall give up his place, and no Premier evendreams of disappointing these expectations. The assertion, therefore,

CHAPTER

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295

LAW OF THE CONSTITUTION

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, asufficient sanction to compel obedience to the conventions of theconstitution? and it is no answer to this inquiry to say that theseconventions are enforced by public opinion. Let it also be noted thatmany 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 ofcrimes, but the settled conviction of the nation that promises ought tobe kept does not hinder merchants from going into the Gazette, nordoes the universal execration of the villain who sheds man's blood
prevent the commission of murders. That public opinion does to acertain 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 beviolated 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 inthe 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.
TrueanWhat then is this "something"? My answer is, that it is nothing else
swer, -Obediencethan
the force of the law. The dread of impeachment may haveto conven_o_enestablished,and public
opinioncertainly
addsinfluence
to,thepreforcedbypower
of vailingdogmas ofpolitical
ethics.
Butthesanction
whichconstrains
law.

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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 theseconventions will almost immediately bring the offender into conflictwith the Courts and the law of the land.
This is the true answer to the inquiry which I have raised, but it isan answer which undoubtedly requires both explanation and defence.
The meaning of the statement that the received precepts of theconstitution are supported by the law of the land, and the grounds onwhich that statement is based, can be most easily made apparent byconsidering what would be the legal results which would inevitably
ensue from the violation of some indisputable constitutional maxim.
_e_rJv
NO rule is better established than that Parliament must assemble at
Explanatlorl

meeffng of

Parhament
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 andagain 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 wouldbe, 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 comeinto 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 inforce.2 But thereupon all means of controlling the army without abreach of law would cease to exist. Either the army must be discharged, in which case the means of maintaining law and orderwould 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,
198, ante.

CHAPTERXV

though inaccurate language,"the Mutiny Act would expire." See note 26, p.

297

LAW

OF THE CONSTITUTION

this alternative were adopted, every person, from the Commanderin-Chief downwards, who took part in the control of the army, andindeed 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 holdof 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. Theircriminal daring would not suffice for its purpose; they could not gethold of the revenue without the connivance or aid of a large numberof persons, some of them indeed officials, but some of them, such as
the Comptroller General, the Governors of the Bank of England, andthe 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. theCommander-in-Chief,or the colonel of a regiment, who employed
force to carry out the policy of the government would be exposed toresistance supported by the Courts. For the law (it should always beborne in mind) operates in two different ways. It inflicts penalties andpunishment 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 ofanything 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 todispense with the annual meeting of Parliament could not ensure theobedience even of its own officials, and, unless prepared distinctly to
3 See chap.

PARTfllxii., ante.

298

THE SANCTION

OF TIlE CONSTITUTION

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, thoughin 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 isin 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 fullunderstanding of it affords the due which guides us to the principle
on which really rests such coercive force as is possessed by the conventions of the constitution.
R_s,_na_onTOsee that this is so let us consider for a moment the effect of
0t M_mstrv
wh,_ha; disobedience by the government to one of the most purely convenlost con,aenceo_ tional among the maxims of constitutional morality, -- the rule, that isthe House
ofCom- 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 2783, and hold office in the face of the censure
passed by the House. There would dearly be a prirr_facie breach of
constitutional ethics. What must ensue is dear. If the Ministry wishedto keep within the constitution they would announce their intentionof 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 ofthe constitution admittedly is, not that a Ministry cannot keep officewhen censured by the House of Commons, but that under suchcircumstances a Ministry ought not to remain in office unless they canby 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

CHAPTER

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LAWOFTHECONST_rUrXON
again censured by the newly elected House of Commons, would not
resign office. It would, under this state of things, be as dear as day
that the understandings of the constitution had been violated. It is
however equally dear that the House would have in their own hands
the means of ultimately forcing the Ministry either to respect theconstitution 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 toconvene Parliament for more than a year. The breach, therefore, of apurely conventional rule, of a maxim utterly unknown and indeed
opposed to the theory of English law, ultimately entails upon those
who break it direct contact with the undoubted law of the land. We
have then a right to assert that the force which in the last resortcompels obedience to constitutional morality is nothing else than the
power of the law itself. The conventions of the constitution are notlaws, but, in so far as they really possess binding force, derive theirsanction from the fact that whoever breaks them must finally breakthe law and incur the penalties of a law-breaker.
Oblect]ons It is worth while to consider one or two objections which may beurged with more or less plausibility against the doctrine that the
obligatory force of constitutional morality is derived from the law
itself.
L_w
m_,'
The government, it is sometimes suggested, may by the use of
be over-"_,,weredactual force carry through a coup d'_tat and defy the law of the land.
y forceThis suggestion is true, but is quite irrelevant. No constitution canbe absolutely safe from revolution or from a coup d'_tat; but to showthat 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 _85_, could override thelaw 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 factthat they cannot be broken without a breach of law. No one is con-PARTlll300

THE SANCTION

OF THE CONSTITUTION

cerned to show, what indeed never can be shown, that the law cannever be defied, or the constitution never be overfl_own.
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, thisbelief is in general well founded. But in modern England, a party,
however violent, who count on the sympathy of the people, canaccomplish by obtaining a Parliamentary majority all that could be
gained by the success of a revolution. When a spirit of reaction orof 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 theend of George the Third's reign, saved the constitution from attack. Achange of spirit averted a change of form; the flexibility of the constitution proved its strength.
ParhamentIf
the maintenance of political morality, it may with some plausibilhas neverrefused topass ity be asked, really depends on the right of Parliament to refuse to
Mushy pass laws such as the Army (Annual) Act, which are necessary for theA_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 enfordng obedience to the constitution?
The true answer to the objection thus raised appears to be that theobservance of the main and the most essential of all constitutionalrules, 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 ofParliament 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 2689 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

CHAPTER

XV

3Ol

LAW OF THE CONSTITUTION

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 thearmy. 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 isquoted. Fox and his friends did threaten and did intend to press tothe 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 ofdissolution, 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 modem constitutionalism; the legal sovereignty of Parliament is subordinate to the political sovereignty of the nation. This
the condusion in reality established by the events of _784. 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 allprobability 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 178 4 would in all likelLhood havepassed 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 nocountenance to the idea that a House of Commons supported by thecountry 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 _868 such refusal was threatened in order to force an early dissolution of Parliament; in _886 the dissolution took place before the supplies were fully granted, and the
supplies granted were granted for only a limited period.

PARTIH302

THE SANCTION

OF THE CONSTITUTION_uborana'eA dear perception of the true relation between the conventions of,nqu,_, the constitution and the law of the land supplies an answer to morethan one subordinate question which has perplexed students andcommentators.
_,'hv
has
HOW is it that the ancient methods of enforcing Parliamentary aum_n,
gonethority,
such as impeachment, the formal refusal of supplies, and the
outof
use,
like, have fallen into disuse?
The answer is, that they are disused because ultimate obedience tothe underlying principle of all modem constitutionalism, which is
nothing else than the principle of obedience to the will of the nation
as expressed through Parliament, is so dosely bound up with the lawof the land that it can hardly be violated without a breach of theordinary 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.
Whyare
Why is it that the understandings of the constitution have about
constltu,onal them a singular element of vagueness and variability?
understanchngs
Why is it, to take definite instances of this uncertainty and changexanable_
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 theHouse of Lords to the will of the House of Commons becomes unimp'each-constitutional? 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 Thirdand even George the Fourth each made his personal will or capricetell on the policy of the nation in a very different way and degree

CHAPTER XV

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LAW OF THE CONSTITUTION

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, thatthe one essential principle of the constitution is obedience by all
persons to the deliberately expressed will of the House of Commonsin 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 tosecure respect for this principle. Of these maxims some indeedm
such, for example, as the rule that Parliament must be convoked atleast once a year--are so closely connected with the respect due toParliamentary or national authority, that they will never be neglectedby 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 oraids in breaking them will almost immediately find himself involvedin a breach of law. Other constitutional maxims stand in a very
different position. Their maintenance up to a certain point tends tosecure 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.
WithdrawalThus the rule that a Ministry who have lost the confidence of the
fidence ofby House of CommonsHouseshould retire from office is plain enough, andCommonsany 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 fromof con-a Ministry,--whether,for example, the defeat of an important
Ministerial measure or the smallness of a Ministerial majority is acertain proof that a Ministry ought to retire,--you ask a question
which admits of no absolute reply, s 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 ofCommons of 24th July 19o5, for consideration of, and reference to, precedents with regard

PAnTIII

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OF THE CONSTITUTION

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 theHouse of Commons of a wish for the Cabinet's retirement. Of course,
therefore, a Minister or a Ministry must resign if the House passes avote 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 ofCommons 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 thepoint at which a Premier and his colleagues are bound to hold thatthey 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 hadlost the then essential confidence of the King. The ridiculous efforts of
the Duke of Newcastle to remain at the head of the Treasury, in spiteof the broadest hints from Lord Bute that the time had come forresignation, are exactly analogous to the undignified persistency withwhich later Cabinets have occasionally clung to office in the face of
intimations that the House desired a change of government. As longas a master does not directly dismiss a servant, the question whether
the employer's conduct betrays a wish that the servant should givenotice 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 majorityof the electors.
When
The general rule that the House of Lords must in matters of legislaot
Lords tion ultimately give way to the House of Commons is one of theshould_ve
onll_on$.
waytobest-established maxims of modern constitutional ethics. But if any
inquirer asks how the point at which the Peers are to give way is to beHouse

to the duty of a Ministry to retire from office when they have lost the confidence of theHouse of Commons.--Parl.
Deb. 4th ser. vol. 15o, col. 50.
6 See pp. 287-291 , ante.

c_R

xv

3o5

LAW

OF THE CONSTITUTION

determined, no answer which even approximates to the truth can begiven, 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 theproof differs under different circumstances.
When once the true state of the case is perceived, it is easy tounderstand a matter which, on any cut-and-dried theory of the constitution, can only with difficulty be explained, namely, the relation
occupied by modem 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 thePeers 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 _84o 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 notprepared to admit them. If you search for the real cause of this state ofthings, you will find that it was nothing else than the fact, constantly
concealed under the misleading rhetoric of party warfare, that on thematters in question the electors were not prepared to support the
Cabinet in taking the steps necessary to compel the submission of theHouse of Lords. On any matter upon which the electors are firmly
resolved, a Premier, who is in effect the representative of the Houseof Commons, has the means of coercion, namely, by the creation ofPeers. In a country indeed like England, things are rarely carried tothis 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 inthe payment of debts. The acquiescence of the Peers in measures
which the Peers do not approve arises at bottom from the fact that thePART III306

THE SANCTION

OF THE CONSTITUTION

nation, under the present constitution, possesses the power of enforcing, through very cumbersome machinery, the submission of thePeers 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 isvarying, because the will of the nation is often not dearly expressed,
and further, in this as in other matters, is itself liable to variation. If
the smoothness with which the constitutional arrangements of modem 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 anUpper House than is afforded by the varying phases of the conflict which raged in Victoria during _878 and _879between 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 arejected 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 nolonger the means to pay, and attempted to obtain payments out of
the Treasury on the strength of resolutions passed solely by theLower House. At this point, however, the Ministry came into conflictwith 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 elecfive, 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

CHAPTER XV

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LAW OF THE CONSTITUTION

of the Lower, in the same way in which the Peers always in the lastresort bow to the will of the House of Commons.
the HOW is it, again, that all the understandings which are supposed to,nnuence
regulate the personal relation of the Crown to the actual work ofof theCrown
certam?
un- 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 therelation 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 realworking of our institutions. The first is, that while every act of State isdone in the name of the Crown, the real executive government ofEngland is the Cabinet. The second is, that though the Crown has noreal 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 ofadministration; his two sons, each in different degrees and in different ways, made their personal will and predilections tell on thegovernment of the country. No one really supposes that there is not asphere, though a vaguely defined sphere, in which the personal willof 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 andformalism 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 weightin the government of the country. The customs or understandings
which regulate or control the exercise of the King's personal influence
Why ispersonal

PART tII

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OF THE CONSTITUTION

are vague and indefinite, both because statesmen feel that the matteris one hardly to be dealt with by precise rules, and because no humanbeing knows how far and to what extent the nation wishes that thevoice of the reigning monarch should command attention. All thatcan 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 bad beenused 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 theirpersonal 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 theThird's firmness secured the execution of Dr. Dodd. At the present
day the right of pardon belongs in fact to the Home Secretary. A
modem Jeanie Deans would be referred to the Home Office; thequestion 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.
Theeffo_What, again, is the real effect produced by the survival of prerogaof SUrVlv.ngprefive powers?
rogatwes
0_Crow, Here we must distinguish two different things, namely, the way inwhich the existence of the prerogative affects the personal influenceof 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 theKing and in most cases with the cognisance of the King, and thatmany 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 forexercising great influence on the conduct of affairs; and Bagehot has
marked out, with his usual subtlety, the mode in which the merenecessity under which Ministers are placed of consulting with and

CHAPTER XV

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LAW OF THE CONSTITUTION

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 fom_ authority of the Crown confers real power upon the King,the far more important matter is to notice the way in which thesurvival 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 ofthe 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 questionsof peace or war. The founders of the American Union showed theirfull appreciation of the latitude left to the executive government
under the English constitution by one of the most remarkable of theirinnovations upon it. They lodged the treaty-making power in thehands, not of the President, but of the President and the Senate; andfurther 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 ofLords 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 Belge, 4 P. D. 129; 5 P. D. (C. A.) _97- "Whether the power [of the Crown
to compel its subjects to obey the provisions of a treaty] does exist in the case of treaties ofpeace, and whether if so it exists equally in the case of treaties akin to a treaty of peace, orwhether in both or either of these cases interference with private rights can be
authorised otherwise than by the legislature, are grave questions upon which theirLordships do not find it necessary to express an opinion."--Walker
v. Baird [_892], A. C.
49a, 497, judgment of P. C.

PARTIII

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OF THE CONSTITUTION

of the constitutional innovation would be to place a legal check on thediscretionary powers of the Cabinet.
The survival of the prerogative, conferring as it does wide discretionary authority upon the Cabinet, involves a consequence whichconstantly escapes attention. It immensely increases the authority of
the House of Commons, and ultimately of the constituencies bywhich 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 withmore or less fidelity the wishes of the Peerage. Now that the House ofCommons 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 comeinto 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 ofLords. The Peers no doubt will in the long run conform to the wishesof 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 theapproval 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 moreor 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, s In _872 the Ministry of the
8 On this subject there are remarks worth noting in Stephen's Life of Fawcett, pp. 27x, 272.

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LAWoF THECONS_TU_ON
day c_rried a bill through the House of Commor_ abolishing thesystem 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 willprobably be conceded, met with the approval, not only of the Commons, but of the electors. But it will equally be conceded that had thealteration required statutory authority the system of purchase might
have continued in force up to the present day. The existence of theprerogative 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 thedirect representative of the true sovereign, should weigh well thewords in which Bagehot describes the powers which can still legally
be exercised by the Crown without consulting Parliament; andshould 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 thebill 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 Generalcommanding-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 makea peace by the sacrifice of Cornwall, and begin a war for the conquest of
9 Purchase was not abolished by the prerogalive 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 thearmy by Royal warrant. When therefore the warrant authorising the sale was cancelled thestatute took effect.

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THE SANCTION OF THE CONSTITUTION
Brittany. She could make every citizen in the United Kingdom, male o_female, a peer; she could make every parish in the United Kingdom a "university"; she could dismiss most of the dvil servants; she could pardon all
offenders. In a word, the Queen could by prerogal_ve upset all the action ofcivil 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, lo

If government by Parliament is ever transformed into governmentby the House of Commons, the transformation will, it may be conjectured, be effected by use of the prerogatives of the Crown.
Condus,onLet us cast back a glance for a moment at the results which we haveobtained by surveying the English constitution from its legal side.
The constitution when thus looked at ceases to appear a "'sortof
maze"; it is seen to consist of two different parts; the one part is madeup of understandings, customs, or conventions which, not being
enforced by the Courts, are in no true sense of the word laws; theother part is made up of rules which are enforced by the Courts, andwhich, 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 elementof constitutional law such force as it really possesses. 11
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 consdous efforts of generations of English statesmen
and lawyers.
The first of these principles is the sovereignty of Parliament, whichmeans in effect the gradual transfer of power from the Crown to abody which has come more and more to represent the nation, a2This
so 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

C_t..IAPTEI¢
X-v"

3:t3

LAWOFTHECONSTnU_oN
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 theState.
The second of these principles is what I have called the "rule oflaw," 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 theland.
When we see what are the principles which truly underlie theEnglish 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, andultimately 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; theKing 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 statesmanshipbears everywhere thesame character. See Rocquain, L'Esprit R_volutionnaire 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.

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OF THE 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 hasreceived 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 lawof the land means in the last resort the right of the judges to control
the executive government, whilst the s@aration des pouvoirs means, asconstrued by Frenchmen, the right of the government to control thejudges. The authority of the Courts of Law as understood in Englandcan therefore hardly coexist with the system of droit administratif as itprevails 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 "theadministration." To say this is not to assert that foreign forms ofgovernment are necessarily inferior to the English constitution, or
unsuited for a civilised and free people. All that necessarily resultsfrom the analysis of our institutions, and a comparison of them with
the institutions of foreign countries, is, that the English constitution isstill marked, far more deeply than is generally supposed, by peculiarfeatures, and that these peculiar characteristics may be summed up in
the combination of Parliamentary Sovereignty with the Rule of Law.

CH._R

_

3 _5

I

I

APPENDIX

Note IRIGIDITY OF FRENCH CONSTITUTIONS
makers since the meeting of the States General in 1789.
rwelveconstitutions1
have been
by French
constitutionA surveyof the provisions(if framedany) containedin these
constitutions for the revision thereof leads to some interesting results.
First, with but two exceptions, every French constitution has beenmarked by the characteristic of "rigidity." Frenchmen of all politicalschools have therefore agreed in the assumption, that the politicalfoundations of the State must be placed beyond the reach of theordinary legislature, and ought to be changed, if at all, only withconsiderable difficulty, and generally after such delay as may give thenation time for maturely reflecting over any proposed innovation.
In this respect the Monarchical Constitution of :t79_is noteworthy.
That Constitution formed a legislature consisting of one Assembly,
1 Viz. (_)The Monarchical Constitution of x792;(2)the Republican Constitution of _793;(3)the Republican Constitution of 2795(Directory), 5 Fruct. An. IlI.; (4)the Consular Constitution of the Year VIII. (1799);(5)the Imperial Constitution, 18o4;(6) the Constitution proclaimed by the Senate and Provisional Government, x814;(7) the Constitutional Charter,
1814(Restoration); (8) the Additional Act (Acte Additionnel),_815,remodelling the Imperial
Constitution; (9) the Constitutional Charter of x83o(Louis Philippe);(lo) the Republic of_848;(_x)the Second Imperial Constitution, 2852;(12)the present Republic, 187o-75. See
generally H_lie, Les Constitutions dela France;and Duguit et Monnier, LesConstitutions de laFrance(Deuxi6me 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.

3z7

LAW OF THE CONSTITUTION

but did not give this Assembly or Parliament any authority to revise
the Constitution. The only body endowed with such authority wasan Assembly of Revision (Assemblde de R_vision), and the utmost pains
were taken to hamper the convening and to limit the action of theAssembly of Revision. The provisions enacted with this object werein substance as follows:--An ordinary Legislative Assembly waselected 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 artide of the Constitution. On a
resolution in favour of such reform having been carried in threesuccessive legislatures or Parliaments, the ensuing Legislative Assembly was to be increased by the addition of 249 members, and thisincreased 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 thosematters 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 the249 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 1792had continued in existence, nochange 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 thatthe 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 artide contained therein. The intended
consequence was that for at least ten years (_79_-18o_) the bases of
the French government should remain unchanged and unchangeable. 3
2 A resolution was proposed, though not carried, that the artides of the Constitution
should be unchangeable for a period of thirty years. H61ie, Les Constitutions de la France, p.
302.
3 See Constitutionof 179x, Tit. vii.

318

APPENDIXThe Republicans of 2793agreed with the Constitutionah_-stsof _79•
in plating 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 _793made dependent,
not on the action of the ordinary legislature, but on the will of thepeople. Upon the demand of a tenth of the primary assemblies inmore than half of the Depai h_-_entsof the Republic, the legislature
was bound to convoke all the primary assemblies, and submit tothem the question of convening a national convention for the revisionof the Constitution. The vote of these Assemblies thereupon derided
for or against the meeting of a convention, and therefore whether arevision should take place.
Assuming that they derided in favour of a revision, a convention,
elected in the same manner as the ordinary legislature, was to beforthwith 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 dtizens, a legislature was to be convoked with alimited authority to reform certain artides of the Constitution. 4
The Republican and Directorial Constitution again, of _795, 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 thefamous, 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, theCouncil of Ancients, and the Council of Five Hundred. A proposal
for any change in the Constitution was necessarily to proceed fromthe Council of Andents, 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 As4 Constitution

du 5 Fruc_dor,

An. III., articles 336-35 o, H_lie, pp. 436, 463, 464 .

319

LAW OF THE CONSTITUTION

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 threemonths, 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 partin 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 inforce.
The Consular and Imperial Constitutions, all with more or lessdirectness, made changes in the Constitution depend, first, upon asenatus consultum or resolution of the Senate; and, next, on the ratification of the change by a popular vote or plebiscite, s This may beconsidered 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, there-establishment of feudal rights, of tithes, or of an established
Church (culte privil_gi_ et dominant), or which should in any way re5 See H61ie, Les Constitutions de la France, pp. 696-698.

320

APPENDIX

voke the sale of the national domains, or, in other words, French
landowners. This attempt to place certain principles beyond theinfluence, not only of ordinary legislation but of constitutionalchange, 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 otherbody in the State.
The Republic of 1848brought again into prominence the distinction
between laws changeable by the legislature in its ordinary legislative
capacity, and artides of the Constitution changeable only with specialdifficulty, and by an assembly specially elected for the purpose ofrevision. The process of change was elaborate. The ordinary legislative body was elected for three years. This body could not itself
modify any constitutional artide. 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
50o members voted, and unless the resolution were affirmed bythree-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 therevision for which it was convoked, but might, if necessary, passordinary laws. It was therefore intended to be a constituent bodysuperseding the ordinary legislature.6
The second Empire revived, in substance, the legislative system of
the first, and constitutional changes again became dependent upon aresolution 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 constitu6 See Constitution,

x848, art. m.

7 Ib/d. x852, arts. 3x, 32; HfAie, p. 117o.

321

LAW OF THE CONSTITUTION

tional laws enacted by the National Assembly which met in 187_.
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 eachhave passed this resolution, the two Chambers meet together, andwhen thus assembled and voting together as a National Assembly, orCongress, have power to change any part, as they have in factchanged some parts, of the constitutional laws. 8
I have omitted to notice the constitutional Charter of 18_4, granted
by Louis XVIII., and the Charter of _83o, accepted by Louis Philippe.
The omission is intentional. Neither of these documents contains any
special enactments for its amendment. An Englishman would inferthat the artides of the Charter could be abrogated or amended by theprocess of ordinary legislation. The inference may be correct. The
constitutionalists of 1814and 183o meant to found a constitutionalmonarchy 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, 9is by no means certain. LouisXVIII. may have meant that the arfides of a constitution granted as acharter 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 thefoundations of the Constitution ought not to be subject to suddenchanges 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 rigidityof a constitution. They have hardly perceived that the power ofa 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 ConstitutionalLaw, _855, art. 8.

9 See pp. 62-63, ante.

322

APPEND/X

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 induded but a small number of rules among constitutional artides, andhave so facilitated the process of revision as to make the existing
chambers all but a sovereign Parliament. Whether this is on thewhole a gain or not, is a point on which it were most unwise topronounce 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, lo
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 _8o_mthat is, till the date when,after three constitutions had broken down, Bonaparte was erecting adespotic Empire. The Directorial Republic of 2795 could not, if it had
lasted, have been modified in the smallest particular till _8o4, at whichdate the Empire was already in full vigour.
But the irony of fate does not convict its victims of folly, and, if welook at the state of the world as it stood when France began her
experiments in constitution-making, there was nothing ridic_ous 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, andif the English Parliament was theoretically able to modify any institution whatever, the Parliaments of George HI. were at least as little
likely to change any law which could be considered constitutional asa modem Parliament to abolish the Crown. In fact it was not tillnearly forty years after the meeting of the States General (2829) that
10 See as to the circumstances which explain the character of the existing Constitution ofFrance, Lowell, Governments and Parties in Continental Europe, i. pp. 7-14, and note that thepresent constitution has already lasted longer than any constitu_on which has existed in
France since 2789 .

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LAW OF THE CONSTITUTION

any serious modification was made in the form of the government ofEngland. 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 newlyfounded 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 themen of 1789 to consider that a well-built constitution might stand for along time without the need of repair.
Fourthly, the errors committed by French constitutionalists havebeen, 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 legislatureand Executive, is likely to become a revolutionary convention.
Fifthly, the Directorial Constitution of 1795is, from a theoreticalpoint of view, the most interesting among the French experimentsin the art of constitution-making.
Its authors knew by experience therisks to which revolutionary movements are exposed, and showedmuch ingenuity in their devices for minimising the perils involved inrevisions 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, ll and, if
we may judge by transatlantic experience, adopted by far the wisest
method hitherto invented for introducing changes into a written andrigid constitution. The establishment, again, of the principle that all
1_ See the word "Convention" in the American Encydoptrdza ot American Science; and Bryce,
American Commonwealth, i. (3rd ed.), App. on Constitutional Conventions, p. 667.

324

APPENDIX

amendments voted by the Assembly of Revision must be referred to a
popular vote, and could not come into force un_ accepted by thepeople, 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 displayedby the constitution-makers of 2795, both because their resourcefulness stands in marked contrast with the want of inventiveness whichmarks the work of most French constitutionalists, and because theincapacity of the Directorial Government, in the work of administration, has diverted attention from the skill displayed by the foundersof the Directorate in some parts of their constitutional creation.
Note IIDIVISION OF POWERS IN
FEDERAL STATESA student who wishes to understand the principles which, under agiven system of federalism, determine the division of authority between the nation or the central government on the one hand, and theStates 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 ortreated as void; thirdly, to what extent the Federal government cancontrol the legislation of the separate States; and fourthly, what is thenature of the body (if such there be) having authority to amend theConstitution.
It is interesting to compare on these points the provisions of fivedifferent federal systems.
THE UNITED STATES
2. The powers conferred by the Constitution on the United States
are strictly "definite" or defined; the powers left to the separate States
325

LAW OF THE CONSTITUTION

are "indefinite" or undefined. "The powers not delegated to theUnited States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people. ''12The consequence is that the United States (that is, the National Government)
can daim 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 Statesby the Constitution.
2. Federal legislation is as much subject to the Constitution as thelegislation of the States. An enactment, whether of Congress or of aState legislature, which is opposed to the Constitution, is void, andwill 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 Statea Republican Government, and the Federal government has, it issubmitted, 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
2. The authority of the national government or Federal power isdefinite, 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 3o, ooo
I2 Constitutionof United States, Amendment_3 Constitutionof United States, art. 5-

14 See Constitutionso.

F_d_rale, art. 3-

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APPENDIX

citizens or of eight Cantons, be referred to a popular vote for approvalor rejection. It would appear that the Federal Court can treat asinvalid 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 theyreceive 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 CANADIANDOMINION

1. The authority of the Dominion, or Federal, government is indefinite or undefined; the authority of the States or Provinces is deftnite or defined, and indeed defined within narrow limits, is
From a federal point of view this is the fundamental difference
between the Constitution of the Dominion on the one hand, and theConstitution 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 exdusively assigned
to them. Congress, on the other hand, or the Swiss Federal Assembly, can legislate only on certain definite matters assigned to it by theConstitution; the States or Cantons retain all powers exercised bylegislation or otherwise not specially taken away from them by theConstitution.
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_5 See British North America Act, _867, ss. 91, 92.

327

LAW OF THE CONSTITUTION

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 exercisedeven 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, bechanged 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 whencombined with that of a Provindal legislature, modify the Constitution for the purpose of producing uniformity of laws in the Provincesof the Dominion. 1_
But a Provincial legislature can under the British North America
Act, 2867, s. 92, sub-s. 2, 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 COMMONWEALTHOF AUSTRALIA_. The authority of the Federal government is definite; the authority of each of the States, vested in the Parliament thereof, is indefinite. is
2. Federal legislation (i.e. the legislation of the CommonwealthParliamen0 is as much subject to the constitution as the legislation of
the State Parliaments. An enactment whether of the CommonwealthParliament or of a State legislature which is opposed to the Constitu_6 See British North America Act, _867, s. 90; and Bourinot, Parliamentary Practice andProcedure, pp. 76-8_.
_7 British North America Act, _867, s. 94.
18 Commonwealth

Constitution

Act, ss. 51, 52, xo6, lo7.

328

APPENDIX

tion of the Commonwealth,
Courts.

is void and will be treated as such by the

3. The Federal or Commonwealth government has no power toannul 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 undersome 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.2°(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 _e Imperial (Federal)
power is apparently finite or defined, whilst the authority of theStates 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 arevery 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, ''22but it would appear_9 Constitution,s. 128.

2o See e.g. Constitution,

ss. 7, so.

2_ See Reichsverfassung,arts. 2. and 78.

22 See on the moot question whether the Reichsgericht and the Courts generally can treat astatute passed by the Diet (Reichstag) as unconstitutional,
Lowell, Governments and Parties inContinental Europe, i. pp. 282-284.

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LAW OF THE CONSTITUTION

that State legislation is void, if it conflicts with the Constitution, orwith Imperial legislation. 23
3. Whether the Imperial government has any power of annulling aState 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 theFederal Counc_ (Bundesrath). This gives in effect a "veto" on constitutional changes to Prussia and to several combinations of otherStates.
Certain rights, moreover, are reserved to several States which cannot be changed under the Constitution, except with the assent of theState possessing the right, as

23 Reichsverfassung,art. 2; and Labaud, Staatsrecht des Deutschen Reiches, s. 2o.

24 Reichsverfassung,art. 76.

25 The South African Union. --The constitution of the South African Union, it has been wellsaid, "'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 theConstitution. It is especially laid down in s. 252 that Parliament may by law repeal or alter
any of the provisions of the Act, provided that no provision thereof for the operation ofwhich a definite period of time is fixed shall be repealed or altered before the expiration ofsuch 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 theAssembly has reached 25o, whichever occurs later, or of the provisions of s. 35 relative tothe qualifications of electors to the House of Assembly, or of s. 137 as to the use oflanguages, shall be valid, unless the Bill containing the alterations is passed at a joint sittingof the Houses, and at its third reading by not less than two-thirds of the total number ofmembers of both Houses. The section is well worded, as it obviates the possible evasion ofits spirit by the alteration of the section itself." Keith, South African Union, Reprinted fromthe Journal of the Society of Comparative Legislation, pp. 5o, 52. See also Brand, The Unionof South Africa, especially chap. xi.

33 °APPENDIX

Note HIDISTINCTION BETWEEN
A PARUAMENTARY EXECUTWE AND A
NON-PAR LIAMENTARY EXECUTIVE
Representative government, of one kind or another, exists at thismoment in most European countries, as well as in all countries whichcome 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 eachother by the difference of the relation between the executive and thelegislature. Under the one form of representative government thelegislature, or, it may be, the elective portion thereof, appoints anddismisses the executive which under these circumstances is, in general, chosen from among the members of the legislative body. Suchan 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 andhis Cabinet, is not appointed by the legislature. Such an executive
may appropriately be termed a "non-parliamentary
executive." As tothis 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 anddifference. 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,

331

LAW OF THE CONSTITUTION

on the other hand, of the United States and of the Gerii-LanEmpire, asalso the constitution of France in the time of the Second Republic, allbelong to another and different class, since under each of these constitutions there is to be found a non-parliamentary executive. Thismethod of grouping different forms of representative government iscertainly not without its advantages. It is instructive to perceive that
the Republican democracy of America and the Imperial governmentof 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 ofCommons. The assertion, indeed, would be substantially true thatparliamentary government, in the full sense of that term, does notexist, unless, and until, the members of the executive body holdoffice 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 truethat 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 thiswork, 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 thereal English executivelthe
Cabinetlis 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 2689the governmentof 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 a332

APPENDIX

sovereign legislature. 26But 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 begained from a study of the history of parliamentary government in
Ireland. In modern times both the critics and the admirers of theconstitution popularly identified with the name of Grattan, which
existed from 2782 to _8oo, feel that there is something strange andperplexing in the position of the Irish Parliament. The peculiarityof 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 theIrish Parliament was from 2782 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 nosense a parliamentary executive, for it was in reality appointed anddismissed by the English Ministry. Itwould be idle to suppose thatmere defects in constitutional mechanism would in themselves havecaused, or that the most ingenious of constitutional devices would ofthemselves 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 asovereign parliament with a non-parliamentary executive made it all
but certain that Gra_n'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 astrange 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 andresponsible government.
26 See the Imperial Constitution,

Arts 2 and 78.

333

LAW OF 1HE CONSTITUTION

The difference again between a parliamentary and a non-parliamentary executive, though it covers, does not correspond witha distinction, strongly insisted on by Bagehot, between Cabinet Government and Presidential Government.2v Cabinet Government, asthat 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 besuggested, 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, _ andthere 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 Gem-Lan 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 andin 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 theHouses 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 froma parliamentary into a non-parliamentary
executive. The possibility of
27 See Bagehot, Enghsh Constitution (ed. 1878),

pp. 16 and following.

28 See H61ie, Les Constitutions de la France, pp. 136o, 1397.

334

APPENDIX

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 dtizens who
have according to the letter of the constitution no more right to electa 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 isappointed 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 conductof public affairs, and in France, as in some other countries, havegiven rise to violence and revolution. A parliamentary Cabinet mustfrom the necessity of the case be intensely sensitive and amenable tothe fluctuations of parliamentary opinion, and be anxious, in mattersof administration no less than in matters of legislation, to meet thewishes, and even the fancies, of the body to which the Ministry owes
its existence. The "'fle_dbility," 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 sovereigntyof 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 undera system of Cabinet government the administration of affairs is apt, in
all its details, to reflect not only the permanent will, but also thetemporary wishes, or transient passions and fancies, of a parliamentary majority, or of the electors from whose good will the majority

335

LAW OF 77-IECONSTITUTION

derives its authority. A parliamentary executive, in short, is likely to
become the creature of the parliament by which it is created, and toshare, 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 theexact opposite of the merits and defects of a parliamentary executive.
Each form of administration is strong where the other is weak, andweak 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 termswith and to have the support of the legislative body. But the German
Emperor need not pay anything like absolute deference to the wishesof the Diet; an American President can, if he chooses, run counter tothe opinion of Congress. Either Emperor or President, if he be a manof strong will and decided opinions, can in many respects give effectas head of the executive to his own views of sound policy, eventhough he may, for the moment, offend not only the legislature
but also the electors. Nor can it be denied that the head of a nonparliamentary 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, justbecause the Prussian executive was in fact, whatever the theory of theconstitution, 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 ofthe 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 thesecond French Republic is, from the election of Louis Napoleon to the
Presidency down to the Coup d'P_tatof the 2nd of December, little elsethan the story of the contest between the French executive and theFrench legislature. This struggle, it may be said, arose from the336

APPENDIX

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 otherexamples, 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, withsuccess.
The Directory which from 2795 to 2799 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 theCouncils. 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 thedifferent crises of the Revolution had displayed. If any Constitution could
have become firmly established at that period [_795], it was the directorialconstitution. 29

Itlasted for four years. Within two years the majority of the Directory
and the Councils were at open war. Victory was determined in favourof the Directors by a ooup d'_tat, followed by the transportation of theiropponents 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, FrenchRevolution (English Translation)p. 3o3.

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LAW OF THE CONSTITUTION

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 2875France was again engaged in
the construction of a Republican Constitution. The endeavour wasagain made to create an executive power which should neither behostile 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 iselected 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 atleast, considerable powers; he appoints the Ministry or Cabinet, in
whose deliberations he, sometimes at least, takes part, and, with theconcurrence of the Senate, can dissolve the Chamber of Deputies.
The Third French Republic, as we all know, has now lasted forthirty-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 theinteresting 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 ofreactionists to prevent the foundation of a Republican Commonwealth. The breakdown of the particular experiment with which weare 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 Gr6vy nor President Carnot attempted to be the real head of theadministration. President Faure and President Loubet followed intheir steps. Each of these Presidents filled, or tried to fill, the part, notof 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-

338

APPENDIX

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 circumstancesof President Gr6vy's fall, as also of President Casimir P6rier'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 todismiss a President than to change a Ministry. Still the President is inreality 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 ofan elective chamber. The plain truth is that the semi-parliamentary
executive which the founders of the Republic meant to constitute hasturned out a parliamentary executive of a very extreme type.
The statesmen who in _848 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 CounciP ° of Switzerland is a Cabinet or Ministry elected, but
not dismissible, by each Federal Assembly. For the purpose of theelection 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 withthe executive. The Council, it is true, cannot be dismissed by thelegislature, 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, anddemocracies are supposed, not without reason, to be fickle; yet the
Swiss executive power possesses a permanence and stability which
3o As to the character of the Swiss Federal Council, see Lowell, Governments and Parties inContinental Europe, ii. pp. _91-2o8.

339

LAW OF THE CONSTITUTION

does not characterise any parliamentary Cabinet. An English Ministry, to judge by modem experience, cannot often retain power for
more than the duration of one parliament; the Cabinets of Louis
Ph_ippe 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, areelected only for three years; they are however re-eligible, and reelection is not the exception but the rule. The men who make up theadministration 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 morereason why the Assembly should not re-elect a trusted administrator,
than why in England a joint-stock company should not from time totime reappoint a chairman in whom they have confidence. The Swiss
Council, indeed, is--as far as a stranger dare form an opinion on amatter of which none but Swiss citizens are competent judgesmnot a
Ministry or a Cabinet in the English sense of the term. It may bedescribed as a Board of Directors appointed to manage the concernsof 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 oncethe 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 modeof appointing the Council, wish to place the election thereof in thehands of the citizens. Such a revolution, should it ever be carriedout, would, be it noted, create not a parliamentary but a nonparliamentary executive.31

3_ See Adams, Swiss Confederation, ch. iv.

340

APPENDIX

Note 1V

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 ofself-defence? 32
The answer to this inquiry is confessedly obscure and indefinite,and does not admit of being given with dogmatic certainty; nor needthis 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 selfhelp, and loyal subjects become the slaves of ruffians. Over-stimulate
self-assertion, and for the arbitrament of the Courts you substitutethe 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 ofattacking, for instead of attacking one another for injuries past or
impending, men need only have recourse to the proper tribunals ofjustice."33
A notion is current, _ 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, a879, pp. 43-46 [C. 2345], Notes A and B;
Stephen, Criminal Digest (6th ed.), art. 2274_ East, P. C. 271-294; Foster, D/scourse H. 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 critidsm it is however open to doubt
whether Lord St. Leonards held predsely the dogma ascribed to him. See Criminal CodeBill Commission, Report [C. 2345], p. 44, Note B.

34I

LAW OF THE CONSTITUTION

and not more than necessary, for the protection of his legal rights.
This notion, however popular, is erroneous. If pushed to its fairconsequences, it would at times justify the shooting of trespassers,
and would make it legal for a schoolboy, say of nine years old, to staba 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 wasconvicted by the jury, sentenced by the judge, and, on the following
Monday, hanged by the hangman. He was, it would seem, a wellmeaning 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 otherwords the possible answers to our inquiry, are, it will be found, two,and two only.
FIRS T THEORYIn defence of a man's liberty, person, or property, he may lawfully
use any amount of force which is both "necessary"--i.e.
not morethan enough to attain its object--and "reasonable" or "proportionate"--i.e. which does not inflict upon the wrongdoer mischief out of
proportion to the injury or mischief which the force used is intended
to prevent; and no man may use in defending his rights an amountof force which is either unnecessary or unreasonable.
This doctrine of the "legitimacy of necessary and reasonable force"is adopted by the Criminal Code Bill Commissioners. It had better begiven in their own words:

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APPENDIX
We take [they write] one great principle of the common law to be, thatthough it sanctions the defence of a man's person, liberty, and property
against illegal violence, and permits the use of force to prevent crimes, topreserve the public peace, and to bring offenders to justice, yet all this issubject to the restriction that the force used is necessary; that is, that themischief sought to be prevented could not be prevented by less violentmeans; and that the mischief done by, or which might reasonably be anticipated from the force used is not disproportioned to the injury or mischief
which it is intended to prevent. This last principle will explain and justify
many of our suggestions. It does not seem to have been universally admitted; and we have therefore thought it advisable to give our reasons forthinking that it not only ought to be recognised as the law in future, but that
it is the law at present. 3s

The use of the word "necessary" is, it should be noted, somewhat
peculiar, since it indudes the idea both of necessity and of reasonableness. When this is taken into account, the Commissioners' view is,
it is submitted, as already stated, that a man may lawfully use in
defence of his rights such an amount of force as is needful for theirprotection and as does not inflict, or run the risk of inflicting, damageout of all proportion to the injury to be averted, or (if we look at thesame thing from the other side) to the value of the right to be protected. This doctrine is eminently rational. It comes to us recommended by the high authority of four most distinguished judges. It
certainly represents the principle towards which the law of England tends to approximate. But there is at least some ground for thesuggestion that a second and simpler view more accurately represents the result of our authorities.
SECOND THEORY
A man, in repelling an unlawful attack upon his person or liberty, is justified in using against his assailant so much force, evenamounting to the infection of death, as is necessary for repelling theattackmi.e, as is needed for self-defence; but the infliction upon awrongdoer of grievous bodily harm, or death, is justified, speaking
35 C. C. B. Commission, Report, p. _.

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LAW OF THE CONSTITUTION

generally, only by the necessities of self-defence--i.e,the defence oflife, limb, or permanent liberty. 36
This theory may be designated as the doctrine of "the legitimacy offorce necessary for self-defence." Its essence is that the right to inflictgrievous bodily harm or death upon a wrongdoer originates in, and islimited by, the right of every loyal subject to use the means necessary
for averting serious danger to life or limb, and serious interferencewith his personal liberty.
The doctrine of the 'qegitimacy of necessary and reasonable force"and the doctrine of the "legitimacy of force necessary for self-defence" conduct in the main, and in most instances, to the samepractical results.
On either theory A, when assaulted by X, and placed in peril of his
life, may, if he cannot otherwise repel or avoid the assault, strike X
dead. On the one view, the force used by A is both necessary andreasonable; on the other view, the force used by A is employedstrictly in self-defence. According to either doctrine A is not justified
in shooting at X because X is wilfully trespassing on A's land. For thedamage inflicted by A upon X-- namely, the risk to X of losing his
life--is unreasonable, that is, out of all proportion to the injury done
to A by the trespass, and A in firing at a trespasser is dearly using
force, not for the purpose of self-defence, but for the purpose ofdefending his property. Both theories, again, are consistent with theelaborate and admitted rules which limit a person's right to wound or
slay another even in defence of life or limb. 37The gist of these rules is
36 See Stephen, Commentaries (_th ed.), i. p. 79; iii. p. 267; iv. pp. 42-46. "In the case ofjustifiable self-defence the injured party may repel force with force in defence of his person,
habitation, or property, against one who manifestly intendeth and endeavoureth withviolence or surprise to commit a known felony upon either. In these cases he is not obliged
to retreat, but may pursue his adversary 'till he findeth himself out of danger, and if in a
conflict between them he happeneth to kill, such killing is justifiable.
"Where a known felony is attempted upon the person, be it to rob or murder, here theparty assaulted may repel force with force, and even his servant then attendant on him, or
any other person present, may interpose for preventing mischief; and if death ensueth, theparty so interposing will be justified. In this case nature and social duty co-operate."--Foster, Discourse II. chap. iii. pp. 273, 274.
37 See Stephen, Criminal Digest (6th ed.), art. 221, but compare Commentaries (8th ed.), iv.
PP. 54- 56; and _ Hale, P. C. 479. The authorities are not precisely in agreement as to the344

APPENDIX

that no man must slay or severly injure another until he has done
everything he possibly can to avoid the use of extreme force. A is
struck by a ruffian, X; A has a revolver in his pocket. He must notthen and there fire upon X, but, to avoid crime, must first retreat as
faras he can. X pursues; A is driven up against a wall. Then, and nottill then, A, if he has no other means of repelling attack, may justifiably fire at X. Grant that, as has been suggested, the minute provisos
as to the circumstances under which a man assaulted by a ruffian
may turn upon his assailant, belong to a past state of society, and are
more or less obsolete, the principle on which they rest is, nevertheless, dear and most important. It is, that a person attacked, even by awrongdoer, may not in self-defence use force which is not "necessary," and that violence is not necessary when the person attacked
can avoid the need for it by retreat; or, in other words, by the temporary surrender of his legal right to stand in a particular placeme.g, in aparticular part of a public square, where he has a lawful right tostand. 38Both theories, in short, have reference to the use of "necessary" force, and neither countenances the use of any force which ismore than is necessary for its purpose. A is assaulted by X, he can onneither theory justify the slaying or wounding of X, if A can provide
for his own safety simply by locking a door on X. Both theories
equally well explain how it is that as the intensity of an unlawful
assault increases, so the amount of force legitimately to be used inself-defence increases also, and how defence of the lawful possessionof property, and especially of a man's house, may easily turn into thelawful defence of a man's person. "A justification of a battery inright of A to wound X before he has retreated as far as he can. But the general principle
seems pretty dear. The rule as to the necessity for retreat by the person attacked must be
always taken in combination with the acknowledged right and duty of every man to stop
the commission of a felony, and with the fact that defence of a man's house seems to belooked upon by the law as nearly equivalent to the defence of his person. 'qf a thief assaults
a true man, either abroad orin his house, to rob or kill him, the true man is not bound to
give back, but may kill the assailant, and it is not felony."--_ Hale, P. C. 48_. See as todefence of house, _ East, P. C. 287.
38 Stephen, Commentaries (14th ed.), iv. pp. 42-46; compare 1Hale, P. C. 481, 482, Stephen,
Criminal Digest, art. 222; Foster, Diswurse//. cap. iii. It should be noted that the ruleenjoining that a man shall retreat from an assailant before he uses force, applies, it would
appear, only to the use of such force as may inflict grievous bodily harm or death.

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LAW OF THE CONSTITUTION

defence of possession, though it arose in defence of possession, yet in
the end it is the defence of the person. ,,39This sentence contains thegist of the whole matter, but must be read in the light of the caution
insisted upon by Blackstone, that the right of self-protection cannot
be used as a justifcafion for attack. 4°
Whether the two doctrines may not under conceivable circumstances lead to different results, is an inquiry of great interest, but inthe cases which generally come before the Courts, of no great importance. What usually requires determination is how far a man may
lawfully use all the force necessary to repel an assault, and for thispurpose it matters little whether the test of legitimate force be its"reasonableness" or its "self-defensive character.'" If, however, it benecessary to choose between the two theories, the safest course for an
English lawyer is to assume that the use of force which inflicts or may
inflict grievous bodily harm or death-- of what, in short, may becalled "extreme" force--is justifiable only for the purpose of strict
self-defence.
This view of the right of self-defence, it may be objected, restricts
too narrowly a citizen's power to protect himself against wrong.
The weight of this objection is diminished by two reflections.
For the advancement of public justice, in the first place, every man
is legally justified in using, and indeed is often bound to use, force,
which may under some circumstances amount to the infliction ofdeath.
Hence a loyal citizen may lawfully interfere to put an end to abreach of the peace, which takes place in his presence, and use suchforce as is reasonably necessary for the purpose. 41Hence, too, any
private person who is present when any felony is committed, isbound by law to arrest the felon, on pain of fine and imprisonment if
he negligently permit him to escape. 42
39 Rolle's Ab. Trespass, g. 8.
4o Blacks. Comm. iv. pp. 283, 284.
41 See Timothy v. Simpson, 1 C. M. & R. 757.
42 Stephen, Commentaries (z4th ed.), iv. p. 309; Hawkins,

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P. C. bookii, cap. 12.

APPENDIX
Where a felony is committed and the felon flyeth from justice, or a dangerous wound is given, it is the duty of every man to use his best endeavours
for preventing an escape. And if in the pursuit the party flying is killed,
where he cannot otherwise be overtaken, this will be deemed justifiable homicide.
For the pursuit was not barely warrantable; it is what the law requireth, andwill punish the wilful neglect of. 43

No doubt the use of such extreme force is justifiable only in the caseof felony, or for the hindrance of crimes of violence. But
such homidde as is committed for the prevention of any forcible and atrocious
crime, is justifiable..,by the law of England...
as it stands at the presentday. If any person attempts the robbery or murder of another, or attempts tobreak open a house in the night-time, and shall be killed in such attempt,
either by the party assaulted, or the owner of the house, or the servant
attendant upon either, or by any other person, and interposing to preventmischief, the slayer shall be acquitted and discharged. This reaches not toany crime unaccompanied with force--as, for example, the picking of pockets; nor to the breaking open of a house in the day-time, unless such entry
carries with it an attempt of robbery, arson, murder, or the like. _Acts therefore which would not be justifiable in protection of a person's own property, may often be justified as the necessary means,
either of stopping the commission of a crime, or of arresting a felon.
Burglars rob A's house, they are escaping over his garden wall, cartying off A's jewels with them. A is in no peril of his life, but hepursues the gang, calls upon them to surrender, and having no othermeans of preventing their escape, knocks down one of them, X, who diesof the blow; A, it would seem, if Foster's authority may be trusted,
not only is innocent of guilt, but has also discharged a public duty. 4s
43 Foster, DiscourseH. of Homidde, pp. 27_, 272, and compare pp. 273, 274.
"The intentional infliction of death is not a crimewhen it is done by any person.., inorder to arrest a traitor, felon, or pirate, or keep in lawful custody a traitor, felon, or pirate,
who has escaped, or is about to escape from such custody, although such traitor, felon, or
pirate, offers no violence to any person."--Stephen, Digest (6th ed.), art. 222.
44 Stephen, Commentaries(8th ed.), iv. pp. 49, 5o, and compare 14thed. p. 4o.
45 A story told of the eminent man and very learned judge, Mr.Justice Willes, and relatedby an ear-witness, is to the following effect:--Mr. JusticeWilles was asked: 'qf I look into
my drawing-room, and see aburglar packing up the dock, and he cannot see me, what
ought I to do?" Wil/es replied, as nearly as may be""My advice to you, which I give as a

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LAW OF THE CONSTITUTION

Let it be added that where A may lawfully inflict grievous bodily
harm upon X--e.g. in arresting him--X acts unlawh_y in resistingA, and is responsible for the injury caused to A by X's resistance. 46
Every man, in the second place, acts lawfully as long as he merely
exercises his legal rights, and he may use such moderate force as ineffect is employed simply in the exercise of such rights.
A is walking along a public path on his way home, X tries to stop
him; A pushes X aside, X has a fall and is hurt. A has done no wrong;he has stood merely on the defensive and repelled an attempt tointerfere with his right to go along a public way. X thereupon draws asword and attacks A again. It is dear that if A can in no other way
protect himself--e.g, by running away from X, or by knocking X
down--he may use any amount of force necessary for his selfdefence. He may stun X, or fire at X.
Here, however, comes into view the question of real difficulty.
How far is A bound to give up the exercise of his rights, in thisparticular instance the right to walk along a particular path, rather
than risk the maiming or the killing of X?
Suppose, for example, that A knows perfectly well that X daims,
though without any legal ground, a right to dose the particular footpath, and also knows that, if A turns down another road which will
also bring him home, though at the cost of a slightly longer walk, hewill avoid all danger of an assault by X, or of being driven, in socalled self-defence, to inflict grievous bodily harm upon X.
Of course the case for A's right to use any force necessary for his
purpose may be put in this way. A has a right to push X aside. As X'sviolence grows greater, A has a right to repel it. He may thus turn ascuffle over a right of way into a struggle for the defence of A's life,and so justify the infliction even of death upon X. But this manner ofman, as a lawyer, and as an English judge, is as follows: In the supposed circumstance thisis what you have a right to do, and I am by no means sure that it is not your duty to do it.
Take a double-barrelled gun, carefully load both barrels, and then, without attracting theburglar's attention, aim steadily at his heart and shoot him dead." See Saturday Review,Nov. _, _893, p. 53446 Foster, Discourse//. p. 272.

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APPENDIX

looking at the matter is unsound. Before A is justified in, say, firing at
X or stabbing X, he must show distinctly that he comes within one atleast of the two principles which justify the use of extreme force
against an assailant. But if he can avoid X's violence by going a few
yards out of his way, he cannot justify his conduct under either ofthese principles. The firing at X is not "reasonable," for the damage
inflicted by A upon X in wounding him is out of all proportion to themischief to A which it is intended to preventmnamely, his being
forced to go a few yards out of his way on his road home. The firing at X, again, is not done in strict self-defence, for A could haveavoided all danger by turning into another path. A uses force, not forthe defence of his life, but for the vindication of his right to walkalong a particular pathway. That this is the true view of A's position ispretty dearly shown by the old rules enjoining a person assaulted toretreat as far as he can before he grievously wounds his assailant.
Reg. v. HewletL a case tried as late as 2858, contains judicial doctrine
pointing in the same direction. A was struck by X, A thereupon drewa knife and stabbed X. The judge laid down that "unless the prisoner[A] apprehended robbery or some similar offence, or danger to life, or
serious bodily danger (not simply being knocked down), he would
not be justified in using the knife in self-defence. ,,47The essence of
this dictum is, that the force used by A was not justifiable, because,though it did ward off danger to A--namely, the peril of being
knocked downmit was not necessary for the defence of A's life orlimb, or property. The case is a particularly strong one, because X
was not a person asserting a supposed right, but a simple
wrongdoer.
Let the last case be a little varied. Let X be not a ruffian but apoliceman, who, acting under the orders of the Commissioner of
Police, tries to prevent A from entering the Park at the Marble Arch.
Let it further be supposed that the Commissioner has taken an erroneous view of his authority, and that therefore the attempt to hinder A from going into Hyde Park at the particular entrance does not
47 Foster & Finlason, 9z, per Crowder J.

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LAW OF THE CONSTITUTION

admit of legal justification. X, under these circumstances, is therefore
legally in the wrong, and A may, it would seem, 48push by X. But isthere any reason for saying that ifA cannot simply push X aside hecan lawfully use the force necessary--e.g,
by stabbing X--to effectan entrance? There dearly is none. The stabbing of X is neither areasonable nor a self-defensive employment of force.
A dispute, in short, as to legal rights must be settled by legal
tribunals, "'for the King and his Courts are the vindices injuriarum, andwill give to the party wronged all the satisfaction he deserves"; 49noone is allowed to vindicate the strength of his disputed rights by theforce of his arm. Legal controversies are not to be settled by blows. A
bishop who in the last century attempted, by means of riot andassault, to make good his claim to remove a deputy registrar, wasadmonished from the Bench that his view of the law was erroneous,and was saved from the condemnation
rhetoric and the fallacies of Erskine.S°of the jury only by the

From whatever point therefore the matter be approached, we comeround to the same conclusion. The only undoubted justification for
the use of extreme force in the assertion of a man's rights is, subject tothe exceptions or limitations already mentioned, to be found in, as it
is limited by, the necessities of strict self-defence.
Note VQUESTIONS CONNECTED WITH
THE RIGHT OF PUBLIC MEETING
Four important questions connected with the right of public meeting require consideration.
These inquiries are: first, whether there exist any general right ofmeeting in public places? secondly, what is the meaning of the term
48 It is of course assumed in this imaginary case that Acts of Parliament are not in force
empowering the Commissionerof Police to regulate the use of the right to enter into thePark. It is not my intention to discuss the effect of the Metropolitan Police Acts, or to
intimate any opinion as to the powers of the Commissioner of Police.
49 Stephen,

Commentaries (14th ed.), iv. p. 44-

5o The Bishop of Bangor's Case, 26 St. Tr. 463.

35 °

APPENDIX"an unlawful assembly"? thirdly, what are the rights of the Crown or
its servants in dealing with an unlawful assembly? artdfourthly, what
are the fights possessed by the members of a lawful assembly whenthe meeting is interfered with or dispersed by force?
For the proper understanding of the matters under discussion, it isnecessary to grasp firmly the truth and the bearing of two indisputable but often neglected observations.
The first is that English law does not recognise any special right ofpublic meeting either for a political or for any other purpose, sl
The right of assembling is nothing more than the result of the view
taken by our Courts of individual liberty of person and individual
liberty of speech.
Interference therefore with a lawful meeting is not an invasion of apublic right, but an attack upon the individual rights of A or B, andmust generally resolve itself into a number of assaults upon definite
persons, members of the meeting. A wrongdoer who disperses a
crowd is not indicted or sued for breaking up a meeting, but is liable(if at all) to a prosecution or an action for assaulting A, a definite
member of the crowd.S2 Hence further the answer to the question
how far persons present at a lawful meeting may resist any attempt todisperse the assembly, depends at bottom on a determination of themethods prescribed by law to a given citizen A, for punishing or
repelling an assault.
The second of these preliminary observations is that the most serious of the obscurities which beset the law of public meetings arise
from the difficulty of determining how far a citizen is legally justified
in using force for the protection of his person, liberty, or property, or,if we may use the word "self-defence" in its widest sense, fromuncertainty as to the true principles which govern the right of selfdefence, s3
The dose connection of these introductory remarks with the questions to be considered will become apparent as we proceed.
51 See chap. vii., ante.
52 SeeRedford v. Birley, 1 St. Tr. (n. s.) lOI7.
53 See Note IV., ante.

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LAW OF THE CONSTITUTION

DOES THERE EXIST ANY GENERAL RIGHT OFMEETING IN PUBLIC PLACES?
The answer is easy. No such right is known to the law of England.
Englishmen, it is true, meet together for political as well as for otherpurposes, in parks, on commons, and in other open spaces accessible
to all the world. It is also true that in England meetings held in the
open air are not subject, as they are in other countries--for instance,
Belgium--to special restrictions. A crowd gathered together in a
public place, whether they assemble for amusement or discussion, tosee an acrobat perform his somersaults or to hear a statesman explain
his tergiversations, stand in the same position as a meeting held forthe same purpose in a hall or a drawing-room. An assembly convened, in short, for a lawful object, assembled in a place which themeeting has a right to occupy, and acting in a peaceable manner
which inspires no sensible person with fear, is a lawful assembly,
whether it be held in Exeter Hall, in the Grounds of Hatfield or
Blenheim, or in the London parks. With such a meeting no man has aright to interfere, and for attending it no man incurs legal penalites.
But the law which does not prohibit open-air meetings does not,speaking generally, provide that there shall be spaces where the public can meet in the open air, either for political discussion or foramusement. There may of course be, and indeed there are, special
localities which by statute, by custom or otherwise, are so dedicatedto the use of the public as to be available for the purpose of public
meetings. But speaking in general terms, the Courts do not recognisecertain spaces as set aside for that end. In this respect, again, a crowdof a thousand people stand in the same position as an individual
person. IfA wants to deliver a lecture, to make a speech, or to exhibita show, he must obtain some room or field which he can legally use
for his purpose. He must not invade the rights of private property--i.e. commit a trespass. He must not interfere with the convenienceof the public--i.e, create a nuisance.
The notion that there is such a thing as a right of meeting in public
places arises from more than one confusion or erroneous assumption.
The right of public meeting--that is, the right of all men to come352

APPENDIX

together in a place where they may lawfully assemble for any lawful
purpose, and especially for political discussion--is confounded withthe totally different and falsely alleged right of every man to use forthe purpose of holding a meeting any place which in any sense isopen to the public. The two rights, did they both exist, are essentiallydifferent, and in many countries are regulated by totally different
rules. Itis assumed again that squares, streets, or roads, which every
man may lawh_y use, are necessarily available for the holding of ameeting. The assumption is false. A crowd blocking up a highway
will probably be a nuisance in the legal, no less than in the popular,sense of the term, for they interfere with the ordinary citizen's right touse the locality in the way permitted to him by law. Highways,
indeed, are dedicated to the public use, but they must be used for
passing and going along them, s4 and the legal mode of use negatives
the daim of politicians to use a highway as a forum, just as it excludes
the claim of actors to turn it into an open-air theatre. The crowd whocollect, and the persons who cause a crowd, for whatever purpose, tocollect in a street, create a nuisance, ss The claim on the part of persons so minded to assemble in any numbers and for so long a time as
they please, to remain assembled "to the detrLrnent of others having
equal rights, is in its nature irreconcilable with the right of free passage, and there is, so far as we have been able to ascertain, no
authority whatever in favour of it. ''s6 The general public cannot makeout a right to hold meetings even on a common, sTThe ground of
popular delusions as to the right of public meeting in open places is atbottom the prevalent notion that the law favours meetings held forthe sake of political discussion or agitation, combined with the tacit
assumption that when the law allows a right it provides the means
for its exercise. No ideas can be more unfounded. English law nomore favours or provides for the holding of political meetings thanfor the giving of public concerts. A man has a right to hear an orator
54 Dovaston v. Payne, 2 Hy. B1. 527.
55 Rex v. Carlile, 6 C. & P. 628, 636; the Trammays Case, The Times, 7th September 1888.
56 Ex parte Lewis, 22 Q. B. D. 191, 297;per Curiam.
57 Bailey v. Williamson, L. R. 8 Q. B. 1_8;De Morgan v. Metropolitan Board of Works, 5 Q. B. D.
255.

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LAW OF THE CONSTITUTION

as he has a right to hear a band, or to eat a bun. But each right must
be exercised subject to the laws against trespass, against the creationof nuisances, against theft.
The want of a so-called forum may, it will be said, prevent ten
thousand worthy citizens from making a lawful demonstration of
their political wishes. The remark is true, but, from a lawyer's point ofview, irrelevant. Every man has a right to see a Punch show, but if
Punch is exhibiting in a theatre for money, no man can see him whocannot provide the necessary shilling. Every man has a right to hear aband, but if there be no place where a band can perform withoutcausing a nuisance, then thousands of excellent citizens must forgo
their right to hear music. Every man has a right to worship God after
his own fashion, but if all the landowners of a parish refuse groundfor the building of a Wesleyan chapel, parishioners must forgo
attendance at a Methodist place of worship.
WHAT IS THE MEANING OF THE TERM
"AN UNLAWFUL ASSEMBLY"?
The expression "unlawful assembly" does not signify any meetingof which the purpose is unlawful. If, for example, five cheats meet in
one room to concoct a fraud, to indite a libel, or to forge a bank-note,or to work out a scheme of perjury, they assemble for an unlawful
purpose, but they can hardly be said to constitute an "unlawful assembly." These words are, in English law, a term of art. This term hasa more or less limited and definite signification, and has from time totime been defined by different authorities s8 with varying degrees ofprecision. The definitions vary, for the most part, rather in words
than in substance. Such differences as exist have, however, a twofold
importance. They show, in the first place, that the circumstances
which may render a meeting an unlawful assembly have not been
58 See Hawkins, P. C. book i. cap. 65, ss. 9, _1;Blackstone, iv. p. _46; Stephen, Commentaries(14th ed.), iv. p. _74; Stephen, Criminal Digest, art. 75; Criminal Code Bill Commission, Draft
Code, sec. 84, p. 80; Rex v. Pinney, 5 C. & P. 254; Rex v. Hunt, 1 St. Tr. (n. s.) _7_;Redford v.
Birley, ibid. lO71;Rex v. Morris, ibid, 52I; Reg. v. Vincent, 3 St. Tr. (n. s.) _o37, _o82; Beatty v.
Gillbanks, 9 Q. B. D. 3o8; Reg. v. M'Naughton (Irish), 14 Cox, C. C. 576; O'Kelly v. Harvey(Irish), 15 Cox, C. C. 435.

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APPENDIX

absolutely determined, and that some important questions with regard to the necessary characteristics of such an assembly are open to
discussion. They show, in the second place, that the rules defining
the right of public meeting are the result of judicial legislation, andthat the law which has been created may be further developed by thejudges, and hence that any lawyer bent on determining the characterof a given meeting must consider carefully the tendency, as well as
the words, of reported judgments.
The general and prominent characteristic of an unlawful assembly (however defined) is, to any one who candidly studies the authorities, dear enough. It is a meeting of persons who either intend tocommit or do commit, or who lead others to entertain a reasonable
fear that the meeting will commit, a breach of the peace. This actualor threatened breach of the peace is, so to speak, the essential characteristic or "property" connoted by the term "unlawful assembly.'"
A careful examination, however, of received descriptions or definitions and of the authoritative statements contained in Sir James
Stephen's Digest and in the Draft Code drawn by the Criminal CodeCommissioners, enables an inquirer to frame a more or less accurate
definition of an "unlawful assembly."
It may (it is submitted) be defined as any meeting of three or more
persons who
2. Assemble to commit, or, when assembled do commit, a breach of
the peace; or
2. Assemble with intent to commit a crime by open force; or
3. Assemble for any common purpose, whether lawful or unlawful,in such a manner as to give firm and courageous persons in theneighbourhood of the assembly reasonable cause to fear abreach of the peace, in consequence of the assembly; or
4. Assemble with intent to incite disaffection among the Crown's
subjects, to bring the Constitution and Government of therealm, as by law established, into contempt, and generally tocarry out, or prepare for carrying out, a public conspiracy.s9
59 O'Kelly v. Harvey (Irish), _5 Cox, C. C. 435. The portion of this definition contained inbrackets must perhaps be considered as, in England, of doubtful authority (see, however,Reg. v. Ernest Jones, 6St. Tr. (n. s.) 783, 8_6, 8_7, summing up of Wilde, C. J., andReg, v.

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LAW OF THE CONSTITUTION

The following points require notice:
1. A meeting is an unlawful assembly which either disturbs thepeace, or inspires reasonable persons in its neighbourhood with afear that it will cause a breach of the peace.
Hence the state of public feeling under which a meeting is convened, the dass and the number of the persons who come together,
the mode in which they meet (whether, for instance, they do or do
not carry arms), the place of their meeting (whether, for instance,
they assemble on an open common or in the midst of a populous city),and various other circumstances, must all be taken into account in determining whether a given meeting is an unlawful assembly or not.
2. A meeting need not be the less an unlawful assembly because it
meets for a legal object.
A crowd collected to petition for the release of a prisoner or to seean acrobatic performance, though meeting for a lawful object, mayeasily be, or turn into, an unlawful assembly. The lawfulness of theaim with which a hundred thousand people assemble may affect thereasonableness of fearing that a breach of the peace will ensue. But
the lawfulness of their object does not of itself make the meeting
lawful.
3. A meeting for an unlawful purpose is not, as already pointed
out, necessarily an unlawful assembly.
The test of the character of the assembly is whether the meeting
does or does not contemplate the use of unlawful force, or does ordoes not inspire others with reasonable fear that unlawful force will
be used--i.e, that the King's peace will be broken.
4. There is some authority for the suggestion that a meeting for the
purpose of spreading sedition, of exciting dass against class, or ofbringing the constitution of the country into contempt, is ipsofacto an
unlawful assembly,6° and that a meeting to promote an unlawful
FusseU, ibid. 723, 764, summing up of Wilde, C. J.), but would, it is conceived, certainly holdgood if the circumstances of the time were such that the seditious proceedings at themeeting would be likely to endanger the public peace.
6o See Redford v. Birley, 1 St. Tr. (n. S.) 1071;Rex v. HunL ibid. _7_ Rex v. Morris, ibid. 5a_; Reg.
v. M'Naughton (Irish), 14 Cox. C. C. 572; O'Kelly v. Harvey (Irish), 25 Cox, C. C. 435; Reg. v.
Burns, 16 Cox, C. C. 355; Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783; Reg. v. Fussell, ibid. 723.

356

APPENDIX

conspiracy of a public character, even though it does not directly
menace a breach of the peace, is also an unlawful assembly.
This is a matter on which it is prudent to speak with reserve andhesitation, and to maintain a suspended judgment until the pointsuggested has come fairly before the English Courts. The true rule(possibly) may be, that a meeting assembled for the promotion of apurpose which is not only criminal, but also if carried out will promote a breach of the peace, is itself an unlawful assembly.
5. Two questions certainly remain open for decision.
Is a meeting an unlawful assembly because, though the meeting
itself is peaceable enough, it excites reasonable dread of future disturbance to the peace of the realm; as where political leaders addressa meeting in terms which it is reasonably supposed may, after the
meeting has broken up, excite insurrection?
The answer to this inquiry is doubtful. 61
Need again the breach of the peace, or fear thereof, which gives a
meeting the character of illegality, be a breach caused by the membersof the meeting?
To this inquiry an answer has already been given in the body ofthis treatise. 62
The reply is, in general terms, that, on the one hand, a meeting
which, as regards its object and the conduct of the members of it, isperfectly lawful, does not become an unlawful assembly from themere fact that possibly or probably it may cause wrongdoers who
dislike the meeting to break the peace, 63but, on the other hand, a
61 See Rex v. Hunt, 1 St. Tr. (n. s.) _7I; Rex v. Dewhurst, ibid. 530, 599. "Upon the subject ofterror, there may be cases in which, from the general appearance of the meeting, there
could be no fear of immediate mischief produced before that assembly should disperse; andI am rather disposed to think that the probability or likelihood of immediate terror before
the meeting should disperse is necessary in order to fix the charge upon that second countto which I have drawn your attention. But if the evidence satisfies you there was a present
fear produced of future rising, which future rising would be a terror and alarm to theneighbourhood, I should then desire that you would present that as your finding in the
shape of what I should then take it to be, a special verdict": per Bailey, J. See also Reg. v.
Ernest]ones, 6St. Tr. (n. s.) 783; Reg. v. Fussell, ibid. 723.
62 See chap. vii., ante.
63 Beattyv. Gillbanks, 9Q- B. D. 3o8;Reg. v. Justices of Londonderry, 28L. R. Ir. 440, pp. 4&,462, judgment of Holmes, J.

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LAW OF THE CONSTITUTION

meeting which, though perhaps not in strictness an unlawful assembly, does from some illegality in its object, or in the conduct of its
members, cause a breach of the peace by persons opposed to themeeting, may thereby become an unlawful assembly, 64and a meeting which, though in every way perfectly lawful, if it in fact causes a
breach of the peace on the part of wrongdoers who dislike the meeting may, if the peacecan be restored by no other means, be required by themagistrates or other persons in authority to break up, and on themembers of the meeting refusing to disperse, becomes an unlawful
assembly, os
WHAT ARE THE RIGHTS OF THE CROWN OR ITS SERVANTSIN DEALING WITH AN UNLAWFUL ASSEMBLY?
2. Every person who takes part in an unlawful assembly is guilty ofa misdemeanour, and the Crown may therefore prosecute every such
person for his offence.
Whether a given man A, who is present at a particular meeting,does thereby incur the guilt of "taking part" in an unlawful assembly,
is in each case a question of fact.
A, though present, may not be a member of the meeting; he may
be there accidentally; he may know nothing of its character; thecrowd may originally have assembled for a lawful purpose; the circumstances, e.g. the production of arms, or the outbreak of a riot,
which render the meeting unlawful, may have taken place after itbegan, and in these transactions A may have taken no part. Hencethe importance of an official notice, e.g. by a Secretary of State, or by amagistrate, that a meeting is convened for a criminal object. A citizen
after reading the notice or proclamation, goes to the meeting at his
peril. If it turns out in fact an unlawful assembly, he cannot plead
ignorance of its character as a defence against the charge of taking
part in the meeting. 66
64 Wise v. Dunning [i9o2], i K. B. 167.
65 On this point see espedallyHumphries

v. Connor, 17Ir. C. L. R. 1.

66 Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n. s.) 543.

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APPENDIX

2. Magistrates, policemen, and all loyal citizens not only are entitled, but indeed are bound to disperse an unlawful assembly, and,if necessary, to do so by the use of force; and it is a gross error to
suppose that they are bound to wait until a riot has occurred, or until
the Riot Act has been read. 67The prevalence of this delusion was thecause, during the Gordon Riots, of London being for days in thehands of the mob. The mode of dispersing a crowd when unlawfully
assembled, and the extent of force which it is reasonable to use, differ
according to the circumstances of each case.
3. If any assembly becomes a riot--i.e, has begun to act in a tumultuous manner to the disturbance of the peacewa magistrate on being
informed that twelve or more persons are unlawfully, riotously, andtumultuously assembled together to the disturbance of the public
peace, is bound to make the short statutable proclamation which is
popularly known as "reading the Riot Act. ,,68
The consequences are as follows: first, that any twelve rioters who
do not disperse within an hour thereafter, are guilty of felony; and,secondly, that the magistrate and those acting with him may, after
such hour, arrest the rioters and disperse the meeting by the employment of any amount of force necessary for the purpose, and areprotected from liability for hurt inflicted or death caused in dispersing
the meeting. The magistrates are, in short, empowered by the Riot
Act to read the prodamation before referred to, and thereupon, after
waiting for an hour, to order troops and constables to fire upon therioters, or charge them sword in hand. 69It is particularly to be noticed
that the powers given to magistrates for dealing with riots under the
Riot Act in no way lessen the common law right of a magistrate, andindeed of every citizen, to put an end to a breach of the peace, andhence to disperse an unlawful assembly. 7o
67 Reg. v. Neale, 9 C. & P. 431;Burdet v. Abbot, 4 Taunt. 4o_, 449- See pp. 285,

286,

ante.

68 1 Geo. I. stat. 2, cap. 5, s. 2.
69 See Stephen, Hist. Crim. Law, i. 2o3; Criminal Code Bill Commission,99.
7oRexv.

Fursey, 6C. &P. 8_; 3 St. Tr. (n. s.) 543.

_59

Draft Code, ss. 88,

LAW OF THE CONSTITUTIONWHAT ARE THE RIGHTS POSSESSED BY
THE MEMBERS OF A LAWFUL ASSEMBLY WHEN
THE MEETING IS INTERFERED WITH
OR DISPERSED BY FORCE?
The Salvation Army assemble in a place where they have a right tomeet, say an open piece of land placed at their disposal by the owner,and for a lawful purpose, namely, to hear a sermon. Certain persons
who think the meeting either objectionable or illegal attempt to break
it up, or do break it up, by force. What, under these circumstances,
are the rights of the Salvationists who have come to listen to apreacher? This in a concrete form is the problem for consideration. 7a
An attempt, whether successful or not, to disperse a lawful assembly involves assaults of more or less violence upon the persons A, B,
and C who have met together. The wrong thus done by the assailants
is, as already pointed out, a wrong done, not to the meeting--a bodywhich has legally no collective rights--but
to A, B, or C, an individual pushed, hustled, struck, or otherwise assaulted.
Our problem is, then, in substance--What
are the rights of A, themember of a meeting, when unlawfully assaulted? And this inquiry,
in its turn, embraces two different questions, which, for dearness
sake, ought to be carefully kept apart from each other.
First, what are the remedies of A for the wrong done to him by theassault?
The answer is easy. A has the right to take civil, or (subject to one
reservation) criminal proceedings against any person, be he an officer, a soldier, a commissioner of police, a magistrate, a policeman,or a private ruffian, who is responsible for the assault upon A. If,
moreover, A be killed, the person or persons by whom his death has
been caused may be indicted, according to circumstances, for manslaughter or murder.
71 For the sake of convenience, I have taken a meeting of the Salvation Army as a typicalinstance of a lawful public meeting. It should, however, be constantly remembered that thefights of the Salvationists are neither more nor less than those of any other crowd lawfullycollected together--e.g,
to hear a band of music.

360

APPENDIX

This statement as to A's rights or (what is, however, the same thingfrom another point of view) as to the liabilities of A's assailants, ismade subject to one reservation. There exists considerable doubt as tothe degree and kind of liability of soldiers (or possibly of policemen)
who, under the orders of a superior, do some act (e.g. arrest A or fireat A) which is not on the face of it unlawful, but which turns out to be
unlawful because of some drcumstance of which the subordinate was
not in a position to judge, as, for example, because the meeting was
not technically an unlawful assembly, or because the officer giving
the order had in some way exceeded his authority.
I hope [says Willes, J.] I may never have to determine that difficult question, how far the orders of a superior officer are a justification. Were I compelled to determine that question, I should probably hold that the orders
are an absolute justification in time of actual war--at all events, as regards
enemies or foreigners--and,I should think, even with regard to Englishborn subjects of the Crown, unless the orders were such as could not legally
be given. I believe that the better opinion is, that an officer or soldier, acting under the orders of his superior--notbeing necessarily or manifestly
illegal-- would be justified by his orders. _2

A critic were rash who questioned the suggestion of a jurist whose
dicta are more weighty than most considered judgments. The words,
moreover, of Mr. Justice Willes enounce a principle which is in itself
pre-eminently reasonable. If its validity be not admitted, results follow as absurd as they are unjust: every soldier is called upon todetermine on the spur of the moment legal subtleties which, after alengthy consultation, might still perplex experienced lawyers, andthe private ordered by his commanding officer to take part in the
suppression of a riot runs the risk, if he disobeys, of being shot byorder of a court-martial, and, if he obeys, of being hanged under thesentence of a judge. Let it further be carefully noted that the doctrineof Mr. Justice Willes, which is approved of by the Criminal CodeCommissioners, 73applies, it would seem, to criminal liability only.
72 Keighly v. Bell, 4 F. & F. 763, 79o, per Willes, J. See also Note VI.p. 5_2,post, Duty of
Soldiers called upon to disperse an Unlawful Assembly.
73 See C. C. B. Commission, DraftCode, ss. 49-53.

36I

LAW OF THE CONSTITUTION

The soldier or policeman who, without full legal justification, assaults
or arrests A incurs (it is submitted), even though acting under orders,full civil liability.
Secondly, how far is A entitled to maintain by force against all
assailants his right to take part in a lawful public meeting, or, in otherwords, his right to stand in a place where he lawfully may stand--e.g. ground opened to A by the owner, for a purpose which isin itself lawful--e.g, the hearing of an address from a captain of theSalvation Army?
In order to obtain a correct answer to this inquiry we should bear inmind the principles which regulate the right of self-defence, 74andshould further consider what may be the different circumstances
under which an attempt may be made without legal warrant to disperse a meeting of the Salvation Army. The attack upon the meeting,or in other words upon A, may be made either by mere wrongdoers,
or by persons who believe, however mistakenly, that they are acting
in exercise of a legal right or in discharge of a legal duty. Let each ofthese cases be examined separately.
Let us suppose, in the first place, that the Salvationists, and A
among them, are attacked by the so-called Skeleton Army or otherroughs, and let it further be supposed that the object of the assault is
simply to break up the meeting, and that therefore, if A and others
disperse, they are in no peril of damage to life or limb.
A and his friends may legally, it would seem, stand their ground,and use such moderate force as amounts to simple assertion of theright to remain where they are. A and his companions may further
give individual members of the Skeleton Army in charge for a breachof the peace. It may, however, happen that the roughs are in large
numbers, and press upon the Salvationists so that they cannot keep
their ground without the use of firearms or other weapons. The useof such force is in one sense necessary, for the Salvationists cannot
hold their meeting without employing it. Is the use of such force
legal? The strongest way of putting the case in favour of A and his
friends is that, in firing upon their opponents, they are using force to
74 See Note IV. p. 342, ante.

362

APPENDIX

put down a breach of the peace. On the whole, however, there can, it
is submitted, be no doubt that the use of firearms or other deadly
weapons, to maintain their right of meeting, is under the circumstances not legally justifiable. The prindple on which extreme acts ofself-defence against a lawless assailant cannot be justified until the
person assaulted has retreated as far as he can, is applicable to A, B,
C, etc., just as it would be to A singly. Each of the Salvationists isdefending, under the supposed circumstances, not his life, but his
right to stand on a given plot of ground.
Next, suppose that the attempt to disperse the Salvationists ismade, not by the Skeleton Army, but by the police, who act under
the order of magistrates who hold bondfide, though mistakenly,7S thata notice from the Home Secretary forbidding the Army to meet,makes its meeting an unlawful assembly.
Under these circumstances, the police are dearly in the wrong. A
policeman who assaults A, B, or C, does an act not admitting of legal
justification. Nor is it easy to maintain that the mere fact of the police
acting as servants of the Crown in supposed discharge of their duty
makes it of itself incumbent upon A to leave the meeting.
The position, however, of the police differs in two important respects from that of mere wrongdoers. Policeman X, when he tells A
to move on, and compels him to do so, does not put A in peril of life
or limb, for A knows for certain that, if he leaves the meeting, he will
not be further molested, or that if he allows himself to be peaceablyarrested, he has nothing to dread but temporary imprisonment andappearance before a magistrate who will deal with his rights in accordance with law. Policeman X, further, asserts _u/fide a supposed
legal right to make A withdraw from a place where X believes A has
no right to stand; there is a dispute between A and X as to a matter oflaw. This being the state of affairs, it is at any rate fairly arguable that
A, B, and C have a fight to stand simply on the defensive,76 and
75 See Beatty v. Gillbanks, 9 Q. B. D. 3o8.
76 The legality, however, of even this amount of resistance to the police is doubtful. "Anyman who advises a public assembly when the police come there to disperse them, to standtheir ground shoulder by shoulder, if that means to resist the police, although it might notmean to resist by striking them; yet if it meant to resist the police and not to disperse, that363

LAW OF THE CONSTITUTION

remain where they are as long as they can do so without inflicting
grievous bodily harm upon X and other policemen. Suppose, however, as is likely to be the fact, that, under the pressure of a large bodyof constables, the Salvationists cannot maintain their meeting without making use of arms--e.g., using bludgeons, swords, pistols, orthe like. They have dearly no right to make use of this kind of force. A
and his friends are not in peril of their lives, and to kill a policeman inorder to secure A the right of standing in a particular place is to inflicta mischief out of all proportion to the importance of the mischief to A
which he wishes to avert.77 A, therefore, ff he stabs or stuns X, can on
no theory plead the right of self-defence. A and X further are, as
already pointed out, at variance on a question of legal rights. This is amatter to be determined not by arms, but by an action at law.
Let it further be noted that the supposed case is the most unfavourable for the police which can be imagined. They may well,though engaged in hindering what turns out to be a lawful meeting,stand in a much better situation than that of assailants. The policemay, under orders, have fully occupied and filled up the groundwhich the Salvationists intend to use. When the Salvationists begin
arriving, they find there is no place where they can meet. Nothing
but the use of force, and indeed of extreme force, can drive the policeaway. This force the Salvation Army cannot use; if they did, theywould be using violence not on any show of self-defence, but toobtain possession of a particular piece of land. Their only propercourse is the vindication of their rights by proceedings in Court.
was illegal advice. If the police had interfered with them, they were not at liberty to resist in
any such circumstances; they ought to have dispersed by law, and have sought theirremedy against any unjust interference afterwards .... This is a body of police acting under
the responsibility of the law, acting under the orders of those who would be responsible forthe orders which they gave, charged with the public peace, and who would have authority
to disperse when they received those orders, leaving those who should give them a deep
responsibility if they should improperly interfere with the exercise of any such publicduties .... Gentlemen, the peaceable citizens are not in the performance of their duty ifthey stand shoulder to shoulder, and when the police come and order the assembly todisperse, they do not disperse, but insist on remaining, they are not in the peaceable
execution of any right or duty, but the contrary, and from that moment they become an
illegal assembly."--Reg,v. Ernest Jones, 6 St. Tr. (n. s.) 783, 811, summing up of Wilde, C. J.
77 Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n. s.) 543.

364

APPENDIX

Of the older cases, which deal with the question how far it isjustifiable to resist by violence an arrest made by an officer of justice
without due authority, it is difficult to make much use for the elucidation of the question under consideration, TM for in these cases thematter discussed seems often to have been not whether A's resistancewas justifiable, but whether it amounted to murder or only to manslaughter. There are, however, one or two more or less recent decisions which have a real bearing on the right of the members of apublic meeting to resist by force attempts to disperse it. And thesecases are, on the whole, when properly understood, not inconsistent
with the inferences already drawn from general principles. The doctrine laid down in Reg. v. Hewlett, _9that A ought not to inflict grievous bodily harm even upon X a wrongdoer unless in the strictest
self-defence, is of the highest importance. Rex v. Fursey, so a decisionof _833, has direct reference to the right of meeting. At a public
meeting held that year in London, A carried an American flag which
was snatched from him by X, a policeman, whereupon A stabbed X.
He was subsequently indicted under 9 Geo. I. c. 3_, s. I2, and it
appears to have been laid down by the judge that though, if themeeting was a legal one, X had no right to snatch away A's flag, stillthat even on the supposition that the meeting was a lawful assembly,
A, if X had died of his wound, would have been guilty either ofmanslaughter, or very possibly of murder. Quite in keeping with Rex
v. Fursey is the recent case of Reg. v. Harr/son. sl Some of the expressions attributed, in a very compressed newspaper report, to thelearned judge who tried the case, may be open to criticism, but the
principle involved in the defendant's conviction, namely, that a ruffian cannot assert his alleged right to walk down a particular street bystunning or braining a policeman, or a good citizen who is helping
the policeman, is good law no less than good sense. 82
78 See, e.g., Dixon's Case, _ East, P. C. 313;Borthwick's Case, ibid.; Wither's Case, 1 East, P. C.
233, 309; Tooley's Case, 2 Lord Raymond, 1296.
79 1F. &F. 9_.
80 3 St. Tr. (n. s.) 543, and compare Criminal Code Commission Report, pp. 43, 44.
81 The Times, 19th December 1887.
82 "Well, if any heads are broken before [after?] men are ordered [by the police] to disperse

365

LAW OF THE CONSTITUTION

Nor does the daim to assert legal rights by recourse to pistols or
bludgeons receive countenance from two decisions occasionally adduced in its support.
The one is Beatty v. Gillbanks. 83This case merely shows that alawful meeting is not rendered an unlawful assembly simply because
ruffians try to break it up, and, in short, that the breach of the peace
which renders a meeting unlawful must, in general, _ be a breachcaused by the members of the meeting, and not by wrongdoers whowish to prevent its being held.SS
The second is M'Clenaghan v. Waters.86The case may certainly be so
explained as to lay down the doctrine that the police when engaged
under orders in dispersing a lawful meeting are not engaged in the"execution of their duty," and that therefore the members of themeeting may persist in holding it in spite of the opposition of thepolice. Whether this doctrine be absolutely sound is open to debate.
It does not necessarily, however, mean more than that a man may
exercise a right, even though he has to use a moderate amount offorce, against a person who attempts to hinder the exercise of theright. ButM'Clenaghan v. Waters certainly does not decide that themember of a lawful assembly may exercise whatever amount of force
is necessary to prevent its being dispersed, and falls far short ofjustifying the proceedings of a Salvationist who brains a policeman
rather than surrender the so-called right of public meeting. Itis,
however, doubtful whetherM'Clenaghan v. Waters really supports
even the doctrine that moderate resistance to the police is justifiable
in order to prevent the dispersing of a lawful assembly. The caseand refuse to disperse, those who break their heads will find their own heads in a very badsituation if they are brought into a court of law to answer for it. No jury would hesitate toconvict, and no court would hesitate to punish."--Reg,v. Ernest Jones, 6 St. Tr. (n. s.) 783,
8_, 82, summing up of Wilde. C. J.
83 9 Q. B. D. 308.
84 See p. 356, ante.
85 As already pointed
some criticism.

out, the principle maintained

86 The Times, _Sth July 1882.

366

in Beatty v. Gillbanks is itself open toAPPENDIX

purports to follow Beatty v. Gitlbanks, and therefore the Court cannot
be taken as intentionally going beyond the principle laid down inthat case. The question for the opinion of the Court, moreover, in
M'Clanaghan v. Waters was, "whether upon the facts stated the police
at the time of their being assaulted by the appellants (Salvationists)
were legally justified in interfering to prevent the procession fromtaking place"; or, in other words, whether the meeting of the Salvationists was a lawful assembly? To this question, in the face ofBeatty v. Gillbanks, but one reply was possible. This answer the Court
gave: they determined "'that in taking part in a procession the appellants were doing only an act strictly lawfifl, and the fact that that act
was believed likely to cause others to commit such as were unlawful,
was no justification for interfering with them." Whether the Court
determined anything more is at least open to doubt, and if they did
determine, as alleged, that the amount of the resistance offered to thepolice was lawful, this determination is, to say the least, not inconsistent with the stem punishment of acts like that committed by theprisoner Harrison.
No one, however, can dispute that the line between the forcible
exercise of a right in the face of opposition, and an unjustifiable
assault on those who oppose its exercise, is a fine one, and that many
nice problems concerning the degree of resistance which the members of a lawful meeting may offer to persons who wish to break it up
are at present unsolved. The next patriot or ruffian who kills or
maims a policeman rather than compromise the right of public
meeting will try what, from a speculative point of view, may beconsidered a valuable legal experiment which promises results mostinteresting to jurists. The experiment will, however, almost certainly
be tried at the cost, according to the vigour of his proceedings, ofeither his freedom or his life. 87
87 The whole summing up of Wilde, C. J., in Reg. v. ErnestJones,6 St. Tr.(n. s.) 783,
8o7-816, merits particularattention. His language is extremely strong and if it be taken as aperfectly correct exposition of the law, negatives the right to resist by force policemen whowith the b0ndfide intention to discharge their duty, disperse an assembly which may
ultimately turn out not to have been an unlawful assembly.

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LAW OF THE CONSTITUTION

Note VI

DUTY OF SOLDIERS CALLED UPONTO DISPERSE AN UNLAWFUL ASSEMBLY
On 7th September _893 Captain Barker and a small number ofsoldiers were placed in the Ackton Colliery, in order to defend it fromthe attack of a mob. A body of rioters armed with sticks and cudgels
entered the colliery yard, and with threats demanded the withdrawalof the soldiers. The mob gradually increased, and broke the windowsof the building in which the troops were stationed and threw stones
at them. Attempts were made to burn the building, and timber was
actually set on fire. The soldiers retreated, but were at last surrounded by a mob of 2000 persons. The crowd was called upon todisperse, and the Riot Act read. More stones were hurled at thetroops, and it was necessary to protect the colliery. At last, before anhour from the reading of the Riot Act, and on the crowd refusing todisperse, Capfin Barker gave orders to fire. The mob dispersed, but
one or two bystanders were killed who were not taking an active partin the riot. Commissioners, including Lord Justice Bowen, afterwards
Lord Bowen, were appointed to report on the conduct of the troops.
The following passage from the report is an almost judicial statementof the law as to the duty of soldiers when called upon to disperse amob:
We pass next to the consideration of the all-important question whether
the conduct of the troops in firing on the crowd was justifiable; and it
becomes essential, for the sake of dearness, to state succinctly what the law
is which bears upon the subject. By the law of this country every one isbound to aid in the suppression of riotous assemblages. The degree of force,
however, which may lawfully be used in their suppression depends on thenature of each riot, for the force used must always be moderated and proportioned to the circumstances of the case and to the end to be attained.
The taking of life can only be justified by the necessity for protecting
persons or property against various forms of violent crime, or by the necessity of dispersing a riotous crowd which is dangerous unless dispersed, or in
the case of persons whose conduct has become felonious through disobedience to the provisions of the Riot Act, and who resist the attempt to disperse
or apprehend them. The riotous crowd at the Ackton Hall Colliery was one

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APPENDIX
whose danger consisted in its manifest design violently to set fire and doserious damage to the colliery property, and in pursuit of that object toassault those upon the colliery premises. It was a crowd accordingly which
threatened serious outrage, amounting to felony, to property and persons,and it became the duty of all peaceable subjects to assist in preventing this.
The necessary prevention of such outrage on person and property justifies
the guardians of the peace in the employment against a riotous crowd ofeven deadly weapons.
Officers and soldiers are under no special privileges and subject to no
special responsibilities as regards this principle of the law. A soldier for the
purpose of establishing civil order is only a citizen armed in a particularmanner. He cannot because he is a soldier excuse himself if without necessity he takes human life. The duty of magistrates and peace officers tosummon or to abstain from summoning the assistance of the military depends in like manner on the necessities of the case. A soldier can only act byusing his arms. The weapons he carries are deadly. They cannot be employed at all without danger to life and limb, and in these days of improved
rifles and perfected ammunition, without some risk of injuring distant andpossibly innocent bystanders. To call for assistance against rioters from those
who can only interpose under such grave conditions ought, of course, to be
the last expedient of the civil authorities. But when the call for help is made,and a necessity for assistance from the military has arisen, to refuse suchassistance is in law a misdemeanour.
The whole action of the military when once called in ought, from firstto last, to be based on the principle of doing, and doing without fear, thatwhich is absolutely necessary to prevent serious crime, and of exercising
all care and skill with regard to what is done. No set of rules exists whichgoverns every instance or defines beforehand every contingency that may
arise. One salutary practice is that a magistrate should accompany thetroops. The presence of a magistrate on such occasions, although not a legal
obligation, is a matter of the highest importance. The military come, it may
be, from a distance. They know nothing, probably, of the locality, or of thespecial circumstances. They find themselves introduced suddenly on a fieldof action, and they need the counsel of the local justice, who is presumably
familiar with the details of the case. But, although the magistrate's presence
is of the highest value and moment, his absence does not alter the duty ofthe soldier, nor ought it to paralyse his conduct, but only to render him
doubly careful as to the proper steps to be taken. No officer is justified by
English law in standing by and allowing felonious outrage to be committed
merely because of a magistrate's absence.
The question whether, on any occasion, the moment has come for firing
upon a mob of rioters, depends, as we have said, on the necessities of thecase. Such firing, to be lawful, must, in the case of a riot like the present, benecessary to stop or prevent such serious and violent crime as we havealluded to; and it must be conducted without recklessness or negligence.

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LAW OF THE CONSTITUTION
When the need is dear, the soldier's duty is to fire with all reasonable
caution, so as to produce no further injury than what is absolutely wanted
for the purpose of protecting person and property. An order from the magistrate who is present is required by military regulations, and wisdom anddiscretion are entirely in favour of the observance of such a practice. But theorder of the magistrate has at law no legal effect. Its presence does not justify
the firing if the magistrate is wrong. Its absence does not excuse the officer
for declining to fire when the necessity exists.
With the above doctrines of English law the Riot Act does not interfere. Its
effect is only to make the failure of a crowd to disperse for a whole hour after
the proclamation has been read a felony; and on this ground to afford astatutory justification for dispersing a felonious assemblage, even at the riskof taking life. In the case of the Ackton Hall Colliery, an hour had notelapsed after what is popularly called the reading of the Riot ACt, before themilitary fired. No justification for their firing can therefore be rested on theprovisions of the Riot Act itself, the further consideration of which may
indeed be here dismissed from the case. But the fact that an hour had not
expired since its reading did not incapacitate the troops from acting whenoutrage had to be prevented. All their common law duty as citizens andsoldiers remained in full force. The justification of Captain Barker and his
men must stand or fall entirely by the common law. Was what they did
necessary, and no more than was necessary, to put a stop to or prevent
felonious crime? In doing it, did they exercise all ordinary skill and caution,
so as to do no more harm than could be reasonably avoided?
If these two conditions are made out, the fact that innocent people havesuffered does not involve the troops in legal responsibility. A guilty ringleader who under such conditions is shot dead, dies by justifiable homicide. An innocent person killed under such conditions, where no negligence has occurred, dies by an accidental death. The legal reason is not thatthe innocent person has to thank himself for what has happened, for it isconceivable (though not often likely) that he may have been unconscious ofany danger and innocent of all imprudence. The reason is that the soldier
who fired has done nothing except what was his strict legal duty.
In measuring with the aid of subsequent evidence the exact necessities of
the case as they existed at the time at Ackton Hall Colliery, we have formed aclear view that the troops were in a position of great embarrassment. The
withdrawal of half their original force to Nostell Colliery had reduced themto so small a number as to render it difficult for them to defend the colliery
premises effectively at nighttime. The crowd for some hours had been familiarised with their presence, and had grown defiant. All efforts at conciliation had failed. Darkness had meanwhile supervened, and it was difficult for Captain Barker to estimate the exact number of his assailants, or towhat extent he was being surrounded and outflanked. Six or seven appeals
had been made by the magistrate to the crowd. The Riot Act had been read
without result. A charge had been made without avail. Much valuable col-37o

APPENDIX
liery property was already blazing, and the troops were with difficulty keeping at bay a mob armed with sticks and bludgeons, which was refusing
to disperse, pressing where it could into the colliery premises, stoning thefire-engine on its arrival, and keeping up volleys of missiles. To prevent thecolliery from being overrun and themselves surrounded, it was essential forthem to remain as close as possible to the Green Lane entrance. Otherwise,
the rioters would, under cover of the darkness, have been able to enter inforce. To withdraw from their position was, as we have already intimated, toabandon the colliery offices in the rear to arson and violence. To hold theposition was not possible, except at the risk of the men being seriously hurt
and their force crippled. Assaulted by missiles on all sides, we think that, inthe events which had happened, Captain Barker and his troops had noalternative left but to fire, and it seems to us that Mr. Hartley was bound torequire them to do so.
It cannot be expected that this view should be adopted by many of thecrowd in Green Lane who were taking no active part in the riotous proceedings. Such persons had not, at the time, the means of judging of the danger
in which the troops and the colliery stood. But no sympathy felt by us for the
injured bystanders, no sense which we entertain of regret that, owing to thesmallness of the military force at Featherstone and the prolonged absence ofa magistrate, matters had drifted to such a pass, can blind us to the fact that,as things stood at the supreme moment when the soldiers fired, their action
was necessary. We feel it right to express our sense of the steadiness anddiscipline of the soldiers in the circumstances. We can find no ground forany suggestion that the firing, if it was in fact necessary, was conducted withother than reasonable skill and care. The darkness rendered it impossible totake more precaution than had been already employed to discriminate between the lawless and the peaceable, and it is to be observed that even thefirst shots fired produced little or no effect upon the crowd in inducing themto withdraw. If our confusions
on these points be, as we believe them to be,correct, it follows that the action of the troops was justified in law. as

Note VII

THE MEANING OF AN"UNCONSTITUTIONAL"LAW
The expression "'unconstitutional" has, as applied to a law, at least
three different meanings varying according to the nature of the constitution with reference to which it is used:
88 Report of the committee appointed to inquire into the circumstances connected with the
disturbances at Featherstone on the 7th of September 2893[C.--7234].

371

LAW OF THE CONSTITUTION_. The expression, as applied to an English Act of Parliament,
means simply that the Act in question, as, for instance, the Irish
Church Act, _869, is, in the opinion of the speaker, opposed to thespirit of the English constitution; it cannot mean that the Act is eithera breach of law or is void.
2. The expression, as applied to a law passed by the French Parliament, means that the law, e.g. extending the length of the President's tenure of office, is opposed to the articles of the constitution.
The expression does not necessarily mean that the law in question isvoid, for it is by no means certain that any French Court will refuse to
enforce a law because it is unconstitutional. The word would probably, though not of necessity, be, when employed by a Frenchman, aterm of censure.
3- The expression, as applied to an Act of Congress, means simply
that the Act is one beyond the power of Congress, and is therefore
void. The word does not in this case necessarily import any censure
whatever. An American might, without any inconsistency, say thatan Act of Congress was a good law, that is, a law calculated in his
opinion to benefit the country, but that unfortunately it was "unconstitutional," that is to say, ultra vires and void.
Note VIIISWISS FEDERALISM 89
The Swiss Federal Constitution may appear to a superficial observer to be a copy in miniature of the Constitution of the UnitedStates; and there is no doubt that the Swiss statesmen of _848 did in
one or two points, and notably in the formation of the Council ofStates or Senate, intentionally follow American precedents. But for all
this, Swiss Federalism is the natural outgrowth of Swiss history, andbears a peculiar character of its own that well repays careful study.
Three ideas underlie the institutions of modern Switzerland.
89 See Lowell, Governments and Parties in Continental Europe, FI., Switzerland, pp. _8o---336;
Orel]i, Das Staatsrecht der Schweizerischen Eidgenossenschafi; Marquardsen's Handbuch des Oeffentlichen Rechts, iv. i. 2.

372

APPENDIX

The first is the uncontested and direct sovereignty of the nation.
In Switzerland the will of the people, when expressed in the mode
provided by the Constitution, is admittedly supreme. This supremacy is not disputed by any political party or by any section of thecommunity. No one dreams of changing the democratic basis of thenational institutions. There does not exist in Switzerland any faction
which, like the reactionists in France, meditates the overthrow of the
Republic. There does not exist any section of the community which,like the Bohemians in Austria, or like the French in Alsace, is, or may
be supposed to be, disloyal to the central government. But in Switzerland not only the supremacy but the direct authority of the nationis, practically as well as theoretically, acknowledged. The old idea ofthe opposition between the government and the people has vanished. All parts of the government, induding in that term not only
the Executive but also the Legislative bodies, are the recognised
agents of the nation, and the people intervene directly in all important acts of legislation. In Switzerland, in short, the nation issovereign in the sense in which a powerful king or queen wassovereign in the time when monarchy was a predominant power inEuropean countries, and we shall best understand the attitude of the
Swiss nation towards its representatives, whether in the Executive orin Parliament, by considering that the Swiss people occupies a position not unlikethat held, for example, by Elizabeth of England. However great the Queen's authority, she was not a tyrant, but she reallyin the last resort governed the country, and her ministers were her
servants and carried out her policy. The Queen did not directly legislate, but by her veto and by other means she controlled all importantlegislation. Such is, speaking roughly, the position of the Swiss
people. The Federal Executive and the Federal Parliament pursue thelines of policy approved by the people. Under the name of the Referendum there is exercised a popular veto on laws passed by theLegislature, and of recent years, under the name of the Initiative, anattempt has been made at more or less direct legislation by thepeople. Whatever be the merits of Swiss institutions, the idea whichgoverns them is obvious. The nation is monarch, the Executive andthe members of the Legislature are the people's agents or ministers.

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LAW OF THE CONSTITUTION

The second idea to which Swiss institutions give expression is thatpolitics are a matter of business. The system of Swiss government isbusiness-like. The affairs of the nation are transacted by men of
capacity, who give effect to the will of the nation.
The last and most original Swiss conception is one which it is noteasy for foreigners bred up under other constitutional systems tograsp. It is that the existence of political parties does not necessitate
the adoption of party government.
These are the principles or conceptions embodied in Swiss institutions; they are dosely inter-connected, they pervade and to a great
extent explain the operation of the different parts of the Swiss Constitution. Many of its features are of course common to all the federal
governments, but its special characteristics are due to the predominance of the three ideas to which the reader's attention has been
directed. That this is so will be seen if we examine the different partsof the Swiss Constitution.
THE FEDERAL COUNCIL
This body, which we should in England call the Ministry, consistsof seven persons elected at their first meeting by the two Chambers
which make up the Swiss Federal Assembly or Congress, and for thispurpose sit together. The Councillors hold office for three years, andbeing elected after the first meeting of the Assembly, which itself is
elected for three years, keep their places till the next Federal Assembly meets, when a new election takes place. The Councillors need notbe, but in fact are, elected from among the members of the Federal
Assembly, and though they lose their seats on election, yet, as they
can take part in the debates of each House, may for practical purposes
be considered members of the Assembly or Parliament. The powers
confided to the Council are wide. The Council is the Executive of theConfederacy and possesses the authority naturally belonging to thenational government. It discharges also, strange as this may appear
to Englishmen or Americans, many judicial functions. To the Council
are in many cases referred questions of "administrative law," andalso certain dasses of what Englishmen or Americans consider strictlylegal questions. Thus the Council in effect determined some years

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APPENDIX

ago what were the rights as to meeting in public of the Salvation
Army, and whether and to what extent Cantonal legislation could
prohibit or regulate their meetings. The Council again gives the required sanction to the Constitutions or to alterations in the Constitutions of the Cantons, and determines whether clauses in such Constitutions are, or are not, inconsistent with the articles of the Federal
Constitution. The Council is in fact the centre of the whole Swiss
Federal system; it is called upon to keep up good relations between
the Cantons and the Federal or National government, and generally
to provide for the preservation of order, and ultimately for the
maintenance of the law throughout the whole country. All foreign
affairs fall under the Council's supervision, and the conduct offoreign relations must, under the circumstances of Switzerland, always form a most important and difficult part of the duties of thegovernment.
Though the Councillors are elected they are not dismissible by the
Assembly, and in so far the Council may be considered an independent body; but from another point of view the Council has no independence. It is expected to carry out, and does carry out, the policy of
the Assembly, and ultimately the policy of the nation, just as a good
man of business is expected to carry out the orders of his employer.
Many matters which are practically determined by the Council might
constitutionally be decided by the Assembly itself, which, however,as a rule leaves the transaction of affairs in the hands of the Council.
But the Council makes reports to the Assembly, and were the Assembly to express a distinct resolution on any subject, effect would begiven to it. Nor is it expected that either the Council or individualCouncillors should go out of office because proposals or laws presented by them to the Assembly are rejected, or because a law passed,with the approval of the Council, by the Chambers, is vetoed on
being referred to the people. The Council, further, though as themembers thereof, being elected by the Federal Assembly, must in
general agree with the sentiments of that body, does not represent a
Parliamentary majority as does an English or a French Ministry. The
Councillors, though elected for a term of three years, are re-eligible,
and as a rule are re-elected. The consequence is that a man may hold

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LAW OF THE CONSTITUTION

office for sixteen years or more, and that the character of the Council
changes but slowly; and there have, it is said, been cases in which the
majority of the Parliament belonged to one party and the majority of
the Council to another, and this want of harmony in general politicalviews between the Parliament and the Government did not lead toinconvenience. In truth the Council is not a Cabinet but a Board forthe management of business, of which Board the so-called Presidentof the Confederation, who is annually elected from among the members of the Council, is merely the chairman. It may fairly be compared
to a Board of Directors chosen by the members of a large joint-stockcompany. In one sense the Board has no independent power. The
majority of the shareholders, did they choose to do so, could always
control its action or reverse its policy. In another sense, as we allknow, a Board is almost free from control. As long as things are well,or even tolerably, managed, the shareholders have neither the wish
nor practically the power to interfere. They know that the directors
possess knowledge and experience which the shareholders lack, andthat to interfere with the Board's management would imperil thewelfare of the association. So it is with the Federal Council. Its dependence is the source of its strength. It does not come into conflictwith the Assembly; it therefore is a permanent body, which carries
on, and carries on with marked success, the administration of publicaffairs. It is a body of men of business who transact the business of
the State.
It is worth while to dwell at some length on the constitution andcharacter of the Swiss Council or Board, because it gives us a kind of
Executive differing both from the Cabinet government of England orFrance, and from the Presidential government of America. The
Council does not, like an English Cabinet, represent, at any rate
directly and immediately, a predominant political party. It is notliable to be at any moment dismissed from office. Its members keep
their seats for a period longer than the time during which either an
English Ministry or an American President can hope to retain office.
But the Council, though differing greatly from a Cabinet, is a Parliamentary or semi-Parliamentary Executive.9° It has not, like an
9° See Note III. p. 331, ante.

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APPENDIX

American President, an independent authority of its own which,being derived from popular election, may transcend, and even be
opposed to, the authority of the Legislature. The constitutional history of Switzerland since _848 has exhibited none of those conflicts
between the Executive and the legislative body which have occurred
more than once in the United States. The position of the Cound]may, if we seek for an historical parallel, be compared with that of theCouncil of State under the Cromwellian Instrument of Government,
and indeed occupies very nearly the position which the Council ofState would have held had the Instrument of Government been, in
accordance with the wishes of the Parliamentary Opposition, so
modified as to allow of the frequent re-election by Parliament of themembers of the Council. 91If we desire a modern parallel we may
perhaps find it in the English Civil Service. The members of theCouncil are, like the permanent heads of the English Government
offices, officials who have a permanent tenure of office, who are instrictness the servants of the State, and who are expected to carryout, and do carry out, measures which they may not have framed,
and the policies of which they may not approve. This comparison is
the more instructive, because in the absence of the elaborate Civil
Service the members of the Council do in effect discharge rather theduties of permanent civil servants than of ministers.
THE FEDERAL ASSEMBLY
This Parliament is certainly modelled to a certain extent on theAmerican Congress. For several purposes, however, the two chambers of which it consists sit together. As already pointed out, whenthus combined they elect the Federal Council or Ministry. The Assembly, moreover, is, unlike any representative assembly to which
the English people are accustomed, on certain administrative mattersa final Court of Appeal from the Council. The main function, however, of the Assembly is to receive reports from the Council and tolegislate. It sits but for a short period each year, and confines itself
pretty dosely to the transaction of business. Laws passed by it may,
91 See the "Constitutional Bill of the First Parliament of the Protectorate,"
diner, Constitutional Documents of the Puritan Revolution, pp. 366, 367 .
377

cap, 39; Gar-

LAW OF THE CONSTITUTION

when referred to the people, be vetoed. Its members are pretty constantly re-elected, and it is apparently one of the most orderly andbusiness-like of Parliaments.
The Assembly consists of two chambers or houses.
The Council of States, or, as we may more conveniently call it, theSenate, represents the Cantons, each of which as a rule sends two
members to it.
The National Council, like the American House of Representatives,
directly represents the citizens. It varies in numbers with the growthof the population, and each Canton is represented in proportion to its
population.
In one important respect the Federal Assembly differs from theAmerican Congress. In the United States the Senate has hitherto
been the more influential of the two Houses. In Switzerland theCouncil of States was expected by the founders of the Constitution towield the sort of authority which belongs to the American Senate.
This expectation has been disappointed. The Council of States has
played quite a secondary part in the working of the Constitution, andpossesses much less power than the National Council. The reasons
given for this are various. The members of the Council are paid by the
Cantons which they represent. The time for which they hold office isregulated by each Canton, and has generally been short. The Council
has no special functions such as has the American Senate, and thegeneral result has been that leading statesmen have sought for seats
not in the Council of State, but in the National Council. One cause of
the failure on the part of the Council of States to fulfil the expectationsof its creators seems to have escaped Swiss attention. The position
and functions of the Federal Council or Ministry, its permanence andits relation to the Federal Parliament, make it impossible for thechamber which represents the Cantons to fill the place which is occupied in America by the House which represents the States. The inferior position of the Swiss Council of States deserves notice. It is
one of the parts of the Constitution which was suggested by theexperience of a foreign country, and for this very reason has, it
may be suspected, not fitted in with the native institutions of
Switzerland.

978

APPENDIXTHE FEDERAL TRIBUNAL 92
This Court was constituted by statesmen who knew the weight
and authority which belongs to the Supreme Court of the UnitedStates; but the Federal Tribunal was from the beginning, and is still, avery different body from, and a much less powerful body than, theAmerican Supreme Court. It is composed of fourteen judges, and as
many substitutes elected for six years by the Federal Assembly,
which also designates the President and the Vice-President of the
Court for two years at a time. It possesses criminal jurisdiction incases of high treason, and in regard to what we may term high crimes
and misdemeanours, though its powers as a criminal Court are rarely
put into operation. It has jurisdiction as regards suits between the
Confederation and the Cantons, and between the Cantons themselves, and generally in all suits in which the Confederation or a
Canton is a party. It also determines all matters of public law, and has
by degrees, in consequence of federal legislation, been made virtuallya general Court of Appeal from the Cantonal tribunals in all cases
arising under federal laws where the amount in dispute exceeds 3000
francs. Add to this that the Court entertains complaints of the violation of the constitutional rights of citizens, and this whether the rightalleged to be violated is guaranteed by a Federal or by a Cantonal
constitution. The primary object for which the Court was constituted
was the giving decisions, or rather the making of judicial declarations
where points of public law are in dispute; and its civil jurisdiction has,
under the stress of circumstances, been increased beyond the limits
within which the founders of the Swiss Constitution intended it to be
restrained. But the Federal Tribunal, though possessed of a wide andsomewhat indefinite jurisdiction, wields nothing like the power possessed by the Supreme Court of the United States. It has no jurisdiction whatever in controversies with reference to "'administrativelaw"; these are reserved for the Federal Council, and ultimately for
the Federal Assembly, 93and the term "administrative controversies"
has been given a very extensive signification, so that the Court has
92 Lowell, ii. p. 214; OreUi, pp. 38-44 .
93 See Swiss Constitution,

Art. 85, s. _2, and Art. ny

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LAW OF THE CONSTITUTION

been excluded "from the consideration of a long list of subjects, suchas the right to carry on a trade, commercial treaties, consumption
taxes, game laws, certificates of professional capadty, factory acts,bank-notes, weights and measures, primary public schools, sanitary
police, and the validity of cantonal elections, ''94which would pr/rnd
fade seem to fall within its competence. The Tribunal, moreover,though it can treat cantonal laws as unconstitutional, and therefore
invalid, is bound by the Constitution to treat all federal legislation as
valid.

9s

The judges of the Federal Tribunal are appointed by the Federal
Assembly, and for short terms. The Tribunal stands alone, instead ofbeing at the head of a national judicial system. It has further noofficials of its own for the enforcement of its judgments. They are
executed primarily by the cantonal authorities, and ultimately, if thecantonal authorities fail in their duty, by the Federal Council. 96The
control, moreover, exerted by the Federal Tribunal over the acts ofFederal officials is incomplete. Any citizen may sue an official, but, as
already pointed out, administrative controversies are excluded fromthe Court's jurisdiction, and in case there is a conflict of jurisdiction
between the Federal Council and the Federal Tribunal, it is decided
not by the Court but by the Federal Assembly, which one would
expect to support the authority of the Council. The Federal Tribunal, at
any rate, cannot as regards such disputes fix the limits of its own
competence.97 Under these circumstances it is not surprising that the
Tribunal exercises less authority than the Supreme Court of theUnited States. What may excite some surprise is that, from the very
nature of federalism the jurisdiction of the Federal Tribunal has, inspite of all disadvantages under which the Court suffers, year by year
increased. Thus until 2893 questions relating to religious liberty, andthe rights of different sects, were reserved for the decision of theFederal Assembly. Since that date they have been transferred to the
94 Lowell, p. 2_8.
95 See Swiss Constitution, Art. _3; Brinton Coxe, Judicial Powerand Unwnstitutionaltion, p. 86.
96 See Adams,

Swiss Confederation, pp. 74, 75.

97 See Lowell, p. 22o.

380

Legisla-APPENDIX]uriscliction of the Federal Tribunal. This very transfer, and the whole
relation of the Tribunal, the Council, and the Assembly respectively,
to questions which would in England or the United Slates be necessarily decided by a law court, serve to remind the reader of theimperfect recognition in Switzerland of the "rule of law," as it isunderstood in England, and of the separation of powers as that doctrine is understood in many continental countries. 98
THE REFERENDUM 99
Ifin the constitution of the Federal Tribunal and of the Council ofStates we can trace the influence of American examples, the referendum, as it exists in Switzerland, is an institution of native growth,which has received there a far more complete and extensive development than in any other country. If we omit all details, and deal
with the referendum as it in fact exists under the Swiss Federal Constitution, we may describe it as an arrangement by which no alteration or amendment in the Constitution, and no federal law which anylarge number of Swiss citizens think of importance, comes finally into
force until it has been submitted to the vote of the citizens, and has
been sanctioned by a majority of the citizens who actually vote. It
may be added that a change in the Constitution thus referred to thepeople for sanction cannot come into force unless it is approved ofboth by a majority of the citizens who vote, and by a majority of the
Cantons. It must further be noted that the referendum in different
forms exists in all but one of the Swiss Cantons, and may therefore
now be considered an essential feature of Swiss constitutionalism.
The referendum is therefore in effect a nation's veto. It gives to thecitizens of Switzerland exactly that power of arresting legislation
which is still in theory and was in the time, for example, of RliTabeth
actually possessed by an English monarch. A bill could not finallybecome a law until it had obtained the consent of the Crown. In
98 Lowell, pp. 228, 229.
99 See Lowell, ii. chap. xii.; Adams, Swiss Confederation, chap. vi. The referendum, though
not under that name, exists for many purposes in the different States of the American
Union. There is no trace of it, or of any institution corresponding to it, in the Constitution of
the United States. Compare Oberholtzer, Referendum in America.

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LAW OF THE CONSTITUTION

popular language, the Crown, in case the monarch dissented, might
be said to veto the bill. A more accurate way of describing the
Crown's action is to say that the King threw out or rejected the billjust as did the House of Lords or the House of Commons when either
body refused to pass a bill. This is in substance the position occupiedby the citizens of Switzerland when a law passed by the Federal
Assembly is submitted to them for their approbation or rejection. Ifthey give their assent it becomes the law of the land; if they refuse
their assent it is vetoed, or, speaking more accurately, the proposed
law is not allowed to pass, i.e. to become in reality a law.
The referendum has a purely negative effect. It is in many of the
Cantonal Constitutions, and in the Federal Constitution to a certain
extent, supplemented by what is called the Initiative-- that is, a device by which a certain number of citizens can propose a law andrequire a popular vote upon it in spite of the refusal of the legislature
to adopt their views. 10oThe Initiative has, under the Federal Constitution at any rate, received as yet but little trial. Whether it can beunder any circumstances a successful mode of legislation may be
doubted. All that need here be noted is that while the introduction of
the Initiative is neither in theory nor in fact a necessary consequenceof the maintenance of the referendum, both institutions are examplesof the way in which in Switzerland the citizens take a direct part inlegislation.
The referendum, taken in combination with the other provisions of
the Constitution, and with the general character of Swiss federalism,
tends, it is conceived, to produce two effects.
It alters, in the first place, the position both of the Legislature andof the Execu_ve. The Assembly and the Federal Council become
obviously the agents of the Swiss people. This state of things, while itdecreases the power, may also increase the freedom of Swiss statesmen. A member of the Council, or the Council itself, proposes a law
which is passed by the Legislature. It is, we will suppose, as has often
happened, referred to the people for approval and then rejected. The
Council and the Assembly bow without any discredit to the popular
loo Lowell, p. 28o.

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APPENDIX

decision. There is no reason why the members either of the Council
or of the Legislature should resign their seats; it has frequently happened that the electors, whilst disapproving of certain laws submitted
for their acceptance by the Federal Assembly, have re-elected thevery men whose legislation they have refused to accept. Individual
politicians, on the other hand, who advocate particular measures justbecause the failure to pass these measures into law does not involve
resignation or expulsion from office, can openly express their politicalviews even if these views differ from the opinions of the people. The
referendum, in the second place, discourages the growth of party
government. The electors do not feel it necessary that the Council, oreven the Assembly, should strictly represent one party. Where thecitizens themselves can veto legislation which they disapprove, itmatters comparatively little that some of their representatives should
entertain political opinions which do not at the moment commend
themselves to the majority of the electorate. The habit, moreover,acquired of taking part in legislation must probably accustom Swiss
citizens to consider any proposed law more or less on its merits. They
are at any rate less prone than are the voters of most countries tosupport a party programme which possibly does not as to every oneof its provisions command the assent of any one voter. It may, ofcourse, on the other hand, be maintained that it is the incomplete
development of party government in Switzerland which favours the
adoption of the referendum. However this may be, there can be little
doubt that the existence of the most peculiar of Swiss institutions has
a dose connection with the condition of Swiss parties.
Swiss Federalism has been, as we have already pointed out, considerably influenced by American Federalism, and it is almost impossible for an intelligent student not to compare the most successful
federal and democratic government of the New World with the mostsuccessflfl federal and democratic government of Europe, for the history and the institutions of America and of Switzerland exhibit justthat kind of likeness and unlikeness which excites comparison.
The United States and Switzerland are both by nature federations;
neither country could, it is pretty dear, prosper under any but afederal constitution; both countries are, at the present day at any rate,

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LAW OF THE CONSTITUTION

by nature democracies. In each country the States or Cantons haveexisted before the federation. In each country state patriotism wasoriginally a far stronger sentiment than the feeling of national unity.
In America and in Switzerland national unity has been the growth ofnecessity. It is also probable that the sentiment of national unity, nowthat it has been once evoked, will in the long run triumph over the
feeling of State rights or State sovereignty. In a very rough manner,moreover, there is a certain likeness between what may be called thefederal history of both countries. In America and in Switzerland there
existed for a long time causes which prevented and threatened finallyto arrest the progress towards national unity. Slavery played in the
United States a part which resembled at any rate the part played in
Swiss history by religious divisions. In America and in Switzerland aless progressive, but united and warlike, minority of States held for along time in check the influence of the richer, the more civilised, andthe less united States. Constant disputes as to the area of slavery bore
at any rate an analogy to the disputes about the common territories
which at one time divided the Catholic and Protestant Cantons. Secession was anticipated by the Sonderbund, and the triumph of Grant
was not more complete than the triumph of Dufour. Nor is it at all
certain that the military genius of the American was greater than the
military genius of the Swiss general. The War of Secession and the
War of the Sonderbund had this further quality in common. They
each absolutely concluded the controversies out of which they hadarisen; they each so ended that victors and vanquished alike soon
became the loyal citizens of the same Republic. Each country, lastly,
may attribute its prosperity, with plausibility at least, to its institutions, and these institutions bear in their general features a marked
similarity.
The unlikeness, however, between American and Swiss
Federalism is at least as remarkable as the likeness. America is thelargest as Switzerland is the smallest of Confederations; more thanone American State exceeds in size and population the whole of the
Swiss Confederacy. The American Union is from every point of viewa modern state; the heroic age of Switzerland, as far as military glory
is concerned, had dosed before a single European had set foot in
3a4

APPENDIX

America, and the independence of Switzerland was acknowledgedby Europe more than a century before the United States began theirpolitical existence. American institutions are the direct outgrowth ofEnglish ideas, and in the main of the English ideas which prevailed inEngland during the democratic movement of the seventeenth century; American society was never under the influence of feudalism.
The democracy of Switzerland is imbued in many respects with continental ideas of government, and till the time of the great French
Revolution, Swiss society was filled with inequalities originating in
feudal ideas. The United States is made up of States which havealways been used to representative institutions; the Cantons of Switzerland have been mainly accustomed to non-representative, aristocratic or democratic government. Under these circumstances, it isnaturally to be expected that even institutions which possess a certain
formal similarity should display an essentially different character incountries which differ so widely as the United States and Switzerland.
These differences may be thus roughly summed up: American
Federalism is strong where Swiss Federalism is weak; where American Federalism is weak, Swiss Federalism is strong.
The Senate and the Judiciary of the United States have rightly
excited more admiration than any other part of the American Constitution. They have each been, to a certain extent, imitated by thefounders of the existing Swiss Republic. But in neither instance has
the imitation been a complete success. The Council of States has not
the authority of the Senate; the Federal Tribunal, though its power
appears to be on the increase, cannot stand comparison with theSupreme Court. The judicial arrangements of Switzerland would appear, at any rate to a foreign critic, to be the least satisfactory of Swiss
institutions, and the exercise by the Federal Council and the Federal
Assembly of judicial powers is not in unison with the best modern
ideas as to the due administration of justice.
The features in American institutions which receive very qualified
approval, if not actual censure even from favourable critics, are themode in which the President is appointed, the relation of the Executive Government to the Houses of Congress, the disastrous de-_85

LAW OF THE CONSTITUTION

velopment of party organisation, and the waste or corruption which
are the consequence of the predominance of party managers or
wirepullers.
The Federal Council, on the other hand, forms as good an Executive as is possessed by any country in the world. It would appear to aforeign observer (though on such a matter foreign critics are singularly liable to delusion) to combine in a rare degree the advantages ofa Parliamentary and of a non-Parliamentary government. It acts inuniform harmony with the elected representatives of the people, butthough appointed by the legislature, it enjoys a permanent tenure of
office unknown to Parliamentary Cabinets or to elected Presidents.
Though parties, again, exist, and party spirit occasionally runs highin Switzerland, party government is not found there to be a necessity. The evils, at any rate, attributed to government by party are
either greatly diminished or entirely averted. The Caucus and the"Machine" are all but unknown. The country is freed from the unwholesome excitement of a Presidential election, or even of a generalelection, which, as in England, determines which party shall havepossession of the government. There is no notion of spoils, and noone apparently even hints at corruption.
Note IX

AUSTRALIANFEDERALISM lOl

The aim of Australian statesmen has been to combine in the Constitution of the Commonwealth ideas borrowed from the federal andrepublican constitutionalism of the United States, or, to a certain
extent, of Switzerland, with ideas derived from the unitarian 1°2andmonarchical constitutionalism of England. They have also created for
the Commonwealth itself, and retained for each of the several States
thereof, the relation which has for years existed between Englandand the self-governing colonies of Australia.
Iol The Commonwealthof Australia Constitution Act, 63 & 64 Vict. c. 12. Quick andGarran, The Annotated Constitution of the Australian Commonwealth. Moore, The Commonwealth of Australia. Bryce, i. Studies in History and Jurisprudence, Essay VIII.
_o2 Seepp. 73-74,ante.

386

APPENDIX

Hence the Commonwealth exhibits four main characteristics: first,
a Federal form of Government; sewndly, a Parliamentav t Executive;
thirdly, an effective Method for amending the Constitution; fourthly,
the maintenance of the Relation which exists between the United
Kingdom and a self-governing colony.
FEDERAL GOVERNMENTThe Commonwealth is in the strictest sense a federal government.
It owes its birth to the desire for national unity which pervades thewhole of Australia, combined 1°3with the determination on the partof the several colonies to retain as States of the Commonwealth aslarge a measure of independence as may be found compatible withthe recognition of Australian nationality. The creation of a true federal government has been achieved mainly by following, without
however copying in any servile spirit, the fundamental principles ofAmerican federalism. As in the United States so in the AustralianCommonwealth the Constitution is (subject of course to the sovereign power of the Imperial Parliament) the supreme law of theland; lo4the Constitution itself in the Australian Commonwealth, asin the United States, fixes and limits the spheres of the federal or
national government and of the States respectively, and moreoverdefines these spheres in accordance with the principle that, while thepowers of the national or federal government, including in the term
government both the Executive and the Parliament of the Commonwealth, are, though wide, definite and limited, the powers of theseparate States are indefinite, so that any power not assigned by theConstitution to the federal government remains vested in each of theseveral States, or, more accurately, in the Parliament of each State. _os
In this point Australian statesmen have followed the example, not of
Canada, but of the United States and of Switzerland. The methods
again for keeping the government of the Commonwealth on the one
side, and the States on the other, within their proper spheres have
103 See pp. 75-76 , ante.
lO4 Constitution

ss. 52, 208.

_o5 Ibid. ss.

207.

lO6,

387

LAW OF THE CONSTITUTION

been suggested in the main by American experience. The Parliamentof the Commonwealth is so constituted as to guarantee withinreasonable limits the maintenance of State rights. For whilst theHouse of Representatives represents numbers, the Senate represents
the States of the Commonwealth, and each of the Original States is
entitled, irrespective of its size and population, to an equal number ofsenators, lO6The Constitution, further, is so framed as to secure respect for the Senate; the longer term for which the Senators areelected and the scheme of retirement by rotation, which will, in general, protect the Senate from a dissolution, are intended to make the
Senate a more permanent, and therefore a more experienced, bodythan the House of Representatives, which can under no circumstances exist for more than three years, and may very well be dissolved before that period has elapsed; then too the senators will, as
the Constitution now stands, represent the whole of the State forwhich they sit. 107The States, again, retain a large amount of legislative independence. Neither the Executive nor the Parliament of theCommonwealth can either directly or indirectly veto the legislation,e.g., of the Victorian Parliament. Lastly, the law Courts, and espedally the Federal Supreme Court, are, as in the United States, theguardians of the Constitution, for the Courts are called upon, in any
case which comes before them for decision, to pass judgment, should
the point be raised, upon the constitutionality, or, in other words,
upon the validity under the Constitution of any Act passed either by
the Parliament of that Commonwealth or by the Parliament of, e.g.,
Victoria. That this duty is laid upon the Courts is not indeed expressly stated in the Constitution of the Commonwealth, any morethan in the Constitution of the United States; but no English lawyer
can doubt that the Courts, and ultimately the Federal Supreme
Court, are intended to be the interpreters, and in this sense theprotectors of the Constitution. They are, be it noted, in no way
2o6/bid. s. 7" Such experience however as can be supplied by the events of eight years
shows, it is said, that the Senate is absolutely hostile to the maintenance of State rights, andfar more so than the House of Representatives.
io 7 Ibid. s. 7.

388

APPENDIX

bound, as is the Swiss Federal tribunal, to assume the constitutionality of laws passed by the federal legislature.
The founders, then, of the Commonwealth have, guided in themain by the example of the United States, created a true federal
government; but they have, we shall find, as far as is compatible withthe existence of federalism, imported into the Constitution ideas borrowed, or rather inherited, from England. This is specially visible in
THE PARLIAMENTARYEXECUTIVE

The Executive of the Commonwealth is a parliamentary Cabinet,
such as has long existed in England, and as exists in all the selfgoverning British colonies. The authors indeed of the Australian
Constitution have, true to English precedent, never made use of theword cabinet; they have not even in so many words enacted that theexecutive shall be a body of ministers responsible to the federal Parliament; but no one who has the least acquaintance with the history of
the English constitution, or of the working of the constitutions whichhave been conferred upon the self-governing colonies of Australia,
can doubt that the federal executive is intended to be, as it in fact is, aparliamentary ministry, which, though nominally appointed by theGovernor-General,
will owe its power to the support of a parliamentary majority, and will therefore, speaking broadly, consist in generalof the leaders of the most powerful parliamentary party of the day.
This cabinet possesses the most peculiar among the attributes of an
English ministry, namely, the power, in many cases at any rate, todissolve Parliament, and thus appeal from the body by whom theministry was created to the people, or in other words to the electors,of the Commonwealth. We should here also observe that the powersof the Australian executive exceed in one respect the authority of an
English ministry; an English cabinet may often dissolve the House ofCommons, but can never dissolve the House of Lords. But an Australian cabinet can under certain circumstances cause, indirectly at
any rate, the dissolution of the Senate. In studying indeed the Constitution of the Commonwealth great attention should be paid to this389

LAW OF THE CONSTITUTION

existence of the right or power to dissolve Parliament; it is not possessed by the President of the United States or by the Executive
Council of the Swiss Confederation, and it is granted under the constitution of the existing French Republic only in a very limited degree
to the French President; nor is there anything to make it certain that
the President, even if being sure of the assent of the Senate he has thepower to dissolve the Chamber of Deputies, will exert his authority at
the request of the ministry, lo8The point to be specially noted is that
the Federalists of Australia have almost as a matter of course placed
the executive power in the hands of a parliamentary cabinet; they
have neither adopted the American plan of an elected President,
whereby the administration of affairs is placed in the hands of anon-parliamentary executive, or the Swiss scheme of creating asemi-parliamentary executive, which, while elected by the federal
Parliament, cannot be dismissed by it. It is true that it might havebeen found difficult to adjust the relations between a non-parliamentary or a semi-parliamentary executive and the English cabinet or the Imperial Parliament. But the difficulty is not one which
need necessarily be insuperable. The true reason, it may be conjectured, why Australia has decisively adhered to the system of cabinet
government is that a Parliamentary cabinet is the only form of executive to which the statesmen either of Australia or of England areaccustomed. In one point, indeed, the executive of Australia may
appear to bear an even more parliamentary character than does an
English cabinet, for whilst, in theory at least, a statesman might be
the member of an English ministry, though he were not a member of
either House of Parliament, no Australian minister can hold office,i.e. in effect be a member of the cabinet for more than three months,
unless he becomes a Senator, or a member of the House of Representatives. 109But here Australian statesmanship has followed the conventions rather than the law of the English constitution, for in practice an English cabinet always consists of men who are members or
will become members either of the House of Lords or of the House of
2o8 Esmein, Droit Constitutionnel, pp. 555-563 .
lO9 ConsiJtution,s. 64.

390

APPENDIX

Commons. Indeed it is worth remark that in several instances where
the Australian Constitution deviates from that of England, the deviation is caused by the desire to follow the spirit of modem English
consfitutionalism. Thus the elaborate and ingenious plan for avoiding
in case of disagreement between the two Houses a parliamentary
deadlock no is simply an attempt to ensure by law that deference forthe voice of the electorate which in England constitutional conventions enforce in the long run upon both Houses of the Imperial
Parliament.
AMENDMENTOF THE CONSTITUTION

A federal constitution must of necessity be a "rigid" constitution;
but the constitutions of each of the Australian self-governing colonies, e.g. of Victoria, have been in substance "flexible" constitutionsof which the colonial Parliament could change the articles as easily, or
nearly as easily, as any other law. Now the people of Australia have,
we may safely assume, no desire to forego the advantages of a flexible
constitution or to adopt a federal polity which should lend itself as
little to amendment as does the Constitution of the United States, orshould, like the Constitution of the Canadian Dominion, be amendable only by the action of the Imperial Parliament. Hence AustralianFederalists were forced to solve the problem of giving to the Constitution of the Commonwealth as much rigidity as is required by thenature of a federal government, and at the same time such flexibility
as should secure to the people of Australia the free exercise of legislative authority, even as regards artides of the Constitution.
Their solution of this problem is ingenious.
The Constitution of the Commonwealth is, looked at as a whole, arigid constitution, since it cannot be fundamentally altered by theordinary method of parliamentary legislation.
But this rigidity of the constitution is tempered in three different
ways.

First, the Parliament of the Commonwealth is endowed with very
wide legislative authority; thus it can legislate on many topics which
no Constitution,s. 57.

391

LAW OF THE CONSTITUTION

lie beyond the competence of the Congress of the United States, andon some topics which lie beyond the competence of the Parliament of
the Canadian Dominion; 111and it is here worth notice that the extension of the powers of the Commonwealth Parliament is facilitated by
the fact that on many topics the federal legislature and the State
Parliaments have concurrent legislative authority, though of course
where a law of the Commonwealth conflicts with the law of a State,
the federal law, if within the competence of the Commonwealth Parliament, prevails. 112
Secondly, a large number of the artides of the constitution remain inforce only "until Parliament otherwise provides"; they can therefore
be changed like any other law by an Act of Parliament passed in theordinary manner; in other words, the constitution is as to many of its
provisions flexible. 113
Thirdly, the constitution provides the means for its own alteration 114and embodies the principle, though not the name, of the
Swiss institution known as the referendum. The process of constitutional amendment is broadly and normally as follows: A law changing the constitution must be passed by an absolute majority of eachHouse of Parliament; it must then be submitted to the electors of theCommonwealth for their approval; if in a majority of the States amajority of the electors voting approve the law and also a majority of
all the electors voting approve the law, it must be submitted to theGovernor-General for the King's assent, and on receiving the due
assent becomes, like any other bill, an Act of Parliament. The principle of the whole proceeding is that the constitution can be changed bya vote of the federal Parliament, ratified by the approval both of the
majority of the States and of the majority of the Commonwealthelectorate.
It should, however, be noted that under certain circumstances alaw for changing the constitution which has been passed by an ab_ Compare Commonwealth Constitution, ss. 51, 52, with Constitution ofU. S., art. 1, ss. iand 8, and British North America Act, _867 (3° & 3_ Vict. c. 3), ss. 91, 92.
_12 See Constitution,s. lO9.

113 Hn'd.s. 51, sub. s. xx,wi, compared
114/bid. s. 128.

e.g. with ss. 3, 29, 31, etc.

392

APPENDIX

solute majority of one House of Parliament only, and either is rejected by the other House or not passed by an absolute majority
thereof, must be submitted to the electors for their approval, and if
approved in the manner already stated, becomes, on the assent of the
Crown being duly given, an Act of Parliament.
Add to this that there are a few changes, e.g. an alteration diminishing the proportionate representation in any State in either
House of Parliament, which cannot be carried through unless the
majority of the electors voting in that State approve of the change. 11s
What may be the working of new institutions no one will venture
confidently to predict; but a critic of constitutions may entertain thehope that Australian statesmanship has accomplished the feat offraming a polity which shall have the merits both of a rigid and of aflexible constitution, which cannot hastily be changed, but yet admitsof easy amendment, whenever alteration or reform is demanded by
the deliberate voice of the nation.
MAINTENANCE OF THE RELATION WITH
THE UNITED KINGDOMThe founders of the Commonwealth have admittedly been influenced at once by a growing sense of Australian nationality, and byenduring, or even increasing loyalty to the mother-country. The one
sentiment has been satisfied by the union of the Australian colonies
under a federal government which secures to the people of Australia
as complete power of self-government as is compatible with the position of a colony that desires to form part of the British Empire. The
other sentiment has been satisfied by placing the Commonwealthitself as regards the mother-country in the position of a self-governing
colony, and also by leaving the relation between each State of theCommonwealth and the United Kingdom as little disturbed as iscompatible with the creation of the Australian Commonwealth. Eachpoint is worth notice.
The Commonwealth of Australia itself is, as regards the Crown andthe Imperial Parliament, nothing but a large self-governing colony.
115Constitulion, s. 28.

393

LAW OF THE CONSTITUTION

Thus the Governor-General is appointed by the Crown, i.e. by the
English ministry, and fills substantially the same position as, before
the formation of the Commonwealth, was occupied by the Governor,e.g., of Victoria. A bill passed by the Parliament of the Commonwealth, whether it be an ordinary law or a law which, because it
affects the constitution, has been submitted to the electors for theirapproval, requires in order that it may become an Act the assent of
the Crown, 116and the Crown can negative or veto bills passed by the
Parliament of the Commonwealth just as it could, and still can, vetobills passed by the Parliament, e.g., of Victoria. The Imperial Parliament, again, has the admitted right, though it is a fight which, except
at the wish of the Australian people, would most rarely be exercised,
to legislate for Australia, or even to modify the constitution of theAustralian Commonwealth. An appeal further lies on most subjects
from the decisions of the federal Supreme Court to the English Privy
Council, and even the limitations placed on such appeals when certain questions as to the Commonwealth constitution are raised arethemselves subject to some qualifications. 117The broad result therefore is that as regards the Commonwealth the connection with theUnited Kingdom is retained, and the sovereignty of the Imperial
Parliament is untouched.
The position of any State of the Commonwealth in regard to theUnited Kingdom remains pretty much what it was when the State,e.g. Victoria, was still merely a self-governing colony. The Governorof Victoria is now, as then, appointed by the Crown, i.e. by the
English ministry. A bill passed by the Victorian Parliament still, inorder that it may become an Act, requires the assent of the Crown.
The Government of the Commonwealth possesses no power of putting a veto on bills passed by the Victorian Parliament. The right ofappeal from a Court of Victoria to the English Privy Council stands, inmost matters at any rate, substantially where it did before the passingof the Australian Commonwealth Act, except indeed that there is analternative right of appeal to the High Court of Australia, for "the116 Constitution,

ss. 1, .58, 5% and _28.

n7 See Constitution,

ss. 71, 73, 74.

394

APPENDIX

Constitution grants a new right of appeal from the Slate Courts to theHigh Court, but does not take away the existing right of appeal fromthe State Courts to the Privy Council, which therefore remains unimpaired. ''n8
The peculiarities of Australian federalism receive illustration from acomparison between the constitution of the Canadian Dominion n9
and the constitution of the Australian Commonwealth.
The Dominion is from one point of view more, and from anotherpoint of view less, directly subject to the control of the Imperial
Parliament than is the Commonwealth. The Dominion is more completely subject than the Commonwealth, because the greater part of
the Canadian constitution _2°can be amended only by an Act of
the Imperial Parliament, whilst the Australian constitution can beamended by the people of the Commonwealth; this distinction, it iswell to add, sounds more important than it is in reality, since we may
feel morally certain that the Imperial Parliament would introduce any
amendment into the constitution of the Dominion which was deliberately desired by the majority at once of the people and of the
118 Quick and Garran, Annotated Constitution, p. 738. Thus an appeal lies from the Supreme
Court of each of the States to the Privy Council from any decision of their Courts; as of rightin circumstances defined in the several instruments constituting the Courts; by special leavefrom the Privy Council in all cases without exception. This rule applies to the exercise of any
jurisdiction, whether State or federal, vested in the State Courts, but the State Courts havenot full federal jurisdiction. From their power are excepted all cases involving the relationinterse of the States, and the States and the Commonwealth.
Appeals lie also from the State Courts to the High Court of Australia in matters both ofState and federal jurisdiction on terms defined in the Judicature Act, _9o3, of the Commonwealth Parliament. The appellant has of course the choice of appeal. There is nothing toprevent an appeal from such Courts to decide whether any particular case falls under sec.
74 of the constitution or not. Nor is there any mode of preventing contradictory decisions
on matters other than questions arising as to the limits inter se of the constitutional powersof the Commonwealth and those of any State or States, or to the limits inter se of theconstitutional powers of any two or more States which cannot reach the Privy Council. The
High Court further is not bound to accept the rulings of the Privy Council as superior to its
own except in those eases where an actual appeal is successfully brought not from theSuperior Court of a State, but from the High Court to the Privy Coundl.
n 9 See Munro, Constitution of Canada.
12o But certain important though limited powers are under the constitution itself, i.e. theBritish North America Act, _867, given to the Dominion Parliament and to the Provincial
legislatures, enabling them from time to time to amend their constitutions (Munro, Constitution of Canada, p. 229). Seee.g.B.N.A.
Act, 1867, ss. 35, 41, 45, 78, 83, 84-395

LAW OF THE CONSTITUTION

provinces of the Dominion. The Dominion of Canada, on the other
hand, is less subject to the Imperial Parliament than is the Commonwealth, because the Provinces of the Dominion are in a sense lessdirectly connected with the Imperial Government and Parliament
than are the States of the Commonwealth.
Here however we come across the most important distinction between Canadian federalism and Australian federalism, namely, thedifference of the relation of the federal power to the States, or, as in
the case of Canada they are called, the Provinces, of the federation.
The Dominion possesses all the residuary powers which are notunder the Constitution conferred exclusively upon the Provinces; theCommonwealth possesses only those powers which are conferred
upon it by the Constitution, whilst all the residuary powers not conferred upon the Commonwealth belong to the States.
The government of the Dominion, again, can exercise very considerable control over the legislation of the Provincial legislatures andover the administration of the Provinces; the government of the
Dominion can in all cases put a veto upon laws passed by the Provincial Parliaments; the government of the Dominion appoints thejudges of the State Courts; the government of the Dominion, lastly,
can appoint and dismiss the Lieutenant-Governorof any Province,
who therefore is neither an Imperial official nor a Provincial official,
but a Dominion official.
Note XMARTIAL LAW IN ENGLAND DURING
TIME OF WAR OR INSURRECTION 121
The question for our consideration is, on what principle, andwithin what limits, does armed resistance to the authority of the
Crown, either on the part of an invading army, or on the part of_._ See Law Quarterly Review, xviii., Holdsworth, Martial Law Historically Considered, pp.
117- _32; Richards, Martial Lmu, ibid. pp. _33-142; Pollock, What is Martial Law? ibid. pp.
252-158; Dodd, The Case of Marais, ibid, pp. 143-151. The Case of Ship Money, 3 St. Tr. 826;
Wall's Case, 28 St. Tr. 51; Ex parte D. F. Marais [1902], A. C. lO9;Forsyth, Cases and Opinions,ch. vi. p. 188; Clode, Military Forcesof the Crown, ii. ch. xviii.

396

APPENDIX

rebels or rioters, afford a legal justification for acts done in England by
the Crown, its servants, or loyal citizens, which, but for the existenceof war or insurrection, would be breaches of law?
In considering this question two preliminary observations must beborne in mind.
The first is that this note does not treat of several topics which areoften brought within the vague term, martial law. It does not refer to
Military Law, i.e. the rules contained in the Army Act and the Articlesof War for the government of the Army and of all persons included
within the term "persons subject to military law"; it has no reference
to the laws that govern the action of an English General and hissoldiers when carrying on war in a foreign country, or in their treatment of foreign invaders of England; it has no reference to transactions taking place out of England, or to the law of any other country
than England. It does not refer, e.g., to the law of Scotland or of
Jersey.
The second observation is that, in regard to the subject of this note,
we must constantly bear in mind the broad and fundamental principle of English law that a British subject must be presumed to possess
at all times in England his ordinary common-law rights, and espedally his right to personal freedom, unless it can be conclusively
shown, as it often may, that he is under given circumstances deprived of them, either by Act of Parliament or by some well-established principle of law. This presumption in favour of legality isan essential part of that nile of law 122which is the leading feature ofEnglish institutions. Hence, if any one contends that the existence ofa war in England deprives Englishmen of any of their common-law
rights, e.g. by establishing a state of martial law, or by exempting
military officers from the jurisdiction of the civil Courts, the burden of
proof falls distinctly upon the person putting forward this contention.
Ex parte Milligan (Am.), 4 Wall. 2, and Thayer, Cases on Constitutional Law, ii. p. 2376. This,and the other American cases on martial law, though not authorities in an English Court,
contain an expostion of the common law in regard to martial law which deserves the mostcareful attention.
See also Note IV., Right of Self-Defence;
Soldiers and Unlawful Meeting, ante.

Note V., Right of Public Meeting; Note VI.,

122 See chap. iv., ante.

397

LAW OF THE CONSTITUTION

Our topic may be considered under three heads; first, the nature ofmartial law; secondly, the inferences which may be drawn from thenature of martial law; thirdly, certain doctrines with regard to martial
law which are inconsistent with the view propounded in this note.
NATURE OF MARTIAL LAW"Martial law," in the sense in which the expression is here used,means the power, right, or duty of the Crown and its servants, or, inother words, of the Government, to maintain public order, or, intechnical language, the King's peace, at whatever cost of blood orproperty may be in strictness necessary for that purpose. Hence martial law comes into existence in times of invasion or insurrection
when, where, and in so far as the King's peace cannot be maintainedby ordinary means, and owes its existence to urgent and paramountnecessity. 123This power to maintain the peace by the exertion of any
amount of force strictly necessary for the purpose is sometimes described as the prerogative of the Crown, but it may more correctly beconsidered, not only as a power necessarily possessed by the Crown,
but also as the power, right, or duty possessed by, or incumbent
upon, every loyal citizen of preserving or restoring the King's peacein the case, whether of invasion or of rebellion or generally of armed
opposition to the law, by the use of any amount of force whatevernecessary to preserve or restore the peace. This power or right arises
from the very nature of things. No man, whatever his opinions as tothe limits of the prerogative, can question the duty of loyal subjects toaid, subject to the command of the Crown, in resistance, by all necessary means, to an invading army. 1_ Nor can it be denied that acts,
otherwise tortious, are lawful when necessary for the resistance of
invaders. 12s

123 See Kent, Comm. i. p. 342, and opinion of Sir John Campbell and Sir R. M. Rolfe,
Forsyth, Opinions on Constitutional Law, pp. 198, 199.
See especially the Case of Ship Money, 3 St. Tr. 86o, 9o5, 974, 975, 2o_2-2o_3, 2134, 1149,
1262, and _14.
125 See 2 Dyer, 36b.

39a

APPENDIX
When enemies come against the realm to the sea coast, it is lawful to comeupon my land adjoining to the same coast, to make trenches or bulwarks forthe defence of the realm, for every subject hath benefit by it. And, therefore,by the common law, every man may come upon my land for the defence ofthe realm, as appears 8 Ed. W. 23. And in such case or such extremity they
may dig for gravel for the making of bulwarks: for this is for the public, andevery one hath benefit by it.... And in this case the rule is true, Princeps et
respublica ex justa causa possunt rem meam auferre. _26

So to the same effect counsel for the defence in the Case of Ship
Money.
My Lords, in these times of war I shall admit not only His Majesty, but
likewise every man that hath power in his hands, may take the goods of any
within the realm, pull down their houses, or burn their corn, to cut off
victuals from the enemy, and do all other things that conduce to the safety of
the kingdom, without respect had to any man's property. 127

And though these authorities refer, as is worth noticing, to interferences with rights of property and not to interferences with personal freedom, between which there exist considerable differences, itwill not (it is submitted) be disputed that, in case of invasion, ageneral and his soldiers acting under the authority of the Crown may
lawfully do acts which would otherwise be an interference with thepersonal liberty, or even, under conceivable circumstances, which
may cause the death of British subjects, if these acts are a necessary
part of military operations. The point to be borne in mind is that thepower to exercise martial law, which is not ill-described by an expression known to the American Courts, viz. the "war power," as it
originates in, so it is limited by, the necessity of the case. 128
On this matter note the opinion of Sir J. Campbell and Sir R. M.
Rolfe that "martial law is merely a cessation from necessity of all
12612Rep. 12.
127Caseof Ship Money, 3 St. Tr.826, 906. Compare especially the language of Holborne in
the same case at p. 975, and language of Buller,J., in British CastPlateManufacturersv.
Meredith, 4T. R. at p. 797128See especially opinion of Henley and Yorke, Forsyth, pp. 288,289;opinion of Hargrave,ibid.pp. 189, 29o;opinion of Sir John Campbell and Sir R. M. Rolfe, ibid. pp. 198,199.

399

LAW OF THE CONSTITUTION

municipal law, and what necessity requires it justifies"; 129and thisdescription of the circumstances which justify martial law also implies
the limits within which it is justifiable; these have been stated withtruth, if not with the precise accuracy of legal argument, by Sir James
Mackintosh.
The only principle on which the law of England tolerates what is called
Martial Law is necessity; its introduction can be justified only by necessity;
its continuance requires precisely the same justification of necessity; and if it
survives the necessity on which alone it rests for a single minute, it becomesinstantly a mere exercise of lawless violence. When foreign invasion or Civil
War renders it impossible for Courts of Law to sit, or to enforce the executionof their judgments, it becomes necessary to find some rude substitute forthem, and to employ for that purpose the Military, which is the only remaining Force in the community. While the laws are silenced by the noise ofarms, the rulers of the Armed Force must punish, as equitably as they can,those crimes which threaten their own safety and that of society; but nolonger. 130

The existence of martial law thus understood,

taken in combination

with the rules of the common law as to the duty of loyal subjects,
gives very wide authority in England to all persons, and of course
above all to a general engaged in repelling an invasion. He holds thearmed forces completely under his control; they are governed bymilitary law; 131so too are all citizens who, though not in strictness
soldiers, are persons subject to military law; and in this connection it
must be remembered that the King and his servants have a right tocall for the help of every loyal subject in resisting an invasion, 132
whence it follows that the number of persons subject to military law
may be greatly, indeed almost indefinitely, increased. A general
again is dearly entitled to use or occupy any land which he requires
for the purpose of military operations and may, if he see fit, erect
fortifications thereon, and generally he has the right to use land or
any other property which is required for the conduct of the war. It is
129 Forsyth, p. 2oi.
230 Cited Clode, Military Forcesof the Crown, ii. p. 486.
131See chaps, viii. and ix., ante.
132 See Caseof Ship Money, 3 St. Tr.826, 975.

4oo

APPENDIX

again his fight, and indeed his duty, when the necessity arises, toinflict instant punishment upon, and even, if need be, put to death,
persons aiding and abetting the enemy or refusing such aid to theEnglish army as can fairly be required of them. It is indeed difficult to
picture to one's self any legitimate warlike operation or measure
which, while war is raging in England, a general cannot carry out
without any breach of the law whatever. Let it too be noted that what
is true of a general holds good of every loyal subject according to his
situation and the authority which he derives from it, e.g. of a subordinate officer, of a magistrate, or even of a private citizen who is
helping to resist an invader. Real obvious necessity in this case not
only compels but justifies conduct which would otherwise be wrongful or criminal. To this add the consideration, which has beenstrongly insisted upon by several able writers, that the conditions ofmodem warfare, such as the existence of the telegraph, whereby acts
done, e.g., in London may affect military operations, e.g., in Northumberland, greatly extend the area of necessity, and may, conceivably
at least, make it legally allowable, when war or armed insurrection exists in the north of England, to interfere summarily and without waiting for legal process with the freedom of persons residing in
London or Bristol. However this may be, it is clear that the existenceof the necessity which justifies the use of so-called martial law must
depend on the circumstances of each case.
The fact that necessity is the sole justification for martial law or, inother words, for a temporary suspension of the ordinary rights ofEnglish citizens during a period of war or insurrection, does howeverplace a very real limit of the lawful exercise of force by the Crown orby its servants. The presence of a foreign army or the outbreak of an
insurrection in the north of England, may conceivably so affect thestate of the whole country as to justify measures of extra-legal force inevery part of England, but neither war nor insurrection in one part ofthe country prirn_facie suspends the action of the law in other parts
thereof. The fact that the Pretender's army had advanced with unbroken success to Derby did not deprive the citizens of London of theordinary fights of British subjects. No one has ever suggested that it
would have justified the summary execution at Tybum of an Eng-

4oi

LAW OF THE CONSTITUTION

lishman there found guilty of treason by a court-martial. It is noteasy to believe that, _dthout a breach of the law of England, an
Englishman imprisoned in London on a charge of high treason could
have been taken to a part of the country where in 1745 war was
raging, in order that he might there be tried and executed under theauthority of a court-martial. 133Nor does the consideration that thesummary execution of rebels, whose crimes could be punished by theordinary course of law, may check the spread of treason, show that
their execution is necessary or legal. We need not, moreover, confine
our observation to cases of punishment. It is easy to imagine circumstances under which the arrest and imprisonment on suspicion of
persons who are not guilty, or cannot be proved guilty of crime, may
be salutary and expedient, but such arrest or imprisonment cannot belegally justified unless it be a matter of necessity. 134If it be urged, thatthe respect due in England to the ordinary law of the land places
restrictions which may be inconvenient or even noxious on the exercise of the authority of the Crown and its servants, the truth of theobservation may be admitted. The reply to it is twofold: first, that themaintenance of the legal rights of dtizens is itself a matter of thehighest expediency; secondly, that whenever at a period of national
danger a breach of law is demanded, if not by absolute necessity, yetby considerations of political expediency, the lawbreaker, whether hebe a general, or any other servant of the Crown, who acts bondfide
and solely with a view to the public interest, may confidently counton the protection of an Act of Indemnity.
Nor is it irrelevant at this point to note the striking analogy between the right of an individual to exercise force, even to the extent of
causing death, in self-defence, and the right of a general or otherloyal citizen to exercise any force whatever necessary for the defenceof the realm. In either case the right arises from necessity. An indi133 If the language in the Charge of Blackburn, J., Reg. v. Eyre, p. 84, be cited in support ofthe possible legality of such a transaction, it must be remembered that Blackburn's
hypothetical apology for Governor Eyre was based on certain statutes passed by the legislature of Jamaica, and that the whole tendency of the Charge of Cockburn, C. J., in Reg. v.
Nelson, is to show that the execution of Gordon was illegal.
134 See specially language of Holborne,

Case of Ship Money, 3 St. Tr. p. 975.

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APPENDIX

vidual may use any amount of force necessary to avert death orgrievous bodily harm at the hands of a wrongdoer, 13sbut, if he kills a
ruffian, he must to justify his conduct show the necessity for the force
employed in self-protection. So a general, who under martial law
imprisons or kills British subjects in England, must, if he is to escapepunishment, justify his conduct by proving its necessity. The analogy
between the two cases is not absolutely complete, but it is suggestiveand full of instruction.
Observe, further, that the principle which determines the limits ofmartial law is the principle which also determines the rights andduties of magistrates, of constables, and of loyal citizens generally
when called upon to disperse or prevent unlawful assemblies or tosuppress a riot. No doubt the degree and the area of the authority
exercised by a general when resisting an invading army is far greaterthan the degree and the area of the authority exercised by a mayor, amagistrate, or a constable when called upon to restore the peace of a
town disturbed by riot, but the authority though differing in degree
has the same object and has the same source. It is exercised for the
maintenance of the King's peace; it is justified by necessity. So true isthis, that, when you need to fix the limits of martial law, you arecompelled to study the case of Rex v. Pinney, 136which refers not tothe power and authority of a general in command of soldiers, but tothe duty of the Mayor of Bristol to suppress a riot.
In every case in which the legal right or duty arises to maintain theKing's peace by the use of force, there will be found to exist two
common features. The legal right, e.g. of a general or of a mayor, tooverride the ordinary law of the land is, in the first place, always
correlative to his legal duty to do so. Such legal right or duty, in thesecond place, always lasts so long, and so long only, as the circumstances exist which necessitate the use of force. Martial law exists
only during time of war; the right of a mayor to use force in putting
an end to a riot ceases when order is restored, just as it only begins
when a breach of the peace is threatened or has actually taken place.
135 See App., Note W., The Right of Self-Defence,p. 34_, ante.

I36 3 St. Tr. (n. s.) 11, with which compare Blackburn's Charge in R. v. Eyre, pp. 58, 59.

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LAW OF THE CONSTITUTION

The justification and the source of the exercise in England of extraordinary or, as it may be termed, extra-legal power, is always thenecessity for the preservation or restoration of the King's peace.
CONCLUSIONS
From the nature of martial law 137follow four conclusions:R
First, martial law cannot exist in time of peace.
This is on all hands admitted. 138
What, then, is the test for determining whether a state of peace
exists at a given time, in a given part of England, say London?
The answer is that no unfailing test is to be found; the existence of astate of peace is a question of fact to be determined in any case before
the Courts in the same way as any other such question. 139
According, indeed, to a number of old and respectable authorities,
a state of war cannot exist, or, in other words, a state of peace always
does exist when and where the ordinary Courts are open. But thisrule cannot, it would seem, be laid down as anything like an absolute
principle of law, for the fact that for some purposes some tribunals
have been permitted to pursue their ordinary course in a district inwhich martial law has been proclaimed, is not conclusive proof that
war is not there raging. 140Yet the old maxim, though not to be
accepted as a rigid rule, suggests, it is submitted, a sound principle.
At a time and place where the ordinary civil Courts are open, andfully and freely exercise their ordinary jurisdiction, there exists, presumably, a state of peace, and where there is peace there cannot bemartial law.
If, in foreign invasion or civil war, the Courts are actually closed, and it is
impossible to administer criminal justice according to law, then, on thetheatre of active military operations, where war really prevails, there is anecessity to furnish a substitute for the civil authority, thus overthrown, topreserve the safety of the army and society; and as no power is left but the
237 Cockburn's Charge, Reg. v. Nelson, p. 85.
238 Compare Ex parte D. F. Marais [29o2],A. C. lO9;Ex parteMilligan, 4 Wall. 2 (Am.).
239 Whether the Courts may not take judioal notice of the existence of a state of war?
14o Exparte D. F. Marais [29o2],A. C. 2o9.

4o4

APPENDIX
military, it is allowed to govern by martial rule until the laws can have their
free course. As necessity creates the rule, so it limits its duration; for, if thisgovernment is continued after the Courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the Courts are open, and in
the proper and unobstructed
exercise of their jurisdiction. It is also confinedto the locality of actual war. 141

Secondly, the existence of martial law doesnot in any way depend upon the
proclamationof martial law.
The proclamation of martial law does not, unless under somestatutory provision, add to the power or right inherent in the Government to use force for the repression of disorder, or for resistance toinvasion. It does not confer upon the Government any power which
the Government would not have possessed without it. The object
and the effect of the prodamation can only be to give notice, to the
inhabitants of the place with regard to which martial law is prodaimed, of the course which the Government is obliged to adopt forthe purpose of defending the country, or of restoring tranquillity. 142
Thirdly, the Courts have, at any rate in time of peace,jurisdiction in
respectof acts which have been done by military authorities and others during
a state of war. 143"The justification of any particular act done in a state of war isultimately examinable in the ordinary Courts, and the prior question,
whether there was a state of war at a given time and place, is aquestion of fact."144
The truth of this statement of the law is almost self-evident. A sues
X in the High Court for assault and for false imprisonment; X justifies
the alleged assault on the ground that X was at the time of the act
complained of the colonel of a regiment, and that the alleged assault
was the arrest and imprisonment of A by X under the orders, say, of
the Commander-in-Chief,
during a time of war and after the proclamation of martial law. The defence may or may not be good, but it is141EXparteMilligan, 4 Wall. 2; Thayer, Caseson ConstitutionalLaw, part iv. p. 2390.
142 See opinion of Campbell and Rolfe, Forsyth, p. 198.
143 See Cockbum's Charge, Reg. v. Nelson; Blackburn'sCharge, Reg. v. Eyre; ExparteMilligan,4 Wall, 2;and compare Wall's Case,28 St. Tr.51.Wright v. Fitzgerald,27 St. Tr.759144Sir F. Pollock, What is Marl_alLaw? L. Q. R. xviii, pp. 156,157.

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LAW OF THE CONSTITUTION

certain that the Courts have, at any rate after the restoration of peace,jurisdiction to inquire into the facts of the case, and that one of thenecessary inquiries is whether a state of war did exist at the time
when A was arrested, though it is quite possible that the existence ofa state of war may be a fact of which the Courts take judicial notice.
Expressions, indeed, have been used in a recent case 14swhich, if
taken alone, might seem to assert that the ordinary Courts have nojurisdiction in respect of acts which have been done by military authorities in time of war. But the very width of the language used by
the Privy Council in Ex parte D. F. Marais warns us that it must be
limited to the circumstances of the particular case. It does not necessarily assert more, and as regards transactions taking place in England, cannot be taken to mean more than that the Courts will not, as
indeed they in strictness cannot, interfere with actual military operations, or, whilst war is actually raging, entertain proceedings against
military men and others for acts done under so-called martial law.
The judgment of the Privy Council, in short, whatever the applicationof its principles to England, asserts nothing as to the jurisdiction of
the Courts when peace is restored in respect of acts done during timeof war, and eminent lawyers have held that even in time of war the
exercise of jurisdiction by the ordinary Courts is rather rendered
impossible than superseded.
The question, how far martial law, when in force, supersedes the ordinary
tribunals, can never..,arise. Martial law is stated by Lord Hale to be intruth no law, but something rather indulged than allowed as a law, and it
can only be tolerated because, by reason of open rebellion, the enforcing of
any other law has become impossible. It cannot be said in strictness tosupersede the ordinary tribunals, inasmuch as it only exists by reason of thosetribunals having been already practically superseded. 146

Fourthly, the protection of military men and others against actions orpersecutions in respect of unlawful acts done during a time of war, bondfide,and in the serviceof the country, is an Act of Indemnity. 147
145 Exparte D. F. Marais [19o2,] A. C. lO9, 114,115,judgment of Privy Council.
146Jointopinion of Sir J. Campbell and Sir R. M. Rolfe, cited Forsyth, p. 199.
147See pp. so, 142,ante.

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APPENDIX

An Act of Indemnity is a statute the object of which is to make legaltransactions which, when they took place, were illegal, or to free
individuals to whom the statute applies from liability for having broken the law. Statutes of tl-dsdescription have been invariably, or
almost invariably, passed after the determination of a period of civil
war or disturbance, e.g. after the Rebellions of _7t5 and of _745,1_ andtheir very object has been to protect officials and others who, in theinterest of the country, have in a time of danger pursued an illegal
course of conduct, e.g. have imprisoned citizens whom they had nolegal authority to imprison. For our present purpose it is absolutely
essential to appreciate the true character of an Act of Indemnity. Sucha statute has no application to conduct which, however severe, isstrictly lawful. A magistrate who, under proper circumstances,causes an unlawful assembly to be dispersed by force, or an officer
who, under proper circumstances, orders his troops to fire on a mob
and thereby, in dispersing the mob, wounds or kills some of thecrowd, neither of them require to be indemnified. They are sufficiently protected by the common-law justification that in discharge of
their duty they used the force, and no more than the force necessary
to maintain the King's peace. A general, an officer, a magistrate, or aconstable, on the other hand, who, whether in time of war or in timeof peace, does without distinct legal justification, any act which injures the property or interferes with the liberty of an Englishman,incurs the penalties to which every man is liable who commits abreach of the law. The law-breaker's motives may be in the highest
degree patriotic, his conduct may be politically sagacious, and may
confer great benefit on the public, but all this will not, in the absenceof legal justification, save him from liability to an action, or, it may be,
to a prosecution; he needs for his protection an Act of Indemnity. On
this point note the words of a judge of the highest reputation, who
was by no means inclined to minimise the authority of the Crown
and its servants.
Where the inquiry is, whether an officer is guilty of misdemeanour froman excess beyond his duty, the principle is very much the same, or rather it is348See Clode, Military Forcesofthe Crown, _. pp. 164,_65;1Geo. I. St. 2, c. 39, and19Geo. II. c. 20.

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LAW OF THE CONSTITUTION
the complement of that laid down in the case of Rex v. Pinney. If the officer
does some act altogether beyond the power conferred upon him by law, sothat it could never under any state of circumstances have been his duty to doit, he is responsible according to the quality of that act; and even if the doingof that illegal act was the salvation of the country, that, though it might be agood ground for the Legislature afterwards passing an Act of Indemnity,
would be no bar in law to a criminal prosecution; that is, if he has done
something dearly beyond his power. But if the act which he has done is one
which, in a proper state of circumstances, the officer was authorised to do,so that in an extreme case, on the principle laid down in R. v. Pinney, hemight be criminally punished for failure of duty for not doing it, then thecase becomes very different. 149

This passage from Blackburn's charge suggests further the properanswer to an objection which is sometimes raised against the view ofmartial law maintained in this treatise.
How, it is urged, can it be reasonable that a man should be liable topunishment, and therefore need an indemnity for having done an act(e.g. having by the use of force dispersed the mob) which it was his
duty to do, and for the omission to do which he might have incurred
severe punishment?
The answer is, that the supposed difficulty or dilemma cannot in
reality arise. The apparent or alleged unreasonablenessof the law iscreated by the ambiguity of the word duty, and by confusing a man's"legal duty" with his "moral duty." Now, for the non-performance ofa man's legal duty, he may, of course, be punished, but for the
performance of a legal duty he needs no Act of Indemnity. For the
performance, on the other hand, of any moral duty, which is not alegal duty, a man may undoubtedly, if he thereby infringes upon therights of his fellow-citizens, expose himself to punishment of one
kind or another, and may therefore need an Act of Indemnity toprotect him from the consequences of having done what is legallywrong, though, under the peculiar circumstances of the case, morally
right. But then, for the non-performance of a merely moral duty, hewill not incur the risk of punishment. If the Mayor of Bristol omits, by
the use of the necessary force, to put down a riot, this omission
undoubtedly exposes him to punishment, since he neglects to per149Blackbum's Charge, Reg. v. Eyre, p. 58.

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APPENDIX

form a legal duty; but if he does perform his duty, and by the use of aproper amount of force puts down the riot, he incurs no legal liability
to punishment, and needs no Act of Indemnity for his protection. If,
on the other hand, at a period of threatened invasion or rebellion, amagistrate, without any legal authority, arrests and imprisons on
suspicion a number of persons whom he holds to be disloyal, he may
be performing a moral duty, and, if his view of the state of things
turns out right, may have rendered a great service to the country; but
he assuredly needs an Act of Indemnity to protect him from actions
for false imprisonment. But, and this is the point to note, if ourmagistrate be a man of more prudence than energy, and omits toarrest men whom ex hypothesi he has no legal right to arrest, his
conduct may incur the blame of patriots, but cannot bring him before
the Courts. A man, in short, may be punished for having omitted to
do an act which it is his legal duty to perform, but needs no Act ofIndemnity for having done his legal duty. A man, on the other hand,
who does a legal wrong, whilst performing a moral which is not alegal duty does require an Act of Indemnity for his protection, butthen a man will never incur punishment for the simple omission to
perform a merely moral duty.
OTHER DOCTRINES WITH REGARD TOMARTIAL LAW
In opposition to the view of martial law upheld in this treatise,
which may conveniently be termed the "'doctrine of immediate
necessity," three other doctrines are, or have been maintained. Of
these the first bases the use of martial law on the royal prerogative;
the second on the immunity of soldiers from liability to proceedingsin the civil Courts as contrasted with the military Courts for any act
bondfide done in the carrying out of mih'tary operations; and the third(which extends very widely the meaning of the term necessity) on
political necessity or expediency.
The Doctrine of the Prerogative
It is sometimes alleged, or implied, that the Crown may, by virtueof the prerogative, in time of war prodaim martial law, and suspend

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LAW OF THE CONSTITUTION

or override the ordinary law of the land, and this view is supposed toderive support from the consideration that the Petition of Right does
not condemn martial law in time of war.
The fatal objection to this doctrine, in so far as it means anything
more than the admitted right of the Crown and its servants to use any
amount of force necessary for the maintenance of the peace or for
repelling invasion, is that it utterly lacks legal authority, whilst to theinference suggested from the language of the Petition of Right nobetter reply can be given than that supplied by the words ofBlackburn, namely, "It would be an exceedingly wrong presumption
to say that the Petition of Right, by not condemning martial law intime of war, sanctioned it," though, as he cautiously adds, "it did notin terms condemn it."ls°The Doctrine of Immunity lsl
This doctrine, it is conceived, may be thus stated. An officer incommand of an army must of necessity, in carrying out military
operations against an invader, override ordinary rights whether ofproperty or of personal liberty. Decisive authorities may be produced ls2 in support of the proposition that he may lawfully violate
rights of property, e.g. can, without incurring any legal liability, do
acts which amount to trespass. But all legal rights stand on the samelevel; and if an officer can lawfully occupy an Englishman's land, or
destroy his property, he can also lawfully, whilst bondfide carrying on
war against a public enemy, imprison Englishmen, inflict punishment upon them, or even deprive them of life, and, in short, interferewith any of the rights of Englishmen in so far as is required for the
carrying out of military operations. The soundness of this view is, it isurged, confirmed by the admitted inability of a civil Court to judge ofthe due discharge of military duties, and by the consideration that no250 Blackburn's Charge, R. v. Eyre, p. 73, with which should be read pp. 69-73, whichsuggest the reasons why the authors of the Petition of Right may have omitted all reference
to martial law in time of war.
151 See for a very able statement of the theory here criticised, H. Erle Richards' Mart/al Law,
L. Q. R. xviii, p. _33.
152 See pp. 399, 4oo, ante.

41oAPPENDIX

Court would, or in fact could, during a period of warfare interferewith a general's mode of conducting the war, or with any act done byhim or by soldiers acting under his orders, whence, as it is alleged, it
follows that acts bondfide done in the course of military operations falloutside the jurisdiction of the ordinary Courts, not only during war
time, but also after the restoration of peace, ls3 To put this doctrine ofimmunity in what appears to me to be its most plausible form, theoutbreak of war is to be regarded as a suspension of the ordinary lawof the land, as regards, at any rate, officers in command of troops andengaged in resisting invaders. On this view a general would occupy,
during the conduct of war, a position analogous to that of a judge
when engaged in the discharge of his judicial functions, and no action or other proceeding in the Courts of Common Law would lie
against an officer for acts bondfide done as a part of a military operation, just as no action lies against a judge for acts done in discharge of
his official duties.
This doctrine of immunity is, however, open, it is submitted, to thevery strongest objections. Most of the undoubted facts on which it
rests, e.g. the right of a general when resisting an invasion to use
freely the land or other property of Englishmen, are merely applications of the principle that a loyal citizen may do any act necessary forthe maintenance of the King's peace, and especially for the defeat ofan invading army. But for the broad inferences based on this fact andsimilar facts there appears to exist no sufficient ground.
In support of the doctrine of immunity there can be produced nodirect authority, whilst it appears to be absolutely inconsistent, notonly with the charge of Cockbum, C.J., in Rex v. Nelson, but also withthe principles or assumptions which are laid down or made in the
charge of Blackburn, J., in Rex v. Eyre. The doctrine, further, is reallyinconsistent with the constant passing of Acts of Indemnity with aview to covering deeds done in the course of civil war or of rebeUion.
Nor is it easy to follow the line of reasoning by which it is assumed
that if the Courts have no power to interfere with the acts of a generalor his soldiers whilst war is raging, the Courts have no jurisdiction to
I53 See L. Q. R. xviii, p. 14o.

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LAW OF THE CONSTITUTION

entertain during peace proceedings in respect of acts done by a general and his soldiers during a time of war. Here, at any rate, weapparently come into contradiction with some of the best known factsof legal history. The Courts, not only of England, but also of theUnited States, have never entertained the least doubt of their jurisdiction to inquire into the character of any act done during war time
which was primalfade a breach of law.
The Doctrine of Political Necessity or Expediency ls4
The existence of war or invasion justifies--it is maintained by eminent lawyers, whose opinion is entitled to the highest respectmthe
use of what is called martial law to this extent, namely, that, e.g.
during an invasion, a general, a mayor, a magistrate, or indeed any
loyal citizen, is legally justified in doing any act, even though pr/md
fade a tort or a crime, as to which he can prove to the satisfaction of ajury that he did it for the public service in good faith, and for reasonable and probable cause. This doctrine, which for the sake of convenience I term the doctrine of political expediency, manifestly justitles from a legal point of view many acts not dictated by immediate
necessity. The scope thereof may be best understood from an example which I give in the words of its ablest and very learned advocate,
Sir Frederick Pollock:An enemy's army has landed in force in the north, and is marching on
York. The peace is kept in London and Bristol, and the Courts are not dosed.
It is known that evil-disposed persons have agreed to land at several ports
for the purpose of joining the enemy, and giving him valuable aid andinformation. Bristol is one of the suspected ports. What shall the Lord Mayorof Bristol do? I submit that it is his plain moral duty as a good dtizen (put_ng
aside for a moment the question of strict law) to prevent suspected persons
from landing, or to arrest and detain them if found on shore; to assume
control of the railway traffic, and forbid undesirable passengers to proceed
northward, and to exerdse a strict censorship and inquisitorial power overletters and telegrams. All these things are in themselves trespasses (except,
probably, forbidding an alien to land); some of them may perhaps be justifiable under the statutory powers of the Postmaster-General,but summary
restraint by way of prevention must be justified by a common law power
154See Pollock, What is MartialLaw? L.Q.R. xviii, p. 162.

412

APPENDIX
arising from necessity, if at all. Observe that I say nothing for the present
about trial or punishment. The popular (and sometimes official) notion thatmartial law necessarily means trial by court-martial has caused much confusion. Summary punishment may or may not be necessary. In that respect
the Mayor's authority would be like that of the master of a ship.
Now, if the Lord Mayor of Bristol fails to do these things, he will surely
find himself in as much trouble as his predecessor [Mr. Pinney] in the time of
the Bristol riots. And I do not think he will improve his defence by pleading that the peace was still kept in Bristol, and the Courts were open, andtherefore he thought he had no power to do anything beyond the ordinary
process of law. Nor yet will he mend matters if he says that he was waiting
for an Order in Council which was never issued, or never came to his
knowledge.

At best it will be a topic of slight mitigation, ls5

The objections to a view which at bottom differs essentially fromwhat I have termed "the doctrine of immediate necessity" are these:
The theory under consideration rests on little legal authority, except
the case of Rex v. Pinney; ls6 but that case, when its circumstances are
examined, does not justify the inferences apparently grounded upon
it. The charge against Mr. Pinney was in substance that, being themagistrate specially responsible for the maintenance of order in the
town of Bristol, he neglected to take the proper steps to prevent theoutbreak of a riot, and after the King's peace had been openly violated by rioters, the prison broken open, and the Bishop's Palace andother houses burned down, he did not take adequate steps to arrest
offenders or to restore order. It is impossible to imagine a case underwhich there could exist a more urgent and stringent necessity for theuse of force in the restoration of order. If the charges brought by the
Crown could have been made out, Mr. Pinney would have been
guilty of as patent a neglect of duty as could have been committed byany public official placed in a position of high authority. That he acted
feebly can hardly be doubted; yet, in spite of this, he was, with theapparent approval of the Judge, held innocent of any crime. The
point, however, specially to be noted is that, in Pinney's Case, noquestion whatever was raised as to the possible justification for acts
which were primd facie tortious, but were done by a magistrate on
155Pollock, What zsMartial Law? L. Q. R. xviii, pp. I55, _56.
1563 St. Tr. (n. s.) _1.

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LAW OF THE CONSTITUTION

reasonable grounds of public expediency, though lying quite outside
the scope of his ordinary authority. How, in short, the case of Mr.
Pinney, which at most establishes only that a magistrate who fails to
make due efforts to maintain the peace is guilty of a crime, can besupposed to justify the action of the imaginary Mayor of Bristol, who
because an invasion is taking place feels it to be his right or his duty tooverride, in a town where peace prevails, all the ordinary rules of thecommon law, many lawyers will find it difficult to explain. Still harder
will they find it to point out why a mayor, under the circumstances
so graphically described by Sir Frederick Pollock, should fear that his
failtire to show despotic energy should expose him to the legal
charges brought against Mr. Pinney. But if Pinney's case does not
go far enough to sustain the doctrine of political expediency, I knowof no other case which can be produced in its support.
This doctrine, however, is open to the further objection, of
which its able advocate recognises the force, that it is inconsistent
with the existence of Acts of Indemnity. Sir Frederick Pollock
writes:
It may be objected that, if the view now propounded is correct, Acts ofIndemnity are superfluous. But this is not so. An Act of Indemnity is ameasure of prudence and grace. Its office is not to justify unlawful acts ex post
facto, but to quiet doubts, to provide compensation for innocent persons in
respect of damage inevitably caused by justifiable acts which would not havesupported a legal claim, ls7

The attempt to meet this objection is ingenious, but the endeavour
rests on a very inadequate description of an Act of Indemnity. Such a
statute may no doubt be in part a measure of prudence and grace, but
it is usually far more than this. The Indemnity Acts, whatever theirformal language, which for a century or so protected Nonconformists
from penalties incurred year by year through the deliberate breach of
the Test and Corporation Acts, the Acts of Indemnity passed after theRebellions of 1715and of _745, the Act of Indemnity passed by the
Irish Parliament after the Rebellion of 1798 which was not wide
157 Pollock, What is MartialLaw? L. Q. R. xviii, p. 157.

414

APPENDIX

enough to protect Mr. T. Judkin Fitzgerald ls8 from actions for acts ofcruelty done by him in the suppression of the Rebellion, the further
Act finally passed which apparently was wide enough to place him
beyond the reach of punishment, and the Act of the legislature of
Jamaica which was successfully pleaded by the defendant in Phillips
v. Eyre, were, it is submitted, all of them enactments intended toprotect men from the consequences of a breach of the law. An Act ofIndemnity in short is, as is insisted upon throughout this treatise, thelegalisation of illegality, and is constantly intended to protect fromlegal penalties men who, though they have acted in the supposed, oreven real discharge of a political duty, have broken the law of theland. This is a point on which it is necessary to insist strongly, for thedetermination of the question at issue between the supporters of the"doctrine of immediate necessity" and the advocates of the "doctrineof political necessity," turns upon the answer to the inquiry, What is
the true nature of an Act of Indemnity? If such an Act is essentiallythe legalisation of illegality, the doctrine of political necessity or expediency falls, it is submitted, to the ground.
Two circumstances give an apparent but merely apparent impressiveness to the doctrine of politic_ expediency. The first is theparadox involved in the contention that action on behalf of the State
which is morally right may be legally wrong, and, therefore, be theproper object of an Act of Indemnity. This paradox however is, as
already pointed out, apparent only, and after all amounts merely tothe assertion that a man's ordinary duty is to keep within the limits of
the law, and that, if he is at any moment compelled, on grounds ofpublic interest, to transgress these limits, he must obtain the condonation of the sovereign power, i.e. the King in Parliament. The second is the current idea that, at a great crisis, you cannot have toomuch energy. But this notion is a popular delusion. The fussy activityof a hundred mayors playing the part of public-spirited despots
would increase tenfold the miseries and the dangers imposed upon
the country by an invasion.
_58 Wright v. Fitzgerald, 27 St. Tr. 759; Lecky, History of England in Eighteenth Century, viii.
pp. 22-27 .

415

LAW OF THE CONSTITUTION

Note XICONSTITUTION OF THE
TRIBUNAL DES CONFLITSThe Conflict Court consists of the following persons:
I. A President, the Minister of Justice (Garde des sceaux). 160He
rarely attends, though he may attend, preside, and vote.
II. Eight elected judges, namely:
a. Three judges of the Court of Cassation (Conseillers ?lla Cour deCassation) elected for three years by their colleagues, i.e. by the judgesof the Court of Cassation.
b. Three members of the Council of State (Conseillers d'Ftat en service
ordinaire)161elected for three years by their colleagues (i.e. by theConseillers d'Ftat en service ordinaire).
c. Two other persons elected by the foregoing six judges of the
Conflict Court, enumerated under heads a and b.
These two other persons ought in strictness to be elected neither
from the judges of the Court of Cassation nor from the members of
the Council of State, but they are in general elected one from the
Court of Cassation, the other from the Council of State.
These eight persons, who are re-eligible and usually re-elected, or,if we indude the Minister of Justice, these nine persons, constitutethe judges of the Conflict Court.
Then there are two substitutes (suppleants) elected by the judges
coming under the heads a and b who act only when one of the judgesof the Conflict Court cannot act.
There are further two so-called Commissioners of the Government(Commissaires du Gouvernement)162 appointed for a year by the Presi159 See Berth61emy, Trait_ El_rnentaire de Droit Administratif (sth ed.), pp. 88o, 88_; Chardon,
L'Administration de la France, p. 4_.
16o A Vice-President, who generally presides,
judges of the Conflict Court.

is elected by and from the eight elected

161 Conseillers d'_tat en service ordinaire are permanent members of the Council of State. They
are contrasted with Conseillers en seroice extraordinaire, who are temporary members of theCouncil, for the discharge of some special duty. See Berth61emy, p. 126.
_62 The name may be misleading.

These commissioners

416

are, it is said, absolutely

free fromAPPENDIX

dent of the Republic; the one for a year from the Masters of Requests(Maitres des requites), who belong to the Council of State, the otherfrom the class of public prosecutors, belonging to the Court of Cassation (avocatsg_n_raux _ la Cour de Cassation).
Note XIIPROCEEDINGS AGAINST THE CROWN
Technically it is impossible under English law to bring an action
against the Crown, and this impossibility is often said to be based on
the principle that the Crown can do no wrong. Hence well-informed
foreign critics, and perhaps some Englishmen also, often think that
there is in reality no remedy against the Crown, or in other words,
against the Government, for injuries done to individuals by either,
2. The breach of a contract made with the Crown, or with a Government department, or
2. A wrong committed by the Crown, or rather by its servants.
This idea is however in substance erroneous.
AS TO BREACH OF CONTRACT
For the breach of a contract made with a Government department
on behalf of the Crown a Petition of Right will in general lie, whichthough in form a petition, and requiring the sanction of the AttorneyGeneral (which is never refused), is in reality an action.
Many Government departments, further, such for instance as theCommissioners of Works, who have the general charge of publicbuildings, are corporate bodies, and can be sued as such.
Contracts made with Government departments or their representatives are made on the express or implied terms of payment out ofmonies to be provided by Parliament, but the risk of Parliament notproviding the money is not one which any contractor takes into consideration.
pressure by the Government. They are representatives of the law, they are not strictly
judges, the opinions which they express often disagree with the opinion of the representative of the Government, viz. the prefect, who has raised the conflict, i.e. has brought before
the Court the quesfon whether a judicial court has exceeded its jurisdiction by dealing witha question of administrative law.

417

LAW OF THE CONSTITUTIONAS TO WRONGS
Neither an action nor a Petition of Right lies against the Crown for awrong committed by its servants.
The remedy open to a person injured by a servant of the Crown inthe course of his service is an action against the person who has
actually done or taken part in doing the wrongful act which has
caused damage. But, speaking generally, no injustice results from
this, for the Crown, i.e. the Government, usually pays damages
awarded against a servant of the State for a wrong done in the courseof his service. Actions, for instance, have been constantly brought
against officers of the Royal Navy for damage done by collisions withother ships caused by the negligence of such officers. The damage
recovered against the officer is almost invariably paid by the Admiralty.
It would be an amendment of the law to enact that a Petition of
Right should lie against the Crown for torts committed by the servants of the Crown in the course of their service. But the technicalimmunity of the Crown in respect of such torts is not a subject ofpublic complaint, and in practice works little, if any, injustice.
It should be further remembered that much business which inforeign countries is carried on by persons who are servants of theState is in England transacted by corporate bodies, e.g. railway companies, municipal corporations, and the like, which are legally fully
responsible for the contracts made on their behalf or wrongs committed by their officials or servants in the course of their service. 163
Note XIHPARLIAMENT

ACT, I 9II[I &a Ge0. f. Ch. 13.]

An Act to make provision with respect to the powers of the Houseof Lords in relation to those of the House of Commons, and to limit
the duration of Parliament.
b8th August, _9Zl.]
163 See Lowell, The Government of England, ii. pp. 49o-494.

418

APPENDIX

Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament:.
And whereas it is intended to substitute for the House of Lords as
it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation:
And whereas provision will require hereafter to be made by
Parliament in a measure effecting such substitution for limiting anddefining the powers of the new Second Chamber, but it is expedientto make such provision as in this Act appears for restricting theexisting powers of the House of Lords:
Be it therefore enacted by the King's most Excellent Majesty, by
and with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by theauthority of the same, as follows:-2.--(2) If a Money Bill, having been passed by the House of Commons, and sent up to the House of Lords at least one month before
the end of the session, is not passed by the House of Lords without
amendment within one month after it is so sent up to that House, theBill shall, unless the House of Commons direct to the contrary, bepresented to His Majesty and become an Act of Parliament on theRoyal Assent being signified, notwithstanding that the House ofLords have not consented to the Bill.
(2) A Money Bill means a Public Bill which in the opinion of the
Speaker of the House of Commons contains only provisions dealing
with all or any of the following subjects, namely, the imposition,
repeal, remission, alteration, or regulation of taxation; the imposition
for the payment of debt or other financial purposes of charges on theConsolidated Fund, or on money provided by Parliament, or thevariation or repeal of any such charges; supply; the appropriation,
receipt, custody, issue or audit of accounts of public money; theraising or guarantee of any loan or the repayment thereof; or subordinate matters incidental to those subjects or any of them. In thissubsection the expressions "taxation," "public money," and 'qoan"
respectively do not include any taxation, money, or loan raised by
local authorities or bodies for local purposes.

419

LAW OF THE CONSTITUTION(3) There shall be endorsed on every Money Bill when it is sent up
to the House of Lords and when it is presented to His Majesty forassent the certificate of the Speaker of the House of Commons signed
by him that it is a Money Bill. Before giving his certificate, the Speaker
shall consult, if practicable, two members to be appointed from the
Chairmen's Panel at the beginning of each Session by the Committeeof Selection.
2.-- (_) If any Public Bill (other than a Money Bill or a Bill containing any provision to extend the maximum duration of Parliament
beyond five years) is passed by the House of Commons in threesuccessive sessions (whether of the same Parliament or not), and,having sent up to the House of Lords at least one month before theend of the session, is rejected by the House of Lords in each of thosesessions, that Bill shall, on its rejection for the third time by the Houseof Lords, unless the House of Commons direct to the contrary, bepresented to His Majesty and become an Act of Parliament on theRoyal Assent being signified thereto, notwithstanding that the Houseof Lords have not consented to the Bill: Provided that this provision
shall not take effect unless two years have elapsed between the dateof the second reading in the first of those sessions of the Bill in theHouse of Commons and the date on which it passes the House ofCommons in the third of those sessions.
(2) When a Bill is presented to His Majesty for assent in pursuanceof the provisions of this section, there shall be endorsed on the Billthe certificate of the Speaker of the House of Commons signed byhim that the provisions of this section have been duly complied with.
(3) A Bill shall be deemed to be rejected by the House of Lords if it
is not passed by the House of Lords either without amendment orwith such amendments only as may be agreed to by both Houses.
(4) A Bill shall be deemed to be the same Bill as a former Bill sent
up to the House of Lords in the preceding session if, when it is sent
up to the House of Lords, it is identical with the former Bill or contains only such alterations as are certified by the Speaker of theHouse of Commons to be necessary owing to the time which has
elapsed since the date of the former Bill, or to represent any amendments which have been made by the House of Lords in the former

420

APPENDIX

Bill in the preceding session, and any amendments which are certiffed by the Speaker to have been made by the House of Lords in thethird session and agreed to by the House of Commons shall be inserted in the Bill as presented for Royal Assent in pursuance of thissection:
Provided that the House of Commons may, if they think fit, on thepassage of such a Bill through the House in the second or third
session, suggest any further amendments without inserting theamendments in the Bill, and any such suggested amendments shallbe considered by the House of Lords, and, if agreed to by that House,shall be treated as amendments made by the House of Lords andagreed to by the House of Commons; but the exercise of this powerby the House of Commons shall not affect the operation of this section in the event of the Bill being rejected by the House of Lords.
3. Any certificate of the Speaker of the House of Commons given
under this Act shall be conclusive for all purposes, and shall not bequestioned in any court of law.
4-m (1) In every Bill presented to His Majesty under the preceding
provisions of this Act, the words of enactment shall be as follows,that is to say:-"Be it enacted by the King's most Excellent Majesty, by and with theadvice and consent of the Commons in this present Parliament assembled, in
accordance with the provisions of the Parliament Act, _9_1,and by authorityof the same, as follows."(2) Any alteration of a Bill necessary to give effect to this section
shall not be deemed to be an amendment of the Bill.
5. In this Act the expression "Public Bill" does not include any Billfor confirming a Provisional Order.
6. Nothing in this Act shall diminish or qualify the existing fights
and privileges of the House of Commons.
7- Five years shall be substituted for seven years as the time fixed
for the maximum duration of Parliament under the Septennial Act,
_7_5.
8. This ACt may be cited as the Parliament Act, _911.

421

INDEXAct of Settlement, the, cxliii; the descent of the
Crown under, 5, 6
Acts, Bankruptcy Act, 1883, xlv, the Commonwealth of Australia Constitution Act, 57 note,
85 note, and Appendix, Note IX., 386 - 396; Deceased Husband's Brother Act, ,9oo (New
Zealand), 6o note; Immigrants' Restriction Act,19o7 (Transvaal), 6o note; of Congress, 24th
September ,789, 9o; the Supreme Court of theUnited States and, 9o, 92; the foundations of,92; instances of unconstitutional,
93; British
North America Act, *867, 93-95 and notes;
Canadian Provincial, 95; the Extradition, position of foreign criminals under, 136 and note;
the Alien, of *848, I42; the Press Licensing
Act, discontinued, ,62-*63; the Mutiny, 1689,
19O;preamble of, 19,; the Army Act, ,881, 19,,
192 note, 193 note; the Revenue under, 2Ol; relating to Taxation, 2Ol-2O2; the National Debt
and Local Loans Act, ,887, 204; the Appropriation Act, 204; Public Authorities Protection
Act, ,893, 255; the Merchant Shipping Act,1876, 261; the Alien, 272; Foreign Enlistment,
272; Extradition, 272; Naturalization, 281; theSeptennial, 291; Parliament Act, 19,,, 418-419
Acts, Local and Private, *oActs of Indemnity, objects of, lO, *3, 407-409,
414, 415; in connection with the Habeas Corpus
Suspension Act, 142, 144-145
Acts of Parliament, rules of the Privy Council
under, 12;as opposed to moral or international law, 19;power of Parliament in regard
to preceding, 20; Railway Companies subject
to, 42 , practical importance of, 269
Acts of Union, the (Great Britain), 2*; the fifth
Article of, 22; as subject to repeal, 78
Administrative Law, in England and France,
2*3, 214, 248; characteristics of, in France, 22o

et seq.; foundations of, in France, laid by
Napoleon, 228
Alien Act of 1848, power of the Ministry under,
42, 272
Aliens, case of arrest of, x26, ,36; position of, inEngland, 136 and note; Act of *848 relating to,142; position of, in England, 271, 272
America, the Constitution of the United Statesof, cxxvii; the Commentaries of Kent and Storyon, cxxvii
American Commonwealth, The, Bryce, 73 note
American Union, the treaty-making power inthe hands of the President and Senate, 3,oAncien R_gime, the, literature under, ,58 andnote; Droit Administratif and, 218
Anne, Queen, and creation of peers, bdx
Anson, Sir William, Law and Custom of the Constitution referred to, cxlviii note
Appeal to precedent, frequency of, in English
history, cxxxvii
Appropriation Act, the, 204; payments under,
205
Armed Rebellion, lxiArm),, the, under the Rule of Law, 188; liabilityof soldiers as citizens, _81, 192, the forces of,
188; in relation to English law, 188; the Standing Army, 189; the soldier under civil and milltary law, ,96, 197; the Territorial Force,
198-199; abolition of purchase m, 312 andnote
Army Act, the, 188,, *9*, 192 note, *93 note; inrelation to the annual meeting of Parliament,
297--298

Arrest, redress for, 125; instance in case ofaliens, 126, 136; maxims relating to, 12.6; underthe Habeas Corpus Suspension Act, 143
Article 75 of the Constitution of the Year VIII.,
Tocqueville on, 232-233; abolition of, 235

423

INDEX

Asquith, Mr., li; on the Empire, h note, and theParliament and Governmentof the United
Kingdom, cii
Aucoc on Drott Admimstrattf, 216 and note
Austin, theory of Parhamentary
sovereignty,
25-27, 28
Australia, Western, xlii-xliii note
Australian Commonwealth,powers of the Parhament in regard to changes in the Articles of
the Constituhon,
53 note, 391-393; the lmmigration Act, a9ol, 59 note; in relation to the
Impenal Parliament, 62,393-396; an exampleof Federalism, 73 note; its main characteristics
Appendix, Note IX., 386-396

Britlsh Rule and Jurisdiction beyond the Seas, Sir H.
Jenkyns, 13 note, 49 note
British subjects, political rights of, Iv note
Bryce, Professor, 39, American Commonwealth by,
73 note, 86 note
Budget, effect of House of Lords' rejection, lxxv
Burke, lxx, lxxxiii; Letter to the Sheriffs of Brlstol,
xli note; Conciliation with America, xliv note;
Correspondence, lxxxiv note; on the necessity ofthe study of the English Constitution,
cxxv,
cxxvi; on the House of Commons, 35; opposltion of, to Democracy, 29oBute, Lord, 3o5
Butler, The Passing of the Great Reform Bill, Lxxvifi
note

Bacon, cxxxw; on the attempt of a Parhament tobrad its successors, 21 note; on the judges andthe prerogative,
243; introductionof the writ
De non procedendo Rege mconsulto by, 244
Bagehot, xci, xciii, cxxix; English Constitutwn,
lxxxvii note, cxx note; quotation from, cxix; as apolitical theorist, cxxxvii; English Constitutwn
by, cxxxvii; on powers legally exercised by the
Crown, 312; on Cabinet and Presidential Gov-

Cabinet, the English, cxxx; power of, increased
by Parliament Act, lxxiii; sublect to the will of
the House of Commons, 86; position of, asaffected by the survival of the Prerogative,
3o9; a parliamentary
executive, 331, 333;
merits and defects of, 334, 336, possibility of achange in character of, 334
Cabinet Government
and Presidential Govern-

ernrnents, 334
Bankruptcy Act, 2883, xlv
Beaconsfield, Lord, lxvii and note
Belgium, Constitution of, in comparison with
the English, cxxvii, 38, 64 note, 66, 71; theCourts of, and Parliamentaryenactments,
87;
rights of individuals in, 226, 129;articles of theConstitution,
a22; personal freedom under,
223; the law of, in relation to the liberty of thePress, 146, _52; rules of the Constitutaon as toright of public meetang, I69; administrative
law in, 221 note
Bentham and Benthamites,
lxxx
Bill of Rights, the, cxliii
Bills, procedure with regard to, xxxix, xl; difficulty of amending, under Parliament Act, xl
Blackburn on martial law, 4o7-4o8Blackleg, the, lvii
Blackstone, cxxviii, Constitutional
law not defined by, cxxix; on the royal prerogative, cxxx;
on moral law, 19Blackstone's Commentaries, confusion of terms
in, cxxix; misstatements
in, cxxx; quoted on theauthority of Parhament, 4Board of Trade, the, under the Merchant Shipping Act, 2876, 261, 262
Boutmy, Mons., l_tudes de Droit Constitutionnel,
cxxix note; division of the English constitutional law by, cxxix note
Bradlaugh, Charles, actions in connection with,
cxlvii
Brand, The Union of South Africa, 33° note
Bright, lxxiv
British Empire, benefits conferred by, liii
British North America Act, 2867, 93-95 and notes

ment, forms of, 334
Cabinet members and partasanship,
lxxv note
Campbell, Sir J., on martial law, 399, 405
Canada, the Dominion of, 44; position of the
Parliament in regard to changes in the Constitutaon, 53 note; instances of Veto on Acts
passed in, 59; in relation to the Imperial Parhament, 61; the Dominion of, an example ofFederalism, 73, 83 note; the British North
America Act, 1867, 93-95 and notes; the Constitution of, 93 and note, compared with that of
the Australian Commonwealth,396; power ofDominion Government,
94, 95"Case-law" or "judge-madelaw.'" 245; rapid
growth of, 252Caste in India, reason for tolerating, lxxvih
Censorship of the Press, absence of, in England,
153, 156; in France, 159, 16o, i65, 166, 167;
under the Star Chamber, the Commonwealth,and the Restoration,
262; discontinuanceofthe Licensing Act, 163, 164; the contrast between England and France as to, _67, i68
Censure, the Vote of, action of the Ministry
under, 292, 299
Channel Islands, the, and Acts of the Imperial
Parliament, 13 noteCharles I., cxxxvi; the personal and the legal willof the King, cxxxvi
Charles II., Rhode Island under charter of, 93
Chatham, Lord, attempt of, to legislate by Proclamation, 13, 289
Church, the, and the Act of Union, 22; the Irish
ChurchAct,
1869, 22; position of the dergywith regard to the Courts, 199 note
Citizens, duty of, in cases of riot, 183

424

INDEX

Citizenship of British subjects throughout the
Empire, xlvi, liv, Iv, xcviii-xcix note, cii, cviii
note
Civil servants and the Law Courts, lxvi
Clergy, the, and lawlessness, lvhi; as subject to
the Courts, 199 note
Closure, the, lxvfii
Coalition, Pitt and the, 302
Cobden, lxrav; and the Free Traders, lxxxix
Coercion Act (Ireland), 1881, power of the Irish
executive under, 141
Coke, Sir Edward, cxxxvi, cxxxvfi, 242, 243; onthe power and jurisdiction of Parliament, 4; onprivate rights and parliamentary authority, 9
Colomal Acts, the sanction of the Crown to, 48;
limit to powers of, 48 note, 61
Colonial Bills, the right of Veto, as exercised by aGovernor, 57"Colonial Laws Validity Act, _865,'' the text of,49, 52
Colonial legislatures, and the right of Veto, 55,
56 and notes, 57, 58
Colonial Parliaments, limit to powers of, 48 andnote; as "constituent bodies,'" 52; authority of,in regard to changes in Artides of Constitutions, 53 note; controlled by the Imperial Parliament, 54; the liberty of, in relation to Imperial Sovereignty,
54; power of the Governor as
to assent to Bills, 58
Colonial policy in 1914, lColonies, the, in 1884, lii; and growth of Imperialism, lii; Act limiting right of Parliament
to tax, 1778, 23, 33; power of, as to Treaties, 59;
policy of the Imperial Government toward,
59-60
Colonies, Laws relating to, Tarring, 51 note
Commitment for contempt, instance of Parliamentary, 15, 16 note
Common, or "unwritten" law, cxliii
Commons, the House oL resolutions of, notlaw, 14; Mr. Justice Stephen on, 14; powers of,15
Commonwealth Act, xxxvi-xxxvii note
Comptroller and Auditor General, positron andpowers of, 205; instance of the power in _811,
207
Conciliatwn wlth America, xliv note
Confederation, the Artides of, cxxxv
Conferences with Dominions, xhx
Conflict Court, the, in France, lxii, lxiii, 239,
Appendzx, Note XI., 417-419
Congress, Acts of, 82; powers of, compared withpowers of English railway companies, 82; limited power of, 83; Act of 24th September 1789,
9o; the Supreme Courts of the United Statesand, 90-92
Conscientious objectors and lawlessness, lix
Conseil d'F:tat, lxi, 218; the functions of, 246; a real
tribunal of Drort Administratif, 247

Conservatism,
tendency of Federalism to, 99
Consolidated Fund, the, 2o4
Constitution, the, the division of, between history and law, cxxxix; rights part of the law of,
cxlil; rules belonging to the conventions of,cxlii; the law of the, three principles of thestudy of, cxlviii; Federal States subject to, 77,
79 note; the fifth Article of the United States,
80; Federal Governments
under, 80 and note;
Federal, legislature under, 81, 83 , 96
Constitution, the, the Law of, and the Conventions of, lxvi, 277; probable changes in, [xvi;the legal and the conventional elements in,278; based on the law of the land, 314
Constitution of Commonwealth of Australia, 74
note, 75 note, 83 note, 85 note, and Appendix,
Note IX., 386- 396; amendment of, 391
Constitution of France, 62; Tocqueville on, 62;
rigidity of, 64; revolutionary instances in, 69;
the existing, 69
Constitution of the German Empire, 79-8o notes
Constitution of the United States, the Articles
of, cxxvii; in comparison with the English,
cxxvii, 73, Kent's and Story's work on, cxxviii;
preamble of, 77; the judges in relation to, 88;
in comparison with the Canadian, 93-94 andnote
Constitutional freedom, confusion as to the origin of, cxxxvi
Constitutional historians, in contrast with legal
constitutionalists,
cxxxav
Constitutional history, research in, in relation tomodern constitutional law, cxxxiv
Constitutional idea, development of new,lxxvi
Constitutional Law, the true nature of, cxxv;
modern ongm of the term, cxxviii; Mons.
Boutmy's division of the English, cxxix note;sources of work in, cxxix; as considered byBlackstone, cxxix; study of the constitutional
historians in connection with, cxxxii; antiquarian study unnecessary to the study of,cxxxiv; Indefiniteness of, cxxxix; character ofrules of, cxl; rules of, as enforced, cxli; rules asconventions, cxli; the legal and conventional
elements of, cxliii, cxliv; importance of, tothe lawyer, cxlv; different character of rulesof, cxlv; in general the result of ordinarylaws, 115
Constitutional laws, 37; no legal distinction between, and other laws, 39
Constitutional maxims, the observance of, 3o4
Constitutional Monarchy, of Louis Philippe, 62Constitutional understandings,
278; Freeman's
Growth of the English Constitution, quoted as to,278; examples of, 279; common characteristics
of, 28o; the aim of, 285; not rules enforced by
the Courts, 292; how disobeyed, 293; variability of, 3o3425

INDEX

Constitutionalism,
difference between Enghsh
and French, 64 note; comparison necessary to
the study of, _Constitutionalists,
legal, in contrast with constitutional histonans,cxxxiii
Constitutions,
Burke and Hallam on the study ot
the English, cxxv; past ideas and views of,cxxvi; modern view and study of, cxxvi;
difficulties in the study of, cxxvii, cxxviii;
differences between the state of the government and the theory, cxxx-cxxxi note; of England, contrasted with that of France, cxxvii,
62, 111--112; flexible, 64; rigid, 65, 66 and note,
99; the formation of foreign, 116; of the UnitedStates, 218 and note; main provisions of the
English, 221; rigidity of the French, Appendix,
Note I., 317-325; classification of, 331
Constitutions,of Belgium, in comparison with
the English, cxxvil; in contrast with theEnglish, 38; flexible and rigid, 39, 66 note
Constitutions,
the Swiss and the "guaranteed"rights of, 85
Contracts, law in relation to, cxxxix
Conventionsof the Constitution,lxvi; recent
important changes in, lxvi; the lawyer in relation to, cxlv; and the Ministry, cxlv; Ministers
under, 21o; and Law of the Constitution,
277;
nature of Conventions,
277; and exercises ofthe prerogative,
281; and Parliamentary
privilege, 284; those strictly obeyed, 294; howobedience ensured to, 295; obedience to, enforced by law, 296
Conventions,enacted lxvii; necessity for Parliament observing, lxxv
Conventions,"mere,'" lxvi; as affecting Disraeli,
Gladstone, and Peel, lxvii; effect on parties
and officials, lxvh, inconvenience and dangerof wolating, lxxv
Corporations,as non-sovereignlawmakingbodies, 41; Municipal, 83 note
Corr_pondence, Burke's lxxrav note
Courts, the, and Acts of Parliament,
4; and Parliamentary resolutions, _4; Mr, Justice
Stephen on, _4; and Parliamentary
authority,
28-22; and the electors, 27; and the bye-lawsof Railway Companies, 42-43; and Colonial
Acts, 51; under the Imperial Parliament andunder Federalism, 86; the authority of, 87; theBelgian and French, 87; of the United States,
87, 88, 89; Canadian, 95; Swiss, 95; of theUnited States, lOO-lOl and note; position ofoffidals under, 2J4; as the foundation of the
English Constitution,
216-217; and the Habeas
Corpus Act, 13o, _33, 134, 136, 139, and thePress, 155; and the right of public meeting,272, I73, 275 and note; and Courts-martial,
193;
and military law, 297, 4o3-407; and State matters in France, 221, 238-240; and Droit
Admmistratif, 229, 264, 267; English Crown

426

servants as subject to, 26o, 261; and Parliament, 27o and note
Courts, Federal, 84
Courts of Australia, as interpretersof the Constitution of the Commonwealth,389
Courts of India, the, and the Acts of the Legislafive Council, 45, 46; power of, as to Acts
passed by the Council, 47
Courts of Justice, Blackstone's statement as toRoyal power in connection with, cxxxi
Courts-martial,
and the Civil Courts, 193, 196,
197
Crisis of Ltberahsm, The, cvlii note
Criticism, fair and libellous, 148
Crown, the, power of veto in Dominion affairs,
xlviii; moral influence of, cxviii; theory of theprerogative of 1785, cxxx-cxxxi note; unrealityof expressions in connection with, cxxxii; andresponsibility of Ministers, cxli; law regulating
the descent of, cxliii; the descent of, fixedunder the Act of Settlement, 6; legislation by
proclamations
under, 11;in relation to proclamations, 13; sanction of, to Colonial Acts, 48;
and the fight of Veto, 55-56 and note; hereditary revenue of, 20o; responsibilityof Ministers as to Acts of, 21o; prerogative of, as anterior to the power of the House of Commons,
282; positionof, in case of a conflict between
the Lords and the Commons, 287; the personal influence of, uncertain, 3o8; the survivalof the prerogatives of, 309; Bagehot on powers
legally exercised by, 312; proceedings against
the, Appendix, Note XII., 417-418
Crown servants in England, powers of, 254
Davis, American Constitutzons, lo2 note
De Berry, Duchesse, and her attempt to raise
civil war in La Vendee, 232
De Blosseville, 215
Decentralisatzon par service, lxiv; as affecting thePost Office, lxiv
D'Eon, the Chevalier, n2
De Lolme on the limit of English Parliamentary
power, 5, 36
Dedaration of the Rights of Man, freedom of
discussion and liberty of the press under, 146"Declaration of the State of Siege," the, 183;
French law as to, 186; under the Republic ofFrance, 186
Dentists' Act, the, 78
Despotism, instances of, 213-_14 and note
Discussion, the Right of Freedom of, 146; under
foreign constitutions,
146; under English law,
147, 152 and note
Dissolution of Parliament, the rules as to, 287; of1784 and I834, 288; right of, in relation to Parliamentary sovereignty, 29_; the right of, as
the right of appeal to the people, 291, 304
Documents, Public, necessary signatures to, 211

INDEX

Dodd, Dr., execution of, 3o9"Dominions," meaning of term, xlii, xliii; each aself-governing
colony, xlii; and Acts of Imperial Parliament, xlvii; and treaties, xlvii; andwar, xlvii; powers to legislate, xlvii; extent of
independence,
xlviii; right to raise rrulitaryand naval forces, xlviii; right of appeal, xlix;
conferences with the Mother Country a moral
right, xlix; relations of England and the, in1884 and 19x4, 1;and England in early Victorianera, l, li; willingness to share cost of defence of
the Empire, liii
Droit Admmlstratif, compared with present official law of England, lxi; critical examination of,xliv; contrasted with the Rule of Law, 213; theterm, 215; Tocqueville on, 215, 216 and note,
233 note; definition of, 216; position of officials
and others under, 217, 222-228, 231-233 , 234 ,
252; fundamental ideas permanent, 217; histoncal development,
217; leading principles,
219; Vivien on, 219 note; characteristics, 220;
foundations lind by Napoleon, 221-223; conflicts of jurisdiction, 224; protection of officials, 225, 226, 231; the Council of State under
Napoleon, 227; during the Monarchical penod(183o-187o), 229; and the Third Republic, 235;
decisions of the Council of State become
judgments, 238; creation of independent
Conflict-court, 238; evolution of, 24o-242,
246; comparison between, and the Rule ofLaw, 242: not opposed to English ideas current in the sixteenth and seventeenth centunes, 242, "case-law'_ or "fudge-made law,"245,251; the Conseil d'Etat a real tribunal of,
247; felt by Frenchmen to be beneficial, 251;
development of, between 18oo and 19o8, 252;
not to be identified with any part of the law ofEngland, 252; not the law of the Gvfl Service,
253; compared with the law of Equity, 253;
rests upon ideas foreign to English law, 255;
not in reality introduced into the law of England, 255; no foothold in England, 256; its
merits, 259, 262; its defects, 259, 264
Dubs, Dr., on the Swiss Federal Court, 96
Duguit, Trmt6 de Droit Constutzonnel, lxiii note, lxv
note, 159; Manuel de Drmt PubhcFrancais, 12note, 63 note; on the position of officials under
Drott Administratif, 267 note

Ellenborough in England, 153
Empire, British, benefits conferred by, lii;
citizenship of British subjects throughout,xlvi, liv, Iv, xcwii-xcix note, cii, cviii note; secures peace to Britain and the colonies, xcviii;
and cost of Imperial defence, xcviii; pride in,xcviiiEngland, the King of, Blackstone on the powerof, cxxix, cxxxi
England, Tocqueville on the respect for law in,as compared with Switzerland in 1836, lO8; thePress laws of, 148, 152-155, 156; law of, as toright of public meeting, 169
English Cabinet, the, cxxx
English Constitution, lxxxvii note, cxx note, cxviii
English Constitution, the, Burke and Hallam on
the study of, cxxv; past views and ideas of,cxxvi; modern wew and study of, cxxvi; difficulties connected with the study of, cxxvii,
cxxix; Paley quoted, on actual state and theoryof government, cxxx-cxxxi note; Tocquevilleon, cxxxlx, 36; unwritten character of, 38;
ideas of the Royal prerogative in the seventeenth century, 243
English Constitutional law, cxxlx, Mons.
Boutmy's division of, cxxlx note, sources ofwork m, cxxix; as treated by Blackstone, cxxix,
78
English Parliament, the, characteristic of, 268,
268--269
note; the appointment of the Prime
Minister, 269
English Prime Minister, as head of the English
Cabinet, cxxx, 269
Enlistment, power of the Civil Courts as to, 197,
198 and notes; the Foreign Act, 272
Equity, the law of, in England, 25o, 251; compared with Droit Admimstratif, 253
Essays in Jurisprudence and Ethics, Pollock, 4 note
Etudes de Drolt Constitutzonnel, Mons. Boutmy,
cxxix note
Execuhve, distinction between a parliamentary
and a non-parhamentary,
Appendix, Note II1.,
331-34 °Extradition Acts, foreign criminals under, 136
and note; powers under, 272
Eyre, Governor, and the Jamaica rebellion, 1866,
145, 4°2 note
Factory legaslataon in England, 254
Featherstone Commission, Report of, 183 note,and Appendix, Note VI., 368-371
Federal Assemblies, the Swiss, 17Federal Constitution, legislature under, 81, 82,
96
Federal government,
leading characteristics of,
xciii; requirements
for success, xciii; in the
United States, xciv; in Switzerland,
xciv; what
it means, xcvii; in relation to Imperial Federation, xcviii; characteristics of, in relation to

Edward, VI., repeal of the Statute of Proclamahons in the reign of, 11
Electorate, the true sovereign power, lxvii;
power of the, lxxiii; as the political power of
the State, 284, 285; in relation to dissolution of
Parliament, 287
Electors, position of, in the United States, cxliv;
Parliamentary,
position of, 17; the Courts and,28; power of, politically, 29
Elizabeth, Queen, clx

427

INDEX

Federal government(cont.)
Home Rule all round, civ; instances of, 73;
aims of, 75; necessary condihons to the tormation of, 75 and notes
Federal States, division of Powers in, Appendix,
Note II., 325-330
Federalism, xo, and nationalism, xciv; a weakform of government,
xcv; incompatible withEnglish ideas, xcv; divides allegiance, xcvi; notto be confounded wlth nataonalism, xcvii; thedream of many Enghshmen,
xcviil; objections
to the creed of, xcix; a peril to the British Eraplre, xcix, difficulties m the United States,
xox; its effect if apphed to India, c, cii; what
would become of the old Imperial Parliament,
cl; new prestige gained by, cv; of United
Kingdom and divided allegiance, cwi, foreign
to English constatutlonalism,
cvil; would affectloyalty of colonies, cviii note; and Parhamentary sovereignty,
73 and note; Swiss, 73-74
note, and Appendix, Note VIII., 372-386; thefoundationsof, 75; the sentiment of, 75; theaim of, 76; of the United States, 77; the leading
characteristics
of, 77; in relation to Constitution, 78; sovereignty under, 8o; distributionofpowers under, 83; limRations under, 83 andnote, 84, in comparison with Unitanan government, 85-86 note, 86; the Law Courts
under, 86; the meaning of, 87, individual
character of Swiss, 95; m comparison with
Parliamentary
sovereignty,
97; weakness of
Swiss, 97 and note, lo4, and Conservatism,99;
the legal spirit of, loo; success of, in the UnitedStates, lO3; Australian, Appendix, Note IX.,
386-396, dlstinct_on between Canadian andAustralian, 396
Field J., on the right of public meeting, i72
Firth, Cromwell's Army, i9onote"Flexible" Constitutions,
the English, an exampie of, 65, 66 note
Foreign Enlistment Act, powers of the Ministry
under, 272
Foreign Legislatures,
non-sovereign,
61
Fox, support of Parliamentary
sovereignty by,
289
France, Constitutionof, m comparison with theEnglish, cxxvii; Tocqueville on the constitution of, 62; the Republic of 1848, 63, the authority of the present Republic, 63; the Coupd'_tat of 1851, 67, 336; the Revolutionary
constitutions of, 69; the existing constitution of,
7o; the Courts of, in relataon to the National
Assembly, 87; lawlessness m past administratlons, H2-1I 3 and note; the Press law of, _56
note; literature under the Ancien R_gune, 158;
under the Revolution, 159; under the First
Empire and the Republic, 159, 16o-1& note;the law of, as to the "Dedarationof the Stateof Siege," x86; Droit Admmistratif in, 213et seq.;the "Separationof powers," 219; limit of juris-

diction of law courts, 221; judicial and administrative courts constituted by Napoleon,
a21-222 and note; acts of State, 225, 257; officials under Art. 75 of Constitution of Year
VIII., 227, 232, Tribunal des Confltts, 237-238,
Appendix, Note XI., 417-418; the Conseil d'_tat,
246, 247-248; the National Assembly, 27027a, 338, 339; Directorial Constitution of, 337,
338; President of Republic, election and powerof, 338, 339; in relation to National Assembly,
338-339
Frederick the Great, 34
Free Traders, lxxxix
Freeman, E. A., cxxix, cxxxv; Growth of the
English Constitution by, cxxxiii; quoted on constitutional understandings,
278; on appeal toprecedent, cxxxvii
French in Canada, their loyalty, xcvii
French Constitutions,
Rigidity of, Appendlx,
Note 1., 317-325
French National Assembly of 187a, 31
French Republic, the, officials under Art. 75,
Year VIII., 227, 232-233
Fundamental
laws and constitutionallaws,
37-38, 78 and note
Gan;on, Code P_nal, 226-22 7 note
Gardiner, Mr., cxxxvi; on Bacon's writ De nonprocedendo Rege mconsulto, 244
George II., 3o9
George III., cxxv, cxxvi, cxxx; public expenses as
charged in the reign of, 203; dissolution of
Parliament by, as a constitutionalact, 288;
view of Parliamentary
sovereignty,
289; exercise of personal will in matters of policy, 3o8
George V. and creation of peers, lxx
German Emperor, real head of executive, 334;
independentactaon oL 336
German Empire, the, Constitution of, 79-8o andnotes, 329; an example of federal government,
73; executive of, 333, 334
Gladstone, Mr., lxvii, lxvii and note
Gneist, 36
Goldsmith's Cittzen of the World, cxxvi note
Gordon Riots, the, 178o, 185
Governance of England, The, lxxiii note, cviii note
Government,
position of publishers of libel on,
15o; in relation to the Press, 152-_53; and theright of public meeting, 177-i78
Government of England, lxxiii note, cviii note, cxvii
note
Governmentof Ireland Act and Home Rule, civ
note
Grant, General, third candidature of, as President, odlv
Grattan's Constitution,
333
Great Reform Act, xxxviii
Gregoire quoted, 231 note
Grenville, Lord, action of, in oppositaon to Parhament, _811, 2o 7

428

INDEX

Growth of the English Constitution, Freeman, in
relation to constitutional law, cxxxii-cxxxiii;
quoted, cxxxvi"Guaranteed" rights of the Swiss Constitution,
85
Guillotine, the, lxviii

Hume on Sovereign power, 3o-31
Humphreys, Proportional Representation, lxxxiv
note
Immigrants Restriction Act, 19o7 (Transvaal), 6o
note

Habeas Corpus Acts, the, cxliii, 117, _8; suspension of, in comparison with foreign "suspension of constitutional guarantees," 12o, 12.2,
the Writ of, 128-129; the issue of the Writ of,
13o; power of the Courts as to, 13o; the Acts ofCharles II. and George III., 131; rights of theindividual under, 131; provisions of, 132, 133;
the authority of the judges under Writ of, 135;
case of aliens under, 136-137, the suspensionof, _39 and note; charge of High Treason
under, 14o and note; the Suspension Act, as an
Annual Act, 141; the Ministry and, _4_; and Act
of Indemnity, 142, 145i position of official
under, 142-143; arrest under, 143
Hallam, Middle Ages, cxxvi note
Hallam, on the prosperity of England traceable
to its laws, cxxv, cxxvii, cxxix, cxxxii; on the
Septenmal Act, 7
Hamilton, opinions of, in relation to the constitutional articles of the United States, cxxxv
Hastings, Warren, 295
Hauriou, on the position of officials under Drozt
Administratif, 267 and note
Hearn, Professor, cxxix; Government of Englandby, referred to, cxxxvii, cxlii, 287 note; as apolitical theorist, cxxxvii
Henry VIII., the Statute of Proclamations in thereign of, 11High Treason, charges of, under the Habeas Corpus Acts, 14o and note; under the Coercion Act(Ireland), _88_, 14_
Historians compared with lawyers, cxxxv
Hobson, J. A., The Crisis of Liberalism, cviii note
Hotland" s ]urisprudence, cxl noteHome Rule, what has stimulated interest in, cv;
why not a benefit if applied all round, cvi
Home Rule Bill, history of, xl; as viewed by theelectors, lxxi
House of Commons, the, its powers, xl-xli;
jealousy of judicial interference, lvi; andobstruction, lxviii; and freedom of discussion,
lxxiv; not a debating society, lxxxvi; parties in,
lxxxix; Burke on, 35; powers of, in relation to
the Ministry, 86, 289-9o; and the Licensing
Act, _63; in relation to the House of Lords,
305-306
House of Lords, its powers, xxxviil, xxxix, xl
notes, xlii; and Money Bills, xxxviii; veto of,xxxviii; legislation delayed by, xxxviii, xxxix; inrelation to the House of Commons, 287,
3o5-3o6; instances of opposition to the Commons, 3o5-307
How France is Governed, lxii note

429

Impeachment, 294; disuse of, 3o3Imperial Government, the, right of, to veto Colonial Bills, 58; action of, toward the Colonies,
60
Imperial Parliament, and self-governing colonies, xliii; and taxes, x[iv; advantages ofpowers of legislation by, xlv; relation of, toself-governing colonies in 1884, xlv; in iSa4,
xlvii; and Isle of Man, xlv note; and New Zealand, xlv
Imperialism, growth of, in colonies, [i-lii; definition of term, lii; advantages of, [iv; disappointments in connection with, liv
Imperialists, what they aim at, c; what theyought to keep in view, ciii
Income Tax, the, Act as to, annual, 202
Indemnity, Acts of, objects of, lo, 4o7-4o9,
414-4_5; an instance of Parliamentary power,
13, and the Habeas Corpus Suspension ACt, 142,
143-144; officials under the Act of 18cn, _45;
the Ministry under Act of, 272
India, British, the Legislative Council subordinate to the British Parliament, 45; the Acts of
the Council and the Courts of India, 46-47
Inland Revenue Office, the daily routine of, as toreceipts, 2o 3International law, Acts of Parliament and, 19
Ireland, and the Act of Union relating to theUnited Church, 22; the Coercion Act of 1881,
141; the Preventmn of Crime Act, 1882, _4a
Irish Church Act, i869 , the, 22, 99
Irish Parliament of 1782, an admittedly sovereign
legislature, 333; power of English ministryover executive, 333
Jackson, President, Io2
Jamaica, the rebellion of, 1866, 145
James II. as an instance of the limit of sovereign
power, 31
Jenks's Government of Victoria, 52-53 noteJenkyns, Sir H., British Rule and Jurisdiction beyond the Seas, 13 note, 49 note
Johnson, Dr., cvi
Judge, primary duty of, lvii
"Judge-made law," 245-246
Judges, English, in relation to the Imperial Parliament, 86; Belgian and French, 87; of theUnited States in relation to the Constitution,
88-89, lo2-1o3; and the Writ of Habeas Corpus,_34-135; position of, in the seventeenth century, I39 and note; instance of the power of, in
the case of Wolfe Tone, 187; salaries of, underGeorge Ill., 2o3; position of, in France, as tomatters of the State, 221 in relation to English

INDEX

Judges (cont.)
Acts of Parliament, 269; in relation to theHouses of Parhament, 270; and Parliamentarylaws, 273
Judges and Courts, pubhc distrust of, lvii; andTrade Unions, lviii

Legalism, Federalism as, loo
Legislation, what it must aim at, lxxvii; judicial,
and the supremacy of Parliament, 18;
safeguards against unconstitutional,
68
Legislative authority, of Parliament, 11, 24-25; inFrance, 12-13 and note
Legislative bodies, limited power of, in the
United States, 72
Legislatures, Foreign non-sovereign,61
Letter to the Sheriffs of Bristol, xli-xlii note
Libel, the law of, 147 and note; position of individuals under, _47-15o; as to Government,
i5o; blasphemy under, 151; in England, 151;
under the Belgian Constitution,
152
Liberty of individuals, in England, _16, 119; in
Belgium, 116-1i 7, i19
Liberty of the Press, foreign and English ideas as
to, 146-147; the law of libel, 147, 155; control
of, under French Governments,
I58
Licensing Act, the, of the Press, 162; reasons forthe discontinuance of, 163, 167-168
Limitations on right of Public Meeting, 174-i75;
really hmitations on individual freedom, 176
Limitations on sovereignty of Parhament, alleged, 18, 19 note, 25; in the Colonies, 23, Toddon, 23 and note; actual, 23-24, 26, 29-30; external, 3o-31, 33; internal, 32, 33; Leslie
Stephen on, 33
Limitations under Federalism, 83, 84
Literature, in England and France, 156-158;
penalties connected with the production of
forbidden works, a58; under the Ancien
R_gzme, 158 and note; under the Republic of
I848, 159-16o; license and punishment under
the Star Chamber, 161-162
Local and Private Acts, ioLouis XIV., an instance of the limit of sovereign
power, 31, 32
Louis
XV., 112
Louis XVI., _12
Louis Philippe, the Constitutional monarchy of,62, 67, 229
Louis Napoleon, 34, 67, 337
Low, The Governance of England, lxxiii note, cviii
note
Lowell, Public Opinion and Popular Government,
lix note, lxxxiv note, cviii note, cxvii note; Government of England, Ixxiii note, cviii note, cxvii
note
Lyndhurst, Lord, in opposition to measures ofthe House of Commons, 3o6

Kangaroo, the, lxviii
Keith, Responsible Government in the Dominions,
xlvii note, xlviii notes; on South African Union,
33o note
Kenny, Outlines of Criminal Law, 179note
Kent, Commentaries of, on the Constitution of theUnited States, cxxvii-cxxviii;
lines of work,
cxxviil
King, the, cxxx; loyalty to and impenal positionof, lii- liil, cviii note, cxviii; veto of, xli note; therecognised representativeof the whole Empire, lxviii; Blackstone on the authority of,cxxx, cxxxi; ordinances and proclamations of,
11;and the rmnistry, 283, 334-335; the personal will and influence of, 3o8-309"King m Parhament,"
the, 3, 284
King's speech, lxviii note
Kitchener, Lord, declaration on taking office,lxxv note
Landesgemeindenof Uri, the, cxxxiv
Law, the Rule of, Iv; decline in reverence for, lv
Law as the basis of English civilisation, cxxxvu
Law, constitutional, cxxxix; rules of, cxl-cxli; an"unconstitutional,"
meamng of, Appendix,
Note VII., 37 _Law of the Constituhon,
position of a Ministry
in regard to, cxlv-cxlvi; the three prindples
of, cxlviii; and Conventions of the Constitutlon, 227
Law Courts, authority of, dimimshed by recent
Acts, lvi; and civil servants, lxv; and the powers of the Premier, cxxxviii; and Acts of Parliament, 4
Law of the Press, Fisher and Strahan, 148 note
Lawlessness, lviii; new doctrine as to, ]ix;
English clergy and, lix; passive resisters and,lix; conscientious objectors, lix; militantsuffragettes and, lix; explanation of zeal for,lix; democratic sentiment and, [ixLaws, and contracts, cxxxix; constitutional
andfundamental, 37-38; fundamental, 78 and note
Lawyers, in comparison with historians, cxxxv;
and the rules of constitutional law, cxlvi
Lee, General, xcvi
Legal authority liable to prosecution in cases ofexcess, cxlvii-cxlviii
Legal constitutionalists
in contrast with constitutional historians, cxxxiv-cxxxv
Legal rules of constitutional law, cxlvi; the Peers
and Commons under, cxlvi
Legal sovereignty, limit of, 31; and politicalsovereignty,
the distinction between, 285

Macaulay on the Press Licensing Act, 163
Macdesfield, Lord, 294
Mackintosh, Sir James, on martial law, 4oo
Maine, Sir Henry, xcii; on democracy, cxii;
Popular Government, xcii, cxii note
Mansfield, Lord, on the liberty of the Press, 153
Martial law, cxlvi note, x8o; liability of soldiers as
citizens, 181; and the "Declaration of the State43oINDEX

Martial law (cont.)of Siege," t83; how recognised in England,
183; the proclamation of, 185-_86; trial of
Wolfe Tone, _87; in England during time of
war or insurrection, Appendix, Note X.,
396-415
Maxims belonging to the Conventions of theConstitution, cxlii-cxliii and note; not "laws,"
cxliii; constitutional,
3o4
May, Sir Thomas, as a constitutional historian,cxxxii
Melville, Lord, 295
Members of Parliament, increase in number of
speakers among, lxxiii; authority of, lxxiii
Merchant Shipping Act, 1876, the, 261,262
Mignet, French Revolution quoted, 337
Militia, the, 188; in comparison with the standing army, _89
Mill, lxxx, lxxxvi; quoted, on political institutions,
116
Ministers, responsibility of, under the Rule ofLaw, 2_o; as subject to the Rule of Law, 212
Ministry, the, position of, under defeat, cxlv;
power of, regarding the Habeas Corpus Act, 141;
powers of, under the Alien Act, 1848, 142; acfion of, in case of tumult or invasion, 272;
dismissal of, by the King, 288, 289-290; resignation of, under Vote of Censure, 292, 299;
and the Mutiny ACt, 3o_; the withdrawal of
confidence in, 3o4
Money Bills, xxxviii, xxxix
Montesquieu, Esprit des Lois referred to, 111, 220
Moral law, Acts of Parliament in relation to, _9;
Blackstone on, I9; and libel, _5o-151
Moral Philosophy, Paley, quoted, cxxx-cxxxi note,cxl note
Moreley's Life of Diderot, 1_.
Muir, Ramsay, lxxiii; Peers and Bureaucrats, lvinote, lxi note, lyodii note
Municipal corporations, 83 note
Mutiny Act, the, 1689, preamble of, 191; an annual Act, i98; in relation to the annual meetingof Parhament, 297 note
Napoleon Bonaparte, the foundations of modern Drolt Administratif laid by, 2_8, 221-223;
and ordinary judges, 222; Council of State
under, 227
Napoleon, Louis, 34, 67, 337
Natal, xlii-xliii note
National danger the test of national greatness,cxxi
National Debt and Local Loans Act, ,887, 204;
the interest on, 204
National Insurance Acts, xxxvi-xxxvii note
National Revenue, the, 2ol
Naturalization Act, _87o, the, 28_
Newcastle, the Duke of, 305
Newspapers, position of publishers and writers,_53; offences treated by the ordinary Courts,

431

154 and note; under the First Empire, 159;
under the Republic of 1848, 16o
New Zealand, the Supreme Court and theForeign Offenders Apprehension
Act, 1863, 49
note; the Deceased Husband's Brother Act,
19oo, 60 note
New Zealand Parliament, 48 and note; a nonsovereign legislating body, 48, 49 note; liable tothe authortiy of the Courts and the Imperial
Parliament, 49; laws of, opposed to English
common law, 5o, 51 note; valid and invalid
acts, 5"I;laws of, as affecting other colonies, 51;
authority of, to change Articles in the Consfitution, 52-53 note, 94; power of the Governor to assent to Bills, 57-58
Nightingale, Florence, lxxxii
Non-sovereign
law-making bodies, in contrast
with legislative bodies, 36; characterisficsof,
39; meaning of the term, 4° and note; theIndian Council, 45; the New Zealand Parliament, 52-53; Foreign, 61; the French
Chamber, 63-64
Nottingham, Lord, 25o
O'Connell and the Repealers, lxxxviii and note;and Federalism, cvii-cviii
Odgers, Libel and Slander, quoted, 147
Official Secrets Act, _889, 2.61
Officials, State, duty of, lvii position of, underthe Habeas Corpus Suspension Act, 142-143;
protected by Act of Indemnity, 143-145; limited protection of, under the Act of 18ca, 145;
position of, under ordinary law, 18_; positionof, under Droit Administratif, 217, 222-228,
231-233, 234; powers of the English Crown,
254; appointment of the Prime Minister andthe Cabinet of England, 269
Ordinances, Royal, nOrton, Arthur, xc
Paley's Moral Philosophy, the actual state andtheory of government considered in, cxxxcxxxi note; quoted, cx] note
Palmer, Roundell, lxxiv
Palmerston, Lord, cxxv; career of, cxviii; actionof, under vote of censure, 292
Parliament, sovereignty of, xxxvi, cxvii; what
constitutes, xxxvi; powers of, xxxvi, xxxvii;
under the legal rules of constitutionallaw,cxlvi; the constitution of, 3; lawmaking powerof, 3; Acts of, and the Law Courts, 4; unlimited legislative authority of, 4; De Lolme on
the limit of power of, 5; the passing of theSeptennial Act, 6; position of, in regard to prirate fights, 9; rules under Acts of, _2 and note;
the Courts in relation to the Resolutions of, _4;
the legislative authority of, 18; and preceding
Acts, 21; and the Acts of Union, 2_; and theColonies, 33; power of, to change any law, 37;
other bodies in relation to, 39; the Legislative

INDEX

Parliament (cont.)
Council of India subject to, 45; the Colonial, of
New Zealand, 48; powers of, 48; the sanctionof the Crown in Acts of, 48; the "'Colonial
Laws Validity Act, 1865," 49; valid and invalid
Acts, 5o-5i; the legal supremacy of, as to Colonial legislation, 54; the Imperial comparedwith the National Assembly of France, 63; theCourts in relation to, 86; the Ministry subject
to the will of the House of Commons, 86-87;
rules as to the dissolution of, 287; the dissolutions of 1784 and 1834, 288; non-assembly of, abreach of constitutional practice, 297; theArmy Act in relation to the annual meeting of,297; the refusal of supplies, 302 note; the Victorian, confhct between the Upper and Lower
Houses, 1878 and 1879, 3o7; a sovereign body,332
Parliament, French, duration of, lxx-Lxxi
Parliament Act, xxxvii note; Appendix, Note XLII.,
428; state of things before passing of, xxxviii;
direct effects of, xxxix-xlii; indirect effects of,lxviii; as introducing written constitution,
lxix;
as abolishing necessity for emergency creationof peers, lxix; and the duration of Parliament,
lxx; enables House of Parliament to overrule
will of electors, lxxi; effect on Speaker, lvi,
lxxi; increases power of the majority and the
Cabinets, lxxiii
Parliamentary authority, instanced in the Septennia] Act, 8-9; and the power of the Courts,
19
Parliamentary executive and a nonparliamentary
executive, distinction between, Appendix,
Note ILl., 331-34o
Parliamentary leaders, powers of, lxxiii
Parliamentary power, exemplified by Acts of Indemnity, 13; in relation to the Law Courts, 15;
electors in connection with, 17Parliamentary privilege and constitutional conventions, 284
Parliamentary procedure, as conventional law,cxliv
Parliamentary sovereignty,
the nature of, 3; recognised by the law, 4; and the Act of Settlement, 6; the Septennial Act a proof of, 8- 9,
29 , 291; and the Law Courts, 19; limitations on,
28; the Irish Church Act, 2869, 22; limitation of,
in respect to the Colonies, 23 and note; Austin
on, 26; political and legal sense of, 27; external
limit on exercise of, 3o-31 , 33; internal limit
on, 32 , 33; the two limitations of, 35; characteristics of, 36, 37-38; Tocqueville on, 36, 38,
and Federalism, 73 and note; in comparison
with Federalism, 97-98; and the Rule of Law,
268, 272; George the Third's view of, 283; relation of the right of dissolution to, 291
Parnell and "Ireland a Nation," cvii
Party government,
disadvantages of, cxi
Party system in England, lxxiii

Passing of the Great Reform Bill, The, lxxviii note
Passive resisters and lawlessness, lix
Payment of M.P.'s effect oL lxx
Peel, lxvii; and the Dissolution of 1834, 288
Peers, emergency creation of, lxix-lxx; theHouse of, resolutions of, not law, i4; powersof, 15; the creation of new, in case of conflict of
the Lords and Commons, 287
Peers and Bureaucrats, lvi, note, lxi note, lxiii note
Personal Freedom, the Right to, 123; under theBelgian Constitution,
123; as secured in England, 123; redress for arrest, 125; wrongful imprisonment, 128; the Habeas Corpus Acts, 128;
the securities for, 134
Pitt, Ixvii; and the Dissolution of 1784, 288; theVote of Censure, 1783, 299; and the Coalition,
3o2
Pitt, Life of, cxxvi notePoincar6, How France is Governed, lrdi note
Political Sovereignty and Legal Sovereignty,
thedistinction between, 285
Political theorists, Bagehot and Professor Hearn
as, cxxxvii; questions for, cxxxviii
Pollock's Essays in Jurisprudence and Ethics, 4 note;
Science of Case Law referred to, 18
Pollock, Sir F., on martial law, 4o5,412-413, 414
Poor Law of 1834, lxxix
Pope, the, in relation to reforms, 32
Popular Government, xcii and note
Precedent, frequency of appeal to in English history, cxxxvii
Premier, the, power of, to dissolve Parliament,
lxxi; power of, to curtail freedom of discussion, Lxxiv; and the Courts of Law, cxxxviii
Prerogative of the Crown, 2o; the term, 281; asanterior to the power of the House of Commons, 282; survival of, 3o9; in relation to the
Cabinet, 320; as increasing the authority of theCommons, 321
President of the United States, the, election of,
cxliv, 203, 334; position of the Federal Judiciaryin connection with, 86; independent action of,
336
President of French Republic, election and powers of, 338-339; in relation to National Assembly, 339
Presidential Government and Cabinet Government, forms of, 332-333; the former nominally still existing in France, 338
Press, the, Prevention of Crime Act (Ireland),
1882, in relation to, 142; liberty of, under the
Declaration of the Rights of Man, 146; Belgian
law as to, 146; the law of libel, 147; the Government in relation to, 152; present position in
England, 253; absence of censorship in England, 253; the Courts and, 155; under the
Commonwealth,
255 note; the law of, inFrance, in comparison with that of England,
256; under the laws of France, 157; in Englandin the sixteenth and seventeenth
centuries,

432

INDEX

Press (cont.)
161;of England, under the Star Chamber,
161-162; law of England and of France in contrast, 162, 164; end of the Licensing Act, 163
Prevention of Crime Act (Ireland), 1882, 141;
powers of the Irish Executive under, 14i
Priestly, opinion of, on the Septennial Act, 8Prime Minister, the, as head of the English
Cabinet, cxxx; the appointment of, 269-270
printing-presses,
the control of the Star
Chamber over, 161; the University, 162
Private member, impatience of, to carry Bill,
lxxiv
Private Rights, Parliament in regard to, 8; Cokeon, 8
Privy Council, the, power of, in relation to Actsof Parliament, _. and note; jurisdiction of, inthe sixteenth and seventeenth centuries,248-250
Proclamations, the Statute of, xl; repeal of,
11-12; Royal, in relation to common law, 13;
modern instances of,, 3 and note
Proportional representation, the case for, lxxxiv;
fosters log-rolling, lxxxviii, xc; in _87o and1914, xci note
Proportional Representation and British Politics,
lxxxiv note, lxxxvi notes
Proportionalists,
object of, txxxix
Public Accounts Committee, the, 2o 7
Public Authorities Protection Act, 1893, 255 note
Public Bill, xxxix-xl
Public Documents, the formality of signing, 211
Public Meeting, Right of, cxlvi note; questions
connected with, cxlvii, 169; in Belgium and in
England, 169; the Courts of England in relation to, I7o; unlawful assembly under, 171;decisions in cases of, 172-173; limitations onright of, 174-177; power of the Government as
to, 177; conditions as to, 178-_79; Appendix,
Note V., 35o-367
Public Opinion and Popular Government, lix note,
lxxxiv note, cviii note, cxvii note
Publishers of libel, position of, 149; on Government, 15o

Railway Companies, as non-sovereign lawmaking bodies, 42; power of, to make byelaws, 42; functions of the Courts with regard
to, 43; instances of illegal bye-laws, 43
Rebellion, armed, lxi
Reeves, author of History of English Law, trial of,282
Referendum, the, cviii; definition as applied toEngland, cviii-cix; the "people's veto," (fix;what it may be applied to, cix note; causes ofdemand for, cx; main argument against, cxi; asviewed by Socialists, cxiii; power of veto
might work for ill as well as good, cxiii; mainargument in favour of, cxiv; the strength of,433

cxiv; its tendency to lessen the evils of theparty system, cxv
Reform Bill, the, of 1832, lxxviii, 67
Reform Riots, the, of 183_, _84
Religion, the law of libel in relation to, _5o-,51
Representation, proportional, lxxxiv
Representative government, causes leading to
the foundation of, 34; two different forms of,331
Republic, the, of France, 63; position of the
President, 63; the existing constitutions of, 69;
Art. 75 of the Year VIII., 232-233
Republican electors, in the United States, cxliv
Resignation of Ministry, how enforced, 3oo
Resolutions of Parliament, Mr. Justice Stephenon, 14
Responsible Government in the Dominions, xlviixlviii notes
Revenue, the, 2oo; source of the public, 2oo;
hereditary, of the Crown, 2oo; under permanent and annual Acts, 202; the authority for
expenditure, 202-2o3; the "Consolidated
Fund," 204; security for the proper expenditure of, 205--206;
position of the Comptroller
General with regard to, 2o6; Lord Grenville in
opposition to the Parliament in matter of, 18,_,
2o7; the Public Accounts Committee, 2o8;
mare features of control and audit, 2o8 note; asgoverned by law, 2o9
Revolution of _83o, 159
Rhode Island, under charter of Charles II., 93
Right of Public Meeting, the, questions connected with, Appendix, Note V., 35o-367
Right of Self-defence, the, Appendix, Note W.,
34_-35o"Rigid" Constitution, Belgium and France
examples of, 65, 66 and note, 79, 99
Rigidity of French Constitutions, Appendix, NoteI., 317-325; of Constitution of AustralianCommonwealth, 391
Riot Act, the, substance of, _85
Riots, duties of citizens in cases of, 183; the Reform, of _83_, 184; the Gordon, 178o, _85
Roebuck, lxxiv
Roland, Madame, lxxx note
Rolfe, Sir R. M., on martial law, 399-4oo, 4o5,
4o6
Roman Empire and Greece, cvii
Royal Prerogative, ideas as to, in the seventeenth century, 243, 244
Royal Proclamations, in relation to common law
and Acts of Parliament, 13; modern instancesof, _3 and note
Royalty, English, in sympathy with British
people, lxviii
Rule of Law, the nature and applications of,,o7-122; Tocqueville's comparison of Switzerland and England under, _o8; three meanings of, 11o; personal security under, _o; Continental authority under, xlo-_11 and note; as a

INDEX

Rule of Law (cont.)
characteristic of England, 214; England andFrance in contrast, x25; in the United States,
g8; equality under, 12o; and the leading provisions of Constitution, _.2; Right to Personal
Freedom, 123-145; Right to Freedom of Discussion, _46-268; Right of Public Meeting,269-179; Martial Law, 28o-187; the Army,
288-299; the Revenue, 2o0-2o9; responsibilityof Ministers, 21o-2_.; Ministers as subject to,2_.; in contrast with Drait Admmtstratif,
213-267; its merits, 259; defects, 26o; relation
between Parliamentary sovereignty and,268-273; tendency of foreign assemblies tosupport, 270
Rules, legal, of Constitutionallaw, cxlvi; as enforced, cxli; as conventions, cxli, cxlii
Russell, Lord John, lxvii

Speaker of House of Commons, as affected by
Parliament Act, lvi, lxxii; not the servant of aparty, lxxi
Speaker of U.S. House of Representatives,
lxxii
Standing Army, the, of England, in comparison
with the Militia, 289; the institution of, 289;
legislation as to, 192
Stanhope, Lord, Life of Pitt, cxxvi note; on the
Septennial Act, 7Star Chamber, the, control of printing-presses
held by, 162; abolition of, 2642, 267, 249
State officials, position of, under the Habeas Corpus Suspension Act, 142-144; under the Indemnity Act of 28o_, 144, 145
Statesmen as affected by mere conventions,
Ixvii
Stationers' Company, the, formation of, 162
Statute or "written law," cxliii
Statute of Proclamations, legislation under, 22;repeal of, 11
Stephen's Commentaries, cxxx, 246
Stephen, Mr. Justice, on the resolutions of theCommons and the judgment of the Courts, I4;
on the relation of soldiers to their officers, 295
Stephen, Leslie, on the limitations of Parliament, 33; Life ofFawcett, _1i note
Story, Commentaries of, on the Constitution of
the United States, cxxviil, lines of work,
cxxviii; Commentaries on the Conflict of Laws, 246
Stubbs, Dr. (Bishop of Oxford), as a constitutional historian, cxxxii, cxxxv
Suffragettes and lawlessness, lviii
Supplies, the refusal of, 303 and note
Supreme Court, the, of the United States,
American reverence for, xcv; formation andpower of, 88-89; case ofMarbury v. Madison
decided by, 93; as "master of the Constitution," 2o0note; restraints on, 2o0note; case of
Munn v. Illinois, 2_; alleged weakness of, lo2,
source of power of, _o2
Suttee, lxxviii
Swiss Confederation,
the, 28 note; an example ofFederalism, 73-74 and note, 95, 96; descriptionof, 379, 34o
Swiss Constitution, the, 77, 83 note; "guaranteed" rights of, 85; serious flaw in, 96
Swiss Federalism, Appendix, Note VIII., 372-386
Switzerland, the electorate of, 27; the Federal
Assembly in relation to the Courts, 96, _ol;
weakness of Federalism, 97, 98, 204; Tocqueville's comparison of law of, with that of England in 1836, lo8; Federal Council of, 339

Scotch Universities in relation to the Act ofUnion, 22
Scotsmen, their objection to use of term Englandfor Great Britain, cvi
Scott, General, xcvi
Scott, Sir Walter, xcvii
Seals necessary to the completion of Acts, 221
Secretary of State, the position of, under ordinary law, 182
Self-defence, the Right of, Appendix, Note W.,
342-35oSeptennial Act, the, 6; Hallam and Lord
Stanhope on, 7; opinion of Priestley andothers on, 8; a proof of Parliamentary
sovereignty, 9-1o, 29, 291
Sidgwick, Prof., Elements ofPohtzcs, 25 note,loo-2ol note
Slavery, the War of Secession in relation to theabolition of, 33
Soldiers, liability of, as citizens, 282; under the
Mutiny Act, 19o; rights of, as citizens, 29i; civil
liability of, 193; under charges for crime,
293-294 and note; Mr. Justice Stephen on, in
relation to their officers, 295; liabilities under
military law, 296; duty of, when called upon todisperse unlawful assembly, Appendix, Note
VI., 368-371
Sommersett, James, case of, referred to, 233
South Africa, w_rs in, liv
South African Union, Keith on, 33 ° note
Sovereign power, Hume on, 30; hmits to, in thecase of absolute rulers, 31, 32; illustrations of
the limit of, 3o-31; under Federalism, 82
Sovereignty,
the limit of legal, 31; legal, of theUnited States, 82; legal and political, the distinction between, 285.
Sovereignty of Parliament, xxxvi, 3- 204, 18 note;
modification of, xxxvii; and of King, xlii;
change in the area of, xlii; in relation to Colonial Acts, 48-52, 59, 313 note

Tarde's Lois de l'imitation referred to, 252
Tarring, Laws relating to the Colonies, 52 note
Taxation, how levied, 2ol-2o2; permanent andannual Acts of, 202; Income tax, 202
Territorial Force, 298-199
Thiers, M., 232
Tocqueville, A. de, of the English Constitution,

434

INDEX

ToCclueville, A. de (cont.)
cxxxix; on the English Parliament, 36-37, 38;
on the Constitution of France, 62-63 andnotes; on the influence of law in Switzerland
and the United States, xo3-1o4, lo8; on Droit
Administratif and the institutions of the Union,
2i 5 and note, 2_8 and note, 219, 233 and note,
234, 257-258; on Art. 75, Year VIII. of the Re-

stitution of, 118-119 and note; rule of lawin,xx9;institutions of, in contrast with Droit
Administratif, 213; the President in relation to
the Senate, 31o; the Constitution of, 34 andnote; the rule of law in, 315
Universities, the, legislation of Parliament as to,loo; establishment of printing-presses
at,1&-162

public, 232-233
Todd, on Parliamentary power, 23; on the passing of Colonial Bills, 58
Tone, Wolfe, the trial of, 1798, 187
Tories and Whigs, lxxxviii
Trade, the Board of, under the Merchant Shipping Act, 1876 , 261
Trade Unions and judges, lviii; and "'peaceful
picketing," lviii
Trait_ de Droit Constitutionnel, lxiii note, lxiv note,
I59
Transvaal Legislature, Immigrants Restriction
Act, 19o7, 6o note
Treaties, power of the Colonies as to, 59-6o
Trial by Jury, 265
Tribunal des Conflits, the, the functions of, 237 ,
239, Appendix, Note XI., 416-417

Unlawful assembly, 17t, 174-175 and note; dutyof soldiers when called upon to disperse,
Appendix, Note VI., 368-371
Veto, of Crown and Colonial legislation, xlvi,
xlviii; the meaning of, cxlii note; the right of, inconnection with the Crown and Colonial
legislatures, 56-59 notes; instances oL in
Canada and Australia, 58-59; non-existent in
the French Chamber, 63
Victoria, Queen, ]xviii, 304
Victorian (Colonial) Parliament, the, and laws
altering the constitution, 52-53 note; thestruggle between the Upper and Lower
Houses of, 1878 and _879, 3o7
Vindication of the Rights of Women, lxxxnote
Vivien, on Droit Adminiatratif, 2i 9 note
Voltaire, impressions of England, io8; imprisonment and exile of, 2_i-lt2
Vote of Censure, action of the Ministry under,
292, 299
Vox populi vox Dei, revival of faith in, lxxix"Unconstitutional"
Law, meaning of an, Appendzx, Note VII., 37 x
Union, the Acts of, 6; the Scotch Universities
and, 22; the fifth Article of (Ireland), 22, 291
Union, the Act of, lxxix; as subject to repeal(Scotland), 78
Umon of South Africa, The, 33 ° note
Unitarian government, and Federalism, 85-86
and note; the meaning of, 87
Unitarianism in contrast with Federalism, 80
United States, the, Constitution of, in comparison with the English, cxxvii; Kent and Story's
Commentaries on, cxxvii; an instance of relationship of constitutional historians andlegal constitutionalists,
cxxxiv-cxxxv; law of
the constitution and conventional rules in,
cxliv; position of electors in, cxliv; Constitution of, 28 note; the abolition of slavery, 33;
limited power of legislative bodies in, 72; theFederalism of, 73 and note; the constitution incomparison with the English, 74; the union ofideas as to institutions in, and in England, 74;
preamble of the Constitution of, 77; thesupremacy of the Constitution, 77; the War ofSecession, 79 and note; the fifth Article of theConstitution of, 8o; the legal sovereignty of,82; legislature of, 82; Acts of Congress, 82, 9o;
the President of, 84; the Federal Courts of, 84;
limit of power in individual states, 84; the authority of the Courts of, 88, loo; the Supreme
Court of, 89- 9o, 101, 102; the Constitution of,in comparison with that of Canada, 94; success of the Federal system in, lo3; the Con-

Walpole and the passing of the Septennial ACt, 9
War of Secession, the, and the abolition of slavery, 33; the plea for, 79
Ward, Sir Joseph, and his plan for Imperial
Council, xcii note
Washington, in connection with the constitutional articles of the United States, cxxxv
Wellington and the Dissolution of 1834, 288
Wesflake's Private International Law referred to, 246
Whigs and Tories, lxxxviii
Wilkes, John, cxlvii, 289
William III., 3o9
William W. and creation of peers, lxix; and theDissolution of 2834, 29°
Williams, Fisher, Proportional Representation andBritish Politics, lxxxiv note, lxxxvi and notes
Witenagem6t,
the, cxxxiv
WoUstonecraft, Mary, Vindication of the Rights of
Women, lxxx note
Woman suffrage, lxxx; woman's claim to a vote,
Ixxx; causes of strength of the movement, lxxx;
arguments for and against, lxxxi-lxxxii; andproportional representation,
lxxxiv; John
Mill's argument for, lxxxvi
Writ of Habeas Corpus, the, I28-129 and note; theissue of, 129; instance of power under, 133;
authority of the Judges under, 135; case ofaliens under, 136-137

435

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