INTRODUCTION TO THE STUDY OF THE
LAW OF THE CONSTITUTION
A. V. Dicey
Preface to the First Edition.........................
Preface to the Eighth Edition .......................
Analysis of Introduction..........................
Introduction to the Eighth Edition ....................
Outline of Subject The True Nature of ConstitutionalLaw.................
PART I
The Sovereignty of Parliament
I. The Nature of Parliamentary Sovereignty.............
II. Parliament and non-Sovereign Law-Making Bodies......
III. Parliamentary Sovereignty and Federalism ...........
PART II
The Rule of Law
IV. The Rule of Law: Its Nature and General Applications ....
V. The Right to Personal Freedom....................
VI. The Right to Freedom of Discussion ................
VII. The Right of Public Meeting.....................
VIII. Martial Law...............................
IX. The Army .................................
X. The Revenue................................
XI. The Responsibility of Ministers ...................
XII. Rule of Law compared with Droit Administratif............
XIII. Relation between Parliamentary Sovereignty and the Rule
of Law .....................................
PART III
The Connection Between The Law of the Constitution and theConventions of the Constitution
XIV. Nature of Conventions of Constitution .................
XV. The Sanction by which the Conventions of the Constitution
are Enforced...................................
APPENDIX
I. Rigidity of French Constitutions.......................
II. Division of Powers in Federal States ....................
III. Distinction between a Parliamentary Executive and anon-Parliamentary Executive ...........................
IV. The Right of Self-Defence..........................
V. Questions Connected with the Right of Public Meeting........
VI. Duty of Soldiers Called upon to Disperse an Unlawful Assembly .
VII. The Meaning of an "Unconstitutional" Law...............
VIII. Swiss Federalism ...............................
IX. Australian Federalism .............................
X. Martial Law in England during Time of War or Insurrection.....
XI. Constitution of the Tribunal des Conflits ..................
XII. Proceedings Against the Crown ......................
XIII. Parliament Act, 1911..............................
Index......:....................................
PREFACE TO THE FIRST EDITION
This book is (as its title imports) an introduction to the study of thelaw of the constitution; it does not pretend to be even a summary, much less acomplete account of constitutional law. It deals only with two or three guidingprinciples which pervade the modern constitution of England. My object inpublishing the work is to provide students with a manual which may impressthese leading principles on their minds, and thus may enable them to study withbenefit in Blackstone's Commentaries and other treatises of the likenature those legal topics which, taken together, make up the constitutional lawof England. In furtherance of this design I have not only emphasised thedoctrines (such, for example, as the sovereignty of Parliament) which are thefoundation of the existing constitution, but have also constantly illustratedEnglish constitutionalism by comparisons between it and the constitutionalismon 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 a bookconsisting of actually delivered lectures must, even though revised forpublication, exhibit the characteristics inseparable from oral exposition, andthat a treatise on the principles of the law of the constitution differs in itsscope and purpose, as well from a constitutional history of England as fromworks like Bagehot's incomparable
English Constitution, which analyse the practical working of ourcomplicated system of modern Parliamentary government.
If, however, I insist on the fact that my book has a special aim of itsown, nothing is further from my intention than to underrate the debt which Iowe to the labours of the lawyers and historians who have composed works on theEnglish constitution. Not a page of my lectures could have been written withoutconstant reference to writers such as Blackstone, Hallam, Hearn, Gardiner, orFreeman, whose books are in the hands of every student. To three of theseauthors in particular I am so deeply indebted that it is a duty no less than apleasure to make special acknowledgment of the extent of my obligations.Professor Hearn's Government of England has taught me more than anyother single work of the way in which the labours of lawyers established inearly times the elementary principles which form the basis of the constitution.Mr. Gardiner's History of England has suggested to me the conclusion onwhich, confirmed as I found it to be by all the information I could collectabout French administrative law, stress is frequently laid in the course of thefollowing pages, that the views of the prerogative maintained by Crown lawyersunder the Tudors and the Stuarts bear a marked resemblance to the legal andadministrative ideas which at the present day under the Third Republic stillsupport the droit administratif of France. To my friend and colleagueMr; Freeman I owe a debt of a somewhat different nature. His Growth of theEnglish Constitution has been to me a model (far easier to admire than toimitate) of the mode in which dry and even abstruse topics may be made thesubject of effective and popular exposition. The dear statement which that workcontains of the difference between our so-called "written law" and "ourconventional 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 the equally vigorousstatements contained in the same book of the aspect in which the growth of theconstitution presents itself to an historian forced upon my attention theessential difference between the historical and the legal way of regarding ourinstitutions, and compelled me to consider whether the habit of looking tooexclusively at the steps
by which the constitution has been developed does not prevent studentsfrom paying sufficient attention to the law of the constitution as it nowactually exists. The possible weakness at any rate of the historical method asapplied to the growth of institutions, is that it may induce men to think somuch of the way in which an institution has come to be what it is, that theycease to consider with sufficient care what it is that an institution hasbecome.
A. V. DICEY
All Souls College, Oxford, 1885
PREFACE TO THE EIGHTH EDITION
The body of this work is the eighth edition, or rather a reprint of theseventh edition, of the Law of the Constitution first published in 1885.It is, however, accompanied by a new Introduction. This Introduction is writtenwith two objects. The first object is to trace and comment upon the way inwhich the main principles of our constitution as expounded by me may have beenaffected either by changes of law or by changes of the working of theconstitution which have occurred during the last thirty years (1884-1914). Thesecond object of this Introduction is to state and analyse the mainconstitutional ideas which may fairly be called new, either because they havecome into existence during the last thirty years, or because (what is much morefrequently the case) they have in England during that period begun to exert anew 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, untoldaid from suggestions made to me by a large number both of English and offoreign friends. To all these helpers I return my most sincere thanks. It is atonce a duty and a pleasure to mention my special obligation to two friends, whocan both be numbered as high authorities among writers, who have investigatedthe constitution of England from different points of view. To the friendship ofthe late Sir William Anson I owe a debt the amount of which it is impossible toexaggerate. He was better acquainted, as his books show, with the
details and the working of the whole constitution of England than anycontemporary authority. Since I first endeavoured to lay down the few generalprinciples 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 himcorrections and suggestions given by one who had explored not only theprinciples but also all the minute rules of our constitutional law andpractice. To my friend Professor A. Berriedale Keith I am under obligations ofa somewhat different kind. He has become already, by the publication of hisResponsible Government in the Dominions, an acknowledged authority onall matters connected with the relation between England and her Colonies. Ihave enjoyed the great advantage of his having read over the parts of myIntroduction which refer to our Colonial Empire. His knowledge of andexperience in Colonial affairs has certainly saved me from many errors intowhich I might otherwise have fallen.
It is fair to all the friends who have aided me that I should stateexplicitly that for any opinions expressed in this Introduction no one isresponsible except myself. The care with which many persons have given me soundinformation was the more valued by me because I have known that with some ofthe inferences drawn by me from the facts on which I commented my informantsprobably did not agree.
A. V. DICEY Oxford, 1914
ANALYSIS OF INTRODUCTION
Aim ...........................................xxxv
The Sovereignty of Parliament........................xxxvi
Possible change in constitution of parliamentary sovereign
(Parliament Act, 1911) ...........................xxxvi
State of things before passing Act ...................xxxviii
Direct effects of Parliament Act......................xxxix
(1) Money Bill House of Lords no veto .............xxxix
(2) Other public Bills House of Lords has only suspensiveveto................................xl
(3) House of Commons has unlimited legislative power . . . . xliPractical change in area of parliamentary sovereignty
(Relation of the Imperial Parliament to Dominions)........xlii
First question What is the difference between such
relation in 1884 and 1914? ..........................xlii
Second question What changes of opinion caused
the change of relation?..............................l
The Rule of Law.....................................lv
Decline in reverence for rule of law......................lv
Comparison between present official law of England and
present droit administratif of France....................lxi
Conventions of the Constitution........................lxvi
First question What changes?.......................bcvi
Second question What is the tendency of new
conventions?..................................lxxii
Third question Does experience of last thirty years
confirm principles laid down as to connection between
conventions and rule of law?.......................lxxv
Development during the last Thirty Years of New
Constitutional Ideas ..............................lxxvi
Two general observations on new constitutional ideas......lxxvi
First observation Slow growth of political or constitutional
inventiveness .................................lxxvi
Second observation These new ideas take no account of
one of the ends which good legislation ought to attain .... bcxvii
Criticism of the Four New Constitutional Ideas .............lxxx
Woman Suffrage.................................lxxx
The causes of demand.............................lxxxi
The two main lines of argument and answers ............lxxxi
First argument Every citizen entitled to vote ...........lxxxi
Second argument Difference of sex no ground for
difference of political rights.......................bocxii
Proportional representation........................lxxxiv
The three propositions on which argument in favour of
proportional representation is based................lxxxiv
The truth of two first propositions admitted ............lxxxiv
Objections to third proposition .....................lxxxvi
First objection Complication of system increases power
of wire-pullers................................lxxxvi
Second objection House of Commons is not mere House
for Debate ..................................boocvii
Third objection Proportional representation increases
number and evil of parliamentary groups ...........lxxxviii
Federalism ......................................xci
Leading characteristics of federal government ............xciii
Characteristics of federal government in relation to Imperial
Federalism...................................xcviii
First objection Attempt to form federal constitution for
Empire full of difficulty and peril....................xcix
Second objection No real necessity for formation of
any new federal constitution for Empire................ciii
Characteristics of federal government in relation to Home
Rule all round (i.e. federalisation of United Kingdom) ......civ
Vagueness of the ideas which support the policy of
federalisation of United Kingdom (Home Rule all round) . . . . cv
Specific objections to Home Rule all round ...............cvi
First objection No desire for Federalism in any part of
United Kingdom ................................cvi
Second objection Federalisation of United Kingdom
does not promote Imperial Federalism ................cvii
Third objection Such federalisation opposed to whole
history of English constitutionalism ..................cvii
The Referendum.................................cviii
Meaning of referendum............................cviii
Causes for demand for referendum.....................ex
The main argument against the referendum ..............cxi
The main argument in favour of the referendum ..........cxiv
Conclusions .....................................cxvii
INTRODUCTION
AIM
The Law of the Constitution was first published in 1885. The bookwas based on lectures delivered by me as Vinerian Professor of English Law. Thelectures were given and the book written with the sole object of explaining andillustrating three leading characteristics in the existing constitution ofEngland; they are now generally designated as the Sovereignty of Parliament,the Rule of Law, and the Conventions of the Constitution. The book, therefore,dealt with the main features of our constitution as it stood in 1884-85, thatis thirty years ago. The work has already gone through seven editions; eachsuccessive edition, including the seventh, has been brought up to date, as theexpression goes, by amending it so as to embody any change in or affecting theconstitution which may have occurred since the last preceding edition. Onpublishing the eighth and final edition of this treatise I have thought itexpedient to pursue a different course. The constant amendment of a bookrepublished in successive editions during thirty years is apt to take from itany such literary merits as it may originally have possessed. Recurringalterations destroy the original tone and spirit of any treatise which has theleast claim to belong to the literature of England. The present edition,therefore, of the Law of the Constitution is in substance a reprint ofthe seventh edition; it is however accompanied by this new Introduction whereofthe aim is to compare our constitution as it stood and worked in 1884 with theconstitution as it now stands in 1914. It is thus
possible to take a general view of the development of the constitutionduring a period filled with many changes both of law and of opinion.J My readers are thus enabled to see how far either legislation orconstitutional conventions have during the last thirty years extended or (itmay be) limited the application of the principles which in 1884 lay at thefoundation of our whole constitutional system. This Introduction therefore isin the main a work of historical retrospection. It is impossible, however (norperhaps would it be desirable were it possible), to prevent a writer's surveyof the past from exhibiting or betraying his anticipations of the future.
The topics here dealt with may be thus summed up: The Sovereigntyof Parliament,2 the Rule of Law,3 the Law and theConventions of the Constitution,4 New ConstitutionalIdeas,5 General Conclusions.6
SOVEREIGNTY OF PARLIAMENT7
The sovereignty of Parliament is, from a legal point of view, thedominant characteristic of our political institutions. And my readers willremember that Parliament consists of the King, the House of Lords, and theHouse of Commons acting together. The principle, therefore, of parliamentarysovereignty means neither more nor less than this, namely that "Parliament" has"the right to make or unmake any law whatever; and further, that no person orbody is recognised by the law of England as having a right to override or setaside the legislation of Parliament,"8 and further that this rightor
1 Compare the Introduction to the second edition of Law and PublicOpinion in England during the Nineteenth Century.
2 See Part I. Chaps. I.-III.,posf.
3 See Part II. Chaps. IV. -XIII., post.
4 See Part III. Chaps. XIV., XV., post.
5 Seep. lxxvi,post.
6 A student who wishes to understand the statements in the Introductionshould read with care that part of the book on which they are a comment; thusthe portions of the Introduction referring to the Sovereignty of Parliamentought to be read in connection with Part I. Chapters I.-III., post.
7 See Chaps. I.-III., post.
8 See Chap. I. p. 3, post. Parliament may itself by Act ofParliament either expressly or impliedly give to some subordinate legislatureor other body the power to modify or add to
power of Parliament extends to every part of the King's dominions.9These doctrines appear in the first edition of this work, published in1885; they have been repeated in each successive edition published up to thepresent day. Their truth has never been denied. We must now, however, considerwhether they are an accurate description of parliamentary sovereignty as it nowexists in 1914. And here it should be remarked that parliamentary sovereigntymay possibly at least have been modified in two different directions, whichought to be distinguished. It is possible, in the first place, that theconstitution or nature of the sovereign power may have undergone a change. If,for example, the King and the Houses of Parliament had passed a law abolishingthe House of Lords and leaving supreme legislative power in the hands of theKing and of the House of Commons, any one would feel that the sovereign towhich parliamentary sovereignty had been transferred was an essentiallydifferent sovereign from the King and the two Houses which in 1884 possessedsupreme power. It is possible, in the second place, that since 1884 theImperial Parliament may, if not in theory yet in fact, have ceased as a rule toexercise supreme legislative power in certain countries subject to theauthority of the King. Let us consider carefully each of these twopossibilities.
POSSIBLE CHANGE IN CONSTITUTION OR
CHARACTER OF THE PARLIAMENTARY SOVEREIGN
(EFFECT OF THE PARLIAMENT ACT, 1911)
The matter under consideration is in substance whether the ParliamentAct,10 has transferred legislative authority from theKing11 and
a given Act of Parliament. Thus under the Commonwealth Act, 63 & 64Viet. c. 12, the Imperial Parliament has given to the Parliament of theAustralian Commonwealth power to modify many provisions of the CommonwealthAct, and the Imperial Parliament, under the National Insurance Act, 1911, hasgiven power to the Insurance Commissioners and to the Board of Trade to modifysome provisions of the Insurance Act.
9 See pp. 47-61, post.
10 See especially the Parliament Act, 1911, ss. 1-3, and Appendix, NoteXIII., the Parliament Act.
11 The Parliament Act in no way diminishes the prerogatives of the Kingas 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 theexisting rights and privileges of the House of Commons."
the two Houses of Parliament to the King and the House of Commons?
The best mode of giving an answer to this question is first to statebroadly what were the legislative powers of the House of Lords immediatelybefore the passing of the Parliament Act, i8th August 1911, and next to statethe main direct and indubitable effects of that Act on the legislative power ofthe House of Lords and of the House of Commons respectively.
THE STATE OF THINGS IMMEDIATELY BEFORE THE PASSING OF THE PARLIAMENTACT
No Act of Parliament of any kind could be passed without the consentthereto both of the House of Lords and of the House of Commons. No doubt theHouse of Lords did very rarely either alter or reject any Money Bill, andthough 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 againtheir lordships have, at any rate since 1832, acknowledged that they ought topass any Bill deliberately desired by the nation, and also have admitted theexistence of a more or less strong presumption that the House of Commons ingeneral represents the will of the nation, and that the Lords ought, therefore,in general to consent to a Bill passed by the House of Commons, even thoughtheir lordships did not approve of the measure. But this presumption may, theyhave always maintained, be rebutted if any strong ground can be shown forholding that the electors did not really wish such a Bill to become an Act ofParliament. Hence Bill after Bill has been passed by their lordships of whichthe House of Lords did not in reality approve. It was however absolutelyindubitable up to the passing of the Parliament Act that no Act could be passedby Parliament without obtaining the consent of the House of Lords. Nor couldany one dispute the legal right or power of the House, by refusing such assent,to veto the passing of any Act of which the House might disapprove. Twoconsiderations, however, must be taken into account. This veto, in the firstplace, has, at any rate since 1832, been as a rule used by the Lords as amerely suspensive veto. The passing of the Great Reform Act itself was delayedby
their lordships for somewhat less than two years, and it may well bedoubted whether they have, since 1832, ever by their legislative veto, delayedlegislation really desired by the electors for as much as two years. It mustagain be remembered that the Lords, of recent years at least, have at timesrejected Bills supported by the majority of the House of Commons which, as hasbeen proved by the event, had not received the support of the electors. Henceit cannot be denied that the action of the House of Lords has sometimesprotected the authority of the nation.
THE DIRECT EFFECTS OF THE PARLIAMENT ACT12
Such effects can be summed up in popular and intelligible language,rather than with technical precision, as follows:
1. In respect of any Money Bill the Act takes away all legislative powerfrom the House of Lords. The House may discuss such a Bill for a calendarmonth, but cannot otherwise prevent, beyond a month, the Bill becoming an Actof Parliament.13
2. In respect of any public Bill (which is not a MoneyBill),14 the Act takes away from the House of Lords any finalveto, but leaves or gives to the House a suspensiveveto.ls
This suspensive veto is secured to the House of Lords because under theParliament Act, s. 2, no such Bill can be passed without the consent of theHouse which has not fulfilled the following four conditions:
i. That the Bill shall, before it is presented to the King for hisassent, be passed by the House of Commons and be rejected by the House of Lordsin each of three successive sessions.16
ii. That the Bill shall be sent up to the House of Lords at least onecalendar month before the end of each of these sessions.17
12 See as to "indirect effects," p. lxix, post.
13 See Parliament Act, ss. i and 3.
14 Except a Bill for extending the maximum duration of Parliament beyondfive years. See Parliament Act, s. 2, sub-s. i.
15 See s. 2.
16 Sees. 2(1).
17 Ibid.
iii. That in respect of such Bill at least two years shall have elapsedbetween the date of the second reading of the Bill in the House of Commonsduring the first of those sessions and the date on which it passes the House ofCommons in the third of such sessions.18
iv. That the Bill presented to the King for his assent shall be in everymaterial respect identical with the Bill sent up to the House of Lords in thefirst of the three successive sessions except in so far as it may have beenamended by or with the consent of the House of Lords.
The history of the Government of Ireland Act, 1914, popularly, andthroughout this Introduction generally, called the Home Rule Bill or Act,affords good illustrations of the peculiar procedure instituted by theParliament Act. The Home Rule Bill was introduced into the House of Commonsduring the first of the three successive sessions on April 11, 1912; it passedits second reading in the House of Commons during that session on May 9, 1912;it was rejected by the House of Lords either actually orconstructively19 in each of the three successive sessions. It couldnot then possibly have been presented to the King for his assent till June 9,1914; it was not so presented to the King till September 18, 1914. On that day,just before the actual prorogation of Parliament in the third session, itreceived the royal assent without the consent of the House of Lords; it therebybecame the Government of Ireland Act, 1914. The Act as assented to by the Kingwas in substance identical with the Bill sent up to the House of Lords in thefirst of the three sessions on January 16, 1913. But here we come across thedifficulty of amending a Bill under the Parliament Act after it had once beensent up in the third session to the House of Lords. By June
18 S. 2 (i) Proviso. Under this enactment the House of Lords may insistupon a delay of at least two years and one calendar month, and a powerfulopposition in the House of Commons may lengthen this delay.
19 Constructive rejection arises under the Parliament Act, s. 2, sub-s.3, which runs as follows: "A Bill shall be deemed to be rejected by the Houseof 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." The Home RuleBill was actually rejected by the vote of the House of Lords in its first andsecond session. It was constructively rejected in the third session by theHouse of Lords simply by the House not passing the Bill during such
1914 it was felt to be desirable to amend the Home Rule Bill in respectof the position of Ulster. On June 23 the Government brought into the House ofLords a Bill which should amend the Home Rule Act which was still a Bill, andit is difficult to find a precedent for thus passing an Act for amending a Billnot yet on the statute-book. The attempt to carry out the Government's proposalcame to nothing. On September 18, 1914, the Home Rule Bill became the Home RuleAct (or technically the Government of Ireland Act, 1914) unamended, but on thevery day on which the Home Rule Act was finally passed it was in effect amendedby a Suspensory Act under which the Government of Ireland Act, 1914, cannotcome into force until at any rate twelve months from September 18, and possiblywill not come into force until the present war has ended. The Suspensory Actevades or avoids the effect of the Parliament Act, but such escape from theeffect of a recently passed statute suggests the necessity for some amendmentin the procedure created by the Parliament Act.
3. The House of Commons can without the consent of the House of Lordspresent to the King for his assent any Bill whatever which has complied withthe provisions of the Parliament Act, section 2, or rather which is certifiedby the Speaker of the House of Commons in the way provided by the Act to havecomplied with the conditions of the Parliament Act, section 2.
The simple truth is that the Parliament Act has given to the House ofCommons, or, in plain language, to the majority thereof, the power of passingany Bill whatever, provided always that the conditions of the Parliament Act,section 2, are complied with. But these provisions do leave to the House ofLords a suspensive veto which may prevent a Bill from becoming an Act ofParliament for a period of certainly more, and possibly a good deal more, thantwo years.20
20 The Parliament Act leaves the existing rights and privileges of theHouse of Commons untouched (ibid. sect. 6). No reference whatever istherein made to the so-called "veto" of the King. Its existence is undoubted,but the veto has not been exercised for at least two centuries. The well-knownwords of Burke, however, should always be borne in mind: "The king's negativeto 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 severallaws which I know had fallen under the stroke of that sceptre, the public wouldhave had a very heavy loss. But it is not the propriety of the exercisewhich is in question. The exercise itself is
In these circ*mstances it is arguable that the Parliament Act hastransformed the sovereignty of Parliament into the sovereignty of the King andthe House of Commons. But the better opinion on the whole is that sovereigntystill resides in the King and the two Houses of Parliament. The grounds forthis opinion are, firstly, that the King and the two Houses acting together canmost certainly enact or repeal any law whatever without in any way contraveningthe Parliament Act; and, secondly, that the House of Lords, while it cannotprevent the House of Commons from, in effect, passing under the Parliament Actany change of the constitution, provided always that the requirements of theParliament Act are complied with, nevertheless can, as long as that Act remainsin force, prohibit the passing of any Act the effectiveness of which dependsupon its being passed without delay.
Hence, on the whole, the correct legal statement of the actual conditionof things is that sovereignty still resides in Parliament, i.e. in theKing and the two Houses acting together, but that the Parliament Act hasgreatly increased the share of sovereignty possessed by the House of Commonsand has greatly diminished the share thereof belonging to the House ofLords.
PRACTICAL CHANGE IN THE AREA OF PARLIAMENTARY SOVEREIGNTY (RELATIONOF THE IMPERIAL PARLIAMENT TO THE DOMINIONS21)
The term "Dominions" means and includes the Dominion of Canada,Newfoundland, and Commonwealth of Australia, New
wisely forborne. Its repose may be the preservation of its existence;and its existence may be the means of saving the constitution itself, on anoccasion worthy of bringing it forth." Burke, Letter to the Sheriffsof Bristol, vol. iii., ed. 1808, pp. 180, 181; ed. 1872, vol. ii. p. 28.Experience has confirmed the soundness of Burke's doctrine. The existence ofthis "negative" has greatly facilitated the development of the present happyrelation between England and her self-governing colonies. It has enabledEnglish and colonial statesmanship to create that combination of Imperial unitywith something coming near to colonial independence which may ultimately turnout to be the salvation of the British Empire.
21 For this use of the term Dominions see British Nationality &Status of Aliens Act, 1914, 4 & 5 Geo. V. c. 17, ist Schedule. Compareespecially as to British colonies with representative and responsiblegovernment pp. 47 to 61, post.
The Dominions for the most part consist either of a country which was aself-governing colony, or of countries which were self-governing colonies in1884. But this statement does
Zealand, and the Union of South Africa. Each of the Dominions is aself-governing colony, i.e. a colony possessed both of a colonialParliament, or representative legislature, and a responsible government, or inother words, of a government responsible to such legislature. Our subjectraises two questions:
First Question
What is the difference between the relation of the Imperial Parliamentto a self-governing colony, such, e.g., as New Zealand, in 1884, and therelation of the same Parliament to the Dominion, e.g. of New Zealand, in1914?
Before attempting a direct answer to this inquiry it is well to pointout that in two respects of considerable importance the relation of theImperial Parliament22 to the self-governing colonies, whether calledDominions or not, has in no respect changed since 1884.
In the first place, the Imperial Parliament still claims in 1914, as itclaimed in 1884, the possession of absolute sovereignty throughout every partof the British Empire; and this claim, which certainly extends to everyDominion, would be admitted as sound legal doctrine by any court throughout theEmpire which purported to act under
not apply with perfect accuracy to every one of the Dominions. WesternAustralia, for instance, which is now one of the states of the Commonwealth ofAustralia, did not obtain responsible government till 1890, and Natal, now astate of the Union of South Africa, did not obtain such government till 1893.The Union of South Africa itself consists to a great extent of states which in1884, though subject to the suzerainty of the King, were (under the governmentof the Boers) all but independent countries.
Throughout this Introduction, unless the contrary is expressly stated,or appears from the context, no reference is made to the position either of(i.) the Crown colonies, or (ii.) the three colonies, viz. the Bahamas,Barbadoes, and Bermuda, which possess representative but not responsiblegovernment, or (iii.) British India. This Introduction, in short, in so far asit deals with the relation of the Imperial Parliament to the colonies, refersexclusively, or all but exclusively, to the relation between the ImperialParliament and the five Dominions. 22 This term means what an English writer onour constitution would generally call simply "Parliament," that is theParliament of the United Kingdom. The term "Imperial Parliament" is, however, aconvenient one when we have to deal, as in this Introduction, with the relationbetween the Parliament of the United Kingdom and the Dominions, every one ofwhich has representative legislatures of their own which are always popularly,and sometimes in Acts of Parliament, termed Parliaments. The term "ImperialParliament" is used in colonial statutes, e.g., in the InterpretationAct of the Commonwealth of Australia, No. 2 of 1901.
the authority of the King. The constitution indeed of a Dominion ingeneral originates in and depends upon an Act, or Acts, of the ImperialParliament; and these constitutional statutes are assuredly liable to bechanged by the Imperial Parliament.
Parliament, in the second place, had long before 1884 practicallyadmitted the truth of the doctrine in vain pressed upon his contemporaries byBurke,23 when insisting upon the folly of the attempt made by theParliament of England to exert as much absolute power in Massachusetts as inMiddlesex, that a real limit to the exercise of sovereignty is imposed not bythe laws of man but by the nature of things, and that it was vain for aparliamentary or any other sovereign to try to exert equal power throughout thewhole of an immense Empire. The completeness of this admission is shown by onenoteworthy fact: the Imperial Parliament in 1884, and long before 1884, hadceased to impose of its own authority and for the benefit of England any taxupon any British colony.24 The omnipotence, in
23 "Who are you," to quote his words, "that should fret and rage, andbite the chains of nature? Nothing worse happens to you, than does to allnations who have extensive empire; and it happens in all the forms into whichempire can be thrown. In large bodies, the circulation of power must be lessvigorous at the extremities. Nature has said it. The Turk cannot govern Egypt,and Arabia, and Curdistan, as he governs Thrace; nor has he the same dominionin the Crimea and in Algiers which he has at Brusa and Smyrna. Despotism itselfis obliged to truck and huckster. The Sultan gets such obedience as he can. Hegoverns with a loose rein, that he may govern at all; and the whole of theforce and vigour of his authority in the centre is derived from a prudentrelaxation in all his borders. Spain, in her provinces, is, perhaps, not sowell obeyed as you are in yours. She complies too; she submits; she watchestimes. This is the immutable condition, the eternal law, of extensive anddetached empire." Burke, Conciliation with America, vol. iii.(ed. 1808),
PP- 56, 57-
24 This renunciation by the Imperial Parliament of the right to imposetaxes upon a colony, whether a self-governing colony or not, has passed throughtwo stages. Since 1783 taxation imposed by an Imperial Act has always been,even in the case of a Crown colony, imposed for the benefit of the colony, andthe proceeds thereof have been paid to the colony. But until the repeal of theNavigation Laws in 1849 Parliament, in support of our whole navigation system,retained the practice of imposing duties on goods imported into the colonies,though the proceeds thereof were paid to the colonies so taxed. Since 1849 noImperial Act has been passed for the taxation of any colony, and no colony iscompelled by the Imperial Parliament to contribute anything in the way oftaxation towards the cost of the government of the United Kingdom or towardsthe defence of the British Empire.
The Imperial Parliament does still impose customs duties upon the Isleof Man. See 3 & 4 Geo. V. c. 18.
short, of Parliament, though theoretically admitted, has been applied inits full effect only to the United Kingdom.
A student may ask what is the good of insisting upon the absolutesovereignty of Parliament in relation to the Dominions when it is admitted thatParliament never gives, outside the United Kingdom, and probably never willgive, full effect to this asserted and more or less fictitious omnipotence. Theanswer to this suggestion is that students who do not bear in mind the claim ofParliament to absolute sovereignty throughout the whole of the British Empire,will never understand 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 understand the limitswhich, with the full assent, no less of English than of colonial statesmen, arein fact, as regards at any rate the Dominions, imposed upon the actual exerciseof the theoretically limitless authority of Parliament. It will be foundfurther that even to the Dominions themselves there is at times some advantagein the admitted authority of the Imperial Parliament to legislate for the wholeEmpire. In the eyes, at any rate, of thinkers who share the moral convictionsprevalent in most civilised states, it must seem a gain that the ImperialParliament should have been able in 1834 to prohibit the existence of slaveryin any country subject to the British Crown, and should be able to-day toforbid throughout the whole Empire the revival of the Slave Trade, or ofjudicial torture.
Let us now turn to the points wherein the relation of the ImperialParliament to the self-governing colonies in 1884 differed from the existingrelation of the Imperial Parliament to the Dominions in 1914.
The relation of the Imperial Parliament in 1884 to a self-governingcolony, e.g. New Zealand.
The Imperial Parliament, under the guidance of English statesmen,certainly admitted in practice thirty years ago that a self-governing colony,such as New Zealand, ought to be allowed in local matters to legislate foritself. Parliament did, however, occasionally legislate for New Zealand or anyother self-governing colony. Thus the existing English Bankruptcy Act, 1883, asa matter of fact transferred, as it still transfers, to the trustee inbankruptcy the bankrupt's property, and
even his immovable property situate in any part of the BritishEmpire,2S and a discharge under the English Bankruptcy Act, 1883,was, and still is, a discharge as regards the debts of the bankrupt contractedin any part of the British Empire,26 e.g. in New Zealand orin the Commonwealth of Australia. So again the veto of the Crown was, in oneform or another27 in 1884, and even later, used occasionally toprevent colonial legislation which, though approved of by the people of thecolony and by the legislature thereof, might be opposed to the moral feeling orconvictions of Englishmen. Thus colonial Bills for legalising the marriagesbetween a man and his deceased wife's sister, or between a woman and herdeceased husband's brother, were sometimes vetoed by the Crown, or in effect onthe advice of ministers supported by the Imperial Parliament. No doubt as timewent on the unwillingness of English statesmen to interfere, by means of theroyal veto or otherwise, with colonial legislation which affected only theinternal government of a self-governing colony, increased. But suchinterference was not unknown. There was further, in 1884, an appeal in everycolony from the judgments of the Supreme Court thereof to the English PrivyCouncil. And a British Government would in 1884 have felt itself at liberty tointerfere with the executive action of a colonial Cabinet when such action wasinconsistent with English ideas of justice. It was also in 1884 a dearprinciple of English administration that English colonists should neitherdirectly 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 partof English public life, at which English ministers and colonial ministers couldconfer upon questions of colonial policy, and could thus practicallyacknowledge the interest of the colonies in everything which concerned thewelfare of the whole Empire. Neither certainly did English statesmen in 1884contemplate the pos-
25 See Dicey, Conflict of Laws (and ed.), pp. 329-333-
26 Ibid., p. 441, and Ellis v. McHenry (1871), L.R. 6, C. P. 228, 234-236; but contrast New Zealand Loan, etc, Co. v.Morrison [1898], A. C. 349, died Conflict of Laws, p. 342.
27 See pp. 56-61, post.
sibility of a colony standing neutral during a war between England
and a foreign power.
The relation of the Imperial Parliament in 1914 to a Dominion.28This relation may now, it is submitted, be roughly summed up in
the following rules:
Rulei
In regard to any matter which directly affects Imperial interests theImperial Parliament will (though with constantly increasing caution) pass lawswhich apply to a Dominion and otherwise exercise sovereign power in such aDominion.
But this rule applies almost exclusively to matters which directly andindubitably affect Imperial interests.29
Rule 2
Parliament does not concede to any Dominion or to the legislaturethereof the right
a. to repeal [except by virtue of an Act of the ImperialParliament] 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 andany foreign power, or, in general, to receive any benefit from a foreign powerwhich is not offered by such power to the whole of the BritishEmpire.30
It must be noted that under these two rules the Imperial Parliament doesretain, and sometimes exerts the right to legislate in regard to matters whichmay greatly concern the prosperity of a Dominion, and also does in somerespects seriously curtail both the legislative power of a Dominion Parliamentand the executive power of a Dominion Cabinet. As long, in short, as thepresent state of things continues, the Imperial Parliament, to the extent Ihave laid down, still treats any Dominion as on matters of Imperial concernsubordinate to the sovereignty of the Imperial Parliament.
28 See as to meaning of Dominion, pp. xlii-xliii, note 21, ante.
29 See Keith, Responsible Government in the Dominions, p. 1316.
30 Ibid. pp. 1119-1122.
Rule}
The Imperial Parliament now admits and acts upon the admission, that anyone of the Dominions has acquired a moral right to as much independence, at anyrate in regard to matters occurring within the territory of such Dominion, ascan from the nature of things be conceded to any country which still forms partof the British Empire.
Take the following illustration of the extent of such internalindependence:
Parliament does not (except at the wish of a Dominion) legislate withrespect to matters which merely concern the internal interests of suchDominion, 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 which solely concernsthe internal interest of such Dominion.
The power of the Crown, i.e. of the British ministry, to veto ordisallow in any way32 any Bill passed by the legislature of aDominion, e.g. New Zealand, is now most sparingly exercised, and willhardly be used unless the Bill directly interferes with Imperial interests oris as regards the colonial legislature ultra vires. Thus the Crown, orin other words a British ministry, will now not veto or disallow any Billpassed by the legislature of a Dominion on the ground that such Bill isindirectly opposed to the interests of the United Kingdom, or contradicts legalprinciples generally upheld in England, e.g. the principle of freetrade.
The British Government will not interfere with the executive action ofthe Government (e.g. of New Zealand) in the giving or the withholding ofpardon for crime, in regard to transactions taking place wholly within theterritory of New Zealand.33
Any Dominion has now a full and admitted right to raise military ornaval forces for its own defence. And the policy of England is in the main towithdraw the English Army from the Dominions and to encourage any Dominion toprovide for its own defence and to raise
31 See Keith, Responsible Government in the Dominions, pp.1316-1328.
32 See pp. 56-57, post.
33 See Keith, Responsible Government in the Dominions, p. 1583.
for itself a Navy, and thereby contribute to the defensive power of theBritish Empire.
The Imperial Government is now ready at the wish of a Dominion toexclude from its constitution, either partially or wholly, the right of appealfrom the decision of the Supreme Court of such Dominion to the PrivyCouncil.34
The Imperial Government also is now ready at the wish of a Dominion togrant to such Dominion the power to amend by law the constitution thereofthough created under an Act of the Imperial Parliament.35
Rule 4
The habit has now grown up that conferences should be held from time totime in England, at which shall be present the Premier of England and thePremier of each Dominion, for consultation and discussion on all mattersconcerning the interest and the policy of the Empire, and that such conferencesshould be from time to time held may now, it is submitted, be considered amoral right of each Dominion.
These conferences, which were quite unthought of thirty years ago, andwhich did not receive their present form until the year 1907, mark in a verystriking manner a gradual and therefore the more important change in therelations between England and the self-governing colonies.
The answer then to the question before us36 as to thedifference between the relation of England (or in strictness of the ImperialParliament) to the self-governing colonies37 in 1884 and herrelation to the Dominions in 1914 can thus be summed up: At the former periodEngland conceded to the self-governing colonies as much of independence as wasnecessary to give to such colonies the real management in their internal orlocal affairs. But English statesmen at that
34 See Commonwealth of Australia Constitution, s. 74; South Africa Act,1909, s. 106.
35 See especially South Africa Act, 1909, s. 106.
36 See first question, p. xliii, ante.
37 The difference between the expression "self-governing colonies" and"Dominions" is worth noticing. The first is appropriate to 1884, the second isappropriate to 1914-
date did intend to retain for the Imperial Parliament, and the ImperialGovernment as representing such Parliament, a real and effective control overthe action of the ministry and the legislature of each self-governing colony inso far as that control was not palpably inconsistent with independence asregards the management of strictly local affairs. In 1914 the colonial policyof England is to grant to every Dominion absolute, unfettered, complete localautonomy,38 in so far as such perfect self-government by a Dominiondoes not dearly interfere with loyalty of the Dominion to the Empire. The tworelations of England 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 not sound. Myeffort has been to describe two different ways of looking at one and the samerelation, and the results of this difference of view are of practicalconsequence. In 1884 it was admitted, as it is to-day, that the self-governingcolonies must have rights of self-government. But in 1884 the exercise ofself-government on the part of any colony was regarded as subordinate to realcontrol by the English Parliament and Crown of colonial legislation which mightbe opposed to English interests or to English ideals of political prudence. In1914 the self-government, e.g., of New Zealand means absolute,unfettered, complete autonomy, without consulting English ideas of expediencyor even of moral duty. The one limit to this complete independence in regard tolocal government is that it is confined to really local matters and does nottrench upon loyalty to the Empire. The independence of the Dominion, in short,means nowadays as much of independence as is compatible with each Dominionremaining 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] therewere two rough-and-ready solutions for what was regarded, with some impa-
38 See Minutes of Proceedings of Imperial Conference, 1911 [Cd. 5745],p. 22.
39 See Law and Opinion, pp. 450-457.
tience, by the British statesmen of that day as the "Colonial problem."The one was centralisation the government, that is, except in relativelytrivial matters, of all the outlying parts of the Empire from an office inDowning Street. The other was disintegration the acquiescence in,perhaps the encouragement of, a process of successive "hivings off" by which,without the hazards or embitterments of coercion, each community, as it grew topolitical manhood, would follow the example of the American Colonies, and startan independent and sovereign existence of its own. After 70 years' experienceof Imperial evolution, it may be said with confidence that neither of thesetheories commands the faintest support to-day, either at home or in any part ofour self-governing Empire. We were saved from their adoption some peoplewould say by the favour of Providence or (to adopt a more flatteringhypothesis) by the political instinct of our race. And just in proportion ascentralisation was seen to be increasingly absurd, so has disintegration beenfelt to be increasingly impossible. Whether in the United Kingdom, or in anyone of the great communities which you represent, we each of us are, and weeach of us intend to remain, master in our own household. This is, here at homeand throughout the Dominions, the life-blood of our polity. It is thearticulus stantis aut cadentis Imperil.40
These words are a true statement of patent facts, but it will onexamination be found that the change during recent years in English opinion,and also in colonial opinion, with regard to the relation between England andthe Dominions presents rather more comlexity than at first sight may beapparent41 to a casual reader of Mr. As-quith's address. Up to thelast quarter of the nineteenth century, and even as late as 1884, manyEnglishmen, including a considerable number of our older statemen, held thatthe solution of the colonial problem was to be found wholly in the willingnessof England to permit and even to promote the separation from the Empire of anyself-governing colony which desired independence, provided that this separationshould take place without engendering any bad feeling between England and herso-called dependencies. No doubt there existed, at any rate till the middle ofthe nineteenth century, a limited body of experienced officials who held thatour colonial system, as long as it was maintained, implied the active controlby
40 Minutes of Proceedings of the Imperial Conference, 1911 [Cd. 5745].Opening address of the President (Mr. Asquith), p. 22. Compare "Message of Kingto Governments and Peoples of the Self-governing Dominions," Times,Sept. 10, 1914.
41 Compare Dicey, Law and Opinion, pp. 450 457.
England of colonial affairs. But such men in many cases doubted whetherthe maintenance of the Colonial Empire was of real benefit to England, andthought that on the whole, with respect at any rate to any self-governingcolony, the course of prudence was to leave things alone until it should havebecome manifest to every one that the hour for friendly separation had struck.The self-governing colonies, on the other hand, up at any rate till 1884, justbecause they were more and more left alone and free to manage their ownaffairs, though they occasionally resented the interference of the EnglishGovernment with colonial legislation, were on the whole contented with thingsas they stood. They certainly did not display any marked desire to secede fromthe Empire. Still less, however, did they show any active wish to take part incontrolling the policy of the Empire, or to share the cost of Imperial defence.Honest belief in the principle of laissez faire produced its naturaland, as far as it went, beneficial result. It removed causes of discontent; itprevented 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 changewhich a student has to note is an alteration of feeling, which did not becomevery obvious till near the dose of the nineteenth century. This was the growth(to use a current expression) of Imperialism. But this term, like all popularphrases, is from its very vagueness certain to mislead those who use it, unlessits meaning be defined with some care. In regard to the British Empire it oughtto be used as a term neither of praise nor of blame, but as the name for anidea which, in so far as it is true, is of considerable importance. This ideais that the British Empire is an institution well worth maintaining, and thisnot on mere grounds of sentiment but for definite and assignable reasons. UponEngland and upon every country subject to the King of England the BritishEmpire confers at least two benefits: It secures permanent peace among theinhabitants of the largest of existing states; it again secures, or ought tosecure, to the whole of this vast community absolute protection against foreignattack. The resources of the Empire are, it is felt, practically inexhaustible;the creation of a fleet supported by revenues and also by armies drawn fromevery country subject to the King of England should, provided England herself
stands properly armed, render invasion of the British Empire by any ofthe great military powers of Europe an impossibility. But then the hugeness ofthe Empire and the strength of the Empire, if it remains united, are enough toshow that the different countries which are parts of the Imperial system would,if they each stood alone, be easily assailable by any state or combination ofstates which had the command of large military and naval armaments. NeitherEngland, in short, nor any of her self-governing Dominions can fail to see thatthe dissolution of the Empire might take from both the mother country and themost powerful of the Dominions the means necessary for maintaining liberty andindependence. Loyalty to the Empire, typified by loyalty to the King, is inshort a sentiment developed by the whole course of recent history. It is afeeling or conviction which places the relation of England and the Dominions ina new light. It amply accounts for the extraordinary difference between thecolonial policy accepted both by England and by the self-governing colonies in1850, and even (to a great extent) in 1884, and the colonial policy acceptableboth to England and to her all but independent Dominions in 1914. Englishstatesmen on the one hand now proffer to, and almost force upon, each Dominionevery liberty compatible with the maintenance of the Empire; but then Englishstatesmen no longer regard with philosophic calm the dawn of the day when anyone of the Dominions may desire to secede from the Empire. The Dominions, onthe other hand, have no longer any reason to fear and do not desire anyinterference with colonial affairs either by the legislation of the ImperialParliament or by the administrative action of officials at Downing Street whoare the servants of the Imperial Parliament. But then statesmen of theDominions show a willingness to share the cost of the defence of the Empire,and at the same time express at each of the great Conferences, with more andmore plainness, the desire that the Dominions should take a more active part inthe determination of Imperial policy. It is not my object, at any rate at thispart of this Introduction, to consider how far it may be possible to givesatisfaction to the desires of rational Imperialists, and still less ought anyman of sense to express any confident opinion as to how far the sentiment ofImperialism may in the course of time increase in force
or suffer diminution. My immediate aim is to show that this newImperialism is the natural result of historical circ*mstances. It is well,however, to bear in mind several considerations which Englishmen of to-day areapt to overlook. The friendly Imperialism which finds expression in theImperial Conferences is itself the admirable fruit of the old policy oflaissez faire. The system of leaving the self-governing colonies alonefirst appeased discontent, and next allowed the growth of friendliness whichhas made it possible for the English inhabitants, and even in some cases theforeign inhabitants, of the Dominions to recognise the benefits which theEmpire confers upon the Dominions, and for Englishmen at home to see that theDominions may contribute to the safety of England and to the prosperity of thewhole Empire.42 But 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 nineteenthcentury, has come to an end. The war in South Africa was in reality a war wagednot only by England but also by the Dominions to prevent secession; theconcession further to the South African Union of the full rights of a Dominionis no more inconsistent with resistance to secession than was the restorationto the Southern States of the American Commonwealth of their full right toexistence as States of the United States. It must, lastly, be noted, that whilethe inhabitants of England and of the Dominions express at each Conferencetheir honest pleasure in Imperial unity, the growth of Imperialism alreadycauses to many patriotic men one disappointment. Events suggest that it mayturn out difficult, or even impossible, to establish throughout the Empire thatequal citizenship of all British subjects which exists in the United Kingdomand which Englishmen in the middle of the nineteenth century hoped to seeestablished throughout the length and breadth of the Empire.43
42 As they now [1914] are contributing.
43 The kind of equality among British subjects which Englishmen, whetherwisely or not, hoped to establish throughout the whole Empire is best seen byconsidering the sort of equality which actually exists and has for many yearsexisted in England. Speaking broadly, every British subject has in England atthe present day the same political rights as every natural-born Englishman,e.g. an Englishman born in England and the son of English
THE RULE OF LAW44
The rule of law, as described in this treatise, remains to this day adistinctive characteristic of the English constitution. In England no man canbe made to suffer punishment or to pay damages for any conduct not definitelyforbidden by law; every man's legal rights or liabilities are almost invariablydetermined by the ordinary Courts of the realm, and each man's individualrights are far less the result of our constitution than the basis on which thatconsitution is founded.
The principles laid down in this treatise with regard to the rule of lawand to the nature of droit administratif need little change. My objectin this Introduction is first to note a singular decline among modernEnglishmen in their respect or reverence for the rule of law, and secondly, tocall attention to certain changes in the droit administratif ofFrance.45
DECLINE IN REVERENCE FOR 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 isproved by actual legislation, by the existence among some classes of a certaindistrust both of the law and of the judges, and by a marked tendency towardsthe use of lawless methods for the attainment of social or political ends.
parents settled in England. Thus a British subject, whatever be theplace of his birth, or the race to which he belongs, or I may now add thereligion which he professes, has, with the rarest possible exceptions, the sameright to settle or to trade in England which is possessed by a natural-bornEnglishman. He has further exactly the same political rights. He can, if hesatisfies the requirements of the English electoral law, vote for a member ofParliament; he can, if he commends himself to an English constituency, take hisseat as a member of Parliament. There is no law which forbids any Britishsubject, wherever he be born, or to whatever race he belongs, to become amember of the English Cabinet or a Prime Minister. Of course it will be saidthat it is extremely improbable that the offices I have mentioned will, infact, be filled by men who are not in reality Englishmen by race. This remarkto a certain extent is true, though it is not wholly true. But the possessionof theoretically equal political rights does certainly give in England, orrather to be strictly accurate in the United Kingdom, to every British subjectan equality which some British subjects do not possess in some of theDominions.
44 See Part II., and especially Chap. IV., post.
45 See Chap. XII. post.
Legislation
Recent Acts have given judicial or quasi-judicial authority toofficials46 who stand more or less in connection with, and thereforemay be influenced by, the government of the day, and hence have in some casesexcluded, and in others indirectly diminished, the authority of the law Courts.This tendency to diminish the sphere of the rule of law is shown, for instance,in the judicial powers conferred upon the Education Commissioners by theEducation Act, 1902,47 on various officials by the NationalInsurance Acts, 1911 and 1913,48 and on the Commissioners of InlandRevenue and other officials by the Finance Act, 1910.49 It is alsoshown by the Parliament Act, 1911, s. 3, which enacts that "any certificate ofthe Speaker of the House of Commons given under this Act shall be conclusivefor all purposes and shall not be questioned in any Court of law." Thisenactment, if strictly construed, would protect any Speaker who, either frompartisanship or to promote some personal interest of his own, signed acertificate which was notoriously false from being liable to punishment by anyCourt of law whatever.50 No doubt the House of Commons has beenhistorically jealous of any judicial interference with persons acting under theauthority of the House, and has on more than one occasion claimed in a sense tobe above the law of the land. All that can be said is that such claims haverarely been of advantage or credit to the House, and that the present time ishardly the proper season for the curtailment by the House of legitimatejudicial power. It must, however, in fairness be noted that the invasion of therule of law by imposing judicial functions upon officials is due, in part, tothe whole current of legislative opinion in favour of extending the sphere ofthe State's authority. The inevitable result of thus immensely increasing
46 See generally on this point Muir, Peers and Bureaucrats,especially pp. 1-94.
47 See sect. 7, andR. v. Board of Education (Swansea Case)[1910], 2 K.B. 167; Board of Education v. Rice [1911], A. C.179.
48 See National Insurance Act, 1911, ss. 66, 67, 88 (i), and generallyLaw and Opinion (2nd ed.), pp. 41-43.
49 See especially sect. 2, sub-s. 3, ss. 33 and 96.
50 Would this enactment protect the Speaker against an impeachment forgiving a certificate which he knew to be false?
the duties of the Government is that State officials must more and moreundertake to manage a mass of public business, e.g., to give one exampleonly, the public education of the majority of the citizens. But Courts are fromthe nature of things unsuited for the transaction of business. The primary dutyof a judge is to act in accordance with the strict rules of law. He must shun,above all things, any injustice to individuals. The well-worn and oftenabsurdly misapplied adage that "it is better that ten criminals should escapeconviction than that one innocent man should without cause be found guilty ofcrime" does after all remind us that the first duty of a judge is not to punishcrime but to punish it without doing injustice. A man of business, whetheremployed by a private firm or working in a public office, must make it his mainobject to see that the business in which he is concerned is efficiently carriedout. He could not do this if tied down by the rules which rightly check theaction of a judge. The official must act on evidence which, though strong, maynot be at all conclusive. The official must often act with severity towardssubordinates whose stupidity, and not their voluntary wrong-doing, gives causefor 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 ofbusiness, in short, is a very different thing from the giving of judgments: Themore multifarious therefore become the affairs handed over to the management ofcivil servants the greater will be always the temptation, and often thenecessity, extending to the discretionary powers given to officials, and thuspreventing law Courts from intervening in matters not suited for legaldecision.
Distrust of Judges and of Courts
If the House of Commons deliberately excludes the intervention of anylaw Court in matters which the House may deem (with very dubious truth) toconcern the House alone, we can scarcely wonder that artisans should have nolove for judicial decisions. In plain truth, while every man of at allrespectable instincts desires what he considers justice for himself and for theclass to which he belongs, almost all men desire something more than, anddifferent from, justice for
themselves and against their neighbours. This is inevitably the casewith persons such as the members of trade unions, who are trying, with a gooddeal of success, to enforce trade rules which often arouse the censure of thepublic, and sometimes come into absolute conflict with the law of the land. Theblackleg may be, and one may suspect often is, a mean fellow who, to put moneyinto his own pocket, breaks rules which his fellow-workers hold to be just andbeneficial to the trade generally. He, for example, has no objection, ifproperly paid for it, to work with men who are not members of any union. Theblackleg, however, all but invariably keeps within the law of the land, andproposes to do nothing which violates any principle established by common lawor any enactment to be found in the Statute Book. The trade unionists whom heoffends know perfectly well that the blackleg is in the eye of the law nowrong-doer; they therefore feel that the Courts are his protectors, and that,somehow or other, trade unions must be protected against the intervention ofjudges. Hence the invention of that self-contradictory idea of "peacefulpicketing," which is no more capable of real existence than would be "peacefulwar" or "unoppressive oppression"; hence, too, that triumph of legalisedwrong-doing sanctioned by the fourth section of the Trade DisputesAct,511906. It is however by no means to be supposed that artisansare the only class accustomed to decry a judge or the legislature when the onegives a judgment or the other passes a law opposed to the moral convictions ofa particular part of the community.
Lawlessness
Till a time well within the memory of persons now living, it would havebeen 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 ofimmorality. No doubt at all times there have existed, as at the present day, alarge number of habitual law-breakers, but though a cheat, a pickpocket, or aburglar does constantly break the law, there is no reason to surmise thatcheats, pickpockets, or burglars maintain the doctrine that law-breaking isitself a praiseworthy
51 See Law and Opinion, pp. xliv-xlvi, and compare the TradeUnion Act, 1913, ibid. p. xlviii.
or a moral act. Within the last thirty years, however, there has grownup in England, and indeed in many other civilised countries, a new doctrine asto lawlessness. This novel phenomenon, which perplexes moralists and statesmen,is that large classes of otherwise respectable persons now hold the belief andact on the conviction that it is not only allowable, but even highlypraiseworthy, to break the law of the land if the law-breaker is pursuing someend which to him or to her seems to be just and desirable. This view is notconfined to any one class. Many of the English clergy (a class of men wellentitled to respect) have themselves shown no great hesitation in thwarting andbreaking laws which they held to be opposed to the law of the Church. Passiveresisters do not scruple to resist taxes imposed for some object which theycondemn. Conscientious objectors are doing a good deal to render ineffectivethe vaccination laws. The militant suffragettes glorify lawlessness; thenobleness of their aim justifies in their eyes the hopeless and perverseillegality of the means by which they hope to obtain votes for women.
Whence arises this zeal for lawlessness? The following reflectionsafford 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 andthe regularity with which the law has been enforced for generations in GreatBritain, hardly perceive the risk and ruin involved in a departure from therule of law. Democratic sentiment, further, if not democratic principle,demands that law should on the whole correspond with public opinion; but when alarge body of citizens not only are opposed to some law but question the moralright of the state to impose or maintain a given law, our honest democrat feelsdeeply perplexed how to act. He does not know in effect how to deal withlawlessness which is based upon a fundamental difference of publicopinion.52 For such difference makes it impossible that on a giventopic the law should be in reality in accordance with public opinion. Thus manyEnglishmen have long felt a moral
52 See especially Lowell, Public Opinion and Popular Government,chap. iii.
difficulty in resisting the claim of a nationality to become anindependent nation, even though the concession of such a demand may threatenthe ruin of a powerful state and be opposed to the wishes of the majority ofthe citizens thereof. So the undoubted fact that a large number of Englishwomendesire parliamentary votes seems, in the eyes of many excellent persons, togive to Englishwomen a natural right to vote for members of Parliament. In eachinstance, and in many other cases which will occur to any intelligent reader,English democrats entertain a considerable difficulty in opposing claims withwhich they might possibly on grounds of expediency or of common sense have noparticular sympathy. The perplexity of such men arises from the idea that, atany rate under a democratic government, any law is unjust which is opposed tothe real or deliberate conviction of a large number of citizens. But such aconviction is almost certain to beget, on the part of persons suffering underwhat 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 opposedby the use of force. The time has come when the fact ought to be generallyadmitted that the amount of government, that is of coercion, of individuals orclasses by the state, which is necessary to the welfare or even to theexistence of a civilised community, cannot permanently co-exist with theeffective belief that deference to public opinion is in all cases the sole orthe necessary basis of a democracy. The justification of lawlessness is also,in England at any rate, suggested if not caused by the misdevelopment of partygovernment. The rule of a party cannot be permanently identified with theauthority of the nation or with the dictates of patriotism. This fact has inrecent days become so patent that eminent thinkers are to be found whocertainly use language which implies that the authority or the sovereignty ofthe nation, or even the conception of the national will, is a sort of politicalor metaphysical fiction which wise men will do well to discard. Happily, crisesarise from time to time in the history of any great state when, becausenational existence or national independence is at stake, the mass of a wholepeople feel that the authority of the nation is the one patent and the onecertain political fact. To these causes of lawlessness honesty compels theaddition of one cause
which loyal citizens are most anxious not to bring into prominence. Nosensible man can refuse to admit that crises occasionally, though very rarely,arise when armed rebellion against unjust and oppressive laws may be morallyjustifiable. This admission must certainly be made by any reasoner whosympathises with the principles inherited by modern Liberals from the Whigs of1688. But this concession is often misconstrued; it is taken sometimes to meanthat no man ought to be blamed or punished for rebellion if only he believesthat he suffers from injustice and is not pursuing any private interest of hisown.
COMPARISON BETWEEN THE PRESENT OFFICIAL LAW OF ENGLAND AND THEPRESENT DROIT ADMINISTRATE OF FRANCE53
The last thirty years, and especially the fourteen years which haveelapsed since the beginning of the twentieth century, show a very noticeablethough comparatively slight approximation towards one another of what may becalled the official law of England and the droit administratif ofFrance. The extension given in the England of to-day to the duties and to theauthority of state officials, or the growth, of our bureaucracy,54to use the expression of an able writer, has, as one would naturally expect,produced in the law governing our bureaucrats some features which faintlyrecall some of the characteristics which mark the droit administratif ofFrance. Our civil servants, indeed, are as yet not in any serious degree putbeyond the control of the law Courts, but in certain instances, and notablywith regard to many questions arising under the National Insurance Act, 1911,something very like judicial powers have been given to officials closelyconnected with the Government.55 And it may not be an exaggerationto say that in some directions the law of England is being "officialised," ifthe expression may be allowed, by statutes passed under the influence ofsocialistic ideas. It is even more certain that the droit administratifof France is year by year becoming more and more judirialised. TheConseil d'Etat, or, as we might term it, the Council, is
53 See Chap. XII., especially pp. 242-267, post; Law and Opinion,pp. xxxii-liii.
54 Muir, Peers and Bureaucrats.
55 SeeLawand Opinion, pp. xxxix-xliii.
(as all readers of my seventh edition of this work will know) the greatadministrative Court of France, and the whole relation between the judicialCourts and the Council still depends, as it has depended now for many years,upon the constitution of the Conflict Court,56 which containsmembers drawn in equal numbers from the Council of State and from the Court ofCassation. It would be idle to suppose that the decisions of the Council itselfwhen dealing with questions of administrative law do not now very nearlyapproach to, if indeed they are not in strictness, judicial decisions. TheCouncil, at any rate when acting in a judicial character, cannot now bepresided over by the Minister of Justice who is a member of theCabinet.57 Still it would be a grave mistake if the recognition ofthe growth of official law in England and the gradual judicialisation of theCouncil as an administrative tribunal led any Englishman to suppose that thereexists in England as yet any true administrative tribunals or any realadministrative law. No doubt the utmost care has been taken inFrance58 to give high authority to the Council as an administrativetribunal and also to the Conflict Court. Still the members of the Council donot hold their position by anything like as certain a tenure as do the judgesof die High Court in England, or as do the judges (if we may use Englishexpressions) of the French common law Courts. A member of the Council is veryrarely dismissed, but he still is dismissible. It must be noted further thatthe Minister of Justice is still the legal President of the Conflict Court,though he does not generally preside over it. When, however, the members of theConflict Court are equally divided as to the decision of any case, the Ministerof Justice does preside and give his casting vote. It is indeed said that sucha case, which must almost necessarily be a difficult and probably an importantone, is in truth again heard before the Minister of Justice and in effect isdecided by him. A foreigner without practical acquaintance with the Frenchlegal system would be rash indeed were he to
56 As to the constitution of this Court see p. 239 and Appendix, NoteXI. pp. 416-417, post.
57 See Poincare, How France is Governed, Trans. B. Midi. (T.Fisher Unwin, 1913), p. 272.
58 Administrative law has in some other continental countries, e.g.in Germany, been far less judicialised than in France.
form or express an assured opinion as to the extent to which thedecisions of the Council or the Conflict Court are practically independent ofthe wishes and the opinions of the Ministry of the day. Hesitation by a foreigncritic is the more becoming, because it is certain, that Frenchmen equallycompetent to form an opinion would differ in their answer to the inquiry,whether the Council and the Conflict Court ought to be still more completelyjudicialised. The constitution of the Council of State and of the ConflictCourt 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 Englishtribunals. It must further always be remembered that under the French Republic,as under every French government, a kind of authority attaches to theGovernment and to the whole body of officials in the service of the state(fonctionnaires) such as is hardly possessed by the servants of theCrown in England,59 and especially that proceedings for theenforcement of the criminal law are in France wholly under the control of theGovernment. The high repute of the Council and, as it seems to a foreigner, thepopularity of administrative law, is apparently shown by the success with whichthe Council has of recent years extended the doctrine that the state ought tocompensate 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 socarried out that it inflicts special damage upon individuals, that is damagebeyond what is borne by their neighbours.60 The authority again ofthe Council is seen in the wide extension it has given to the principle thatany act done by an official which is not justified by law will, on itsillegality being proved, be declared a nullity by the Council. It ought to benoted that this extension of the liability of the state must, it would seem, inpractice be a new protection for officials; for if the state admits its ownliability to pay compensation for damage suf-
59 Note, for instance, the absence of any law like the Habeas Corpus Actand the wide and arbitrary powers still left to the police under the head ofthe regime de police; Duguit, Traite de Droit Constitutionnel,ii. pp. 24-26, 33-45, and also the protection still extended in someinstances to officials acting under the orders of their superior.
60 See pp. 262-264, post.
fered by individuals through the conduct of the state's servants, thisadmission must induce persons who have suffered wrong to forego any remedywhich they may have possessed against, say, a postman or a policeman,personally, and enforce their claim not against the immediate wrong-doer butagainst the state itself.
One singular fact closely 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 to highrespect will be found the advocacy of a new form of decentralisation termeddecentralisation par service,61 which seems to mean thegiving to different departments of civil servants a certain kind ofindependence, 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 the state, manage theoffice in accordance with their own knowledge and judgment; would, as far as Iunderstand the proposal, be allowed to share in the gains affected by goodmanagement; and would, out of the revenue of the Post Office, make good thecompensation due to persons who suffered by the negligence or misconduct of theofficials. On the other hand, the officials would, because they were servantsof the state who had undertaken certain duties to the state, be forbiddeneither to organise a strike or in any way to interrupt the working of the PostOffice. It is a little difficult to see why this proposal should be called"decentralisation," for that term has hitherto borne a very different meaning.To an Englishman the course of proceeding proposed is extremely perplexing; ithowever is from one or two points of view instructive. This so-calleddecentralisation looks as if it were a revival under a new shape of thetraditional French belief in the merit of administration. This reappearance ofan ancient creed possibly shows that French thinkers who have lost allenthusiasm for parliamentary government look for great benefits to France fromopening there a new sphere for administrative capacity. It certainly shows thatFrenchmen of intelligence are turning their thoughts towards a question whichperplexes the thinkers or legis-
61 Duguit, Traite de Droit Constitutional, i. pp.460-467.
lators of other countries. How far is it possible for officials, e.g.railway servants and others who undertake duties on the due performance ofwhich the prosperity of a country depends, to be allowed to cease workingwhenever by so doing they see the possibility of obtaining a rise in the wagespaid them? My readers may think that this examination into the recentdevelopment of French droit administratif digresses too far from thesubject which we have in hand. This criticism is, it is submitted, unsound, forthe present condition of droit administratif in France suggests morethan one reflection which is strictly germane to our subject. It shows that theslightly increasing likeness between the official law of England and thedroit administratif of France must not conceal the fact that droitadministratif still contains ideas foreign to English convictions withregard to the rule of law, and especially with regard to the supremacy of theordinary law Courts. It shows also the possible appearance in France of newideas, such as the conception of the so-called decentralisation par servicewhich are hardly reconcilable with the rule of law as understood inEngland. It shows further that the circ*mstances of the day have already forcedupon France, as they are forcing upon England, a question to which Englishmenhave not yet found a satisfactory reply, namely, how far civil servants orothers who have undertaken to perform services on the due fulfilment of whichthe prosperity of the whole country depends, can be allowed to use the positionwhich they occupy for the purpose of obtaining by a strike or by activepolitical agitation concessions from and at the expense of the state. Nor whenonce this sort of question is raised is it possible absolutely to reject theidea that England might gain something by way of example from the experience ofFrance. Is it certain that the increasing power of civil servants, or, to useMr. Muir's expression, of "bureaucrats," may not be properly met by theextension of official law?62 France has with undoubted wisdom moreor less judicialised her highest administrative tribunal, and made it to agreat extent independent of the Government of the day. It is at leastconceivable that modern England would be benefited by the extension of officiallaw. Nor is it quite certain that the
62 Consider the Official Secrets Acts.
ordinary law Courts are in all cases the best body for adjudicating uponthe offences or the errors of civil servants. It may require considerationwhether some body of men who combined official experience with legal knowledgeand who were entirely independent of the Government of the day, might notenforce official law with more effectiveness than any Division of the HighCourt.
CONVENTIONS OF THE CONSTITUTION63 Three differentpoints deserve consideration. They may be summed up under the followingquestions 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, forthe most part, be brought under two different heads which for the sake ofclearness should be distinguished from each other, namely, first, new rules orcustoms which still continue to be mere constitutional understandings orconventions, and, secondly, understandings or conventions which have since 1884either been converted into laws or are closely connected with changes oflaw.64 These may appropriately be termed "enacted conventions."
MERE CONVENTIONS
These have arisen, without any change in the law of the land, becausethey meet the wants of a new time. Examples of such acknowledged understandingsare not hard to discover. In 1868 a Conservative Ministry in office suffered anundoubted defeat at a general election. Mr. Disraeli at once resigned officewithout waiting for even the meeting of Parliament. The same course was pursuedby Mr.
63 See Chaps. XIV. and XV. post.
64 See especially the indirect effects of the Parliament Act, p. li,post.
Gladstone, then Prime Minister, in 1874, and again, in his turn, byDisraeli (then Lord Beaconsfield) in 1880, and by Gladstone in 1886. Theseresignations, following as they each did on the result of a general election,distinctly reversed the leading precedent set by Peel in 1834. The ConservativeMinistry of which he was the head, though admittedly defeated in the generalelection, did not resign until they suffered actual defeat in the newly-electedHouse of Commons. It may be added, that on the particular occasion theConservatives gained both influence and prestige by the ability with whichPeel, though in a minority, resisted in Parliament the attempt to compel hisresignation from office; for during this parliamentary battle he was able tobring home to the electors the knowledge that the Conservative minority, thoughdefeated at the election, had gained thereby a great accession of strength.Peel also was able to show that while he and his followers were prepared toresist any further changes in the constitution, they fully accepted the ReformAct of 1832, and, while utterly rejecting a policy of reaction, were ready togive the country the benefits of enlightened administration. The newconvention, which all but compels a Ministry defeated at a general election toresign office, is, on the face of it, an acknowledgment that the electorateconstitutes politically the true sovereign power.65 It also tends toconvert a general election into a decision that a particular party shall holdoffice for the duration of the newly-elected Parliament and, in some instances,into the election of a particular statesman as Prime Minister for thatperiod.66 This new convention is the sign of many minor political orconstitutional changes, such, for example, as the introduction of the habit,quite unknown not only to statesmen as far removed from us as Pitt, but toPeel, 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 ofelectors and hence to the whole country.
65 See as to the possible distinction between "legal" and "political"sovereignty, pp. 27- 29, post.
66 It is certain that at the general election of 1880 the Liberalelectors who gained a victory meant that Lord Beaconsfield should resign officeand that Mr. Gladstone should be appointed Prime Minister.
Another change in political habits or conventions unconnected with anylegal innovation or alteration has received little attention because of itsgradual growth and of its vagueness, but yet deserves notice on account of itsinherent importance. It is now the established habit of any reigning king orqueen 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 sympathywith the humane, the generous, and the patriotic feelings of the British peopleis a matter of recent growth. It may fairly be attributed to Queen Victoria asan original and a noble contribution towards national and Imperialstatesmanship. This royal expression of sympathetic feeling, though not unknownto, was rarely practised by George III. or the sons who succeeded him on thethrone.67 It belongs to, but has survived, the Victorian age. It hasindeed received since the death of Victoria a wider extension than was possibleduring a great part of her long reign. On such a matter vagueness of statementis the best mode of enforcing a political fact of immense weight but incapableof precise definition. At the moment when the United Kingdom is conducting itsfirst great Imperial war it is on many grounds of importance to remember thatthe King is the typical and the only recognised representative of the wholeEmpire.68
Another example of new political conventions is found in the rules ofprocedure adopted by the House of Commons since 1881 with a view to checkingobstruction, and generally of lessening the means possessed by a minority fordelaying debates in the House of Commons. These rules increase the possibilityof carrying through the House in a comparatively short time Bills opposed by aconsiderable number of members. That the various devices popularly known as theClosure, the Guillotine, and the Kangaroo have enabled one Government afteranother, when supported by a disciplined majority, to accomplish an amount oflegislation which, but for these de-
67 As the King's speech when addressing the House of Parliament becamemore and more, and was known to have become, the utterance rather ofministerial than of royal opinion, the necessity inevitably arose of themonarch's finding some means for expressing his personal sympathy with the joy,and, above all, with the sorrow, of his people.
68 See p. cviii, note 107, post.
vices could not have been passed through the House of Commons, isindisputable. Whether the price paid for this result, in the way of curtailmentand discussion, has been too high, is a question which we are not called uponto consider. All that need here be said is that such rules of procedure are notin strictness laws but in reality are customs or agreements assented to by theHouse of Commons.69
ENACTED CONVENTIONS
By this term is meant a political understanding or convention which hasby Act of Parliament received the force of law70 or may arise from achange of law. The best examples of such enacted conventions71 areto be found in some of the more or less indirect effects72 of theParliament Act, 1911.
1. The Parliament Act in regard to the relation in legislative mattersbetween the House of Lords and the House of Commons goes some way towardsestablishing in England a written or, more accurately speaking, an enactedconstitution, instead of an unwritten or, more accurately speaking, anunenacted constitution.73
2. The Act greatly restrains, if it does not absolutely abolish, the useof the royal prerogative to create peers for the purpose of "swamping the Houseof Lords" in order to force through the House a Bill rejected by the majorityof the peers. Such exercise of the prerogative has never but once, namely underQueen Anne in 1712, actually taken place. The certainty, however, that WilliamIV. would use his prerogative to overcome the resistance of the House ofLords
69 As to the essential difference between the laws and the conventionsof the constitution, see pp. cxl-cxlvi, post.
70 See Provisional Collection of Taxes Act, 1913.
71 A critic may indeed say, and with truth, that a convention convertedby statute into a law is in strictness not a convention at all but a part ofthe law of the constitution. This I will not deny; but such an enactedconvention may indirectly so affect the working of conventional understandingsor arrangements that its indirect effects are conveniently considered whendealing 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 noteespecially Parliament Act, s. I, sub-ss. 2, 3, which give a statutabledefinition of a Money Bill, and also contain a special provision as to the modeof determining whether a Bill is a Money Bill.
in 1832, carried the great Reform Act. The certainty that George V.would use the same prerogative carried the Parliament Act, 1911. In each casethe argument which told with the King in favour of an unlimited creation ofpeers was that the constitution supplied no other means than this exceptionaluse or abuse of the royal prerogative for compelling the Lords to obey the willof the country. The Parliament Act deprives this argument of its force. Anyking who should in future be urged by Ministers to swamp the House of Lordswill be able to answer: "If the people really desire the passing of a Billrejected by the House of Lords, you can certainly in about two years turn itinto an Act of Parliament without the consent of the Lords."74 TheParliament Act cuts away then the sole ground which in 1832 or in 1911 couldjustify or even suggest the swamping of the House of Lords.
3. Under the Parliament Act it may probably become the custom that eachParliament shall endure for its full legal duration, i.e. for nearly thewhole of five years. For a student of the Act must bear in mind two or threeknown facts. A House of Commons the majority whereof perceive that theirpopularity is on the wane will for that very reason be opposed to adissolution; for until it occurs such majority can carry any legislation itdesires, and a dissolution may destroy this power. The payment to allunofficial M.P.s of a salary of £400 a year may induce many M.P.s whobelong to a Parliamentary minority to acquiesce easily enough in the durationof a Parliament which secures to each of them a comfortable income. Between theRevolution of 1688 and the year 1784 few, if any, dissolutions took place fromany other cause than either the death of a king, which does not now dissolve aParliament, or the lapse of time under the Septennial Act, and during thatperiod the Whigs, and notably Burke, denied the constitutional right of theKing to dissolve Parliament at his pleasure; the dissolution of 1784 wasdenounced as a "penal dissolution." The Parliament of the French Republic sitsfor four years, but it can be dissolved at any time by the President with
74 See the Parliament Act, s. 7, "Five years shall be substituted forseven years as the time fixed for the maximum duration of Parliament under theSeptennial Act, 1715."
the consent of the Senate. This power has been employed but once duringthe last thirty-seven years, and this single use of the presidentialprerogative gives a precedent which no French statesman is tempted to follow.It is highly probable, therefore, that the direct appeal from the House ofCommons to the electorate by a sudden dissolution may henceforward become inEngland almost obsolete. Yet this power of a Premier conscious of his ownpopularity, to destroy the House of Commons which put him in office, and toappeal from the House to the nation, has been treated by Bagehot as one of thefeatures in which the constitution of England excels the constitution of theUnited States.
4. The Parliament Act enables a majority of the House of Commons toresist or overrule the will of the electors or, in other words, of the nation.That this may be the actual effect of the Act does not admit of dispute. Thatthe Home Rule Bill was strenuously opposed by a large number of the electorateis certain. That this Bill was hated by a powerful minority of Irishmen is alsocertain. That the rejection of a Home Rule Bill has twice within thirty yearsmet with the approval of the electors is an admitted historical fact. But thatthe widespread demand for an appeal to the people has received no attentionfrom the majority of the House of Commons is also certain. No impartialobserver can therefore deny the possibility that a fundamental change in ourconstitution may be carried out against the will of the nation.
5. The Act may deeply affect the position and the character of theSpeaker of the House of Commons. It has hitherto been the special glory of theHouse of Commons that the Speaker who presides over the debates of the House,though elected by a party, has for at least a century and more tried, andgenerally tried with success, to be the representative and guide of the wholeHouse and not to be either the leader or the servant of a party. The mosteminent of Speakers have always been men who aimed at maintaining somethinglike a judicial and therefore impartial character. In this effort they haveobtained a success unattained, it is believed, in any other country exceptEngland. The recognition of this moral triumph is seen in the constitutionalpractice, almost, one may now say, the constitutional rule, that
a member once placed in the Speaker's chair shall continue to bere-elected at the commencement of each successive Parliament irrespective ofthe political character of each successive House of Commons. Thus Speakerselected by a Liberal majority have continued to occupy their office though theHouse of Commons be elected in which a Conservative majority predominates,whilst, on the other hand, a Speaker elected by a Conservative House of Commonshas held the Speakership with public approval when the House of Commonsexhibits a Liberal majority and is guided by a Cabinet of Liberals. TheParliament Act greatly increases the authority of the Speaker with respect toBills to be passed under that Act. No Bill can be so passed unless he shallhave time after time certified in writing under his hand, and signed by himthat the provisions of the Parliament Act have been strictly followed. This isa matter referred to his own knowledge and conscience. There may dearly arisecases in which a fair difference of opinion may exist on the question whetherthe 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 tohave a Speaker who may share the opinions of such party? This does not meanthat a body of English gentlemen will wish to be presided over by a rogue; whatit does mean is that they will come to desire a Speaker who is not a judge butis an honest partisan. The Parliament Act is a menace to the judicial characterof the Speaker. In the Congress of the United States the Speaker of the Houseof Representatives is a man of character and of vigour, but he is an avowedpartisan and may almost be called the parliamentary leader of the party whichis supported by a majority in the House of Representatives.
SECOND QUESTION What is the general tendency of these newconventions?
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,
and indeed the whole government of the country, in the hands of theCabinet which is in England at once the only instrument through which adominant party can exercise its power, and the only body in the state which canlead and control the parliamentary majority of which the Cabinet is the organ.That the rigidity and the strength of the party system, or (to use an Americanexpression) of the Machine, has continued with every successive generation toincrease in England, is the conviction of the men who have most thoroughlyanalysed English political institutions as they now exist andwork.75
Almost everything tends in one and the same direction. The leaders inParliament each now control their own party mechanism. At any given moment theactual Cabinet consists of the men who lead the party which holds office. Theleading members of the Opposition lead the party which wishes to obtain office.Party warfare in England is, in short, conducted by leading parliamentarianswho constitute the actual Cabinet or the expected Cabinet. The electors,indeed, are nominally supreme; they can at a general election transfer thegovernment of the country from one party to another. It may be maintained withmuch plausibility that under the quinquennial Parliament created by theParliament Act the British electorate will each five years do little else thanelect the party or the Premier by whom the country shall be governed for fiveyears. In Parliament a Cabinet which can command a steadfast, even though not avery large majority, finds little check upon its powers. A greater number ofM.P.s than fifty years ago deliver speeches in the House of Commons. But inspite of or perhaps because of this facile eloquence, the authority ofindividual M.P.s who neither sit in the Cabinet nor lead the Opposition, hassuffered diminution. During the Palmerstonian era, at any rate, a few of suchmen each possessed an authority inside and outside the House which is hardlyclaimed by any member now-a-days who neither has nor is expected to obtain aseat in any Cabinet.
75 See Lowell, Government of England, partii. chaps,xxiv-xxxvii.; Low, The Governance of England, chaps, i. to vii. RamsayMuir, in his essay on Bureaucracy (see Peers and Bureaucrats, pp. 1-94),would apparently agree with Mr. Lowell and Mr. Low, though he maintains thatpower tends at present under the English constitution to fall from the hands ofthe parliamentary Cabinet into the hands of the permanent civil servants.
Any observer whose political recollections stretch back to the time ofthe Crimean War, that is sixty years ago, will remember occasions on which thewords of Roebuck, of Roundell Palmer, of Cobden, and above all, at certaincrises of Bright, might be, and indeed were, of a weight which no Government,or for that matter no Opposition, could treat as a trifle. Legislation again isnow the business, one might almost say the exclusive business, of the Cabinet.Few if any, as far as an outsider can judge, are the occasions on which aprivate 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 cangreatly curtail the opportunity for discussing legislation when he deemsdiscussion inopportune. The spectacle of the House of Commons which neitherclaims nor practices real freedom of discussion, and has no assured means ofobtaining from a Ministry in power answers to questions which vitally concernthe interest of the nation, is not precisely from a constitutional point ofview, edifying or reassuring. But the plain truth is that the power which hasfallen into the hands of the Cabinet may be all but necessary for the conductof popular government in England under our existing constitution. There existscause for uneasiness. It is at least arguable that important changes in theconventions, if not in the law, of the constitution may be urgently needed; butthe reason for alarm is not that the English executive is too strong, for weakgovernment generally means bad administration, but that our English executiveis, as a general rule, becoming more and more the representative of a partyrather than the guide of the country. No fair-minded man will, especially atthis moment, dispute that the passion for national independence may transform agovernment of partisans into a government bent on securing the honour and thesafety of the nation. But this fact, though it is of immense moment, ought notto conceal from us the inherent tendency of the party system to confer uponpartisanship authority which ought to be the exclusive property of thenation.76
76 Several recent occurrences show the occasional appearance of ideas orpractices which may mitigate rather than increase the rigidity of the partysystem. In re Sir Stuart Samuel [1913], A. C. 514, shows that under theJudicial Committee Act, 1833, s. 4, a question of law on which depends theright of a Member of Parliament to sit in Parliament may be referred
THIRD QUESTION
Does the experience of the last thirty years confirm the doctrine laiddown in this treatise that the sanction which enforces obedience to theconventions of the constitution is to be found in the close connection betweenthese conventions and the rule of law?77
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 whya year never elapses without a Parliament being summoned to Westminster, issimply that any neglect of these conventional rules would entail upon everyperson in office the risk, we might say the necessity, of breaking the law ofthe land. If the law governing the army which is in effect an annual Act, werenot passed annually, the discipline of the army would without constant breachesof law become impossible. If a year were to elapse without a Parliament beingsummoned to Westminster a good number of taxes would cease to be paid, and itwould be impossible legally to deal with such parts of the revenue as were paidinto the Imperial exchequer. Now it so happens that recent experience fullyshows the inconvenience and danger of either violating a constitutionalconvention or of breaking the law because custom had authorised a course ofaction which rested on no legal basis. The House of Lords, in order to
to the Privy Council and be adequately and impartially dealt with by abody of eminent lawyers. The thought suggests itself that other questionsaffecting the conduct and the character of M.P.s which cannot be impartiallyinvestigated by any Committee of the House of Commons might be referred to thesame high tribunal. The public statement, again, of Lord Kitchener that he tookoffice in no way as a partisan, but simply as a general whose duty it was toprovide 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 spheresthan that of military affairs. Is it of itself incredible that a ForeignSecretary of genius might without any loss of character retain office for yearsboth in Liberal and in Conservative Cabinets? Is there any thing absurd insupposing that a Lord Chancellor respected for his legal eminence and for hisjudgment might serve the country as the highest of our judges and give hislegal knowledge to Cabinets constituted of men with whose politics he did notagree? The English people would gain rather than lose by a check being placedon the constantly increasing power of the party system. 77 See pp. 296 302, post.
compel a dissolution of Parliament in 1909, rejected the Budget. TheirLordships acted within what was then their legal right, yet they caused therebygreat inconvenience, which, however, was remedied by the election of a newParliament. For years the income tax had been collected in virtue not of an Actbut of a resolution of the House of Commons passed long before the income taxfor the coming year came into existence. An ingenious person wishing to placedifficulties in the way of the Government's proceedings claimed repayment ofthe sum already deducted by the Bank of England from such part of his income aswas paid to him through the Bank. The bold plaintiff at once recovered theamount of a tax levied without legal authority. No better demonstration of thepower of the rule of law could be found than is given by the triumph of Mr.Gibson Bowles.78
DEVELOPMENT DURING THE LAST THIRTY YEARS OF NEW CONSTITUTIONALIDEAS
These ideas are (i) Woman Suffrage, (2) Proportional Representation, (3)Federalism, (4) The Referendum.
TWO GENERAL OBSERVATIONS
The brief criticism of each of these new ideas which alone in thisIntroduction it is possible to give, will be facilitated by attending to twogeneral observations which apply more or less to each of the four proposedreforms or innovations.
First Observation
Political inventiveness has in general fallen far short of theoriginality displayed in other fields than politics by the citizens ofprogressive or civilised States. The immense importance attached by modernthinkers to representative government is partly accounted for by its beingalmost the sole constitutional discovery or invention unknown to the citizensof Athens or of Rome.79 It is well also to note that
78 Bowles v. Bank of England [1913], I Ch. 57.
79 It is hardly an exaggeration to say that there exist very few othermodern political conceptions (except the idea of representative government)which were not criticised by
neither representative government nor Roman Imperialism, nor indeed mostof the important constitutional changes which the world has witnessed, can bestrictly described as an invention or a discovery. When they did not resultfrom imitation they have generally grown rather than been made; each was theproduction of men who were not aiming at giving effect to any novel politicalideal, but were trying to meet in practice the difficulties and wants of theirtime. In no part of English history is the tardy development of newconstitutional ideas more noteworthy or more paradoxical than during the wholeVictorian era (1837 to 1902). It was an age full of intellectual activity andachievement; it was an age rich in works of imagination and of science; it wasan age which extended in every direction the field of historical knowledge; butit was an age which added little to the world's scanty store of political orconstitutional ideas. The same remark in one sense applies to the years whichhave passed since the opening of the twentieth century. What I have ventured toterm new constitutional ideas are for the most part not original; their noveltyconsists in the new interest which during the last fourteen years they havecome to command.
Second Observation
These new ideas take very little, one might almost say no account, ofone of the ends which good legislation ought, if possible, to attain. But thisobservation requires explanatory comment.
Under every form of popular government, and certainly under the more orless democratic constitution now existing in England, legislation must alwaysaim at the attainment of at least two different ends, which, though both ofimportance, are entirely distinct from one another. One of these ends is thepassing or the maintaining of good or wise laws, that is laws which, if carriedout, would really promote the happiness or welfare of a given country, andtherefore which are desirable in themselves and are in conformity with thenature of
the genius of Aristotle. Note however that the immense administrativesystem known as the Roman Empire lay beyond, or at any rate outside, theconceptions of any Greek philosopher.
things. That such legislation is a thing to be desired, no sane man candispute. If, for example, the freedom of trade facilitates the acquisition ofgood and cheap food by the people of England, and does not produce any gravecounterbalancing evil, no man of ordinary sense would deny that the repeal ofthe corn laws was an act of wise legislation. If vaccination banishes small-poxfrom the country and does not produce any tremendous counterbalancing evil, thepublic opinion even of Leicester would hold that a law enforcing vaccination isa wise law. The second of these two different ends is to ensure that no lawshould 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 wherepossible is desirable will be admitted by every thoughtful man. A law utterlyopposed to the wishes and feelings entertained by the inhabitants of a country,a rule which every one dislikes and no one will obey, is a nullity, or in truthno law at all; and, even in cases where, owing to the power of the monarch whoenacts a law opposed to the wishes of his subjects, such a law can to a certainextent be enforced, the evils of the enforcement may far overbalance the goodeffects of legislation in itself wise. This thought fully justifies an EnglishGovernment in tolerating throughout India institutions, such as caste,supported by Indian opinion though condemned by the public opinion and probablyby the wise opinion of England. The same line of thought explained, palliated,and may even have justified the hesitation of English statesmen to prohibitsuttee. Most persons, then, will acknowledge that sound legislation should bein conformity with the nature of things, or, to express the matter shortly, be"wise," and also be in conformity with the demands of public opinion, or, inother words, be "popular," or at any rate not unpopular. But there are fewEnglishmen who sufficiently realise that both of these two ends cannot alwaysbe attained, and that it very rarely happens that they are each equallyattainable. Yet the history of English legislation abounds with illustrationsof the difficulty on which it is necessary here to insist. Thus the Reform Act,1832,80 is in the judgment of most English historians and thinkers a
80 SeeJ. R. M. Butler, The Passing of the Great Reform Bill(Longmans, Green & Co., 1914). This is an excellent piece of historicalnarrative and inquiry.
wise law; it also was at the time of its enactment a popular law. TheWhigs probably underrated the amount and the strength of the opposition to theAct raised by Tories, but that the passing of the Reform Act was hailed withgeneral favour is one of the best attested facts of modern history. The Act ofUnion passed in 1707 was proved by its results to be one of the wisest Actsever placed on the statute-book. It conferred great benefits upon theinhabitants both of England and of Scotland. It created Great Britain and gaveto the united country the power to resist in one age the threatenedpredominance of Louis XTV., and in another age to withstand and overthrow thetremendous power of Napoleon. The complete success of the Act is sufficientlyproved by the absence in 1832 of any demand by either Whigs, Tories, orRadicals for its repeal. But the Act of Union, when passed, was unpopular inScotland, and did not command any decided popularity among the electors ofEngland. The New Poor Law of 1834 saved the country districts from ruin; itspassing was the wisest and the most patriotic achievement of the Whigs, but theAct itself was unpopular and hated by the country labourers on whom itconferred the most real benefit. Within two years from the passing of theReform Act it robbed reformers of a popularity which they had hoped might belasting. Indeed the wisdom of legislation has little to do with its popularity.Now all the ideas which are most dear to constitutional reformers or innovatorsin 1914 lead to schemes of more or less merit for giving full expression in thematter of legislation to public opinion, i.e. for ensuring that any lawpassed by Parliament shall be popular, or at lowest not unpopular. But theseschemes make in general little provision for increasing the chance thatlegislation shall also be wise, or in other words that it shall increase thereal welfare of the country. The singular superstition embodied in the maximvox populi vox Dei has experienced in this miscalled scientific age anunexpected revival. This renewed faith in the pre-eminent wisdom of the peoplehas probably acquired new force from its congeniality with democraticsentiment. May we not conjecture that the new life given to a popular error isin part and indirectly due to the decline in the influence of utilitarianism?Faith in the voice of the people is closely connected with the doctrine of"natural rights." This dogma of natural rights was in England contemned andconfuted by
Bentham and his disciples.81 The declining influence of theutilitarian school appears therefore to give new strength to this doctrine.People forget that the dogma of natural rights was confuted not only byBenthamites but by powerful thinkers of the eighteenth and of the nineteenthcentury who had no sympathy with utilitarianism.
CRITICISM OF EACH OF THE FOUR NEW CONSTITUTIONALIDEAS82
Woman Suffrage
The claim for women of the right to vote for members of Parliament, or,as now urged, to be placed in a position of absolute political equality withmen, is no new demand. It was made in England before the end of the eighteenthcentury,83 but no systematic, or at any rate noticeable, movement toobtain for Englishwomen the right to vote for members of Parliament can becarried back much earlier than 1866-67, when it was supported in the House ofCommons by J. S. Mill.
Let my readers consider for a moment first the causes which haveadded strength to a movement which is 1866 attracted comparatively littlepublic attention, and next the main lines of argument or of feelingwhich really tell on the one hand with the advocates and on the other with theopponents of the claim to votes for women.84
The Causes
These may be thus summarised. Since the beginning of the nineteenthcentury the number in the United Kingdom of self-supporting
81 See Law and Opinion, pp. 309, 171, 172.
82 It would be impossible, and it is not my aim in this Introduction, tostate or even summarise all the arguments for or against each of these ideas;my sole object is to bring into light the leading thoughts or feelings whichunderlie 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 MaryWollstonecraft, published 1792. Little was heard about such rights during thegreat French Revolution. There is no reason to suppose that Madame Roland everclaimed parliamentary votes for herself or for her sex.
84 For an examination of all the main arguments alleged on either sidesee Dicey, Letters to a Friend on Votes for Women.
and also of unmarried women has greatly increased; and this class has bysuccess in literature, as well as in other fields, acquired year by yeargreater influence. In the United Kingdom there exists among the actualpopulation an excess of women over men, and this excess is increased by theemigration of Englishmen to our colonies and elsewhere. The low rate of paymentreceived by women as compared with men, for services of any kind in which menand women enter into competition, has excited much notice. The spreadingbelief, or, as it used to be considered, the delusion, that wages can be raisedby legislation, has naturally suggested the inference that want of aparliamentary vote inflicts severe pecuniary loss upon women. The extension ofthe power of the state and the enormous outgrowth of social legislation resultsin the daily enactment of laws which affect the very matters in which everywoman has a personal interest. In an era of peace and of social reform theelectors themselves constantly claim the sympathy and the active co-operationof women on behalf of causes which are treated, at any rate by partisans, asraising grave moral or religious controversy. Hence the agitation in favour ofWoman Suffrage often commends itself to ministers of religion and notably tothe English clergy, who believe, whether rightly or not, that the politicalpower of women would practically add to the authority in the political world ofthe Church of England. These circ*mstances, and others which may be suggestedby the memory or the ingenuity of my readers, are enough to explain theprominence and weight acquired for the movement in favour of giving theparliamentary franchise to women.
The Main Lines of Argument
These may be brought under two heads; they are most dearly and brieflyexhibited if under each head is stated the argument of the Suffragist and theanswer or reasoning in reply of the Anti-Suffragist. First Argument
Every citizen, or, as the point is generally put, every person who paystaxes under the law of the United Kingdom, is entitled as a matter of right toa vote for a member of Parliament. Hence the obvious conclusion that as everyEnglishwoman pays taxes under the
law of the United Kingdom, every Englishwoman is at any rateprima
facie entitled to a vote.
Answer
This line of reasoning proves too much. It inevitably leads to theconclusion that any form of popular government ought to be based on theexistence of strictly universal suffrage. An extreme suffragette will say thatthis result is not a reductio ad absurdum. But there are thousands ofsensible Englishmen and Englishwomen who, while they doubt the advisability ofintroducing into England even manhood suffrage, refuse to admit the cogency ofreasoning which leads to the result that every Englishman and Englishwoman offull 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 notgo a little further into the nature of things. A fair-minded man prepared to dothis will, in the first place, admit that many democratic formulas, e.g.the dictum that "liability to taxation involves the right torepresentation," do verbally cover a woman's claim to a parliamentary vote. Histrue answer is that many so-called democratic principles, as also manyso-called conservative principles, are in reality not principles at all butwar-cries, or shibboleths which may contain a good deal of temporary orrelative truth but are mixed up with a vast amount of error. The idea, he willultimately say, that the possession of a vote is a personal right is adelusion. It is in truth the obligation to discharge a public duty, and whetherthis miscalled right should be conferred upon or withheld from Englishwomen canbe decided only by determining whether their possession of the parliamentaryvote will conduce to the welfare of England. Second Argument
The difference of sex presents no apparent or necessary reason fordenying to Englishwomen the same political rights as are conferred uponEnglishmen. It is found by experience, as suffragists will add, that some womenhave in many ways even greater capacity for the exercise of government thanhave some men. This argument may best be put in its full strength if it beplaced, as it often is, in the form of a question: Was it reasonable thatFlorence Nightingale should not
have possessed the right to vote for a member of Parliament when even inher day her footman or her coachman, if he had happened to be a ten-poundhouseholder, or a forty-shilling freeholder, might have exercised a rightdenied to a lady who, as appears from her biography, possessed manystatesmanlike qualities, who did in fact in some lines of action exert morepolitical power than most M.P.s, and who always exercised powerdisinterestedly, and generally exercised it with admitted benefit to thecountry? There is not the remotest doubt that the argument involved in thisinquiry (in whatever form it is stated) seems to many women, to a great numberof parliamentary electors, and also to a considerable number of M.P.s, toafford an unanswerable and conclusive reason in favour of giving parliamentaryvotes to women. Answer
The claim of parliamentary votes for women as now put forward in Englandis in reality a claim for the absolute political equality of the two sexes.Whether its advocates are conscious of the fact or not, it is a demand onbehalf of women for seats in Parliament and in the Cabinet. It means thatEnglishwomen should share the jury box and should sit on the judicial bench. Ittreats as insignificant for most purposes that difference of sex which, afterall, disguise the matter as you will, is one of the most fundamental andfar-reaching differences which can distinguish one body of human beings fromanother. It is idle to repeat again and again reasoning which, for the lastthirty years and more, has been pressed upon the attention of every Englishreader and elector. One thing is certain: the real strength (and it is great)of the whole conservative argument against the demand of votes for women liesin the fact that this line of reasoning, on the face thereof, conforms to thenature of things. The anti-suffragists can re-echo the words of Burke whilstadapting them to a controversy unknown to him and practically unknown to hisage:
The principles that guide us, in public and in private, as they are notof our devising, but moulded into the nature and the essence of things, willendure with the sun and moon long, very long after whig and tory, Stuartand Brunswick [suffragist, suffragette, and anti-suffragist], and all suchmisera-
ble bubbles and playthings of the hour, are vanished from existence andfrom memory.85
Proportional Representation86
The case in favour of the introduction of proportional representationinto England rests on the truth of three propositions.
First Proposition
The House of Commons often fails to represent with precision or accuracythe state of opinion e.g. as to woman suffrage, existing among theelectorate of England. In other words, the House of Commons often fails to be,as it is sometimes expressed, "the mirror of the national mind," or to exactlyreflect the will of the electors.
Second Proposition
It is quite possible by some system of proportional representation toframe a House of Commons which would reflect much more than at present theopinion of the nation, or, in other words, of the electorate.
Third Proposition
It is pre-eminently desirable that every opinion bona fideexisting among the electors should be represented in the House of Commonsin as nearly as possible the same proportion in which it exists among theelectors, or, to use popular language, among the nation.
Now of these three propositions the substantial truth of the first andsecond must, in my judgment, be admitted. No one can doubt the possibility, andeven the high probability, that, for example, the cause of woman suffrage may,at the present moment, obtain more than half the votes of the House of Commonswhile it would not obtain as many as half the votes of the electorate. Noragain is it at all inconceivable that at some other period the cause of womansuffrage
85 Burke, Correspondence, i. pp. 332, 333.
86 See Humphreys, Proportional Representation; J. FischerWilliams, Proportional Representation and Bntish Politics; Lowell,Public Opinion and Popular Government, pp. 122-124.
should, while receiving the support of half the electorate, fail toobtain 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 forproportional representation thrust upon the attention of the public, some one,and probably several, would tend to make the House of Commons a more completemirror of what is called the mind of the nation than the House is at present;and this concession, it may with advantage be noted, does not involve thebelief that under any system of popular government whatever, a representativebody can be created which at every moment will absolutely and with completeaccuracy reflect the opinions held by various classes of the people of England.Now my belief in the substantial truth of the first and the second of our threepropositions makes it needless for me, at any rate for the purpose of thisIntroduction, to consider the reservations with which their absolute accuracyought to be assumed. For the sake of argument, at any rate, I treat them astrue. My essential objection to the system of proportional representationconsists in my grave doubt as to the truth of the third of the above threepropositions, namely, that it is desirable that any opinion existing among anylarge body of electors should be represented in the House of Commons as nearlyas possible in the same proportion in which it exists among such electors.
Before, however, any attempt is made to state the specific objectionswhich in my judgment lie against the introduction of proportionalrepresentation into the parliamentary constitution of England, it is essentialto discriminate between two different ideas which are confused together underthe one demand for proportional representation. The one of these ideas is thedesirability that every opinion entertained by a substantial body of Englishmenshould obtain utterance in the House of Commons, or, to use a vulgar buteffective piece of political slang, "be voiced by" some member or members ofthat House. Thus it has been laid down by the leader of the Liberal party that
it was infinitely to the advantage of the House of Commons, if it was tobe a real reflection and mirror of the national mind, that there should be nostrain
of opinion honestly entertained by any substantial body of the King'ssubjects which should not find there representation and speech.87
To this doctrine any person who has been influenced by the teaching ofLocke, Bentham, and Mil will find it easy to assent, for it is well known thatin any country, and especially in any country where popular government exists,the thoughts, even the bad or the foolish thoughts, of the people should beknown to the national legislature. An extreme example will best show mymeaning. If among the people of any land the hatred of the Jews or of Judaismshould exist, it would certainly be desirable that this odious prejudice shouldfind some exponent or advocate in the Parliament of such country, for theknowledge of popular errors or delusions may well be essential to the carryingout of just government or wise administration. Ignorance is never in truth thesource of wisdom or of justice. The other idea or meaning attached byProportionalists to proportional representation is that every influentialopinion should not only find utterance in the House of Commons, but, further,and above all, be represented in the House of Commons by the same proportionatenumber of votes which it obtains from the voters at an election. Thus theeminent man who advocated the desirability of every opinion obtaining a hearingin the House of Commons, used on another occasion the following words: "It isan essential and integral feature of our policy that we shall go forward withthe task of making the House of Commons not only the mouthpiece but the mirrorof the national mind."88 Now the doctrine of proportionalrepresentation thus interpreted is a dogma to which a fair-minded man may wellrefuse his assent. It is by no means obviously true; it is open to thefollowing (among other) objections that admit of dear statement. Objectionsto the Third Proposition
First Objection The more complicated any system of popularelection is made, the more power is thrown into the hands of election
87 See Mr. Asquith's speech at St. Andrews, Feb. 19, 1906, cited by J.Fischer Williams, Proportional Representation, p. 17.
88 Mr. Asquith at Burnley, Dec. 5, 1910, cited by J. Fischer Williams,Proportional Representation, p. 17.
agents or wire-pullers. This of itself increases the power and lowersthe character of the party machine; but the greatest political danger withwhich England is now threatened is the inordinate influence of party mechanism.This objection was long ago insisted upon by Bagehot.89 It explains,if it does not wholly justify, John Bright's denunciation of fancy franchises.
Second Objection The House of Commons is no mere debatingsociety. It is an assembly entrusted with great though indirect executiveauthority; it is, or ought to be, concerned with the appointment and thecriticism of the Cabinet. Grant, for the sake of argument, that everyinfluential opinion should in the House of Commons gain a hearing. This resultwould be obtained if two men, or only one man, were to be found in the Housewho could ensure a hearing whenever he spoke in favour of some peculiaropinion. The argument for woman suffrage was never stated with more force inParliament than when John Mill represented Westminster. The reasons in itsfavour would not, as far as argument went, have commanded more attention if ahundred members had been present who shared Mill's opinions but were notendowed with his logical power and his lucidity of expression. But where a bodyof men such as constitute the House of Commons are at all concerned withgovernment, unity of action is of more consequence than variety of opinion. Theidea, indeed, of representation may be, and often is, carried much too far. ACabinet which represented all shades of opinion would be a Ministry which couldnot act at all. No one really supposes that a Government could in ordinarycirc*mstances be formed in which two opposite parties balanced one another. Norcan it often be desirable that an opinion held by, say, a third of aministerial party should necessarily be represented by a third of the Cabinet.It may well be doubted whether even on commissions appointed partly, at anyrate, for the purpose of inquiry, it is at all desirable that distinctlyopposite views should obtain recognition. The Commission which laid down theleading lines of Poor Law Reform in 1834 rendered an immense service toEngland. Would there have been any real advantage in plac-
89 Bagehot, English Constitution, pp. 148-159.
ing on that Commission men who condemned any change in the existing poorlaw?
Third Objection Proportional representation, just because it aimsat the representation of opinions rather than of persons, tends to promote theexistence in the House of Commons of numerous party groups and also fosters theadmitted evil of log-rolling. The working of English parliamentary governmenthas owed half of its success to the existence of two leading and opposedparties, and of two such parties only. Using somewhat antiquated but stillintelligible terms, let me call them by the name of Tories andWhigs.90 These two parties have, if one may speak in very broadterms, tended, the one to uphold the rule of the well-born, the well-to-do, andtherefore, on the whole, of the more educated members of the community; theother has promoted the power of numbers, and has therefore aimed at increasingthe political authority of the comparatively poor, that is, of thecomparatively ignorant. Each tendency has obviously some good and some badeffects. If, for a moment, one may adopt modern expressions while divestingthem of any implied blame or praise, one may say that Conservatism andLiberalism each play their part in promoting the welfare of any country wherepopular government exists. Now, that the existence of two leading parties, andof two such parties only, in England has favoured the development of Englishconstitutionalism is past denial. It is also certain that during the nineteenthcentury there has been a notable tendency in English public life to produce inthe House of Commons separate groups or parties which stood more or less apartfrom Tories and Whigs, and were all but wholly devoted to the attainment ofsome one definite change or reform. The Repealers, as led by O'Connell, andstill more the Free Traders, as led by Cobden91 are early examplesof such
90 I choose these old expressions which have been in use, at any ratefrom 1689 till the present day, because they make it easier to keep somewhatapart from the burning controversies of 1914.
91 Cobden would have supported any Premier, whether a Tory or a Whig,who undertook to repeal the Corn Laws. O'Connell would have supported anyPremier who had pledged himself to repeal the Act of Union with Ireland; butO'Connell's position was peculiar. He took an active interest in Englishpolitics, he was a Benthamite Liberal; and during a part of his career acted inalliance with the Whigs.
groups. These groups avowedly held the success of the cause for whichthey fought of greater consequence than the maintenance in office either ofTories or of Whigs. Even in 1845 they had perplexed the working of ourconstitution; they had gone far to limit the operation of the very valuablerule that a party, which persuades Parliament to adopt the party's policy,should be prepared to take office and carry that policy into effect. The FreeTraders, in fact, give the best, if not the earliest, example of an Englishgroup organised to enforce the adoption by the English parliament of anopinion, doctrine, or theory to which that group was devoted. Now an observerof the 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 haveMinisterialists and Unionists (corresponding roughly with the old Whigs andTories), we have also Irish Nationalists and the Labour Party. These partieshave each separate organisations. But one can easily observe the existence ofsmaller bodies each devoted to its own movement or cause, such, for example, asthe temperance reformers, as the advocates of woman suffrage, or as the memberswho hold that the question of the day is the disestablishment of the Church.This state of things already invalidates our constitutional customs. Nor is iteasy to doubt that any fair system of proportional representation must increasethe number of groups existing in Parliament, for the very object ofProportionalists is to ensure that every opinion which exists among anappreciable number of British electors shall have an amount of votes inParliament proportionate to the number of votes it obtains among the electors.If, for example, a tenth of the electors should be anti-vaccinators, theanti-vaccinators ought, under a perfect scheme of representation, to commandsixty-seven votes in the House of Commons. Sixty-seven anti-vaccinators whomight accidentally obtain seats in the House of Commons, e.g. asConservatives or Liberals, would, be it noted, constitute a very different bodyfrom sixty-seven members sent to the House of Commons to represent the cause ofanti-vaccination. The difference is this: In the first case eachanti-vaccinator would often perceive that there were matters of more pressingimportance than anti-vaccination; but the sixty-seven men elected under asystem of proportional represen-
tation to obtain the total repeal of the vaccination laws would, one mayalmost say must, make that repeal the one dominant object of theirparliamentary action. That the multiplication of groups might weaken the wholesystem of our parliamentary government is a probable conjecture. Thatproportional representation might tend to extend the vicious system oflog-rolling is all but demonstrable. Let me suppose the sixty-sevenanti-vaccinators to be already in existence; let me suppose, as would probablybe the case, that they are elected because of their firm faith inanti-vaccination, and that, both from their position and from their creed, theyfeel that to destroy the vaccination laws is the supreme object at which everygood 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 thesepatriots must follow is obvious. They are comparatively indifferent about HomeRule, about Disestablishment, about the objects of the Labour Party. Let thempromise their support to each of the groups advocating each of these objects inreturn for the help in repealing legislation which originates, say ouranti-vaccinators, in the delusions of Jenner. A political miracle will havebeen performed. A majority in favour of anti-vaccination will have beenobtained; the voice of fanatics will have defeated the common sense of thenation. Let me, as an illustration of my contention, recall to public attentiona forgotten fact. Some forty years ago the Claimant, now barely remembered asArthur Orton, was a popular hero. His condemnation to imprisonment for fourteenor fifteen years excited much indignation. He obtained one representative, andone representative only, of his grievances in the House of Commons. Under aproperly organised system of proportional representation, combined with ourpresent household suffrage, he might well have obtained twenty. Does any onedoubt that these twenty votes would have weighed with the Whips of any party inpower? Is it at all certain that the Claimant might not, thus supported, haveobtained a mitigation of his punishment, if not a re-trial of his case? This isan extreme illustration of popular folly. For this very reason it is a goodtest of a logical theory. I do not contend that proportional representationcannot
be defended by weighty considerations; my contention is that it is opento some grave objections which have not received an adequate
answer.92
Federalism93
In 1884 the peculiarities and the merits of federal government had notattracted the attention of the English public. Here and there a statesman whosemind was turned towards the relation of England and her colonies had perceivedthat some of the self-governing colonies might with advantage adopt federalconstitutions. In 1867 Parliament had readily assented to the creation of theCanadian Dominion and thereby transformed the colonies possessed by England onthe continent of America into a federal state. In truth it may be said that thesuccess of the Northern States of the American Commonwealth in the War ofSecession had, for the first time, impressed upon Englishmen the belief that ademocratic and a federal state might come with success through a civil war,carried on against states which asserted their right to secede from theRepublic of which they were a part. Still in 1884 hardly a statesman whose namecarried weight with Englishmen advocated the formation of a federal system as aremedy for the defects, whatever they were, of the English constitution, or asthe means for uniting the widely scattered countries which make up the BritishEmpire. Walter Bagehot was in his day, as he still is, the most eminent ofmodern English constitutionalists. He compared the constitution of England withthe constitution of the United States. But the result of such comparison was,in almost every case, to illustrate some hitherto unnoted merit of the Englishconstitution which was not to be found in the constitution of the greatAmerican Repub-
92 Proportional representation was in Mill's day known as minorityrepresentation. The change of name is not without significance. In 1870 thedemand for minority representation was put forward mainly as the means forobtaining a hearing for intelligent minorities whose whisper might easily bedrowned by the shouts of an unintelligent majority. In 1914 minorityrepresentation is recommended mainly as the means of ensuring that the truevoice of the nation shall be heard. It was once considered a check upondemocracy; it is now supported as the best method for giving effect to the truewill of the democracy.
93 Compare especially as to federal government, Chap. III. p. 73,post.
lie. Sir Henry Maine was in his time the most brilliant of the writerswho had incidentally turned their thoughts towards constitutional problems.Maine's Popular Government, published in 1885, expressed his admirationfor the rigidity or the conservatism of American federalism. But he neverhinted at the conviction, which he probably never entertained, that either theUnited Kingdom or the British Empire would gain by transformation into afederal state. Thirty years ago the nature of federalism had received inEngland very inadequate investigation.94 In this, as in othermatters, 1914 strangely contrasts with 1884. The notion is now current thatfederalism contains the solution of every constitutional problem whichperplexes British statesmanship. Why not, we are told, draw closer the bondswhich maintain peace and goodwill between the United Kingdom and all hercolonies, by constructing a new and grand Imperial federation governed by atruly Imperial Parliament, which shall represent every state, includingEngland, which is subject to the government of the King? Why not, we are asked,establish a permanent reconciliation between England and Ireland by theconversion of the United Kingdom into a federalised kingdom whereof England,Scotland, Ireland, and Wales, and, for aught I know, the Channel Islands andthe Isle of Man, shall form separate states? This new constitutional idea ofthe inherent excellence of federalism is a new faith or delusion which deservesexamination. My purpose, therefore, is to consider two different matters namely, first, the general characteristics of federalism; secondly, the bearingof these characteristics on the proposal popularly known as Imperialfederalism, for including England95 and the five self-governingcolonies in a federal constitution, and also the proposal (popularly known asHome Rule all round) for federalising the United Kingdom.
94 In Chap. III., post, federalism was analysed (1885) asillustrating, by way of contrast, that sovereignty of the English Parliamentwhich makes England one of the best examples of a unitary state.
95 In treating of Imperial federalism, as often in other parts of thisbook, I purposely and frequently, in accordance with popular language, use"England" as equivalent to the United Kingdom.
Leading Characteristics of Federal Government911
Federalism is a natural constitution for a body of states which desireunion and do not desire unity. Take as countries which exhibit this state offeeling the United States, the English federated colonies, the SwissConfederation, and the German Empire, and contrast with this special conditionof opinion the deliberate rejection by all Italian patriots of federalism,which in the case of Italy presented many apparent advantages, and the failureof union between Sweden and Norway to produce any desire for unity or even fora continued political connection, though these Scandinavian lands differ littlefrom each other in race, in religion, in language, or in their common interestto maintain their independence against neighbouring and powerful countries.
The physical contiguity, further, of countries which are to form aconfederated 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 notabsolutely require, approximate equality in the wealth, in the population, andin the historical position of the different countries which make up aconfederation. The reason for this is pretty obvious. The idea which lies atthe bottom of federalism is that each of the separate states should haveapproximately equal political rights and should thereby be able to maintain the"limited independence" (if the term may be used) meant to be secured by theterms of federal union. Hence the provision contained in the constitution ofthe United States 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, andanother 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 stateand of a large state is from some points of view an evil. It is, however, anarrangement obviously congenial to
96 See especially Chap. III. p. 73, post. It is worth observingthat the substance of this chapter was published before the production byGladstone of his first Home Rule Bill for Ireland.
federal sentiment. If one state of a federation greatly exceed in itsnumbers and in its resources the power of each of the other states, and stillmore if such "dominant partner," to use a current expression, greatly exceedthe whole of the other Confederated States in population and in wealth, theconfederacy will be threatened with two dangers. The dominant partner mayexercise an authority almost inconsistent with federal equality. But, on theother hand, the other states, if they should possess under the constitutionrights equal to the rights or the political power left to the dominant partner,may easily combine to increase unduly the burdens, in the way of taxation orotherwise, imposed upon the one most powerful state.
Federalism, when successful, has generally been a stage towards unitarygovernment. In other words, federalism tends to pass into nationalism. This hascertainly 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 anation concealed under the form of a federation. The same expression might withconsiderable truth be applied to Switzerland. Never was there a country inwhich it seemed more difficult to produce national unity. The Swiss cantons aredivided by difference of race, by difference of language, by difference ofreligion. These distinctions till nearly the middle of the nineteenth centuryproduced a kind of disunion among the Swiss people which in 1914 seems almostincredible. They forbade the existence of a common coinage; they allowed anyone canton to protect the financial interest of its citizens againstcompetition by the inhabitants of every other canton. In 1847 meSonderbund threatened to destroy the very idea of Swiss unity, Swissnationality, and Swiss independence. Patriots had indeed for generationsperceived that the federal union of Switzerland afforded the one possibleguarantee for the continued existence of their country. But attempt afterattempt to secure the unity of Switzerland had ended in failure. The victory ofthe Swiss federalists in the Sonderbund war gave new life to Switzerland: thiswas the one indubitable success directly due to the movements of 1847-48. It isindeed happy that the victory of the federal armies took place before the fallof the French Monarchy, and that the Revolution of February, combined withother movements
which distracted Europe, left the Swiss free to manage their own affairsin their own way. Swiss patriotism and moderation met with their reward.Switzerland became master of her own fate. Each step in the subsequent progressof the new federal state has been a step along the path leading fromconfederate union to national unity.
A federal constitution is, as compared with a unitary constitution, aweak form of government. Few were the thinkers who in 1884 would have deniedthe truth of this proposition. In 1914 language is constantly used whichimplies that a federal government is in itself superior to a unitaryconstitution such as that of France or of England. Yet the comparative weaknessof federalism is no accident. A true federal government is based on thedivision of powers. It means the constant effort of statesmanship to balanceone state of the confederacy against another. No one can rate more highly thanmyself the success with which a complicated system is worked by the members ofthe Swiss Council or, to use expressions familiar to Englishmen, by the SwissCabinet. Yet everywhere throughout Swiss arrangements you may observe thedesire to keep up a sort of balance of advantages between different states. Themembers of the Council are seven in number; each member must, of necessity,belong to a different canton. The federal Parliament meets at Bern; the federalCourt sits at Lausanne in the canton of Vaud; the federal university isallotted to a third canton, namely Zurich. Now rules or practices of this kindmust inevitably restrict the power of bringing into a Swiss Cabinet all thebest political talent to be found in Switzerland. Such a system applied to anEnglish or to a French Cabinet would be found almost unworkable. Federalismagain would mean, in any country where English ideas prevail, the predominanceof legalism or, in other words, a general willingness to yield to the authorityof the law courts. Nothing is more remarkable, and in the eyes of any impartialcritic more praiseworthy, than the reverence paid on the whole by Americanopinion to the Supreme Court of the United States. Nor must one forget that therespect paid to the opinion of their own judges, even when deciding questionson which political feeling runs high, is, on the whole, characteristic of thecitizens of each particular state. The Supreme Court, e.g., ofMassachusetts may be called upon
to determine in effect whether a law passed by the legislature ofMassachusetts is, or is not, constitutional; and the decision of the Court willcertainly meet with obedience. Now, what it is necessary to insist upon is thatthis legalism which fosters and supports the rule of law is not equallydisplayed in every country. No French court has ever definitely pronounced alaw passed by the French legislature invalid, nor, it is said, has any Belgiancourt ever pronounced invalid a law passed by the Belgian Parliament. WhetherEnglish electors are now strongly disposed to confide to the decision of judgesquestions which excite strong political feeling is doubtful. Yet andthis is no insignificant matter under every federal system there mustalmost of necessity exist some body of persons who can decide whether the termsof the federal compact have been observed. But if this power be placed in thehands of the Executive, the law will, it may be feared, be made subservient tothe will of any political party which is for the moment supreme. If it beplaced in the hands of judges, who profess and probably desire to practisejudicial impartiality, it may be very difficult to ensure general respect forany decision which contradicts the interests and the principles of a dominantparty. Federalism, lastly, creates divided allegiance. This is the most seriousand the most inevitable of the weaknesses attaching to a form of governmentunder which loyalty to a citizen's native state may conflict with his loyaltyto the whole federated nation. Englishmen, Scotsmen, and Irishmen have always,as soldiers, been true to the common flag. The whole history of the Sonderbundin Switzerland and of Secession in the United States bears witness to theagonised perplexity of the noblest among soldiers when called upon to choosebetween loyalty to their country and loyalty to their canton or state. Oneexample of this difficulty is amply sufficient for my purpose. General Scottand General Lee alike had been trained as officers of the American Army; eachwas a Virginian; each of them was determined from the outbreak of the Civil Warto follow the dictates of his own conscience; each was placed in a position aspainful as could be occupied by a soldier of bravery and honour; each was avictim of that double allegiance which is all but inherent in federalism.General Scott fol-
lowed the impulse of loyalty to the Union. General Lee felt that as amatter of duty he must obey the sentiment of loyalty to Virginia.
In any estimate of the strength or the weakness of federal government itis absolutely necessary not to confound, though the confusion is a very commonone, federalism with nationalism. A truly federal government is the denial ofnational independence to every state of the federation. No single state of theAmerican Commonwealth is a separate nation; no state, it may be added,e.g. the State of New York, has anything like as much of localindependence as is possessed by New Zealand or by any other of the fiveDominions.97 There is of course a sense, and a very real sense, inwhich national tradition and national feeling may be cultivated in a statewhich forms part of a confederacy. The French inhabitants of Quebec areFrenchmen to the core. But their loyalty to the British Empire is certain. Oneindisputable source of their Imperial loyalty is that the break-up of theEmpire might, as things now stand, result to Canada in union with the UnitedStates. But Frenchmen would with more difficulty maintain their Frenchcharacter if Quebec became a state of the Union and ceased to be a province ofthe Dominion. In truth national character in one sense of that term has lessnecessary connection than Englishmen generally suppose with politicalarrangements. It would be simple folly to assert that Sir Walter Scott did notshare the sentiment of Scottish nationalism; yet the influence of Scott'sgenius throughout Europe was favoured by, and in a sense was the fruit of, theunion with England. But the aspiration and the effort towards actual nationalindependence is at least as inconsistent with the conditions of a federal aswith the conditions of a unitary government. Any one will see that this is sowho considers how patent would have been the folly of the attempt to establisha confederacy which should have left Italy a state of the Austrian Empire. Nordoes historical experience countenance the idea that federalism, which maycertainly be a step towards closer national unity, can be used as a method forgradually bringing political unity to an end.
97 As to meaning of "Dominions" see p. xlii, note 21, ante.
The Characteristics of Federal Government in Relation to ImperialFederalism
Many Englishmen of to-day advocate the building up of some grand federalconstitution which would include the United Kingdom (or, to use popularlanguage, England) and at any rate the five Dominions. This splendid vision ofthe advantages to be obtained by increased unity of action between England andher self-governing colonies is suggested by obvious and important facts. Thewisdom of every step which may increase the reciprocal goodwill, strong as itnow is, of England and her Dominions is proved by the success of each ImperialConference. It is perfectly plain already, and will become every day plainerboth to Englishmen and to the inhabitants of the British Empire outsideEngland, that the existence of the Empire ought to secure both England and hercolonies against even the possibility of attack by any foreign power. It to-dayin reality secures the maintenance of internal peace and order in every countryinhabited by British subjects. It is further most desirable, it may probablybecome in no long time an absolute necessity, that every country throughout theEmpire should contribute in due measure to the cost of Imperial defence. Tothis it should be added that the material advantages accruing to millions ofBritish subjects from the Imperial power of England may more and more tend toproduce that growth of loyalty and goodwill towards the Empire which in 1914 isa characteristic and splendid feature both of England and of her colonies. Anyman may feel pride in an Imperial patriotism grounded on the legitimate beliefthat the Empire built up by England furthers the prosperity and the happinessof the whole body of British subjects.98
98 "But this Empire of ours is distinguished from [other Empires] byspecial and dominating characteristics. From the external point of view it ismade up of countries which are not geographically conterminous or evencontiguous, 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 andcohesive force solely from identity of race or of language. Yet you have here apolitical organisation which, by its mere existence, rules out the possibilityof war between populations numbering something like a third of the human race.There is, as there must be among communities so differently situated andcirc*mstanced, a vast variety of constitutional methods, and of social andpolitical institutions and ideals. But to speak for a moment for that part ofthe Empire which is represented here to-day, what is it that we have in common,which amidst every diversity of external and material conditions, makes us and
But, when every admission which the most ardent of Imperialists can askfor, is made of the benefits conferred in every quarter of the world upon theinhabitants of different countries, by the existence of England's Imperialpower, it is quite possible for a calm observer to doubt whether the so-calledfederalisation of the British Empire is an object which ought to be aimed at bythe statesmen either of England or of the Dominions. The objections to thecreed of federalism, in so far as it means the building up of a federalconstitution for the Empire, or rather for England and her Dominions, may besummed up in the statement that this belief in a new-fangled federalism is atbottom a delusion, and a delusion perilous not only to England but to the wholeBritish Empire. But this general statement may be best justified by the workingout of two criticisms.
First: The attempt to form a federal constitution for the Empire isat this moment full of peril to England, to the Dominions, and, it may well be,to the maintenance of the British Empire. The task imposed upon British andupon colonial statesmanship is one of infinite difficulty. As we all know, thecreation of the United States was for the thirteen independent colonies amatter of absolute necessity. But the highest statesmanship of the ablestleaders whom a country ever possessed was hardly sufficient for thetransformation of thirteen different states into one confederated nation. Evenamong countries differing little in race, religion, and history, it was foundall but impossible to reconcile the existence of state rights with the creationof a strong central and national power. If any one considers the infinitediversity of the
keeps us one? There are two things in the self-governing British Empirewhich are unique in the history of great political aggregations. The first isthe reign of Law: wherever the King's writ runs, it is the symbol and messengernot of an arbitrary authority, but of rights shared by every citizen, andcapable of being asserted and made effective by the tribunals of the land. Thesecond is the combination of local autonomy absolute, unfettered,complete with loyalty to a common head, co-operation, spontaneous andunforced, for common interests and purposes, and, I may add, a commontrusteeship, whether it be in India or in the Crown Colonies, or in theProtectorates, or within our own borders, of the interests and fortunes offellow-subjects who have not yet attained, or perhaps in some cases may neverattain, to the full stature of self-government." See speech of the RightHon. H. H. Asquith (President of the Conference), Minutes of Proceedings of theImperial Conference, 1911 [Cd. 5745], p. 22.
countries which make up the British Empire, if he reflects that they areoccupied by different races whose customs and whose civilisation are theproduct of absolutely different histories, that the different countries of theEmpire are in no case contiguous, and in many instances are separated fromEngland and from each other by seas extending over thousands of miles, he willrather wonder at the boldness of the dreams entertained by the votaries offederal Imperialism, than believe that the hopes of federalising the Empire arelikely to meet with fulfilment. I shall be reminded, however, and with truth,that Imperial federalism, as planned by even its most sanguine advocates, meanssomething very different from the attempt to frame a constitution of which theUnited Kingdom, the Dominions, the Crown colonies, and British India shallconstitute different states. Our Imperialists really aim, and the fact must beconstantly borne in mind, at federalising the relation not between England andthe rest of the Empire, but between England and the five self-governingDominions. But then this admission, while it does away with some of thedifficulties besetting the policy which is miscalled Imperialfederalism, raises a whole body of difficult and all but unanswerablequestions. Take a few of the inquiries to which sanguine reformers, who talkwith easy confidence of federalism being the solution of all the most pressingconstitutional problems, must find a reply. What is to be the relation betweenthe new federated state (consisting of England and the five Dominions) andBritish India? Will the millions who inhabit India readily obey a new andstrange sovereign, or will the states of the new confederacy agree that therest of the Empire shall be ruled by the Parliament and Government of Englandalone? Is the whole expense of Imperial defence to be borne by the federatedstates, or will the new federation of its own authority impose taxes upon Indiaand the Crown colonies for the advantage of the federated state? Is it certain,after all, that the mutual goodwill entertained between England and theDominions really points towards federalism? No doubt England and the statesrepresented at the Imperial Conferences entertain a genuine and ardent wishthat the British Empire should be strong and be able, as against foreigners,and even in resistance to secession, to use all the resources of the wholeEmpire
for its defence and maintenance. But then each one of the Dominionsdesires rather the increase than the lessening of its own independence. Isthere the remotest sign that, for example, New Zealand, though thoroughly loyalto the Empire, would tolerate interference by any Imperial Parliament orCongress with the internal affairs of New Zealand which even faintly resembledthe authority exerted by Congress in New York, or the authority exerted by theParliament of the Canadian Dominion in Quebec? But if the Dominions would nottolerate the interference with their own affairs by any Parliament, whateverits title, sitting at Westminster, is there the remotest reason to suppose thatthe existing Imperial Parliament will consent to become a Parliament of theEmpire in which England, or rather the United Kingdom, and each of the fiveDominions 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 theygoing to do with the old Imperial Parliament which has, throughout the wholehistory of England, inherited the traditions and often exerted the reality ofsovereign power? Under our new federation is the Imperial Parliament to becomea Federal Congress wherein every state is to have due representation? Is thisFederal Congress to be for Englishmen the English Parliament, or is there to bein addition to or instead of the ancient Parliament of England a new localEnglish Parliament controlling the affairs of England alone? This questionitself is one of unbounded difficulty. It embraces two or three inquiries theanswers whereto may trouble the thoughts of theorists, and these replies, ifthey are ever discovered, may give rise throughout England and the BritishEmpire to infinite discord. Is it not one example of the perplexities involvedin any plan of Imperial federalism, and of the intellectual levity with whichthey 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 positionnot of the United Kingdom but of that small country limited in size, but stillof immense power, which is specifically known by the august name of England?The traditional feuds of Ireland and the ecclesiastical grievances of Wales,the demand of some further recognition of that Scottish nationality, for whichno sensible Englishman shows or
is tempted to show the least disrespect, all deserve and receiveexaggerated attention. But England and English interests, just becauseEnglishmen have identified the greatness of England with the prosperity of theUnited Kingdom and the greatness and good government of the Empire, are for themoment overlooked. I venture to assure all my readers that this forgetfulnessof England and by England I here mean the country known, and famous, asEngland before the legal creation either of Great Britain or of the UnitedKingdom is a fashion opposed both to common sense and to common justice,and, like all opposition to the nature of things, will ultimately come tonothing." The questions I have mentioned are numerous and full of complexity.The present time, we must add, is intensely unfavourable to the creation of anew federalised and Imperial constitution. The Parliament and the Government ofthe United Kingdom may be chargeable with grave errors: they have fallen intomany blunders. But they have never forgotten they will never, onetrusts, forget that they hold
a common trusteeship, whether it be in India or in the Crown Colonies,or in the Protectorates, or within our own borders, of the interests andfortunes of fellow-subjects who have not yet attained, or perhaps in some casesmay never attain, to the full stature of self-government. 10°
Is it credible that, for instance, the peoples of India will see withindifference this trusteeship pass from the hands of an Imperial Parliament(which has more or less learned to think imperially, and in England hasmaintained the equal political rights of all British subjects) into the handsof a new-made Imperial Congress which will
99 Sir Joseph Ward is an eminent colonial statesman; he is also anardent Imperialist of the colonial type. In his plan for an Imperial Council,or in other words for an Imperial Parliament representing the United Kingdom,or rather the countries which now make it up, and also the Dominions, he calmlyassumes that Englishmen will without difficulty allow the United Kingdom to bebroken up into four countries ruled by four local Parliaments. He supposes,that is to say, as a matter of course, that Englishmen will agree to a radicalchange in the government of England which no sane English Premier would havethought of pressing upon the Parliaments of the self-governing colonies whichnow constitute the Dominion of Canada or which now constitute the Commonwealthof Australia. See Minutes of Proceedings of the Imperial Conference, 1911 [Cd.5745], pp. 59-61.
100 See Mr. Asquith's address, cited pp. xcviii-xcix, note 98,ante.
consist in part of representatives of Dominions which, it may be ofnecessity, cannot give effect to this enlarged conception of Britishcitizenship?101
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 mypassion for the greatness, the strength, the glory, and the moral unity of theBritish Empire.1021 am one of the thousands of Englishmen whoapproved, and still approve, of the war in South Africa because it forbadesecession. But I am a student of the British constitution; my unhesitatingconviction is that the constitution of the Empire ought to develop, as it isactually developing, in the same way in which grew up the constitution ofEngland.103 The relation between England and the Dominions, and, asfar as possible, between England and the colonies which are not as yetself-governing countries, need not be developed by arduous feats oflegislation. It should grow under the influence of reasonable understandingsand of fair customs. There are, as I have intimated,104 two objectson which every Imperialist should fix his eyes. The one is the contribution byevery country within the Empire towards the cost of defending the Empire. Thesecond object is the constant consultation between England and the Dominions.The English taxpayer will not, and ought not to, continue for ever paying thewhole cost of Imperial defence. The Dominions cannot for an indefinite periodbear the risks of Imperial wars without having a voice in determining if suchwars should begin, and when and on what terms they should be brought to an end.Imperial statesmanship is rapidly advancing in the right direction. The systemof Imperial Conferences105 and other modes of inter-communication
101 See p. liv, and note 43, ante.
102 See A Fool's Paradise, p. 24.
103 This conviction is strengthened by the facts now daily passingbefore our eyes (Sept. 1914).
104 See pp. xcviii, xrix, ante; and see ^4 Fool's Paradise,p. 25.
105 Consider the gradual, the most hopeful, and the most successfuldevelopment of these conferences from 1887 to the last conference in 1911. Asort of conference was held in 1887, and the conferences of 1897 and 1902 wereheld in connection with some other celebration.
between England and the Dominions will, we may hope, result inregulating both the contribution which the Dominions ought to make towards thedefence of the Empire, and the best method for collecting colonial opinion onthe policy of any war which may assume an Imperial character. My full belief isthat an Imperial constitution based on goodwill and fairness may within a fewyears come into real existence, before most Englishmen have realised that theessential foundations of Imperial unity have already been firmly laid. Theground of my assurance is that the constitution of the Empire may, like theconstitution of England, be found to rest far less on parliamentary statutesthan on the growth of gradual and often unnoted customs.
Characteristics of Federal Government in Relation to Home Rule AllRound
Advocates of the so-called "federal solution" apparently believe thatthe United Kingdom as a whole will gain by exchanging our present unitaryconstitution for some unspecified form of federal government. To an Englishmanwho still holds, as was universally held by every English statesman till at thevery earliest 1880, that the union between England and Scotland was the wisestand most fortunate among the achievements of British statesmanship, there isgreat difficulty in understanding the new belief that the federalisation of theUnited Kingdom will confer benefit upon any of the inhabitants of GreatBritain.106 A candid critic may be able to account for the existenceof a political creed which he does not affect to share.
The first regular conference for no other purpose than consultation washeld in 1907, in which the Imperial Conference received by resolution adefinite constitution. The conference of 1911 was held under the scheme thusagreed upon in 1907. 106 The omission of reference to the policy of Home Rulefor Ireland as embodied in the Government of Ireland Act, 1914, is intentional.The true character and effect of that Act cannot become apparent until someyears have passed. The Act itself stands in a position never before occupied byany statute of immense and far-reaching importance. It may not come intooperation for an indefinite period. Its very authors contemplate its amendmentbefore it shall begin to operate. The Act is at the moment detested by theProtestants of Ulster, and a binding though ambiguous pledge has been giventhat the Act will not be forced upon Ulster against her will. The people ofGreat Britain will insist on this pledge being held sacred. To aconstitutionalist the Act at present affords better ground for wonder than forcriticism. If any reader should be curious to know my views on Home Rule hewill find them in a general form in England's Case against Home Rule,published in 1887; and as applied to the last Home Rule Bill, in Afool's Paradise, published in 1913.
The faith in Home Rule all round has been stimulated, if not mainlycreated, by the controversy, lasting for thirty years and more, over the policyof Home Rule for Ireland. British Home Rulers have always been anxious toconceal from themselves that the creation of a separate Irish Parliament, and aseparate Irish Cabinet depending for its existence on such Parliament, is areal repeal of the Act of Union between Great Britain and Ireland. This refusalto look an obvious fact in the face is facilitated by the use of that mostambiguous phrase, "Home Rule all round." Federalism has, no doubt, during thelast 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 GermanEmpire, may by federalists be put down to the credit of federal government,though in matter of fact no two constitutions can, either in their details orin their spirit, bear less real resemblance than the democratic and, on thewhole, unmilitary constitution of the United States and the autocratic Imperialand, above all, military government of Germany. Federal government has alsoturned out to be the form of government suitable for some of the BritishDominions. It has been an undoubted success in the Canadian Dominion. It hasnot been long tried but has not been a failure in the Australian Commonwealth.It may become, Englishmen are inclined to think it is, the best form ofgovernment for the states included in the Union of South Africa. Littlereflection, however, is required in order to see that none of these federationsresemble the constitution of England either in their historical development orin their actual circ*mstances. Then, too, it is thought that whereas Englishstatesmen find it difficult to regulate the relation between Great Britain andIreland, the task will become easier if the same statesmen undertake totransform, by some hocus-pocus of political legerdemain, the whole UnitedKingdom into a federal government consisting of at least four different states.It is supposed, lastly, though the grounds for the supposition are not veryevident, that the federalisation of the United Kingdom is necessary for, orconducive to, the development of Imperial federalism.
Federalism, in short, has at present the vague, and therefore the strongand imaginative, charm which has been possessed at one time throughout Europeby the parliamentary constitutionalism of Eng-
land and at another by the revolutionary republicanism of France. It maybe well, therefore, to state with some precision why, to one who has studiedthe characteristics of federal government, it must seem in the highest degreeimprobable that Home Rule all round, or the federal solution, will be of anybenefit whatever to any part of the United Kingdom.
i. There is no trace whatever of the existence of the federal spiritthroughout the United Kingdom. In England, which is after all by far the mostimportant part of the kingdom, the idea of federalism has hitherto been totallyunknown. Politicians may have talked of it when it happened to suit their partyinterest, but to the mass of the people the idea of federation has always been,and I venture to assert at this moment is, unknown and all butincomprehensible. Scotsmen sometimes complain that Great Britain is oftencalled England. They sometimes talk as though they were in some mysteriousmanner precluded from a fair share in the benefits accruing from the unity ofGreat Britain. To any one who investigates the actual course of Britishpolitics, and still more of British social life since the beginning of thenineteenth century, these complaints appear to be utterly groundless. Theprejudices which, say, in the time of Dr. Johnson, kept Scotsmen and Englishmenapart, have in reality vanished. To take one example of disappearingdifferences, we may note that while many leading Englishmen fill in ParliamentScottish seats many Scotsmen fill English seats. What is true is that thecourse of events, and the way in which the steam-engine and the telegraph bringthe world everywhere closer together, are unfavourable to that prominence inany country which at one time was attainable by particular localities, or bysmall bodies of persons living somewhat apart from the general course ofnational life. This change has, like all other alterations, its weak side. Itis quite possible honestly to regret the time when Edinburgh possessed the mostintellectual society to be found in Great Britain or Ireland. It is alsopossible honestly to wish that Lichfield and Norwich might still have, as theyhad at the beginning of the nineteenth century, a little and not unfamousliterary coterie of their own. There is a sense in which the growth of largestates is injurious to the individual life of smaller communities. The RomanRepublic
and the Roman Empire did not produce thinkers or writers who did as muchfor 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 theintellectual achievements of Athens during not much more than a century.Ireland is, as regards most of its inhabitants, discontented with the Union.But it is idle to pretend that Ireland has ever desired federalism in the sensein which it was desired by the colonies which originally formed the UnitedStates, or by the inhabitants of what are now the provinces of the CanadianDominion. O'Connell for a very short time exhibited a tendency to substitutefederalism for repeal. He discovered his mistake and reverted to repeal, whichwith his more revolutionary followers meant nationalism. No one who reads thelast and the strangest of the biographies of Parnell can doubt that "Ireland aNation" was the cry which met his own instinctive feeling no less than thewishes of his followers, except in so far as their desires pointed towards arevolutionary change in the tenure of land rather than towards the claim fornational independence.
2. There is good reason to fear that the federalisation of the UnitedKingdom, stimulating as it would the disruptive force of local nationalism,might well arouse a feeling of divided allegiance. This topic is one on which Ihave no wish to dwell, but it cannot be forgotten by any sensible observer whor*flects upon the history of secession in the United States, or of theSonderbund in Switzerland, or who refuses to forget the preeminently uneasyconnection between the different parts of the Austrian Empire and thedeliberate 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 shouldfacilitate the growth of Imperial federalism.
3. Federalism, as the dissolution of the United Kingdom, is absolutelyforeign to the historical and, so to speak, instinctive policy of Englishconstitutionalists. Each successive generation from the reign of Edward I.onwards has laboured to produce that complete political unity which isrepresented by the absolute sovereignty of the Parliament now sitting atWestminster. Let it be remembered that no constitutional arrangements orfictions could get rid of the fact that Eng-
land would, after as before the establishment of Home Rule all round,continue, in virtue of her resources and her population, the predominantpartner throughout the United Kingdom, and the partner on whom sovereignty hadbeen conferred, not by the language of any statute or other document, but bythe nature of things. It would be hard indeed to prevent the English Parliamentsitting at Westminster from not only claiming but exercising sovereignauthority; and to all these difficulties must be added one ominous andsignificant reflection. To every foreign country, whether it were numberedamong our allies or among our rivals, the federalisation of Great Britain wouldbe treated as a proof of the declining power alike of England and of theBritish Empire.107
The Referendum108
The word Referendum is a foreign expression derived from Switzerland.Thirty years ago it was almost unknown to Englishmen, even though they wereinterested in political theories. Twenty years ago it was quite unknown toBritish electors. The word has now obtained popular currency but is oftenmisunderstood. It may be well, therefore, to define, or rather describe, themeaning of the "referendum" as used in this Introduction and as applied toEngland. 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, mightdeeply affect the loyalty of all the British colonies. Can any one be certainthat New Zealand or Canada would, at the bidding of the Parliament of theUnited Kingdom, transer their loyalty from George V. to a President chosen bythe electorate of the United Kingdom, and this even though the revolution werecarried out with every legal formality including the assent of the Kinghimself, and even though the King were elected the first President of the newCommonwealth? Is it certain that a federated union of England, Ireland,Scotland, and Wales would command in our colonies the respect paid to thepresent United Kingdom? These questions may well seem strange: they are notunimportant. The King is what the Imperial Parliament has never been, thetypical representative of Imperial unity throughout every part of the Empire.
108 Lowell, Public Opinion and Popular Government, partiii.chaps, xi-xv., especially chaps, xii. and xiii. (best thing on the subject);Lowell, Government of England, i. p. 411; "The Referendum and itsCritics," by A. V. Dicey, Quarterly Revieiv, No. 423, April 1910; VieCrisis of Liberalism, by J. A. Hobson; Low, Tlie Governance of England,Intro, p. xvii; "Ought the Referendum to be introduced into England?" by A.V. Dicey, Contemporary Rei'ieu', 1890, and National Review, 1894.
when passed both by the House of Commons and by the House ofLords,109 should not become Acts of Parliament until they have beensubmitted to the vote of the electors and have received the sanction orapproval of the majority of the electors voting on the matter. The referendumis sometimes described, and for general purposes well described, as "thepeople's veto." This name is a good one; it reminds us that the main use of thereferendum is to prevent the passing of any important Act which does notcommand the sanction of the electors. The expression "veto" reminds us alsothat those who advocate the introduction of the referendum into England in factdemand that the electors, who are now admittedly the political sovereign ofEngland, should be allowed to play the part in legislation which was reallyplayed, and with popular approval, by e.g. Queen Elizabeth at a timewhen the King or Queen of England was not indeed the absolute sovereign of thecountry, but was certainly the most important part of the sovereign power,namely Parliament.110 In this Introduction the referendum, or thepeople's veto, is considered simply with reference to Bills passed by theHouses of Parliament but which have not received the royal assent. The subjectis dealt with by no means exhaustively, but with a view in the first place tobring out the causes of the demand in England for the referendum; and in thenext place to consider carefully and examine in turn first by far the strongestargument against, and secondly the strongest argument in favour of introducingthe referendum into the constitution of England.
109 Andfl fortiori when passed under the Parliament Act, withoutthe consent of the House of Lords.
110 The referendum, it should be noted, can be applied to legislationfor different purposes and in different ways. It may, for instance, be appliedonly to a Bill affecting fundamental changes in the constitution, e.g.to a Bill affecting the existence of the monarchy, or to any Bill whichwould in popular language be called a Reform Bill, and to such Bill after ithas been passed by the two Houses. In this case the object of the referendumwould be to ensure that no Act of transcendent importance shall be passedwithout the undoubted assent of the electors. The referendum may again beapplied, as it is applied in the Commonwealth of Australia, for preventing"deadlocks," as they are called, arising from the fact of one House ofParliament having carried repeatedly, and the other having repeatedly rejected,a given Bill.
The Causes
During forty years faith in parliamentary government has suffered anextraordinary decline or, as some would say, a temporary eclipse.inThis change is visible in every civilised country. Depreciation of, or contemptfor, representative legislatures dearly exists under the parliamentary andrepublican government of France, under the federal and republican constitutionof the Swiss Confederacy, or of the United States, under the essentialmilitarism and the superficial parliamentarism of the German Empire, and evenunder the monarchical and historical constitutionalism of the British Empire.This condition, whether temporary or permanent, of public opinion greatlypuzzles the now small body of surviving constitutionalists old enough toremember the sentiment of the mid-Victorian era, with its prevalent belief thatto imitate the forms, or at any rate to adopt the spirit of the Englishconstitution, was the best method whereby to confer upon the people of anycivilised country the combined blessings of order and of progress. To explainin any substantial degree the alteration in popular opinion it would benecessary 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 twofacts may be noted which, though they do not solve the problem before us, do tosome slight extent suggest the line in which its solution must be sought for.Parliamentary government may under favourable circ*mstances go a great waytowards securing such blessings as the prevalence of personal liberty and thefree expression of opinion. But neither parliamentary government nor any formof constitution, either which has been invented or may be discovered, will everof itself remove all or half the sufferings of human beings. Utopias lead todisappointment just because they are Utopias. The very extension ofconstitutional government has itself led to the frustration of high hopes; forconstitutions have by force of imitation been set up in states unsuited topopular government. What is even more important, parliamentary government hasby its continued existence betrayed two defects hardly suspected by theLiberals or
111 Compare Law and Opinion (2nd ed.)/ pp- 440-443.
reformers of Europe, or at any rate of England, between 1832 and 1880.We now know for certain that while popular government may be under wiseleadership a good machine for simply destroying existing evils, it may turn outa very poor instrument for the construction of new institutions or therealisation of new ideals. We know further that party government, which to manyamong the wisest of modern constitutionalists appears to be the essence ofEngland's far-famed constitution, inevitably gives rise to partisanship, and atlast produces a machine which may well lead to political corruption and may,when this evil is escaped, lead to the strange but acknowledged result that anot unfairly elected legislature may misrepresent the permanent will of theelectors. This fact has made much impression on the political opinion both ofEngland and of the United States. The above considerations taken as a wholeafford some explanation of a demand for that referendum which, though itoriginates in Switzerland, flourishes in reality, though not in name, in almostevery state of the American Commonwealth.
The Main Argument Against the Referendum
To almost all Englishmen the chief objection to the referendum is soobvious, and seems to many fair-minded men so conclusive, that it ought to beput forward in its full strength and to be carefully examined before the readeris called upon to consider the possible advantages of a great change in ourconstitution. This objection may be thus stated:
In England the introduction of the referendum means, it is urged, thetransfer of political power from knowledge to ignorance. Let us put this pointin a concrete form. The 670 members of the House of Commons together with the600 and odd members of the House of Lords112 contain a far greaterproportion of educated men endowed with marked intellectual power and trainedin the exercise of some high political virtues than would generally be foundamong, say, 1270 electors collected merely by chance from an electorate of moreman 8,000,000. The truth of this allegation can hardly be disputed; the
112 Strictly, 638 members. See Whitaker's Almanack, 1914, p.124.
inference is drawn therefrom that to substitute the authority of theelectorate for the authority of the House of Commons and the House of Lords isto transfer the government of the country from the rule of intelligence to therule 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 ofthe referendum rely. Oddly enough (though the matter admits of explanation)this line of reasoning is adopted at once by a thoughtful conservative, such asMaine, and by revolutionists who wish to force upon England, through the use ofauthoritative legislation, the ideals of socialism. Maine saw in the referenduma bar to all reasonable reforms. He impresses upon his readers that democracyis not in itself a progressive form of government, and expresses this view inwords which deserve quotation and attention:
The delusion that democracy when it has once had all things put underits feet, is a progressive form of government, lies deep in the convictions ofa particular political school; but there can be no delusion grosser. ... Allthat has made England famous, and all that has made England wealthy, has beenthe work of minorities, sometimes very small ones. It seems to me quite certainthat, if for four centuries there had been a very widely extendedfranchise and a very large electoral body in this country, there would havebeen no reformation of religion, no change of dynasty, no toleration ofDissent, not even an accurate Calendar. The threshing-machine, the power-loom,the spinning-jenny, and possibly the steam-engine, would have been prohibited.Even in our day, vaccination is in the utmost danger, and we may say generallythat the gradual establishment of the masses in power is of the blackest omenfor all legislation founded on scientific opinion, which requires tension ofmind to understand it, and self-denial to submit to it.113
And he thence practically infers that democracy as it now exists inEngland would, combined with the referendum, be probably a death-blow to allreasonable reform.114 To Maine, in short, the referendum is the laststep in the development of democracy, and his censure of the referendum is partof a powerful attack by an intellec-
113 Maine, Popular Government, pp. 97-98.
114 See ibid. pp. 96-97.
tual conservative on democratic government which he distrusted andabhorred. Now revolutionists who probably think themselves democrats have ofrecent years attacked the referendum on grounds which might have been suggestedby Maine's pages. The referendum, we are told by socialistic writers, will worksteadily to the disadvantage of the Liberal Party.115 Would not, weare asked, the anti-reforming press exhaust itself in malignant falsehoodscalculated to deceive the people? Such suggestions and others of the samequality may be summed up in an argument which from a socialistic point of viewhas considerable force. The people, it is said, are too stupid to be entrustedwith the referendum; the questions on which the electors are nominally calledupon to decide must never be put before them with such clearness that they mayunderstand the true issues submitted to their arbitrament. The party machine,think our new democrats, may be made the instrument for foisting upon thepeople of England changes which revolutionary radicals or enthusiasts know tobe reforms, but which the majority of the electorate, if they understood whatwas being done, might condemn as revolution or confiscation. The attacks ofconservatives and the attacks of socialistic democrats to a certain extentbalance one another, but they contain a common element of truth. The referendumis a mere veto. It may indeed often stand in the way of salutary reforms, butit may on the other hand delay or forbid innovations condemned by the weightboth of the uneducated and of the educated opinion of England. Thus it is, tosay the least, highly probable that, if the demand of votes for women weresubmitted to the present electorate by means of a referendum, a negative answerwould be returned, and an answer of such decision as to check for years theprogress or success of the movement in favour of woman suffrage. It must, inshort, be admitted that a veto on legislation, whether placed in the hands ofthe King, or in the hands of the House of Lords, or of the House of Commons, orof the 8,000,000 electors, would necessarily work sometimes well and sometimesill. It might, for example, in England forbid the enforcement or extension ofthe vaccination laws; it might forbid the grant of parlia-
115 See Against the Referendum and Quarterly Review, April1910, No. 423, pp. 551, 552.
mentary votes to Englishwomen; it might have forbidden the passing ofthe Government of Ireland Act, 1914; it might certainly have forbidden theputting 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 thereferendum would have worked ill, and that in some one or more of theseinstances it would have worked well. All, therefore, that can be conclusivelyinferred from the argument against the referendum is that the people's veto,like any other veto, may sometimes be ill, and sometimes be well employed.Still it certainly would be urged by a fair-minded opponent of the referendumthat there exists a presumption that the Houses of Parliament acting togetherwill exhibit something more of legislative intelligence than would the mass ofthe electorate when returning their answer to a question put to them by thereferendum. But a reasonable supporter of the referendum, while admitting thatsuch a presumption may exist, will however maintain that it is of very slightweight. The Parliament Act gives unlimited authority to a parliamentary orrather House of Commons majority. The wisdom or experience of the House ofLords is in matters of permanent legislation thereby deprived of all influence.A House of Commons majority acts more and more exclusively under the influenceof party interests. It is more than possible that the referendum might, ifintroduced into England, increase the authority of voters not deeply pledged tothe dogmas of any party. The referendum, as I have dealt with it, cannot, be italways borne in mind, enforce any law to which at any rate the House of Commonshas not consented. It has the merits as also the weaknesses of a veto. Itsstrongest recommendation is that it may keep in check the inordinate power nowbestowed on the party machine.
The Main Argument in Favour of the Referendum
The referendum is an institution which, if introduced into England,would be strong enough to curb the absolutism of a party possessed of aparliamentary majority. The referendum is also an institution which in Englandpromises some considerable diminution in the most
patent defects of party government. Consider first the strengthof the referendum. It lies in the fact that the people's veto is at once ademocratic institution, and, owing to its merely negative character, may be astrictly conservative institution. It is democratic, for it is in reality, asalso on the face thereof, an appeal to the people. It is conservative since itensures the maintenance of any law or institution which the majority of theelectors effectively wish to preserve. Nor can any one who studies the presentcondition of English society seriously believe that, under any system whatever,an institution deliberately condemned by the voice of the people can for a longtime be kept in existence. The referendum is, in short, merely the dearrecognition in its negative form of that sovereignty of the nation of whichunder a system of popular government every leading statesman admits theexistence. But the mere consonance of a given arrangement with some receiveddoctrine, such as "the sovereignty of the people," must with a thoughtful mancarry little weight, except in so far as this harmony with prevalent ideaspromises permanence to some suggested reform or beneficial institution. Let usthen consider next the tendency of the referendum to lessen the evilsof the party system. An elected legislature may well misrepresent the willof the nation. This is proved by the constant experience of Switzerland and ofeach of the States which make up the American Commonwealth. This danger ofmisrepresenting the will of the nation may exist even in the case of an honestand a fairly-elected legislative body. This misrepresentation is likely or evencertain to arise where, as in England, a general election comes more and moreto resemble the election of a given man or a given party to hold office forfive years. Partisanship must, under such a system, have more weight thanpatriotism. The issues further to be determined by the electors will year byyear become, in the absence of the referendum, more complicated and confused.But in the world of politics confusion naturally begets intrigue, sometimescoming near to fraud. Trust in elected legislative bodies is, as already noted,dying out under every form of popular government. The party machine is regardedwith suspicion, and often with detestation, by public-spirited citizens of theUnited States. Coalitions, log-rolling, and parliamentary intrigue are in Eng-
land diminishing the moral and political faith in the House of Commons.Some means must, many Englishmen believe, be found for the diminution of evilswhich are under a large electorate the natural, if not the necessary, outcomeof our party system. The obvious corrective is to confer upon the people a vetowhich may restrict the unbounded power of a parliamentary majority. No doubtthe referendum must be used with vigilance and with sagacity. Perpetualwatchfulness on the part of all honest citizens is the unavoidable price to bepaid for the maintenance of sound popular government. The referendum futherwill promote or tend to promote among the electors a kind of intellectualhonesty which, as our constitution now works, is being rapidly destroyed. Forthe referendum will make it possible to detach the question, whether aparticular law, e.g. a law introducing some system of so-called tariffreform, shall be passed, from the totally different question, whether Mr. A orMr. B shall be elected for five years Prime Minister of England. Under thereferendum 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 lawwhich his conscience and his judgment condemns, he will also be voting that A,whom he deems the fittest man in England to be Prime Minister, shall cease tohold office, and that B, whom the elector happens to distrust, shall at oncebecome Prime Minister. And no doubt the referendum, if ever established inEngland, may have the effect, which it already has in Switzerland, of making itpossible that a minister or a Cabinet, supported on the whole by theelectorate, shall retain office honestly and openly, though some proposal madeby the Prime Minister and his colleagues and assented to by both Houses ofParliament is, through the referendum, condemned by the electorate. Thesepossible results are undoubtedly repulsive to men who see nothing to censure inour party system. But, as I have throughout insisted, the great recommendationof the referendum is that it tends to correct, or at lowest greatly todiminish, the worst and the most patent evils of party government.
No effort has been made by me to exhaust the arguments against or infavour of the referendum. My aim in this Introduction has been
to place before my readers the strongest argument against and also thestrongest argument in favour of the introduction of the referendum into theconstitution of England. It is certain that no man, who is really satisfiedwith the working of our party system, will ever look with favour on aninstitution which aims at correcting the vices of party government. It isprobable, if not certain, that any one, who realises the extent to whichparliamentary government itself is losing credit from its too close connectionwith the increasing power of the party machine, will hold with myself that thereferendum judiciously used may, at any rate in the case of England, bychecking the omnipotence of partisanship, revive faith in that parliamentarygovernment which has been the glory of English constitutional history.
CONCLUSIONS
i. The sovereignty of Parliament is still the fundamental doctrine ofEnglish constitutionalists. But the authority of the House of Lords has beengravely diminished, whilst the authority of the House of Commons, or rather ofthe majority thereof during any one Parliament, has been immensely increased.Now this increased portion of sovereignty can be effectively exercised only bythe Cabinet which holds in its hands the guidance of the party machine. And ofthe party which the parliamentary majority supports, the Premier has become atonce the legal head and, if he is a man of ability, the realleader.116 This gradual development of the power of the Cabinet andof the Premier is a change in the working of the English constitution. It isdue to at least two interconnected causes. The one is the advance towardsdemocracy resulting from the establishment, 1867 to 1884, of HouseholdSuffrage; the other is the increasing rigidity of the party system. The resultof a state of things which is not yet fully recognised inside or outsideParliament is that the Cabinet, under a leader who has fully studied andmastered the arts of modern parliamentary warfare, can defy, on matters of thehighest importance, the possible or certain will of the nation. This growth ofthe authority obtained by
116 Lowell, Government of England, chaps, xxiv-xxvii., andespecially i. pp. 441-447; Public Opinion and Popular Government,partii. pp. 57-110.
the men who can control the party machine is the more formidable if weadopt the view propounded by the ablest of the critics of the Government ofEngland, and hold with Lowell that party government has been for generationsnot the accident or the corruption but, so to speak, the very foundation of ourconstitutional system.117 The best way to measure the extent of ahardly recognised alteration in the working of parliamentary government inEngland is to note the way in which a system nominally unchanged worked in thedays of Palmerston, i.e. from 1855 to 1865, that is rather less thansixty years ago. He became Premier in 1855. He was in 1857 the most popular ofPrime Ministers. After a contest with a coalition of all his opponents, adissolution of Parliament gave to the old parliamentary hand a large anddecisive majority. For once he lost his head. He became for the minuteunpopular in the House of Commons. A cry in which there was little of realsubstance was raised against him amongst the electors. In 1858 he resignedoffice; in 1859 another dissolution restored to office the favourite of thepeople. He remained Premier with the support of the vast majority of theelectors till his death in 1865. These transactions were natural enough in thePalmerstonian era; they could hardly recur in 1914. Palmerston, as alsoGladstone, did not hold power in virtue of the machine. The Parliament Act isthe last and greatest triumph of party government.
2. The increasing influence of the party system has in England, andstill more throughout the British Empire, singularly coincided with the growthof the moral influence exercisable by the Crown. From the accession of Victoriato the present day the moral force at the disposal of the Crown has increased.The plain truth is that the King of England has at the present day two sourcesof moral authority of which writers on the constitution hardly take enoughaccount in regard to the future. The King, whoever he be, is the only manthroughout the British Empire who stands outside, if not above, the partysystem. The King is, in lands outside the United Kingdom, the acknowledged, andindeed the sole, representative and centre of the Empire.118
117 See note on preceding page.
118 See p. lxviii, ante.
3. The last quarter of the nineteenth and, still more dearly, the firstfourteen years of the twentieth century are, as already pointed out, marked bydeclining faith in that rule of law which in 1884 was one of the two leadingprinciples of constitutional government as understood in England.
4. The various ideas for the improvement of the constitution which nowoccupy the minds of reformers or innovators are intended, at any rate, toprovide against the unpopularity of legislation, but for the most part arehardly framed with the object of promoting the wisdom of legislation. No doubtsome of these schemes may indirectly increase the chance that injudiciouslegislation may receive a check. Proportional representation may sometimessecure a hearing in the House of Commons for opinions which, though containinga good deal of truth, command little or comparatively little popularity. Thereferendum, it is hoped, may diminish the admitted and increasing evil of ourparty system. Still, as I have insisted, the main object aimed at by theadvocates of political change is for the most part to ensure that legislationshall be in conformity with popular opinion.119
The conclusions I have enumerated are certainly calculated to exciteanxiety in the minds of sensible and patriotic Englishmen. Every citizen ofpublic spirit is forced to put to himself this question: What will be theoutcome of the democratic constitutionalism now established and flourishing inEngland? He is bound to remember that pessimism is as likely to mislead acontemporary critic as optimism. He will find the nearest approach to theanswer which his inquiry requires in a sermon or prophecy delivered in 1872 bya constitutionalist who even then perceived possibilities and perils to whichforty-two years ago our leading statesmen were for the most part blind. Listento the words of Walter Bagehot:
In the meantime, our statemen have the greatest opportunities they havehad for many years, and likewise the greatest duty. They have to guide the newvoters in the exercise of the franchise; to guide them quietly, and withoutsaying what they are doing, but still to guide them. The leading statesmen in afree country have great momentary power. They settle the conver-
119 See pp. lxxvii-lxxx, ante.
sation of mankind. It is they who, by a great speech or two, determinewhat shall be said and what shall be written for long after. They, inconjunction with their counsellors, settle the programme of their party the "platform," as the Americans call it, on which they and those associatedwith them are to take their stand for the political campaign. It is by thatprogramme, by a comparison of the programmes of different statesmen, that theworld forms its judgment. The common ordinary mind is quite unfit to fix foritself what political question it shall attend to; it is as much as it can doto judge decently of the questions which drift down to it, and are broughtbefore it; it almost never settles its topics; it can only decide upon theissues of these topics. And in settling what these questions shall be,statesmen have now especially a great responsibility if they raise questionswhich will excite the lower orders of mankind; if they raise questions on whichthose orders are likely to be wrong; if they raise questions on which theinterest of those orders is not identical with, or is antagonistic to, thewhole 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 delicateexperiment, and they will have done all they could to vitiate that experiment.Just when it is desirable that ignorant men, new to politics, should have goodissues, and only good issues, put before them, these statesmen will havesuggested bad issues. They will have suggested topics which will bind the pooras a class together; topics which will excite them against the rich; topics thediscussion of which in the only form in which that discussion reaches their earwill be to make them think that some new law can make them comfortable that it is the present law which makes them uncomfortable thatGovernment has at its disposal an inexhaustible fund out of which it can giveto 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'sparadise," as poor men are apt to fancy that Paradise, and as they are apt tothink they can create it, the great political trial now beginning will simplyfail. The wide gift of the elective franchise will be a great calamity to thewhole nation, and to those who gain it as great a calamity as to any.12°
This is the language of a man of genius, who being dead yet speaketh.Whether the warning which his words certainly contain was unnecessary, orwhether his implied prophecy of evU has not already been partially fulfilled ormay not at some not distant date obtain more complete fulfilment, are inquirieswhich must be answered by the candour and the thoughtfulness of my readers. Thecomplete reply must be left to the well-informed and more or less
120 Bagehot, English Constitution (2nd ed.). pp. xvii-xix.
impartial historian, who in 1950 or in 2000 shall sum up the finaloutcome of democratic government in England. Still it may be allowable to anauthor writing in 1914, though more than half blinded, as must be every criticof the age in which he lives, by the ignorance and the partialities of his ownday, to remember that the present has its teaching no less than the past or thefuture. National danger is the test of national greatness. War has its lessonswhich may be more impressive than the lessons, valuable as they always are, ofpeace. The whole of a kingdom, or rather of an Empire, united for once inspirit, has entered with enthusiasm upon an arduous conflict with a nationpossessed of the largest and the most highly trained army which the modernworld can produce. This is in itself a matter of grave significance. Englandand the whole British Empire with her have taken up the sword and thereby haverisked the loss of wealth, of prosperity, and even of political existence. AndEngland, with the fervent consent of the people of every land subject to therule of our King, has thus exchanged the prosperity of peace for the dangersand labours of war, not for the sake of acquiring new territory or of gainingadditional military glory, for of these things she has enough and more thanenough already, but for the sake of enforcing the plainest rules ofinternational justice and the plainest dictates of common humanity. This is amatter of good omen for the happy development of popular government and for theprogress, slow though it be, of mankind along the path of true fortitude and ofreal righteousness. These facts may rekindle among the youth of England as ofFrance the sense that to be young is very heaven; these facts may console oldmen whom political disillusion and disappointment which they deem undeservedmay have tempted towards despair, and enable them to rejoice with calmness andgravity that they have lived long enough to see the day when the solemn call tothe performance of a grave national duty has united every man and every classof our common country in the determination to defy the strength, the delusions,and the arrogance of a militarised nation, and at all costs to secure for thecivilised world the triumph of freedom, of humanity, and of justice.
OUTLINE OF SUBJECT
THE TRUE NATURE OF CONSTITUTIONAL LAW
irke writes in 1791:
Great critics have taught us one essential rule. ... It is this, that ifever we should find ourselves disposed not to admire those writers or artists,Livy and Virgil for instance, Raphael or Michael Angelo, whom all the learnedhad admired, not to follow our own fancies, but to study them until we know howand what we ought to admire; and if we cannot arrive at this combination ofadmiration with knowledge, rather to believe that we are dull, than that therest of the world has been imposed on. It is as good a rule, at least, withregard to this admired constitution (of England). We ought to understand itaccording to our measure; and to venerate where we are not able presently tocomprehend. *
Hallam writes in 1818:
No unbiased observer who derives pleasure from the welfare of hisspecies, can fail to consider the long and uninterruptedly increasingprosperity of England as the most beautiful phsenomenon in the history ofmankind. Climates more propitious may impart more largely the mere enjoymentsof existence; but in no other region have the benefits that politicalinstitutions can confer been diffused over so extended a population; nor haveany people so well reconciled the discordant elements of wealth, order, andliberty. These advantages are surely not owing to the soil of this island, norto the latitude in which it is placed; but to the spirit of its laws, fromwhich, through various means, the characteristic independence andindustrious-ness of our nation have been derived. The constitution, therefore,of Eng-
i Burke, Works, iii, (1872 ed.), p. 114.
Optimistic view of English constitution.
Modern lew of onsti-ution.
land must be to inquisitive men of all countries, far more toourselves, an object of superior interest; distinguished, especially, as it isfrom all free governments of powerful nations, which history has recorded, byits manifesting, after the lapse of several centuries, not merely no symptom ofirretrievable decay, but a more expansive energy.2
These two quotations from authors of equal though of utterly differentcelebrity, recall with singular fidelity the spirit with which our grandfathersand our fathers looked upon the institutions of their country. The constitutionwas to them, in the quaint language of George the Third, "the most perfect ofhuman formations";3 it was to them not a mere polity to be comparedwith the government of any other state, but so to speak a sacred mystery ofstatesmanship; it "had (as we have all heard from our youth up) not been madebut had grown"; it was the fruit not of abstract theory but of that instinctwhich (it is supposed) has enabled Englishmen, and especially uncivilisedEnglishmen, to build up sound and lasting institutions, much as bees constructa honeycomb, without undergoing the degradation of understanding the principleson which they raise a fabric more subtlely wrought than any work of consciousart. The constitution was marked by more than one transcendent quality which inthe eyes of our fathers raised it far above the imitations, counterfeits, or,parodies, which have been set up during the last hundred years throughout thecivilised world; no precise date could be named as the day of its birth; nodefinite body of persons could claim to be its creators, no one could point tothe document which contained its clauses; it was in short a thing by itself,which Englishmen and foreigners alike should "venerate, where they are not ablepresently to comprehend."
The present generation must of necessity look on the constitution in aspirit different from the sentiment either of 1791 or of 1818. We cannot sharethe religious enthusiasm of Burke, raised, as it was, to
2 Hallam, Middle Ages (i2th ed.), ii. p. 267. Nothing gives amore vivid idea of English sentiment with regard to the constitution towardsthe end of the eighteenth century than the satirical picture of national prideto be found in Goldsmith's Citizen of the World, Letter IV.
3 See Stanhope, Life of Pitt, i. App. p. 10.
Special difficulty of commenting on English constitution.
the temper of fanatical adoration by just hatred of those "doctors ofthe modern school," who, when he wrote, were renewing the rule of barbarism inthe form of the reign of terror; we cannot exactly echo the ferventself-complacency of Hallam, natural as it was to an Englishman who saw theinstitutions of England standing and flourishing, at a time when the attemptsof foreign reformers to combine freedom with order had ended in ruin. At thepresent day students of the constitution wish neither to criticise, nor tovenerate, but to understand; and a professor whose duty it is to lecture onconstitutional law, must feel that he is called upon to perform the partneither of a critic nor of an apologist, nor of an eulogist, but simply of anexpounder; his duty is neither to attack nor to defend the constitution, butsimply to explain its laws. He must also feel that, however attractive be themysteries of the constitution, he has good reason to envy professors who belongto countries such as France, Belgium, or the United States, endowed withconstitutions of which the terms are to be found in printed documents, known toall citizens and accessible to every man who is able to read. Whatever may bethe advantages of a so-called "unwritten" constitution, its existence imposesspecial difficulties on teachers bound to expound its provisions. Any one willsee that this is so who compares for a moment the position of writers, such asKent or Story, who commented on the Constitution of America, with the situationof any person who undertakes to give instruction in the constitutional law ofEngland.
When these distinguished jurists delivered, in the form of lectures,commentaries upon the Constitution of the United States, they knew preciselywhat was the subject of their teaching and what was the proper mode of dealingwith it. The theme of their teaching was a definite assignable part of the lawof their country; it was recorded in a given document to which all the worldhad access, namely, "the Constitution of the United States established andordained by the People of the United States." The articles of this constitutionfall indeed far short of perfect logical arrangement, and lack absolutelucidity of expression; but they contain, in a dear and intelligible form, thefundamental law of the Union. This law (be it noted) is made and can only bealtered or repealed in a way different from the
method by which other enactments are made or altered; it stands forth,therefore, as a separate subject for study; it deals with the legislature, theexecutive, and the judiciary, and, by its provisions for its own amendment,indirectly defines the body in which resides the legislative sovereignty of theUnited States. Story and Kent therefore knew with precision the nature andlimits of the department of law on which they intended to comment; they knewalso what was the method required for the treatment of their topic. Their taskas commentators on the constitution was in kind exactly similar to the task ofcommenting on any other branch of American jurisprudence. The American lawyerhas to ascertain the meaning of the Articles of the Constitution in the sameway in which he tries to elicit the meaning of any other enactment. He must beguided by the rules of grammar, by his knowledge of the common law, by thelight (occasionally) thrown on American legislation by American history, and bythe conclusions to be deduced from a careful study of judicial decisions. Thetask, in short, which lay before the great American commentators was theexplanation of a definite legal document in accordance with the receivedcannons of legal interpretation. Their work, difficult as it might prove, waswork of the kind to which lawyers are accustomed, and could be achieved by theuse of ordinary legal methods. Story and Kent indeed were men of extraordinarycapacity; so, however, were our own Blackstone, and at least one ofBlackstone's editors. If, as is undoubtedly the case, the American jurists haveproduced commentaries on the constitution of the United States utterly unlike,and, one must in truth add, vastly superior to, any commentaries on theconstitutional law of England, their success is partly due to the possession ofadvantages denied to the English commentator or lecturer. His position isentirely different from that of his American rivals. He may search thestatute-book from beginning to end, but he will find no enactment whichpurports to contain the articles of the constitution; he will not possess anytest by which to discriminate laws which are constitutional or fundamental fromordinary enactments; he will discover that the very term "constitutional law,"which is not (unless my memory deceives me) ever employed by Black-
Commen-tator seeks help from constitu-t on a I I wyers, mstitu-on.i]his-irians and mstitu-mal theorists.
I. Lawyer's view of constitution. Its unreality. Blackstone.
stone, is of comparatively modern origin; and in short, that beforecommenting on the law of the constitution he must make up his mind what is thenature and the extent of English constitutional law.4
His natural, his inevitable resource is to recur to writers of authorityon the law, the history, or the practice of the constitution. He will find (itmust be admitted) no lack of distinguished guides; he may avail himself of theworks of lawyers such as Blackstone, of the investigations of historians suchas Hallam or Freeman, and of the speculations of philosophical theorists suchas Bagehot or Hearn. From each class he may learn much, but for reasons which Iam about to lay before you for consideration, he is liable to be led by eachclass of authors somewhat astray in his attempt to ascertain the field of hislabours and the mode of working it; he will find, unless he can obtain someclue to guide his steps, that the whole province of so-called "constitutionallaw" is a sort of maze in which the wanderer is perplexed by unreality, byantiquarianism, and by conventionalism.
Let us turn first to the lawyers, and as in duty bound to Blackstone.
Of constitutional law as such there is not a word to be found in hisCommentaries. The matters which appear to belong to it are dealt with byhim in the main under the head Rights of Persons. The Book which is thusentitled treats (inter alia) of the Parliament, of the King and histitle, of master and servant, of husband and wife, of parent and child. Thearrangement is curious and certainly does not bring into view the true scope orcharacter of constitutional law. This, however, is a trifle. The Book containsmuch real learning about our system of government. Its true defect is thehopeless confusion both of language and of thought, introduced into the wholesubject of constitutional law by Blackstone's habit common to all thelawyers of his time of applying old and inapplicable terms to newinstitu-
4 See this point brought out with great clearness by Monsieur Boutmy,Etudes de Droit Constitutionnel (znd ed.), p. 8, English translation, p.8. Monsieur Boutmy well points out that the sources of English constitutionallaw may be considered fourfold, namely (i) Treaties or Quasi-Treaties,i.e. the Acts of Union; (2) The Common Law; (3) Solemn Agreements(pacts), e.g. the Bill of Rights; (4) Statutes. This mode of division isnot exactly that which would be naturally adopted by an English writer, but itcalls attention to distinctions often overlooked between the different sourcesof English constitutional law.
tions, and especially of ascribing in words to a modern andconstitutional King the whole, and perhaps more than the whole, of the powersactually 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 kinglycapacity, with a number of authorities and powers; in the exertion whereofconsists 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 agovernment; and to unite those several wills, and reduce them to one, is a workof more time and delay than the exigencies of state will afford. The King ofEngland is, therefore, not only the chief, but properly the sole, magistrate ofthe nation; all others acting by commission from, and in due subordination tohim; in like manner as, upon the great revolution of the Roman state, all thepowers of the ancient magistracy of the commonwealth were concentrated in thenew Emperor: so that, as Gravina expresses it, in ejus unius persona veterisreipublicae vis atque majestas per cumulatas magistratuum potestatesexprimebatur.5
The language to this passage is impressive; it stands curtailed but insubstance unaltered in Stephen's Commentaries. It has but one fault; thestatements it contains are the direct opposite of the truth. The executive ofEngland is in fact placed in the hands of a committee called the Cabinet. Ifthere be any one person in whose single hand the power of the State is placed,that one person is not the King but the chairman of the committee, known as thePrime Minister. Nor can it be urged that Blackstone's description of the royalauthority was a true account of the powers of the King at the time whenBlackstone wrote. George the Third enjoyed far more real authority than hasfallen to the share of any of his descendants. But it would be absurd tomaintain that the language I have cited painted his true position. The termsused by the commentator were, when he used them, unreal, and known6to be so. They have become only a little more unreal during the century andmore which has since elapsed.
5 Blackstone, Commentaries, i. p. 250.
6 The following passage from Paley's Moral Philosophy, publishedin 1785, is full of instruction. "In the British, and possibly in all otherconstitutions, there exists a wide difference
The King is considered in domestic affairs ... as the fountain ofjustice, and general conservator of the peace of the kingdom. ... He thereforehas alone the right of erecting courts of judicature: for, though theconstitution of the kingdom hath entrusted him with the whole executive powerof the laws, it is impossible, as well as improper, that he should personallycarry into execution this great and extensive trust: it is consequentlynecessary, that courts should be erected to assist him in executing this power;and equally necessary, that if erected, they should be erected by hisauthority. And hence it is, that all jurisdictions of courts are eithermediately or immediately derived from the Crown, their proceedings rungenerally in the King's name, they pass under his seal, and are executed by hisofficers.7
Here we are in the midst of unrealities or fictions. Neither the Kingnor the Executive has anything to do with erecting courts of justice. We shouldrightly conclude that the whole Cabinet had gone mad if to-morrow's Gazettecontained an order in council not authorised by statute erecting a new Court ofAppeal. It is worth while here to note what is the true injury to the study oflaw produced by the tendency of Blackstone, and other less famousconstitutionalists, to adhere to unreal expressions. The evil is not merely ormainly that these expressions exaggerate the power of the Crown. For suchconventional exaggeration a reader could make allowance, as easily as we do forceremonious terms of respect or of social courtesy. The harm wrought is, thatunreal language obscures or conceals the true extent
between the actual state of the government and the theory. The oneresults from the other; but still they are different. When we contemplate thetheory of the British government, we see the King invested with the mostabsolute personal impunity; with a power of rejecting laws, which have beenresolved upon by both Houses of Parliament; of conferring by his charter, uponany set or succession of men he pleases, the privilege of sendingrepresentatives into one House of Parliament, as by his immediate appointmenthe can place whom he will in the other. What is this, a foreigner might ask,but a more circuitous despotism? Yet, when we turn our attention from the legalexistence to the actual exercise of royal authority in England, we see theseformidable prerogatives dwindled into mere ceremonies; and in their stead, asure and commanding influence, of which the constitution, it seems, is totallyignorant, growing out of that enormous patronage, which the increased extentand opulence of the Empire has placed in the disposal of the executivemagistrate." Paley, Moral Philosophy, Book vi. cap. vii. Thewhole chapter whence this passage is taken repays study. Paley sees far moredearly into the true nature of the then existing constitution than didBlackstone. It is further noticeable that in 1785 the power to createParliamentary boroughs was still looked upon as in theory an existingprerogative of the Crown. The power of the Crown was still large, and rested infact upon the possession of enormous patronage. 7 Blackstone, Commentaries,i. p. 267.
Histo-n's view constitu-n. Its tiquarj-ism.
of the powers, both of the King and of the Government. No one, indeed,but a child, fancies that the King sits crowned on his throne at Westminster,and in his own person administers justice to his subjects. But the ideaentertained by many educated men that an English King or Queen reigns withouttaking any part in the government of the country, is not less far from thetruth than the notion that Edward VII. ever exercises judicial powers in whatare called his Courts. The oddity of the thing is that to most Englishmen theextent of the authority actually exercised by the Crown and the sameremark applies (in a great measure) to the authority exercised by the PrimeMinister, and other high officials is a matter of conjecture. We haveall learnt from Blackstone, and writers of the same class, to make suchconstant use of expressions which we know not to be strictly true to fact, thatwe cannot say for certain what is the exact relation between the facts ofconstitutional government and the more or less artificial phraseology underwhich they are concealed. Thus to say that the King appoints the Ministry isuntrue; 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 actualfacts. Moreover, of the powers ascribed to the Crown, some are in realityexercised by the Government, whilst others do not in truth belong either to theKing or to the Ministry. The general result is that the true position of theCrown as also the true powers of the Government are concealed under thefictitious ascription to the sovereign of political omnipotence, and the readerof, say, the first Book of Blackstone, can hardly discern the facts of law withwhich it is filled under the unrealities of the language in which these factsfind expression.
Let us turn from the formalism of lawyers to the truthfulness of ourconstitutional historians.
Here a student or professor troubled about the nature of constitutionallaw finds himself surrounded by a crowd of eminent instructors. He mayavail himself of the impartiality of Hallam: he may dive into the exhaustlesserudition of the Bishop of Oxford: he will discover infinite parliamentaryexperience in the pages of Sir Thomas May, and vigorous common sense, combinedwith polemical research, in Mr. Freeman's Growth of the EnglishConstitution. Let us take this book as an excellent type of historicalconstitutionalism. The
Growth of the English Constitution is known to every one. Of itsrecognised merits, of its clearness, 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, deservesespecial notice. Mr. Freeman's highest merit is his unrivalled faculty forbringing every matter under discussion to a dear issue. He challenges hisreaders to assent or deny. If you deny you must show good cause for yourdenial, and hence may learn fully as much from rational disagreement with ourauthor as from unhesitating assent to his views. Take, then, the Growth ofthe English Constitution as a first-rate specimen of the mode in which anhistorian looks at the constitution. What is it that a lawyer, whose object isto acquire the knowledge of law, will learn from its pages? A few citationsfrom the ample and excellent head notes to the first two chapters of the workanswer the inquiry. They run thus:
The Landesgemeinden of Uri and Appenzell; their bearing on EnglishConstitutional History; political elements common to the whole Teutonic race;monarchic, aristocratic, and democratic elements to be found from thebeginning; the three classes of men, the noble, the common freeman, and theslave; universal prevalence of slavery; the Teutonic institutions common to thewhole Aryan family; witness of Homer; description of the German Assemblies byTacitus; continuity of English institutions; English nationality assumed;Teutonic institutions brought into Britain by the English conquerors; effectsof the settlement on the conquerors; probable increase of slavery; Earls andChurls; growth of the kingly power; nature of kingship; special sanctity of theKing; immemorial distinction between Kings and Eal-dormen. . . . Gradual growthof the English constitution; new laws seldom called for; importance ofprecedent; return to early principles in modern legislation; shrinking up ofthe ancient national Assemblies; constitution of the Witenagemot; theWitenagemot continued in the House of Lords; Gemots after the Norman Conquest;the King's right of summons; Life Peerages; origin of the House of Commons;comparison of English and French national Assemblies; of English and Frenchhistory generally; course of events influenced by particular men; Simon ofMontfort. . . Edward the First; the constitution finally completed under him;nature of later changes; difference between English and continentallegislatures.
All this is interesting, erudite, full of historical importance, andthoroughly in its place in a book concerned solely with the "growth"
ontrast ?tween gat and storical ew of jnsti-ition. i
of the constitution; but in regard to English law and the law of theconstitution, the Landesgemtinden of Uri, the witness of Homer, theealdormen, the constitution of the Witenagemot, and a lot more of fascinatingmatter are mere antiquarianism. Let no one suppose that to say this is to denythe relation between history and law. It were far better, as things now stand,to be charged with heresy, than to fall under the suspicion of lackinghistorical-mindedness, or of questioning the universal validity of thehistorical method. What one may assert without incurring the risk of suchcrushing imputations is, that the kind of constitutional history which consistsin researches into the antiquities of English institutions, has no directbearing on the rules of constitutional law in the sense in which these rulescan become the subject of legal comment. Let us eagerly learn all that isknown, and still more eagerly all that is not known, about the Witenagemot. Butlet us remember that antiquarianism is not law, and that the function of atrained lawyer is not to know what the law of England was yesterday, still lesswhat it was centuries ago, or what it ought to be to-morrow, but to know and beable to state what are the principles of law which actually and at the presentday exist in England. For this purpose it boots nothing to know the nature ofthe Landesgemeinden of Uri, or to understand, if it be understandable, theconstitution of the Witenagemot. All this is for a lawyer's purposes simpleantiquarianism. It throws as much light on the constitution of the UnitedStates as upon the constitution of England; that is, it throws from a legalpoint of view no light upon either the one or the other.
The name of the United States serves well to remind us of the truerelation between constitutional historians and legal constitutionalists. Theyare each concerned with the constitution, but from a different aspect. Anhistorian is primarily occupied with ascertaining the steps by which aconstitution has grown to be what it is. He is deeply, sometimes excessively,concerned with the question of "origins." He is but indirectly concerned inascertaining what are the rules of the constitution in the year 1908. To alawyer, on the other hand, the primary object of study is the law as it nowstands; he is only secondarily occupied with ascertaining how it came intoexistence. This is absolutely dear if we compare the position of an Americanhistorian
with the position of an American jurist. The historian of the AmericanUnion would not commence his researches at the year 1789; he would have a gooddeal to say about Colonial history and about the institutions of England; hemight, for aught I know, find himself impelled to go back to the Witenagemot;he would, one may suspect, pause in his researches considerably short of Uri. Alawyer lecturing on the constitution of the United States would, on the otherhand, necessarily start from the constitution itself. But he would soon seethat the articles of the constitution required a knowledge of the Articles ofConfederation; that the opinions of Washington, of Hamilton, and generally ofthe 'Tathers," as one sometimes hears them called in America, threw light onthe meaning of various constitutional articles; and further, that the meaningof the constitution could not be adequately understood by any one who did nottake into account the situation of the colonies before the separation fromEngland and the rules of common law, as well as the general conceptions of lawand justice inherited by English colonists from their English forefathers. Asit is with the American lawyer compared with the American historian, so it iswith the English lawyer as compared with the English historian. Hence, evenwhere lawyers are concerned, as they frequently must be, with the developmentof our institutions, arises a further difference between the historical and thelegal view of the constitution. Historians in their devotion to the earliestphases of ascertainable history are infected with a love which, in the eyes ofa lawyer, appears inordinate, for the germs of our institutions, and seem tocare little about their later developments. Mr. Freeman gives but one-third ofhis book to anything as modern as the days of the Stuarts. The period of nowmore than two centuries which has elapsed since what used to be called the"Glorious Revolution," filled as those two centuries are with change and withgrowth, seems hardly to have attracted the attention of a writer whom lack, notof knowledge, but of will has alone prevented from sketching out the annals ofour modern constitution. A lawyer must look at the matter differently. It isfrom the later annals of England he derives most help in the study of existinglaw. What we might have obtained from Dr. Stubbs had he not surrendered to theEpiscopate gifts which we
hoped were dedicated to the University alone, is now left to conjecture.But, things being as they are, the historian who most nearly meets the wants oflawyers is Mr. Gardiner. The struggles of the seventeenth century, the conflictbetween James and co*ke, Bacon's theory of the prerogative, Charles's effort tosubstitute the personal will of Charles Stuart for the legal will of the Kingof England, are all matters which touch not remotely upon the problems ofactual law. A knowledge of these things guards us, at any rate, from theillusion, for illusion it must be termed, that modern constitutional freedomhas been established by an astounding method of retrogressive progress; thatevery step towards civilisation has been a step backwards towards the simplewisdom of our uncultured ancestors. The assumption which underlies this view,namely, that there existed among our Saxon forefathers a more or less perfectpolity, conceals the truth both of law and of history. To ask how a mass oflegal 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 and dashed hisarms in the great Assembly which restored Godwine to his lands,8
is to put an inquiry which involves an untenable assumption; it is likeasking what a Cherokee Indian would have thought of the claim of George theThird to separate taxation from representation. In each case the questionimplies that the simplicity of a savage enables him to solve with fairness aproblem of which he cannot understand the terms. Civilisation may rise above,but barbarism sinks below the level of legal fictions, and our respectableSaxon ancestors were, as compared, not with ourselves only, but with men solike ourselves as co*ke and Hale, respectable barbarians. The supposition,moreover, that the cunning of lawyers has by the invention of legal fictionscorrupted the fair simplicity of our original constitution, underrates thestatesmanship of lawyers as much as it overrates the merits of early society.The fictions of the Courts have in the hands of lawyers
HI. View of political theorists. Its defect that it deals solely withconventions of constitution.
such as co*ke served the cause both of justice and of freedom, and servedit when it could have been defended by no other weapons. For there are socialconditions under which legal fictions or subtleties afford the sole means ofestablishing that rule of equal and settled law which is the true basis ofEnglish civilisation. Nothing can be more pedantic, nothing more artificial,nothing more unhistorical, than the reasoning by which co*ke induced orcompelled James to forego the attempt to withdraw cases from the Courts for hisMajesty's personal determination.9 But no achievement of soundargument, or stroke of enlightened statesmanship, ever established a rule moreessential to the very existence of the constitution than the principle enforcedby the obstinacy and the fallacies of the great Chief-Justice. Oddly enough,the notion of an ideal constitution corrupted by the technicalities of lawyersis at bottom a delusion of the legal imagination. The idea of retrogressiveprogress is merely one form of the appeal to precedent. This appeal has madeits appearance at every crisis in the history of England, and indeed no one hasstated so forcibly as my friend Mr. Freeman himself the peculiarity of allEnglish efforts to extend the liberties of the country, namely, that theseattempts at innovation have always assumed the form of an appeal to preexistingrights. But the appeal to precedent is in the law courts merely a usefulfiction by which judicial decision conceals its transformation into judiciallegislation; and a fiction is none the less a fiction because it has emergedfrom the Courts into the field of politics or of history. Here, then, theastuteness of lawyers has imposed upon the simplicity of historians. Formalismand antiquarianism have, so to speak, joined hands; they have united to misleadstudents in search for the law of the constitution.
Let us turn now to the political theorists.
No better types of such thinkers can be taken than Bagehot and ProfessorHearn. No author of modern times (it may be confidently asserted) has done somuch to elucidate the intricate workings of English government as Bagehot. HisEnglish Constitution is so full of brightness, originality, and wit,that few students notice how full it is
8 See Freeman, Growth of the English Constitution (ist ed.), p.125.
9 See 12 Rep. 64; Hearn, Government of England (2nd ed.),chap. iii.
also of knowledge, of wisdom, and of insight. The slight touches, forexample, by which Bagehot paints the reality of Cabinet government, are soamusing as to make a reader forget that Bagehot was the first author whoexplained in accordance with actual fact the true nature of the Cabinet and itsreal relation to the Crown and to Parliament. He is, in short, one of thoserare teachers who have explained intricate matters with such completeclearness, as to make the public forget that what is now so dear ever neededexplanation. Professor Hearn may perhaps be counted an anticipator of Bagehot.In any case he too has approached English institutions from a new point ofview, and has looked at them in a fresh light; he would be universallyrecognised among us as one of the most distinguished and ingenious exponents ofthe mysteries of the English constitution, had it not been for the fact that hemade his fame as a professor, not in any of the seats of learning in the UnitedKingdom, but in the University of Melbourne. From both these writers we expectto learn, and do learn much, but, as in the case of Mr. Freeman, though welearn much from our teacher which is of value, we do not learn precisely whatas lawyers we are in search of. The truth is that both Bagehot and I ProfessorHearn deal and mean to deal mainly with political understandings or conventionsand not with rules of law. What is the precise moral influence which might beexerted by a wise constitutional monarch; what are the circ*mstances underwhich a Minister is entitled to dissolve Parliament; whether the simultaneouscreation of a large number of Peers for a special purpose is constitutionallyjustifiable; what is the principle on which a Cabinet may allow of openquestions these and the like are the kind of inquiries raised and solvedby writers whom, as being occupied with the conventional understandings of theconstitution, we may term conventionalists. These inquires are, many of them,great and weighty; but they are not inquiries which will ever be debated in thelaw courts. If the Premier should advise the creation of five hundred Peers,the Chancery Division would not, we may be sure, grant an injunction torestrain their creation. If he should on a vote of censure decline to resignoffice, the King's Bench Division would certainly not issue a quo warrantocalling upon him to show cause why he continues to be
And conventional view does not explain how conventions enforced.
Is constitutional law really "law" at all?
Prime Minister. As a lawyer, I find these matters too high for me. Theirpractical solution must be left to the profound wisdom of Members ofParliament; their speculative solution belongs to the province of politicaltheorists.
One suggestion a mere legist may be allowed to make, namely, that theauthors who insist upon and explain the conventional character of theunderstandings which make up a great part of the constitution, leaveunexplained the one matter which needs explanation. They give no satisfactoryanswer to the inquiry how it happens that the understandings of politics aresometimes at least obeyed as rigorously as the commands of law.10 Torefer to public opinion and to considerations of expediency is to offer but avery inadequate solution of a really curious problem. Public opinion approvesand public expediency requires the observance of contracts, yet contracts arenot always observed, and would (presumably) be broken more often than they aredid not the law punish their breach, or compel their performance. Meanwhile itis certain that understandings are not laws, and that no system ofconventionalism will explain the whole nature of constitutional law, if indeed"constitutional law" be in strictness law at all.
For at this point a doubt occurs to one's mind which must more than oncehave haunted students of the constitution. Is it possible that so-called"constitutional law" is in reality a cross between history and custom whichdoes not properly deserve the name of law at all, and certainly does not belongto the province of a professor called upon to learn or to teach nothing but thetrue indubitable law of England? Can it be that a dark saying of Tocqueville's,"the English constitution has no real existence" (dien'existepoint11), contains the truth of the whole matter? Inthis case lawyers would gladly surrender a domain to which they can establishno valid title. The one half of it should, as belonging to history, go over toour historical professors. The other half should, as belonging to conventionswhich illustrate the growth of law, be transferred either to my friend theCorpus
10 See further on this point, Part III. post.
11 Tocqueville, CEuvres Completes, i. 166, 167.
Professor of Jurisprudence, because it is his vocation to deal with theoddities or the outlying portions of legal science, or to my friend theChichele Professor of International Law, because he being a teacher of lawwhich is not law, and being accustomed to expound those rules of public ethicswhich are miscalled international law, will find himself at home in expoundingpolitical ethics which, on the hypothesis under consideration, are miscalledconstitutional 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 termconstitutional law, and then consider how far it is a fit subject for legalexposition.
Constitutional law, as the term is used in England, appears to includeall rules which directly or indirectly affect the distribution or the exerciseof the sovereign power in the state.12 Hence it includes (amongother things) all rules which define the members of the sovereign power, allrules which regulate the relation of such members to each other, or whichdetermine the mode in which the sovereign power, or the members thereof,exercise their authority. Its rules prescribe the order of succession to thethrone, regulate the prerogatives of the chief magistrate, determine the formof the legislature and its mode of election. These rules also deal withMinisters, with their responsibility, with their spheres of action, define theterritory over which the sovereignty of the state extends and settle who are tobe deemed subjects or citizens. Observe the use of the word "rules," not"laws." This employment of terms is intentional. Its object is to callattention to the fact that the rules which make up constitutional law, as theterm is used in England, include two sets of principles or maxims of a totallydistinct character.
The one set of rules are in the strictest sense "laws," since they arerules which (whether written or unwritten, whether enacted by stat-
12 Compare Holland, Jurisprudence (loth ed.), pp. 138, 139, and359-363. "By the constitution of a country is meant so much of its law asrelates to the designation and form of the legislature; the rights andfunctions of the several parts of the legislative body; the construction,office, and jurisdiction of courts of justice. The constitution is oneprincipal division, section, or title of the code of public laws, distinguishedfrom the rest only by the superior importance of the subject of which ittreats." Paley, Moral Philosophy, Book vi. chap. vii.
(ii.) Rules which are not laws conventions of the constitution
Examples of rules belonging to law of constitution.
ute or derived from the mass of custom, tradition, or judge-made maximsknown 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 ofdistinction be called collectively "the law of the constitution."
The other set of rules consist of conventions, understandings, habits,or practices which, though they may regulate the conduct of the several membersof the sovereign power, of the Ministry, or of other officials, are not inreality laws at all since they are not enforced by the Courts. This portion ofconstitutional law may, for the sake of distinction, be termed the "conventionsof the constitution," or constitutional morality.
To put the same thing in a somewhat different shape, "constitutionallaw," as the expression is used in England, both by the public and byauthoritative writers, consists of two elements. The one element, here calledthe "law of the constitution," is a body of undoubted law; the other element,here called the "conventions of the constitution," consists of maxims orpractices which, though they regulate the ordinary conduct of the Crown, ofMinisters, and of other persons under the constitution, are not in strictnesslaws at all. The contrast between the law of the constitution and theconventions of the constitution may be most easily seen from examples.
To the law of the constitution belong the following rules:
"The King can do no wrong." This maxim, as now interpreted by theCourts, means, in the first place, that by no proceeding known to the law canthe King be made personally responsible for any act done by him; if (to give anabsurd example) the King were himself to shoot the Premier through the head, nocourt in England could take cognisance of the act. The maxim means, in thesecond place, that no one can plead the orders of the Crown or indeed of anysuperior officer in defence of any act not otherwise justifiable by law; thisprinciple in both its applications is (be it noted) a law and a law of theconstitution, 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 abolition of thedispensing power now depends upon the Bill of Rights; it is a law of theConstitution and a written law. "Some person is legally responsible for everyact done by the Crown." This responsibility of
onsists
:wo ferent dsof es.
Rules
ich are
e
'5 law
he con-
ution.
Ministers appears in foreign countries as a formal part of theconstitution; in England it results from the combined action of several legalprinciples, 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 isnot done in a particular form, a form in general involving the affixing of aparticular seal by a Minister, or the counter-signature or something equivalentto the counter-signature of a Minister; thirdly, the principle that theMinister who affixes a particular seal, or countersigns his signature, isresponsible for the act which he, so to speak, endorses;13 thisagain is part of the constitution and a law, but it is not a written law. Soagain the right to personal liberty, the right of public meeting, and manyother rights, are part of the law of the constitution, though most of theserights are consequences 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) cannotVeto'14 any bill passed by the two Houses of Parliament"; "the Houseof Lords does not originate any money bill"; "when the House of Lords acts as aCourt of Appeal, no peer who is not a law lord takes part in the decisions ofthe House"; "Ministers resign office when they have ceased to command theconfidence of the House of Commons"; "a bill must be read a certain number oftimes before passing through the House of Commons." These maxims aredistinguished from each other by many differences;15 under a new orwritten con-
13 Compare Hearn, Government of England (2nd ed.), chap. iv.
14 As to the meaning of "veto," see Hearn, Government of England(2nd ed.), pp. 51, 60, 61, 63, 548, and the article on the word Veto in thelast edition of the Encyclopaedia Britannica, by Professor Orelli.
15 Some of these maxims are never violated, and are universally admittedto be inviolable. Others, on the other hand, have nothing but a slight amountof custom in their favour, and are of disputable validity. The main distinctionbetween different classes of conventional rules may, it is conceived, be thusstated: Some of these rules could not be violated without bringing to a stopthe course of orderly and pacific government; others might be violated withoutany other consequence than that of exposing the Minister or other person bywhom they were broken to blame or unpopularity.
Distinction between laws and conventions not the same as differencebetween written and unwritten law.
stitution some of them probably would and some of them would not takethe form of actual laws. Under the English constitution they have one point incommon: they are none of them "laws" in the true sense of that word, for if anyor all of them were broken, no court would take notice of their violation.
It is to be regretted that these maxims must be called "conventional,"for the word suggests a notion of insignificance or unreality. This, however,is the last idea which any teacher would wish to convey to his hearers. Ofconstitutional 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. Myobject, however, is to contrast, not shams with realities, but the legalelement with the conventional element of so-called "constitutional law."
This distinction differs essentially, it should be noted, from thedistinction between "written law" (or statute law) and "unwritten law" (orcommon law). There are laws of the constitution, as, for example, the Bill ofRights, the Act of Settlement, and Habeas Corpus Acts, which are "written law,"found in the statute-books in other words, are statutory enactments.There are other most important laws of the constitution (several of which havealready been mentioned) which are "unwritten" laws, that is, not statutoryenactments. Some further of the laws of the constitution, such, for example, asthe law regulating the descent of the Crown, which were at one time unwrittenor common law, have now become written or
This difference will at bottom be found to depend upon the degree ofdirectness with which the violation of a given constitutional maxim brings thewrongdoer into conflict with the law of the land. Thus a Ministry under whoseadvice Parliament were not summoned to meet for more than a year would, owingto the lapse of the Mutiny Act, etc., become through their agents engaged in aconflict with the Courts. The violation of a convention of the constitutionwould in this case lead to revolutionary or reactionary violence. The rule, onthe other hand, that a Bill must be read a given number of times before it ispassed is, though a well-established constitutional principle, a conventionwhich might be disregarded without bringing the Government into conflict withthe 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 inducedthe House to alter their rules as to the number of times a Bill should be read,would in no way be exposed to a contest with the ordinary tribunals. Ministerswho, after Supplies were voted and the Mutiny Act passed, should prorogue theHouse and keep office for months after the Government had ceased to retain theconfidence of the Commons, might or might not incur grave unpopularity, butwould not necessarily commit a breach of law. See further Part III.post.
imples
ules
ichbe-
gto
iven-
is of the
.sti-
on.
statute law. The conventions of the constitution, on the other hand,cannot be recorded in the statute-book, though they may be formally reduced towriting. Thus the whole of our parliamentary procedure is nothing but a mass ofconventional law; it is, however, recorded in written or printed rules. Thedistinction, in short, between written and unwritten law does not in any sensesquare with the distinction between the law of the constitution (constitutionallaw properly so called) and the conventions of the constitution. This latter isthe distinction on which we should fix our whole attention, for it is of vitalimportance, and elucidates the whole subject of constitutional law. It isfurther a difference which may exist in countries which have a written orstatutory constitution.16 In the United States the legal powers ofthe 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 theconstitution. But side by side with the law have grown up certain stringentconventional rules, which, though they would not be noticed by any court, havein practice nearly the force of lawJSfoPresident has everjbeen re-elected morethan once: the popular approval of this conventional limit (of which theconstitution knows nothing) on a President's re-eligibility proved a fatal barto General Grant's third candidature. Constitutional understandings haveentirely changed the position of the Presidential electors. They were by thefounders of the constitution intended to be what their name denotes, thepersons who chose or selected the President; the chief officer, in short, ofthe Republic was, according to the law, to be appointed under a system ofdouble election. This intention has failed; the "electors" have become a meremeans of voting for a
16 The conventional element in the constitution of the United States isfar larger than most Englishmen suppose. See on this subject Wilson,Congressional Government, and Bryce (3rd ed.), American Commonwealth,chaps, xxxiv. and xxxv. It may be asserted without much exaggeration thatthe conventional element in the constitution of the United States is now aslarge as in the English constitution. Under the American system, however, theline between "conventional rules" and "laws" is drawn with a precision hardlypossible in England.
Under the constitution of the existing French Republic, constitutionalconventions or understandings exert a considerable amount of influence. Theyconsiderably limit, for instance, the actual exercise of the large powersconferred by the letter of the constitution on the President. See Chardon,L'Administration de la France Les Fonctionnaires, pp.79-105.
Constitutional law as subject of legal study means solely law ofconstitution.
particular candidate; they are no more than so many ballots cast for theRepublican or for the Democratic nominee. The understanding that an elector isnot really to elect, has now become so firmly established, that for him toexercise his legal power of choice is considered a breach of political honourtoo gross to be committed by the most unscrupulous of politicians. Publicdifficulties, not to say dangers, might have been averted if, in the contestbetween Mr. Hayes and Mr. Tilden, a few Republican electors had felt themselvesat liberty to vote for the Democratic candidate. Not a single man among themchanged his side. The power of an elector to elect is as completely abolishedby constitutional understandings in America as is the royal right of dissentfrom bills passed by both Houses by the same force in England. Under a written,therefore, as under an unwritten constitution, we find in full existence thedistinction between the law and the conventions of the constitution.
Upon this difference I have insisted at possibly needless length,because it lies at the very root of the matter under discussion. Once grasp theambiguity latent in the expression "constitutional law," and everythingconnected with the subject falls so completely into its right place that alawyer, called upon to teach or to study constitutional law as a branch of thelaw of England, can hardly fail to see dearly the character and scope of hissubject.
With conventions or understandings he has no direct concern. They varyfrom generation to generation, almost from year to year. Whether a Ministrydefeated at the polling booths ought to retire on the day when the result ofthe election is known, or may more properly retain office until after a defeatin Parliament, is or may be a question of practical importance. The opinions onthis point which prevail today differ (it is said) from the opinions orunderstandings which prevailed thirty years back, and are possibly differentfrom the opinions or understanding which may prevail ten years hence. Weightyprecedents and high authority are cited on either side of this knotty question;the dicta or practice of Russell and Peel may be balanced off against the dictaor practice of Beaconsfield and Gladstone. The subject, however, is not one oflaw but of politics, and need trouble no lawyer or the class of any professorof law. If he is
iwof institu-?n can be :pounded ce any her
anch of iglish w.
concerned with it at all, he is so only in so far as he may be calledupon t0 show what is the connection (if any there be) between the conventionsof the constitution and the law of the constitution.
This the true constitutional law is his only real concern. His properfunction is to show what are the legal rules (i.e. rules recognised bythe Courts) which are to be found in the several parts of the constitution. Ofsuch rules or laws he will easily discover more than enough. The rulesdetermining the legal position of the Crown, the legal rights of the Crown'sMinisters, the constitution of the House of Lords, the constitution of theHouse of Commons, the laws which govern the established Church, the laws whichdetermine the position of the non-established Churches, the laws which regulatethe army, these and a hundred other laws form part of the law of theconstitution, and are as truly part of the law of the land as the articles ofthe Constitution of the United States form part of the law of the Union.
The duty, in short, of an English professor of law is to state what arethe laws which form part of the constitution, to arrange them in their order,to explain their meaning, and to exhibit where possible their logicalconnection. He ought to expound the unwritten or partly unwritten constitutionof England, in the same manner in which Story and Kent have expounded thewritten law of the American constitution. The task has its specialperplexities, 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 lawof 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 onjudicial decisions, on authoritative dicta, and in many cases on mereinferences drawn from judicial doctrines; it is often difficult to discriminatebetween prevalent custom and acknowledged right. This is true of the endeavourto expound the law of the constitution; all this is true also in a measure ofany attempt to explain our law of contract, our law of torts, or our law ofreal property.
Moreover, teachers of constitutional law enjoy at this moment oneinvaluable advantage. Their topic has, of recent years,17 become of
17 This treatise was originally published in 1885. Since that date legaldecisions and public discussion have thrown light upon several matters ofconstitutional law, such, for example, as the limits to the right of publicmeeting and the nature of martial law.
immediate interest and of pressing importance. These years have broughtinto the foreground new constitutional questions, and have afforded in manyinstances the answers thereto. The series of actions connected with the name ofMr. Bradlaugh18 has done as much to dear away the obscurity whichenvelops many parts of our public law as was done in the eighteenth century bythe series of actions connected with the name of John Wilkes. The law ofmaintenance has been rediscovered; the law of blasphemy has received newelucidation. Everybody now knows the character of a penal action. It is nowpossible to define with precision the relation between the House of Commons andthe Courts of the land; the legal character and solemnity of an oath has beenmade patent to all the world, or at any rate to all those persons who choose toread the Law Reports. Meanwhile circ*mstances with which Mr. Bradlaughhad no connection have forced upon public attention all the various problemsconnected with the right of public meeting. Is such a right known to the law?What are the limits within which it may be exercised? What is the truedefinition of an "unlawful assembly"? How far may citizens lawfully assembledassert their right of meeting by the use of force? What are the limits withinwhich the English constitution recognises the right of self-defence? These arequestions some of which have been raised and all of which may any day be raisedbefore the Courts. They are inquiries which touch the very root of our publiclaw. 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 theconstitution must remain a matter of pressing interest. The fact, however, thatthe provisions of this law are often embodied in cases which have gainednotoriety and excite keen feelings of political partisanship may foster aserious misconception. Unintelligent students may infer that the law of theconstitution is to be gathered only from famous judgments which embalm theresults of grand constitutional or political conflicts. This is not so. Scoresof unnoticed cases, such as the Parlement Beige,19 orThomas v. The Queen,20 touch upon or decide principlesof constitu-
18 Written 1885. See for Bradlaugh's political career, Diet. Nat.Biog., Supplement, vol. i. p. 248.
19 4 P. D. 129; 5 P. D. 197. Compare Walker v. Baird [1892], A.C. 491, 497.
20 L. R.,ioQ. B. 31.
tional law. Indeed every action against a constable or collector ofrevenue enforces the greatest of all such principles, namely, that obedience toadministrative orders is no defence to an action or prosecution for acts donein excess of legal authority. The true law of the constitution is in short tobe gathered from the sources whence we collect the law of England in respect toany other topic, and forms as interesting and as distinct, though not as wellexplored, a field for legal study or legal exposition as any which can befound. The subject is one which has not yet been fully mapped out. Teachers andpupils alike therefore suffer from the inconvenience as they enjoy the interestof exploring a province of law which has not yet been entirely reduced toorder.21
This inconvenience has one great compensation. We are compelled tosearch for the guidance of first principles, and as we look for a due throughthe mazes of a perplexed topic, three such guiding principles gradually becomeapparent. They are, first, the legislative sovereignty ofParliament;22 secondly, the universal rule or supremacythroughout the constitution of ordinary law;23 and thirdly(though here we tread on more doubtful and speculative ground), thedependence in the last resort of the conventions upon the law of theconstitution.24 To examine, to elucidate, to test these threeprinciples, forms, at any rate (whatever be the result of the investigation), asuitable introduction to the study of the law of the constitution.
21 Since these words were written, Sir William Anson's admirable Lawand Custom of the Constitution has gone far to provide a complete scheme ofEnglish constitutional law.
22 See Part I. post.
23 See Part II. post.
24 See Part III. post.
PARTI THE SOVEREIGNTY OF PARLIAMENT
Chapter I
THE NATURE OF PARLIAMENTARY SOVEREIGNTY
The sovereignty of Parliament is (from a legal point of view) thedominant characteristic of our political institutions. My aim in this chapteris, in the first place, to explain the nature of Parliamentary sovereignty andto show that its existence is a legal fact, fully recognised by the law ofEngland; in the next place, to prove that none of the alleged legal limitationson the sovereignty of Parliament have any existence; and, lastly, to state andmeet certain speculative difficulties which hinder the ready admission of thedoctrine that Parliament is, under the British constitution, an absolutelysovereign legislature.
NATURE OF PARLIAMENTARY SOVEREIGNTY
Parliament means, in the mouth of a lawyer (though the word has - oftena different sense in ordinary conversation), the King, the House of Lords, andthe House of Commons; these three bodies acting together may be aptly describedas the "King in Parliament," and constitute Parliament.1
The principle of Parliamentary sovereignty means neither more nor lessthan this, namely, that Parliament thus denned has, under the Englishconstitution, the right to make or unmake any law whatever; and, further, thatno person or body is recognised by the law of
i Conf. Blackstone, Commentaries, i. p. 153.
Aim of chapter.
Nature of Parliamentary Sovereignty.
England as having a right to override or set aside the legislation ofParliament.
A law may, for our present purpose, be defined as "any rule which willbe enforced by the Courts." The principle then of Parliamentary sovereigntymay, looked at from its positive side, be thus described: Any Act ofParliament, or any part of an Act of Parliament, which makes a new law, orrepeals or modifies an existing law, will be obeyed by the Courts. The sameprinciple, looked at from its negative side, may be thus stated: There is noperson or body of persons who can, under the English constitution, make ruleswhich override or derogate from an Act of Parliament, or which (to express thesame thing in other words) will be enforced by the Courts in contravention ofan Act of Parliament. Some apparent exceptions to this rule no doubt suggestthemselves. But these apparent exceptions, as where, for example, the Judges ofthe High Court of Justice make rules of court repealing Parliamentaryenactments, are resolvable into cases in which Parliament either directly orindirectly sanctions subordinate legislation. This is not the place forentering into any details as to the nature of judicial legislation;2the matter is mentioned here only in order to remove an obvious difficultywhich might present itself to some students. It will be necessary in the courseof these lectures to say a good deal more about Parliamentary sovereignty, butfor the present the above rough description of its nature may suffice. Theimportant thing is to make dear that the doctrine of Parliamentary sovereigntyis, both on its positive and on its negative side, fully recognised by the lawof England.
Unlimited Legislative Authority of Parliament
The classical passage on this subject is the following extract fromBlackstone's Commentaries: Sir Edward co*ke,3 says:
The power and jurisdiction of Parliament is so transcendent andabsolute, that it cannot be confined, either for causes or persons, within anybounds.
2 The reader who wishes for fuller information on the nature ofjudge-made law will find what he wants in Dicey's Law and Public Opinion inEngland, App. Note iv. p. 481, and in Sir Frederick Pollock's Essays inJurisprudence and Ethics, p. 237.
3 Fourth Institute, p. 36.
Historical examples of Parliamentary sovereignty.
And of this high court, he adds, it may be truly said, "Siantiquitatem species, est vetustissima; si dignitatem, est honomtissima; sijurisdictionem, est capacissima." It hath sovereign and uncontrollableauthority in the making, confirming, enlarging, restraining, abrogating,repealing, reviving, and expounding of laws, concerning matters of all possibledenominations, ecclesiastical or temporal, civil, military, maritime, orcriminal: this being the place where that absolute despotic power, which mustin all governments reside somewhere, is entrusted by the constitution of thesekingdoms. All mischiefs and grievances, operations and remedies, that transcendthe ordinary course of the laws, are within the reach of this extraordinarytribunal. It can regulate or new-model the succession to the Crown; as was donein the reign of Henry VIII, and William III. It can alter the establishedreligion of the land; as was done in a variety of instances, in the reigns ofking Henry VIII, and his three children. It can change and create afresh eventhe constitution of the kingdom and of parliaments themselves; as was done bythe act of union, and the several statutes for triennial and septennialelections. It can, in short, do everything that is not naturally impossible;and therefore some have not scrupled to call its power, by a figure rather toobold, the omnipotence of Parliament. True it is, that what the Parliament doth,no authority upon earth can undo. So that it is a matter most essential to theliberties of this kingdom, that such members be delegated to this importanttrust, as are most eminent for their probity, their fortitude, and theirknowledge; for it was a known apophthegm of the great lord treasurer Burleigh,"that England could never be ruined but by a Parliament": and, as Sir MatthewHale observes, this being the highest and greatest court over which none othercan have jurisdiction in the kingdom, if by any means a misgovernment shouldany way fall upon it, the subjects of this kingdom are left without all mannerof remedy. To the same purpose the president Montesquieu, though I trust toohastily, presages; that as Rome, Sparta, and Carthage have lost their libertyand perished, so the constitution of England will in time lose its liberty,will perish: it will perish whenever the legislative power shall become morecorrupt than the executive.4
De Lolme has summed up the matter in a grotesque expression which hasbecome almost proverbial. "It is a fundamental principle with English lawyers,that Parliament can do everything but make a woman a man, and a man a woman."
This supreme legislative authority of Parliament is shown historicallyin a large number of instances.
4 Blackstone, Commentaries, i. pp. 160, 161. Compare as tosovereignty of Parliament, De Republica Anglorum; A Discourse on theCommonwealth of England, by Sir Thomas Smith, edited by L. Alston, Book ii,chap. i. p. 148. The book was originally published in 1583.
The descent of the Crown was varied and finally fixed under the Act ofSettlement, 12 & 13 William III., c. 2; the King occupies the throne undera Parliamentary tide; his claim to reign depends upon and is the result of astatute. This is a proposition which, at the present day, no one is inclinedeither to maintain or to dispute; but a glance at the statute-book shows thatnot much more than two hundred years ago Parliament had to insist strenuouslyupon the principle of its own lawful supremacy. The first section of 6 Anne, c.7, enacts (inter alia),
That if any person or persons shall maliciously, advisedly, and directlyby 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 thename of James the Eighth, hath any right or title to the Crown of these realms,or that any other person or persons hath or have any right or title to thesame, otherwise than according to an Act of Parliament made in England in thefirst year of the reign of their late Majesties King William and Queen Mary, ofever blessed and glorious memory, intituled, An Act declaring the rights andliberties of the subject, and settling the succession of the Crown; and oneother Act made in England in the twelfth year of the reign of his said lateMajesty King William the Third, intituled, An Act for the further limitation ofthe Crown, and better securing the rights and liberties of the subject; and theActs lately made in England and Scotland mutually for the union of the twokingdoms; or that the Kings or Queens of this realm, with and by the authorityof Parliament, are not able to make laws and statutes of sufficient force andvalidity to limit and bind the Crown, and the descent, limitation, inheritance,and government thereof; every such person or persons shall be guilty of hightreason, and being thereof lawfully convicted, shall be adjudged traitors, andshall suffer pains of death, and all losses and forfeitures as in cases of hightreason.5
The Acts of Union (to one of which Blackstone calls attention) afford aremarkable example of the exertion of Parliamentary authority. But there is nosingle statute which is more significant either as to the theory or as to thepractical working of the constitution than the Septennial Act.6 Thecirc*mstances of its enactment and the nature of the Act itself merit thereforespecial attention.
56 Anne, c. 41 (otherwise 6 Anne, c. 7), sec. i. This enactment is stillin force. 6 i George I. st. 2, c. 38.
Septennial Act.
In 1716 the duration of Parliament was under an Act of 1694 limited tothree years, and a general election could not be deferred beyond 1717. The Kingand the Ministry were convinced (and with reason) that an appeal to theelectors, many of whom were Jacobites, might be perilous not only to theMinistry but to the tranquillity of the state. The Parliament then sitting,therefore, was induced by the Ministry to pass the Septennial Act by which thelegal duration of parliament was extended from three to seven years, and thepowers of the then existing House of Commons were in effect prolonged for fouryears beyond the time for which the House was elected. This was a much strongerproceeding than passing say an Act which enabled future Parliaments to continuein existence without the necessity for a general election during seven insteadof during three years. The statute was justified by considerations ofstatesmanship and expediency. This justification of the Septennial Act mustseem to every sensible man so ample that it is with some surprise that onereads in writers so fair and judicious as Hallam or Lord Stanhope attempts tominimise the importance of this supreme display of legislative authority.Hal-lam writes:
Nothing can be more extravagant than what is sometimes confidentlypretended by the ignorant, that the legislature exceeded its rights by thisenactment; or, if that cannot legally be advanced, that it at least violatedthe trust of the people, and broke in upon the ancient constitution.
This remark he bases on the ground that
the law for triennial Parliaments was of little more than twenty years'continuance. It was an experiment, which, as was argued, had provedunsuccessful; it was subject, like every other law, to be repealed entirely, orto be modified at discretion.7
Lord Stanhope says:
We may . . . cast aside the foolish idea that the Parliament oversteppedits legitimate authority in prolonging its existence; an idea which was indeedurged by party-spirit at the time, and which may still sometimes passcurrent
7 Hallam, Constitutional History of England, iii. (187260!.), p.236.
stitu-al im-ance of :ennial
in harangues to heated multitudes, but which has been treated with uttercontempt by the best constitutional writers.8
These remarks miss the real point of the attack on the Septennial Act,and also conceal the constitutional importance of the statute. The thirty-onepeers who protested against the Bill because (among other grounds)
it is agreed, that the House of Commons must be chosen by the people,and when so chosen, they are truly the representatives of the people, whichthey cannot 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 theParliament, and not the people, who are thereby deprived of the only remedywhich they have against those, who either do not understand, or throughcorruption, do wilfully betray the trust reposed in them; which remedy is, tochoose better men in their places,9
hit exactly the theoretical objection to it. The peculiarity of the Actwas not that it changed the legal duration of Parliament or repealed theTriennial Act; the mere passing of a Septennial Act in 1716 was not and wouldnever have been thought to be anything more startling or open to graver censurethan the passing of a Triennial Act in 1694. What was startling was that anexisting Parliament of its own authority prolonged its own legal existence. Norcan the argument used by Priestley,10 and in effect by theprotesting Peers
that Septennial Parliaments were at first a direct usurpation of therights of the people; for by the same authority that one Parliament prolongedtheir own power to seven years, they might have continued it to twice seven, orlike 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 ofParliament.ai The contention of Priestley and others was insubstance that members elected to serve for three years were constitutionallyso
8 Lord Mahon, History of England, i. p. 302.
9 Thorold Rogers, Protests oftheLords, i. p. 218.
10 See Priestley on Government (1771), p. 20.
11 Hallam, Constitutional History, iii. (1872 ed.), p. 236(0.).
Interference of Parliament with private rights.
far at least the delegates or agents of their constituents that theycould not, without an inroad on the constitution, extend their own authoritybeyond the period for which it was conferred upon them by their principals,i.e. the electors. There are countries, and notably the United States,where an Act like the Septennial Act would be held legally invalid; no modernEnglish Parliament would for the sake of keeping a government or party inoffice venture to pass say a Decennial Act and thus prolong its own duration;the contention therefore that Walpole and his followers in passing theSeptennial Act violated the understandings of the constitution has on the faceof it nothing absurd. Parliament made a legal though unprecedented use of itspowers. To under-rate this exertion of authority is to deprive the SeptennialAct of its true constitutional importance. That Act proves to demonstrationthat in a legal point of view Parliament is neither the agent of the electorsnor in any sense a trustee for its constituents. It is legally the sovereignlegislative power in the state, and the Septennial Act is at once the resultand the standing proof of such Parliamentary sovereignty.
Hitherto we have looked at Parliament as legally omnipotent in regard topublic rights. Let us now consider the position of Parliament in regard tothose private rights which are in civilised states justly held specially secureor sacred. co*ke (it should be noted) particularly chooses interference withprivate rights as specimens of Parliamentary authority.
Yet some examples are desired. Daughters and heirs apparent of a man orwoman, 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 bastarda child that by law is legitimate, viz. begotten by an adulterer, the husbandbeing within the four seas.
To legitimate one that is illegitimate, and born before marriageabsolutely. And to legitimate secundum quid, but notsimpliciter.12
co*ke is judicious in his choice of instances. Interference with publicrights is at bottom a less striking exhibition of absolute power than
12 co*ke, Fourth Institute, p. 36.
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 he touched the property orinterfered with the contracts of private persons. Parliament, however,habitually interferes, for the public advantage, with private rights. Indeedsuch interference has now (greatly to the benefit of the community) become somuch a matter of course as hardly to excite remark, and few persons reflectwhat a sign this interference is of the supremacy of Parliament. Thestatute-book teems with Acts under which Parliament gives privileges or rightsto particular persons or imposes particular duties or liabilities upon otherpersons. This is of course the case with every railway Act, but no one willrealise the full action, generally the very beneficial action of Parliamentarysovereignty, who does not look through a volume or two of what are calledLocal and Private Acts. These Acts are just as much Acts of Parliamentas any Statute of the Realm. They deal with every kind of topic, as withrailways, harbours, docks, the settlement of private estates, and the like. Tothese you should add Acts such as those which declare valid marriages which,owing to some mistake of form or otherwise, have not been properly celebrated,and Acts, common enough at one time but now rarely passed, for the divorce ofmarried persons.
One further class of statutes deserve in this connection more noticethan they have received these are Acts of Indemnity.
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 towhom the statute applies from liability for having broken the law; enactmentsof this kind were annually passed with almost unbroken regularity for more thana century (1727-1828) to free Dissenters from penalties, for having acceptedmunicipal offices without duly qualifying themselves by taking the sacramentaccording to the rites of the Church of England. To the subject of Acts ofIndemnity, however, we shall return in a later chapter.13 The pointto be now noted is that such enactments being as it were the legalisation
13 See Chap. V. post.
No other competing legislative authority.
The King.
Statute of Proclamations.
of illegality are the highest exertion and crowning proof of sovereignpower.
So far of the sovereignty of Parliament from its positive side: let usnow look at the same doctrine from its negative aspect.
The Absence of Any Competing Legislative Power
The King, each House of Parliament, the Constituencies, and the LawCourts, either have at one time claimed, or might appear to claim, independentlegislative power. It will be found, however, on examination that the claim canin none of these cases be made good.
The King Legislative authority originally resided in the King inCouncil,14 and even after the commencement of Parliamentarylegislation there existed side by side with it a system of royal legislationunder the form of Ordinances,1S and (at a later period) ofProclamations.
These had much the force of law, and in the year 1539 the Act 31 HenryVIII., c. 8, formally empowered the Crown to legislate by means ofproclamations. This statute is so short and so noteworthy that it may well bequoted in extenso.
The King for the time being, with the advice of his Council, or the morepart of them, may set forth proclamations under such penalities and pains as tohim and them shall seem necessary, which shall be observed as though they weremade by Act of Parliament; but this shall not be prejudicial to any person'sinheritance, offices, liberties, goods, chattels, or life; and whosoever shallwillingly offend any article contained in the said proclamations, shall paysuch forfeitures, or be so long imprisoned, as shall be expressed in the saidproclamations; and if any offending will depart the realm, to the intent hewill not answer his said offence, he shall be adjudged atraitor.16
This enactment marks the highest point of legal authority ever reachedby the Crown, and, probably because of its inconsistency with the whole tenorof English law, was repealed in the reign of Edward the Sixth. It is curious tonotice how revolutionary would
14 See Stubbs, Constitutional History, i. pp. 126-128, and ii.pp. 245-247.
15 Stubbs, ibid. ii. chap. xv.
16 31 Henry VIII., c. 8.
have been the results of the statute had it remained in force. It musthave been followed by two consequences. An English king would have becomenearly as despotic as a French monarch. The statute would further haveestablished a distinction between "laws" properly so called as being made bythe legislature and "ordinances" having the force of law, though not instrictness laws as being rather decrees of the executive power than Acts of thelegislature. This distinction exists in one form or another in most continentalstates, and is not without great practical utility. In foreign countries thelegislature generally confines itself to laying down general principles oflegislation, and leaves them with great advantage to the public to besupplemented by decrees or regulations which are the work of the executive. Thecumbersomeness and prolixity of English statute law is due in no small measureto futile endeavours of Parliament to work out the details of large legislativechanges. This evil has become so apparent that in modern times Acts ofParliament constantly contain provisions empowering the Privy Council, thejudges, or some other body, to make rules under the Act for the determinationof details which cannot be settled by Parliament. But this is only an awkwardmitigation17 of an acknowledged evil, and the substance no less thanthe form of the law would, it is probable, be a good deal improved if theexecutive government of England could, like that of France, by means ofdecrees, ordinances, or proclamations having the force of law, work out thedetailed application of the general principles embodied in the Acts of thelegislature.18 In this, as in some other instances, restrictionswisely placed by our forefathers on the growth
17 A critic has objected to the words "awkward mitigation of anacknowledged evil" on the ground that they condemn in England a system which asit exists abroad is referred to as being not without great practical utility.The expression objected to is, however, justifiable. Under the English systemelaborate and detailed statutes are passed, and the power to make rules underthe statute, e.g. by order in council or otherwise, is introduced onlyin cases where it is obvious that to embody the rules in the statute is eitherhighly inexpedient or practically impossible. Under the foreign, and especiallythe French system, the form of laws, or in other words, of statutes, ispermanently affected by the knowledge of legislators and draftsmen that any lawwill be supplemented by decrees. English statutes attempt, and with very littlesuccess, to provide for the detailed execution of the laws enacted therein.Foreign laws are, what every law ought to be, statements of general principles.
18 See Duguit, Manuel de Droit Public Francois DroitConstitutionnel, ss. 140, 141.
of royal power, are at the present day the cause of unnecessaryrestraints on the action of the executive government. For the repeal of 31Henry VIII., c. 8, rendered governmental legislation, with all its defects andmerits, impossible, and left to proclamations only such weight as they mightpossess at common law. The exact extent of this authority was indeed for sometime doubtful. In 1610, however, a solemn opinion or protest of thejudges19 established the modern doctrine that royal proclamationshave in no sense the force of law; they serve to call the attention of thepublic to the law, but they cannot of themselves impose upon any man any legalobligation or duty not imposed by common law or by Act of Parliament. In 1766Lord Chatham attempted to prohibit by force of proclamation the exportation ofwheat, and the Act of Indemnity (7 George III., c. 7), passed in consequence ofthis attempt, may be considered the final legislative disposal of any claim onthe part of the Crown to make law by force of proclamation.
The main instances20 where, in modern times, proclamations ororders in council are of any effect are cases either where, at common law, aproclamation is the regular mode, not of legislation, but of
19 See co*ke, 12 Rep. p. 74; and Gardiner, History of England, ii.pp. 104, 105.
20 In rare instances, which are survivals from the time when the King ofEngland was the true "sovereign" in the technical sense of that term, the Crownexercises legislative functions in virtue of the prerogative. Thus the Crowncan legislate, by proclamations or orders in council, for a newly conqueredcountry (Campbell v. Hall, Cowp. 204), and has claimed the right, thoughthe validity thereof is doubtful, to legislate for the Channel Islands byorders in council. In the Matter of the States of Jersey, 9 Moore P. C.,n. s. 184, 262. See Stephen, Commentaries (8th ed.), i. pp. 100-102."The Channel Islands indeed claim to have conquered England, and are the solefragments of the dukedom of Normandy which still continue attached to theBritish Crown. For this reason, in these islands alone of all Britishpossessions does any doubt arise as to whether an Act of the imperialParliament is of its own force binding law. In practice, when an Act isintended to apply to them, a section is inserted authorising the King inCouncil to issue an Order for the application of the Act to these islands, andrequiring the registration of that Order in the islands, and the Order inCouncil is made by the King and registered by the States accordingly." Sir H.Jenkyns, British Rule and Jurisdiction beyond the Seas, p. 37. Butwhatever doubt may arise in the Channel Islands, every English lawyer knowsthat any English court will hold that an Act of Parliament dearly intended toapply to the Channel Islands is in force there proprio vigore, whetherregistered by the States or not.
As to the legislative power of the Crown in Colonies which are notself-governing, see further British Rule and Jurisdiction beyond the Seas,p. 95.
announcing the executive will of the King, as when Parliament issummoned by proclamation, or else where orders in council have authority givento them by Act of Parliament.
Resolutions of Either House of Parliament The House of Commons,at any rate, has from time to time appeared to claim for resolutions of theHouse, something like legal authority. That this pretension cannot be supportedis certain, but there exists some difficulty in defining with precision theexact effect which the Courts concede to a resolution of either House.
Two points are, however, well established, s First, theresolution of neither House is a law.
This is the substantial result of the case of Stockdale v.Hansard.21 The gist of the decision in that case is that alibellous document did not cease to be a libel because it was published by theorder of the House of Commons, or because the House subsequently resolved thatthe power of publishing the report which contained it, was an essentialincident to the constitutional functions of Parliament.
Secondly, each House of Parliament has complete control over itsown proceedings, and also has the right to protect itself by committing forcontempt any person who commits any injury against, or offers any affront tothe House, and no Court of law will inquire into the mode in which either Houseexercises the powers which it by law possesses.22
The practical difficulty lies in the reconciliation of the first withthe second of these propositions, and is best met by following out the analogysuggested 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 Courtnot 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 privilegeto regulate its own internal concerns, practically invests it with ajudicial
21 9 A. &E. i.
22 See Stockdale v.Hansard, 9 A. &E. i; Case of Sheriff ofMiddlesex, iiA. & E. zyy, Burdett v. Abbot, 14 East, i,111, 131; Bradlaugh v. Gossett, 12 Q. B. D. 272.
Law as to effect of resolutions of either House.
character when it has to apply to particular cases the provisions ofActs of Parliament. We must presume that it discharges this function properly,and with due regard to the laws, in the making of which it has so great ashare. If its determination is not in accordance with law, this resembles thecase of an error by a judge whose decision is not subject to appeal. There isnothing startling in the recognition of the fact that such an error ispossible. If, for instance, a jury in a criminal case give a perverse verdict,the law has provided no remedy. The maxim that there is no wrong without aremedy, does not mean, as it is sometimes supposed, that there is a legalremedy for every moral or political wrong. If this were its meaning, it wouldbe manifestly untrue. There is no legal remedy for the breach of a solemnpromise not under seal, and made without consideration; nor for many kinds ofverbal slander, though each may involve utter ruin; nor for oppressivelegislation, though it may reduce men practically to slavery; nor for the worstdamage to person and property inflicted by the most unjust and cruel war. Themaxim means only that legal wrong and legal remedy are correlative terms; andit would be more intelligibly and correctly stated, if it were reversed, so asto stand, "Where there is no legal remedy, there is no legalwrong."23
The law therefore stands thus. Either House of Parliament has thefullest power over its own proceedings, and can, like a Court, commit forcontempt any person who, in the judgment of the House, is guilty of insult oraffront to the House. The Case of the Sheriff of Middlesex24carries this right to the very farthest point. The Sheriff wasimprisoned for contempt under a warrant issued by the Speaker. Every one knewthat the alleged contempt was nothing else than obedience by the Sheriff to thejudgment of the Court of Queen's Bench in the case of Stockdale v.Hansard, and that the Sheriff was imprisoned by the House because undersuch judgment he took the goods of the defendant Hansard in execution. Yet whenthe Sheriff was brought by Habeas Corpus before the Queen's Bench theJudges held that they could not inquire what were the contempts for which theSheriff was committed by the House. The Courts, in other words, do not claimany right to protect their own officials from being imprisoned by the House ofCommons for alleged contempt of the House, even though the so-called contemptis nothing else than an act of obedience to the Courts. A declaration orresolution of either House, on the other
23 Bradlaugh v. Gossett, 12 Q. B. D. 271, 285.
24 11 A. &E. 273.
uses of liament.
.olurions
ither
jse.
hand, is not in any sense a law. Suppose that X were by order of theHouse of Commons to assault A out of the House, irrespective of any act done inthe House, and not under a warrant committing A for contempt; or supposethat X were to commit some offence by which he incurred a fine under some Actof Parliament, and that such fine were recoverable by A as a common informer.No resolution of the House of Commons ordering or approving of X's actcould be pleaded by X as a legal defence to proceedings, either civil orcriminal, against him.25 If proof of this were wanted it would beafforded by the Act 3 & 4 Viet. c. 9. The object of this Act, passed inconsequence of the controversy connected with the case of Stockdale v.Hansard, is to give summary protection to persons employed in thepublication of Parliamentary papers, which are, it should be noted, paperspublished by the order of one or other of the Houses of Parliament. Thenecessity for such an Act is the dearest proof that an order of the House isnot of itself a legal defence for the publication of matters which wouldotherwise be libellous. The House of Commons
by invoking the authority of the whole Legislature to give validity tothe plea they had vainly set up in the action [of Stockdale v.Hansard], and by not appealing against the judgment of the Court ofQueen's Bench, had, in effect, admitted the correctness of that judgment andaffirmed the great principle on which it was founded, viz. that no singlebranch of the Legislature can, by an assertion of its alleged privileges,alter, suspend, or supersede any known law of the land, or bar the resort ofany Englishman to any remedy, or his exercise and enjoyment of any right, bythat law established.26
25 Conf. Attorney -General v. Bradlaugh, 14 Q. B. D. (C. A.),667.
2.6 Arnould, Memoir of Lord Denman, ii. p. 70. Nothing isharder to define than the extent of the indefinite powers or rights possessedby either House of Parliament under the head of privilege or law and custom ofParliament. The powers exercised by the Houses, and especially in practice bythe House of Commons, make a near approach to an authority above that of theordinary la w of the land. Parliamentary privilege has from the nature ofthings never been the subject of precise legal definition. One or two pointsare worth notice as being dearly established.
i. Ether House of Parliament may commit for contempt, and the Courtswill not go behind the committal and inquire into the facts constituting thealleged contempt. Hence either House may commit to prison for contempt anyperson whom the House think guilty of contempt.
The Constituencies
The Vote of the Parliamentary Electors Expressions are constantlyused in the course of political discussions which imply that the body ofpersons entitled to choose members of Parliament possess under the Englishconstitution some kind of legislative authority. Such language is, as we shallsee, not without a real meaning;27 it points to the importantconsideration that the wishes of the constituencies influence the action ofParliament. But any expressions which attribute to Parliamentary electors alegal part in the process of law-making are quite inconsistent with the viewtaken by the law of the position of an elector. The sole legal right ofelectors under the English constitution is to elect members of Parliament.Electors have no legal means of initiating, of sanctioning, or of repealing thelegislation of Parliament. No Court will consider for a moment the argumentthat a law is invalid as being opposed to the opinion of the electorate; theiropinion can be legally expressed through Parliament, and through Parliamentalone. This is not a necessary incident of representative government. InSwitzerland no change can be introduced in the constitution28 whichhas not been submitted for approval or disapproval to all male citizens whohave attained their majority; and even an ordinary law which does not involve achange in the constitution may, after it has been passed by the FederalAssembly, be submitted
2. The House of Lords have power to commit an offender to prison for aspecified term, even beyond the duration of the session (May, ParliamentaryPractice (nth ed.), pp. 91, 92). But the House of Commons do not commit fora definite period, and prisoners committed by the House are, if not soonerdischarged, released from their confinement on a prorogation. If they were heldlonger in custody they would be discharged by the Courts upon a writ of HabeasCorpus (May, Parliamentary Practice, chap. iii.).
3. A libel upon either House of Parliament or upon a member thereof, inhis character of a member, has been often treated as a contempt. (Ibid.)
4. The Houses and all the members thereof have all the privileges as tofreedom of speech, etc., necessary for the performance of their duties. (Seegenerally May's Parliamentary Practice, chap, iii.) Compare as toParliamentary privilege Shaftesbury's Case, 6 St. Tr. 1269; Flower'sCase, 8 T. R. 314; Ashby v. White, i Sm. L. Cas. (gth ed.), 268;Wilkes's Case, 19 St. Tr. 1153; Burdett v. Colman, 14 East, 163;Rex v. Creevy, i M. & S. 273; Clarke v. Bradlaugh,7 Q. B. D. 38, 8. App. Cas. 354; The Attorney-General v.Bradlaugh, 14 Q. B. D. 667.
27 See pp. 27-30, post.
28 Constitution Federale de la Confederation Swisse, Arts.118-121; see Adams, The Swiss Confederation, chap. vi.
on the demand of a certain number of citizens to a popular vote, and isannulled if a vote is not obtained in its favour.29
The Law Courts A large proportion of English law is in realitymade by the judges, and whoever wishes to understand the nature and the extentof judicial legislation in England, should read Pollock's admirable essay onthe Science of Case Law.30 The topic is too wide a one to beconsidered at any length in these lectures. All that we need note is that theadhesion by our judges to precedent, that is, their habit of deciding one casein accordance with the principle, or supposed principle, which governed aformer case, leads inevitably to the gradual formation by the Courts of fixedrules for decision, which are in effect laws. This judicial legislation mightappear, at first sight, inconsistent with the supremacy of Parliament. But thisis not so. English judges do not claim or exercise any power to repeal aStatute, whilst Acts of Parliament may override and constantly do override thelaw of the judges. Judicial legislation is, in short, subordinate legislation,carried on with the assent and subject to the supervision of Parliament.
ALLEGED LEGAL LIMITATIONS ON THE LEGISLATIVE SOVEREIGNTY OFPARLIAMENT
All that can be urged as to the speculative difficulties of placing anylimits whatever on sovereignty has been admirably stated by Austin and byProfessor Holland.31 With these difficulties we have, at thismoment, no concern. Nor is it necessary to examine whether it be or be nottrue, that there must necessarily be found in every state some person, orcombination of persons, which, according to the constitution, whatever be itsform, can legally change every law, and there-
29 Constitution Federale de la Confederation Swisse, Art. 89.
30 Pollock, Essays in jurisprudence and Ethics, p. 237, and seeDicey, Law and Opinion in England (2nd ed.)/ pp. 361, 483.
31 See Austin, Jurisprudence, i. (4th ed.), pp- 270-274, andHolland, Jurisprudence (loth ed.), pp. 47-52 and 359-363. The nature ofsovereignty is also stated with brevity and clearness in Lewis, Use andAbuse of Political Terms, pp. 37 53. Compare, fora different view,Bryce, Studies in History and Jurisprudence, ii., Essay ix., Obedience;and Essay x., The Nature of Sovereignty.
fore constitutes the legally supreme power in the state. Our wholebusiness is now to carry a step further the proof that, under the Englishconstitution, Parliament does constitute such a supreme legislative authorityor sovereign power as, according to Austin and other jurists, must exist inevery civilised state, and for that purpose to examine into the validity of thevarious suggestions, which have from time to time been made, as to the possiblelimitations on Parliamentary authority, and to show that none of them arecountenanced by English law.
The suggested limitations are three in number.32
first, Acts of Parliament, it has been asserted, are invalid ifthey are opposed to the principles of morality or to the doctrines ofinternational law. Parliament, it is in effect asserted, cannot make a lawopposed to the dictates of private or public morality. Thus Blackstone laysdown in so many words that the
law of nature being coeval with mankind, and dictated by God himself, isof course superior in obligation to any other. It is binding over all theglobe, in all countries, and at all times: no human laws are of any validity ifcontrary to this; and such of them as are valid derive all their force and alltheir authority, mediately or immediately, from this original;33
and expressions are sometimes used by modern judges which imply that theCourts might refuse to enforce statutes going beyond the proper limits(internationally speaking) of Parliamentary authority.34 But towords 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 thetheory that judges, as exponents of morality, may overrule Acts of Parliament.Language which might seem to imply this
32 Another limitation has been suggested more or less distinctly byjudges such as co*ke (12 Rep. 76; and Hearn, Government of England(and ed.), pp. 48, 49); an Act of Parliament cannot (it has been intimated)overrule the principles of the common law. This doctrine once had a realmeaning (see Maine, Early History of Institutions, pp. 381, 382), but ithas never received systematic judicial sanction and is now obsolete. SeeColonial Laws Validity Act, 1865, 28 & 29 Viet. c. 63.
33 Blackstone, Commentaries, i. p. 40; and see Hearn,Government of England (2nd ed.), pp. 48, 49-
34 See Ex parte Blain, 12 Ch. D. (C. A.), 522, 531, judgment ofCotton, L. J.
ie 311 rts.
leged illations.
Moral law.
erogative.
amounts in reality to nothing more than the assertion that the judges,when attempting to ascertain what is the meaning to be affixed to an Act ofParliament, will presume that Parliament did not intend to violate35the ordinary rules of morality, or the principles of international law, andwill therefore, whenever possible, give such an interpretation to a statutoryenactment as may be consistent with the doctrines both of private and ofinternational morality. A modern judge would never listen to a barrister whoargued that an Act of Parliament was invalid because it was immoral, or becauseit went beyond the limits of Parliamentary authority. The plain truth is thatour tribunals uniformly act on the principle that a law alleged to be a bad lawis ex hypothesi a law, and therefore entitled to obedience by theCourts.
Secondly, doctrines have at times36 been maintainedwhich went very near to denying the right of Parliament to touch thePrerogative.
In the time of the Stuarts37 the doctrine was maintained, notonly by the King, but by lawyers and statesmen who, like Bacon, favoured theincrease of royal authority, that the Crown possessed under the name of the"prerogative" a reserve, so to speak, of wide and indefinite rights and powers,and that this prerogative or residue of sovereign power was superior to theordinary law of the land. This doctrine combined with the deduction from itthat the Crown could suspend the operation of statutes, or at any rate grantdispensation from obedience to them, certainly suggested the notion that thehigh powers of the prerogative were to a certain extent beyond the reach ofParliamentary enactment. We need not, however, now enter into the politicalcontroversies of another age. All that need be noticed is that though certainpowers as, for example, the right of making treaties are now leftby law in the hands of the Crown, and are exercised in fact by the executivegovernment, no modern lawyer would maintain that these powers or any otherbranch of royal au-
35 See Colquhoun v. Brooks, 21Q. B. D. (C. A.), 52; andcompare the language of Lord Esher, PP- 57- 58/ with the judgment ofFry, L. ]., ibid. pp. 61. 62.
36 See Stubbs, Constitutional History, ii. pp. 239, 486,513-515.
37 Gardiner, History, iii. pp. 1-5; compare, as to Bacon's viewof the prerogative, Francis Bacon, by Edwin A. Abbott, pp. 140, 260,279.
Preceding Acts of Parliament.
The Acts of Union.
thority could not be regulated or abolished by Act of Parliament, or,what is the same thing, that the judges might legally treat as invalid astatute, say, regulating the mode in which treaties are to be made, or makingthe assent or the Houses of Parliament necessary to the validity of atreaty.38
Thirdly, language has occasionally been used in Acts ofParliament which implies that one Parliament can make laws which cannot betouched by any subsequent Parliament, and that therefore the legislativeauthority of an existing Parliament may be limited by the enactments of itspredecessors.39
That Parliaments have more than once intended and endeavoured to passActs which should tie the hands of their successors is certain, but theendeavour has always ended in failure. Of statutes intended to arrest thepossible course of future legislation, the most noteworthy are the Acts whichembody the treaties of Union with Scotland40 andIreland.41 The legislators who passed these Acts assuredly intendedto 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 theconsent or recommendation of the Crown is required to the introduction of billstouching the prerogative or the interests of the Crown.
39 This doctrine was known to be erroneous by Bacon. "The principal lawthat was made this Parliament was a law of a strange nature, rather just thanlegal, and more magnanimous than provident. This law did ordain, That no personthat did assist in arms or otherwise the King for the time being, should afterbe impeached therefor, or attainted either by the course of law or by Act ofParliament; for if any such act of attainder did hap to be made, it should bevoid and of none effect. . . . But the force and obligation of this law was initself illusory, as to the latter part of it; (by a precedent Act of Parliamentto bind or frustrate a future). For a supreme and absolute power cannotconclude itself, neither can that which is in nature revocable be made fixed;no more than if a man should appoint or declare by his will that if he made anylater will it should be void. And for the case of the Act of Parliament, thereis a notable precedent of it in King Henry the Eighth's time, who doubting hemight 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 itwere confirmed by the king under his great seal at his full age. But the firstAct that passed in King Edward the Sixth's time was an Act of repeal of thatformer Act; at which time nevertheless the King was minor. But things that donot bind may satisfy for the time." Works of Francis Bacon, vi., bySpedding, Ellis, and Heath (1861), pp. 159, 160.
40 The Union with Scotland Act, 1706, 6 Anne, c. 11.
41 The Union with Ireland Act, 1800, 39 & 4oGeo. HI., c. 67.
Acts affords the strongest proof of the futility inherent in everyattempt of one sovereign legislature to restrain the action of another equallysovereign body. Thus the Act of Union with Scotland enacts in effect that everyprofessor of a Scotch University shall acknowledge and profess and subscribethe Confession of Faith as his profession of faith, and in substance enactsthat this provision shall be a fundamental and essential condition of thetreaty of union in all time coming.42 But this very provision hasbeen in its main part repealed by the Universities (Scotland) Act,i853,43 which relieves most professors in the Scotch universitiesfrom the necessity of subscribing the Confession of Faith. Nor is this by anymeans the only inroad made upon the terms of the Act of Union; from one pointof view at any rate the Act 10 Anne, c. 12,44 restoring the exerciseof lay patronage, was a direct infringement upon the Treaty of Union. Theintended unchangeableness, and the real liability of these Acts or treaties tobe changed by Parliament, comes out even more strikingly in the history of theAct of Union with Ireland. The fifth Article of that Act runs as follows:
That it be the fifth article of Union, that the Churches of England andIreland as now by law established, be united into one Protestant episcopalChurch, to be called the United Church of England and Ireland; and that thedoctrine, worship, discipline, and government of the said United Church shallbe and shall remain in full force for ever, as the same are now by lawestablished for the Church of England; and that the continuance andpreservation of the said United Church , as the established Church of Englandand Ireland, shall be deemed and be taken to be an essential and fundamentalpart of the Union.
That the statesmen who drew and passed this Article meant to bind theaction of future Parliaments is apparent from its language. That the attempthas failed of success is apparent to every one who knows the contents of theIrish Church Act, 1869.
One Act, indeed, of the British Parliament might, looked at in the lightof history, claim a peculiar sanctity. It is certainly an enactment
42 See 6 Anne, c. 11, art. 25.
43 16 & 17 Viet. c. 89, s. i.
44 Compare Innes, Law of Creeds in Scotland, pp. 118-121.
of which the terms, we may safely predict, will never be repealed andthe spirit will never be violated. This Act is the Taxation of Colonies Act,iTyS.45 It provides that Parliament
will not impose any duty, tax, or assessment whatever, payable in any ofhis Majesty's colonies, provinces, and plantations in North America or the WestIndies; except only such duties as it may be expedient to impose for theregulation 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 bythe authority of the respective general courts, or general assemblies, of suchcolonies, provinces, or plantations, are ordinarily paid andapplied.46
This language becomes the more impressive when contrasted with theAmerican Colonies Act, 1/76,47 which, being passed in that year torepeal the Acts imposing the Stamp Duties, carefully avoids any surrender ofParliament's right to tax the colonies. There is no need to dwell on the courseof events of which these two Acts are a statutory record. The point calling forattention is that though policy and prudence condemn the repeal of the Taxationof Colonies Act, 1778, or the enactment of any law inconsistent with itsspirit, there is under our constitution no legal difficulty in the way ofrepealing 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 wouldbe 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 theterms of any statute, as to limit the discretion of a future Parliament, andthereby disable the Legislature from entire freedom of action at any futuretime when it might be needful to invoke the interposition of Parliament tolegislate for the public welfare.48
45 18 Geo. III., c. 12.
46 18 Geo. III., c. 12, s. i.
47 6Geo. III., c. 12.
48 Todd, Parliamentary Government in the British Colonies, p.192. It is a matter of curious, though not uninstructive, speculation toconsider why it is that Parliament, though on several occasions passing Actswhich were intended to be immutable, has never in reality succeeded inrestricting its own legislative authority.
This question may be considered either logically or historically.
:t limit-> right of rliament tax col-ies.
Parliamentary sovereignty is therefore an undoubted legal fact.
It is complete both on its positive and on its negative side. Parliamentcan legally legislate on any topic whatever which, in the judgment ofParliament, is a fit subject for legislation. There is no power which, underthe English constitution, can come into rivalry with the legislativesovereignty of Parliament.
The logical reason why Parliament has failed in its endeavours to enactunchangeable enactments is that a sovereign power cannot, while retaining itssovereign character, restrict its own powers by any particular enactment. AnAct, whatever its terms, passed by Parliament might be repealed in asubsequent, or indeed in the same, session, and there would be nothing to makethe authority of the repealing Parliament less than the authority of theParliament by which the statute, intended to be immutable, was enacted."Limited Sovereignty," in short, is in the case of a Parliamentary as of everyother sovereign, a contradiction in terms. Its frequent and convenient usearises from its in reality signifying, and being by any one who uses words withany accuracy understood to signify, that some person, e.g. a king, whowas at one time a real sovereign or despot, and who is in name treated as anactual sovereign, has become only a part of the power which is legally supremeor sovereign in a particular state. This, it may be added, is the true positionof the king in most constitutional monarchies.
Let the reader, however, note that the impossibility of placing a limitof the exercise of sovereignty does not in any way prohibit either logically,or in matter of fact, the abdication of sovereignty. This is worth observation,because a strange dogma is sometimes put forward that a sovereign power, suchas the Parliament of the United Kingdom, can never by its own act divest itselfof sovereignty. This position is, however, clearly untenable. An autocrat, suchas 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 orof a Parliament, is always one and the same quality. If the Czar can abdicate,so can a Parliament. To argue or imply that because sovereignty is notlimitable (which is true) it cannot be surrendered (which is palpably untrue)involves the confusion of two distinct ideas. It is like arguing that becauseno man can, while he lives, give up, do what he will, his freedom of volition,so no man can commit suicide. A sovereign power can divest itself of authorityin two ways, and (it is submitted) in two ways only. It may simply put an endto its own existence. Parliament could extinguish itself by legally dissovingitself and leaving no means whereby a subsequent Parliament could be legallysummoned. (See Bryce, American Commonwealth, i, (3rd ed.), p. 242, notei.) A step nearly approaching to this was taken by the Barebones Parliamentwhen, in 1653, it resigned its power into the hands of Cromwell. A sovereignagain may transfer sovereign authority to another person or body of persons.The Parliament of England went very near doing this when, in 1539, the Crownwas empowered to legislate by proclamation; and though the fact is oftenoverlooked, the Parliaments both of England and of Scotland did, at the time ofthe Union, each transfer sovereign power to a new sovereign body, namely, theParliament of Great Britain. This Parliament, however, just because it acquiredthe full authority of the two legislatures by which it was constituted, becamein its turn a legally supreme or sovereign legislature, authorised therefore,though contrary perhaps to the intention of its creators, to modify or
No one of the limitations alleged to be imposed by law on the absoluteauthority 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 verykeystone of the law of the constitution. But it is, we must admit, a dogmawhich does not always find ready acceptance, and it is well worth while to noteand examine the difficulties which impede the admission of its truth.
abrogate the Act of Union by which it was constituted. If indeed the Actof Union had left alive the Parliaments of England and of Scotland, though forone purpose only, namely, to modify when necessary the Act of Union, and hadconferred upon the Parliament of Great Britain authority to pass any lawwhatever which did not infringe upon or repeal the Act of Union, then the Actof Union would have been a fundamental law unchangeable legally by the BritishParliament: but in this case the Parliament of Great Britain would have been,not a sovereign, but a subordinate, legislature, and the ultimate sovereignbody, in the technical sense of that term, would have been the two Parliamentsof England and of Scotland respectively. The statesmen of these two countriessaw fit to constitute a new sovereign Parliament, and every attempt to tie thehands of such a body necessarily breaks down, on the logical and practicalimpossibility of combining absolute legislative authority with restrictions onthat authority which, if valid, would make it cease to be absolute.
The historical reason why Parliament has never succeeded in passingimmutable laws, or in other words, has always retained its character of asupreme legislature, lies deep in the history of the English people and in thepeculiar development of the English constitution. England has, at any ratesince the Norman Conquest, been always governed by an absolute legislator. Thislawgiver was originally the Crown, and the peculiarity of the process by whichthe English constitution has been developed lies in the fact that thelegislative authority of the Crown has never been curtailed, but has beentransferred from the Crown acting alone (or rather in Council) to the Crownacting first together with, and then in subordination to, the Houses ofParliament. Hence Parliament, or in technical terms the King in Parliament, hasbecome it would perhaps be better to say has always remained asupreme legislature. It is well worth notice that on the one occasion whenEnglish reformers broke from the regular course of English historicaldevelopment, they framed a written constitution, anticipating in many respectsthe constitutionalism of the United States, and placed the constitution beyondthe control of the ordinary legislature. It is quite dear that, under theInstrument of Government of 1653, Cromwell intended certain fundamentals to bebeyond the reach of Parliament. It may be worth observing that the constitutionof 1653 placed the Executive beyond the control of the legislature. TheProtector under it occupied a position which may well be compared either withthat of the American President or of the German Emperor. See Harrison,Cromwell, pp. 194-203. For a view of sovereignty which, though differingto a certain extent from the view put forward in this work, is full of interestand instruction, my readers are referred to Professor Sidgwick's Elements ofPolitics, ch. xxxi. "Sovereignty and Order."
faculties to Par-mentary vereignty
DIFFICULTIES AS TO THE DOCTRINE OF PARLIAMENTARY SOVEREIGNTY
The reasons why many persons find it hard to accept the doctrine ofParliamentary sovereignty are twofold.
The dogma sounds like a mere application to the British constitution ofAustin's theory of sovereignty, and yet intelligent students of Austin musthave noticed that Austin's own conclusion as to the persons invested withsovereign power under the British constitution does not agree with the view putforward, on the authority of English lawyers, in these lectures. For whilelawyers maintain that sovereignty resides in "Parliament," i.e. in thebody constituted by the King, the House of Lords, and the House of Commons,Austin holds49 that the sovereign power is vested in the King, theHouse of Lords, and the Commons or the electors.
Every one, again, knows as a matter of common sense that, whateverlawyers may say, the sovereign power of Parliament is not unlimited, and thatKing, Lords, and Commons united do not possess anything like that "restrictedomnipotence" if the term may be excused which is the utmostauthority ascribable to any human institution. There are many enactments, andthese laws not in themselves obviously unwise or tyrannical, which Parliamentnever would and (to speak plainly) never could pass. If the doctrine ofParliamentary sovereignty involves the attribution of unrestricted power toParliament, the dogma is no better than a legal fiction, and certainly is notworth 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 repaycareful consideration.
As to Austin's theory of sovereignty in relation to the Britishconstitution, sovereignty, like many of Austin's conceptions, is ageneralisation drawn in the main from English law, just as the ideas
49 See Austin, Jurisprudence, i. (4th ed.), pp. 251-255. CompareAustin's language as to the sovereign body under the constitution of the UnitedStates. (Austin, Jurisprudence, i. (4th ed.), p. 268.)
of the economists of Austin's generation are (to a great extent)generalisations suggested by the circ*mstances of English commerce. In Englandwe are accustomed to the existence of a supreme legislative body, i.e. abody which can make or unmake every law; and which, therefore, cannot bebound by any law. This is, from a legal point of view, the true conception of asovereign, and the ease with which the theory of absolute sovereignty has beenaccepted by English jurists is due to the peculiar history of Englishconstitutional law. So far, therefore, from its being true that the sovereigntyof Parliament is a deduction from abstract theories of jurisprudence, a criticwould come nearer the truth who asserted that Austin's theory of sovereignty issuggested by the position of the English Parliament, just as Austin's analysisof the term "law" is at Bottom an analysis of a typical law, namely, an Englishcriminal statute.
It should, however, be carefully noted that the term "sovereignty," aslong as it is accurately employed in the sense in which Austinsometimes50 uses it, is a merely legal conception, and means simplythe power of law-making unrestricted by any legal limit. If the term"sovereignty" be thus used, the sovereign power under the English constitutionis dearly "Parliament." But the word "sovereignty" is sometimes employed in apolitical rather than in a strictly legal sense. That body is "politically"sovereign or supreme in a state the will of which is ultimately obeyed by thecitizens of the state. In this sense of the word the electors of Great Britainmay be said to be, together with the Crown and the Lords, or perhaps, in strictaccuracy, independently of the King and the Peers, the body in which sovereignpower is vested. For, as things now stand, the will of the electorate, andcertainly of the electorate in combination with the Lords and the Crown, issure ultimately to prevail on all subjects to be determined by the Britishgovernment. The matter indeed may be carried a little further, and we mayassert that the arrangements of the constitution are now such as to ensure thatthe will of the electors shall by regular and constitutional means always inthe end assert itself as the pre-50 Compare Austin, Jurisprudence, i.(4th ed.), p. 268.
Fficulty
m actual
litation
power
Parlia-
'nt.
deism
Austin's
Dry.
dominant influence in the country. But this is a political, not a legalfact. The electors can in the long run51 always enforce their will.But the Courts will take no notice of the will of the electors. The judges knownothing about any will of the people except in so far as that will is expressedby an Act of Parliament, and would never suffer the validity of a statute to bequestioned on the ground of its having been passed or being kept alive inopposition 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, areessentially different, and in some part of his work Austin has apparentlyconfused the one sense with the other. He writes:
Adopting the language of some of the writers who have treated of theBritish constitution, I commonly suppose that the present parliament, or theparliament for the time being, is possessed of the sovereignty: or I commonlysuppose that the King and the Lords, with the members of the Commons' house,form a tripartite body which is sovereign or supreme. But, speaking accurately,the members of the Commons' house are merely trustees for the body by whichthey are elected and appointed: and, consequently, the sovereignty alwaysresides in the King and the Peers, with the electoral body
yi The working of a constitution is greatly affected by the rateat which the will of the political sovereign can make itself felt. In thismatter we may compare the constitutions of the United States, of the SwissConfederacy, and of the United Kingdom respectively. In each case the people ofthe country, or to speak more accurately the electorate, are politicallysovereign. The action of the people of the United States in changing theFederal Constitution is impeded by many difficulties, and is practically slow;the Federal Constitution has, except after the civil war, not been materiallychanged during the century which has elapsed since its formation. The Articlesof the Swiss Confederation admit of more easy change than the Articles of theUnited States Constitution, and since 1848 have undergone considerablemodification. 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 1848. As things now stand, the people of England can change anypart of the law of the constitution with extreme rapidity. Theoretically thereis no check on the action of Parliament whatever, and it may be conjecturedthat in practice any change however fundamental would be at once carriedthrough, which was approved of by one House of Commons, and, after adissolution of Parliament, was supported by the newly elected House. Theparadoxical and inaccurate assertion, therefore, that England is moredemocratically governed than either the United States or Switzerland, containsa certain element of truth; the immediate wishes of a decided majority of theelectorate of the United Kingdom can be more rapidly carried into legal effectthan can the immediate wishes of a majority among the people either of Americaor of Switzerland.
of the Commons. That a trust is imposed by the party delegating, andthat the party representing engages to discharge the trust, seems to beimported by the correlative expressions delegation andrepresentation. It were absurd to suppose that the delegating empowersthe representative party to defeat or abandon any of the purposes for which thelatter is appointed: to suppose, for example, that the Commons empower theirrepresentatives in parliament to relinquish their share in the sovereignty tothe King and the Lords.52
Austin owns that the doctrine here laid down by him is inconsistent withthe language used by writers who have treated of the British constitution. Itis further absolutely inconsistent with the validity of the Septennial Act.Nothing is more certain than that no English judge ever conceded, or, under thepresent constitution, can concede, that Parliament is in any legal sense a"trustee"53 for the electors. Of such a feigned "trust" the Courtsknow nothing. The plain truth is that as a matter of law Parliament is thesovereign power in the state, and that the "supposition" treated by Austin asinaccurate is the correct statement of a legal fact which forms the basis ofour whole legislative and judicial system. It is, however, equally true that ina political sense the electors are the most important part of, we may even sayare actually, the sovereign power, since their will is under the presentconstitution sure to obtain ultimate obedience. The language therefore ofAustin is as correct in regard to "political" sovereignty as it is erroneous inregard to what we may term "legal" sovereignty. The electors are a part of andthe predominant part of the politically sovereign power. But the legallysovereign power is assuredly, as maintained by all the best writers on theconstitution, nothing but Parliament.
It may be conjectured that the error of which (from a lawyer's point ofview) Austin has been guilty arises from his feeling, as every person must feelwho is not the slave to mere words, that Parliament is (as already pointedout54) nothing like an omnipotent body, but that its powers arepractically 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 contentionthat Parliament is not in strictness a sovereign. (See Austin Jurisprudence,i. (4th ed.), pp. 252, 253.)
54 Seep. 26,ante.
Existence of actual limitations to power not inconsistent withsovereignty
External limit.
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 theelectors. This, however, leads us to our second difficulty, namely, thecoexistence of parliamentary sovereignty with the fact of actual limitations onthe power of Parliment.
As to the actual limitations on the sovereign power of Parliament, theactual exercise of authority by any sovereign whatever, and notably byParliament, is bounded or controlled by two limitations. Of these the one is anexternal, the other is an internal limitation.
The external limit to the real power of a sovereign consists in thepossibility or certainty that his subjects, or a large number of them, willdisobey or resist his laws.
This limitation exists even under the most despotic monarchies. A RomanEmperor, or a French King during the middle of the eighteenth century, was (asis the Russian Czar at the present day) in strictness a "sovereign" in thelegal sense of that term. He had absolute legislative authority. Any law madeby him was binding, and there was no power in the empire or kingdom which couldannul such law. It may also be true, though here we are passing from thelegal to the political sense of sovereignty, that the will of anabsolute monarch is in general obeyed by the bulk of his subjects. But it wouldbe an error to suppose that the most absolute ruler who ever existed could inreality make or change every law at his pleasure. That this must be so resultsfrom 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 ina sense always depends upon opinion. He writes:
Nothing appears more surprising to those, who consider human affairswith a philosophical eye, than the easiness with which the many are governed bythe few; and the implicit submission, with which men resign their ownsentiments and passions to those of their rulers. When we inquire by what meansthis wonder is effected, we shall find, that, as force is always on the side ofthe governed, the governors have nothing to support them but opinion. It is,therefore, on opinion only that government is founded; and this maxim extendsto the most despotic and most military governments, as well as to the most freeand most popular. The Soldan of Egypt, or the Emperor of Rome, might drive hisharmless subjects, like brute beasts,
Illustrations 01 external limit on exercise of sovereign power.
against their sentiments and inclination: But he must, at least, haveled his mamalukes orprxtorian bands, like men, by theiropinion.55
The authority, that is to say, even of a despot, depends upon thereadiness of his subjects or of some portion of his subjects to obey hisbehests; and this readiness to obey must always be in reality limited. This isshown by the most notorious facts of history. None of the early Caesars couldat their pleasure have subverted the worship or fundamental institutions of theRoman world, and when Constantine carried through a religious revolution hissuccess was due to the sympathy of a large part of his subjects. The Sultancould not abolish Mahommedanism. Louis the Fourteenth at the height of hispower could revoke the Edict of Nantes, but he would have found it impossibleto establish the supremacy of Protestantism, and for the same reason whichprevented James the Second from establishing the supremacy of RomanCatholicism. The one king was in the strict sense despotic; the other was aspowerful as any English monarch. But the might of each was limited by thecertainty of popular disobedience or opposition. The unwillingness of subjectsto obey may have reference not only to great changes, but even to smallmatters. The French National Assembly of 1871 was emphatically the sovereignpower in France. The majority of its members were (it is said) prepared for amonarchical restoration, but they were not prepared to restore the white flag:the army which would have acquiesced in the return of the Bourbons, would not(it was anticipated) tolerate the sight of an anti-revolutionary symbol: "thechassepots would go off of themselves." Here we see the precise limit tothe exercise of legal sovereignty; and what is true of the power of a despot orof the authority of a constituent assembly is specially true of the sovereigntyof Parliament; it is limited on every side by the possibility of popularresistance. Parliament might legally establish an Episcopal Church in Scotland;Parliament might legally tax the Colonies; Parliament might without any breachof law change the succession to the throne or abolish the monarchy; but everyone knows that in the present state of the world the British Parliament will donone of these things. In
55 Hume, Essays, i. (1875 ed.), pp. 109, no.
Internal
limit. Illus trations.
each case widespread resistance would result from legislation which,though legally valid, is in fact beyond the stretch of Parliamentary power.Nay, more than this, there are things which Parliament has done in other times,and done successfully, which a modern Parliament would not venture to repeat.Parliament would not at the present day prolong by law the duration of anexisting House of Commons. Parliament would not without great hesitationdeprive of their votes large classes of Parliamentary electors; and, speakinggenerally, 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 repealthe statutes of 1829 or of 1869. These examples from among a score are enoughto show the extent to which the theoretically boundless sovereignty ofParliament is curtailed by the external limit to its exercise.
The internal limit to the exercise of sovereignty arises from the natureof the sovereign power itself. Even a despot exercises his powers in accordancewith his character, which is itself moulded by the circ*mstances under which helives, including under that head the moral feelings of the time and the societyto which he belongs. The Sultan could not if he would change the religion ofthe Mahom-medan world, but if he could do so it is in the very highest degreeimprobable that the head of Mahommedanism should wish to overthrow the religionof Mahomet; the internal check on the exercise of the Sultan's power is atleast as strong as the external limitation. People sometimes ask the idlequestion why the Pope does not introduce this or that reform? The true answeris that a revolutionist is not the kind of man who becomes a Pope, and that theman who becomes a Pope has no wish to be a revolutionist. Louis the Fourteenthcould not in all probability have established Protestantism as the nationalreligion of France; but to imagine Louis the Fourteenth as wishing to carry outa Protestant reformation is nothing short of imagining him to have been a beingquite unlike the Grand Monarque. Here again the internal check workstogether with the external check, and the influence of the internal limitationis as great in the case of a Parliamentary sovereign as of any other; perhapsit is greater. Parlia-
Limits may not coincide.
ment could not prudently tax the Colonies; but it is hardly conceivablethat a modern Parliament, with the history of the eighteenth century before itseyes, should wish to tax the Colonies. The combined influence both of theexternal and of the internal limitation on legislative sovereignty is admirablystated in Leslie Stephen's Science of Ethics, whose chapter on "Law andCustom" contains one of the best statements to be met with of the limits placedby the nature of things on the theoretical omnipotence of sovereignlegislatures.
Lawyers are apt to speak as though the legislature were omnipotent, asthey do not require to go beyond its decisions. It is, of course, omnipotent inthe sense that it can make whatever laws it pleases, inasmuch as a law meansany rule which has been made by the legislature. But from the scientific pointof view, the power of the legislature is of course strictly limited. It islimited, so to speak, both from within and from without; from within, becausethe legislature is the product of a certain social condition, and determined bywhatever determines the society; and from without, because the power ofimposing laws is dependent upon the instinct of subordination, which is itselflimited. If a legislature decided that all blue-eyed babies should be murdered,the preservation of blue-eyed babies would be illegal; but legislators must gomad before they could pass such a law, and subjects be idiotic before theycould submit to it.56
Though sovereign power is bounded by an external and an internal limit,neither boundary is very definitely marked, nor need the two preciselycoincide. A sovereign may wish to do many things which he either cannot do atall or can do only at great risk of serious resistance, and it is on manyaccounts worth observation that the exact point at which the externallimitation begins to operate, that is, the point at which subjects will offerserious or insuperable resistance to the commands of a ruler whom theygenerally obey, is never fixed with precision. It would be rash of the ImperialParliament to abolish the Scotch law Courts, and assimilate the law of Scotlandto that of England. But no one can feel sure at what point Scotch resistance tosuch a change would become serious. Before the War of Secession the sovereignpower of the United States could not have abolished slavery without provoking acivil war; after the War of Secession
56 Leslie Stephen, Science of Ethics, p. 143.
the sovereign power abolished slavery and conferred the electoralfranchise upon the Blacks without exciting actual resistance.
In reference to the relation between the external and the internal limitto sovereignty, representative government presents a noteworthy peculiarity. Itis this. The aim and effect of such government is to produce a coincidence, orat any rate diminish the divergence, between the external and the internallimitations on the exercise of sovereign power. Frederick the Great may havewished to introduce, and may in fact have introduced, changes or reformsopposed to the wishes of his subjects. Louis Napoleon certainly began a policyof free trade which would not be tolerated by an assembly which trulyrepresented French opinion. In these instances neither monarch reached theexternal limit to his sovereign power, but it might very well have happenedthat he might have reached it, and have thereby provoked serious resistance onthe part of his subjects. There might, in short, have arisen a divergencebetween the internal and the external check. The existence of such adivergence, or (in other words) of a difference between the permanent wishes ofthe sovereign, or rather of the King who then constituted a predominant part ofthe sovereign power, and the permanent wishes of the nation, is traceable inEngland throughout the whole period beginning with the accession of James theFirst and ending with the Revolution of 1688. The remedy for this divergencewas found in a transference of power from the Crown to the Houses ofParliament; and in placing on the throne rulers who from their position wereinduced to make their wishes coincide with the will of the nation expressedthrough the House of Commons; the difference between the will of the sovereignand the will of the nation was terminated by the foundation of a system of realrepresentative government. Where a Parliament truly represents the people, thedivergence between the external and the internal limit to the exercise ofsovereign power can hardly arise, or if it arises, must soon disappear.Speaking roughly, the permanent wishes of the representative portion ofParliament can hardly in the long run differ from the wishes of the Englishpeople, or at any rate of the electors; that which the majority of the House ofCommons command, the majority of the English people usually desire. To preventthe divergence between the wishes of the sovereign and the wishes of subjectsis in short the
effect, and the only certain effect, of bona fide representativegovernment. For our present purpose there is no need to determine whether thisresult be good or bad. An enlightened sovereign has more than once carried outreforms in advance of the wishes of his subjects. This is true both ofsovereign kings and, though more rarely, of sovereign Parliaments. But thesovereign who has done this, whether King or Parliament, does not in realityrepresent his subjects.57 All that it is here necessary to insistupon is that the essential property of representative government is to producecoincidence between the wishes of the sovereign and the wishes of the subjects;to make, in short, the two limitations on the exercise of sovereigntyabsolutely coincident. This, which is true in its measure of all realrepresentative government, applies with special truth to the English House ofCommons. Burke writes:
The House of Commons was supposed originally to be no part of thestanding government of this country. It was considered as a control,issuing immediately from the people, and speedily to be resolvedinto the mass from whence it arose. In this respect it was in the higher partof government what juries are in the lower. The capacity of a magistrate beingtransitory, and that of a citizen permanent, the latter capacity it was hopedwould of course preponderate in all discussions, not only between the peopleand the standing authority of the Crown, but between the people and thefleeting authority of the House of Commons itself. It was hoped that, being ofa middle nature between subject and government, they would feel with a moretender and a nearer interest everything that concerned the people, than theother remoter and more permanent parts of legislature.
Whatever alterations time and the necessary accommodation of businessmay have introduced, this character can never be sustained, unless the House ofCommons shall be made to bear some stamp of the actual disposition of thepeople at large. It would (among public misfortunes) be an evil more naturaland tolerable, that the House of Commons should be infected with everyepidemical phrensy of the people, as this would indicate some consanguinity,some sympathy of nature with their constituents, than that they should in allcases be wholly untouched by the opinions and feelings of the people out ofdoors. By this want of sympathy they would cease to be a House ofCommons.58
57 Compare Law and Opinion in England, pp. 4, 5.
58 Burke, Works, ii. (1808 ed.), pp. 287, 288. See further inreference to Parliamentary sovereignty, App. Note III., Distinction between aParliamentary Executive and a Non-Parliamentary Executive.
Chapter II
PARLIAMENT AND NON-SOVEREIGN LAW-MAKINGBODIES
I
:n my last chapter I dwelt upon the nature of Parliamentary sovereignty;my object in this chapter is to illustrate the characteristics af suchsovereignty by comparing the essential features of a sovereign Parliament likethat of England with the traits which mark non-sovereign law-making bodies.
CHARACTERISTICS OF SOVEREIGN PARLIAMENT
The characteristics of Parliamentary sovereignty may be deduced from theterm itself. But these traits are apt to escape the attention of Englishmen,who have been so accustomed to live under the rule of a supreme legislature,that they almost, without knowing it, assume that all legislative bodies aresupreme, and hardly therefore keep clear before their minds the properties of asupreme as contrasted with a non-sovereign law-making body. In this matterforeign observers are, as is natural, clearer-sighted than Englishmen. DeLolme, Gneist, and Tocqueville seize at once upon the sovereignty of Parliamentas a salient feature of the English constitution, and recognise thefar-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,
No law Parliament cannot change.
No distinction between constitutional and ordinary laws.
it does not in reality exist; the Parliament is at once a legislativeand a constituent assembly.J
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 formula forsumming up the fact that Parliament can change any law whatever. Being a"legislative" assembly it can make ordinary laws, being a "constituent"assembly it can make laws which shift the basis of the constitution. Theresults which ensue from this fact may be brought under three heads.
First, there is no law which Parliament cannot change, or (to putthe same thing somewhat differently), fundamental or so-called constitutionallaws are under our constitution changed by the same body and in the same manneras other laws, namely, by Parliament acting in its ordinary legislativecharacter.
A Bill for reforming the House of Commons, a Bill for abolishing theHouse of Lords, a Bill to give London a municipality, a Bill to make validmarriages celebrated by a pretended clergyman, who is found after theircelebration not to be in orders, are each equally within the competence ofParliament, they each may be passed in substantially the same manner, they noneof them when passed will be, legally speaking, a whit more sacred or immutablethan the others, for they each will be neither more nor less than an Act ofParliament, which can be repealed as it has been passed by Parliament, andcannot be annulled by any other power.
Secondly, there is under the English constitution no marked orclear distinction between laws which are not fundamental or constitutional andlaws which are fundamental or constitutional. The very language therefore,expressing the difference between a "legislative" assembly which can changeordinary laws and a "constituent" assembly which can change not only ordinarybut also constitutional and fundamental laws, has to be borrowed from thepolitical phraseology of foreign countries.
i Tocqueville, i. (translation), p. 96, CEuvres Completes, i. pp.166, 167.
This absence of any distinction between constitutional and ordinary lawshas a dose connection with the non-existence in England of any written orenacted constitutional statute or charter. Tocqueville indeed, in common withother writers, apparently holds the unwritten character of the Britishconstitution to be of its essence: "L'Angleterre n'ayant point de constitutionecrite, qui peut dire qu'on change sa constitution?"2 But hereTocqueville falls into an error, characteristic both of his nation and of theweaker side of his own rare genius. He has treated the form of the constitutionas the cause of its substantial qualities, and has inverted the relation ofcause and effect. The constitution, he seems to have thought, was changeablebecause it was not reduced to a written or statutory form. It is far nearer thetruth to assert that the constitution has never been reduced to a written orstatutory form because each and every part of it is changeable at the will ofParliament. When a country is governed under a constitution which is intendedeither to be unchangeable or at any rate to be changeable only with specialdifficulty, the constitution, which is nothing else than the laws which areintended to have a character of permanence or immutability, is necessarilyexpressed in writing, or, to use English phraseology, is enacted as a statute.Where, on the other hand, every law can be legally changed with equal ease orwith equal difficulty, there arises no absolute need for reducing theconstitution to a written form, or even for looking upon a definite set of lawsas specially making up the constitution. One main reason then whyconstitutional laws have not in England been recognised under that name, and inmany cases have not been reduced to the form of a statutory enactment, is thatone law, whatever its importance, can be passed and changed by exactly the samemethod as every other law. But it is a mistake to think that the whole law ofthe English constitution might not be reduced to writing and be enacted in theform of a constitutional code. The Belgian constitution indeed comes very nearto a written reproduction of the English constitution, and the constitution ofEngland might easily be turned into an Act of Parliament without suffering anymaterial
2 Tocqueville, CEuvres Completes, i. p. 312.
PARLIAMENT AND NON-SOVEREIGN LAW-MAKING BODIES
No person entitled to pronounce Xct of Parliament void.
Flexibility of the constitution.
transformation of character, provided only that the English Parliamentretained what the Belgian Parliament, by the way, does not possess the unrestricted power of repealing or amending the constitutional code.
Thirdly, there does not exist in any part of the British Empireany person or body of persons, executive, legislative or judicial, which canpronounce void any enactment passed by the British Parliament on the ground ofsuch 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 other laws;secondly, the absence of any legal distinction between constitutional and otherlaws; thirdly, the non-existence of any judicial or other authority having theright to nullify an Act of Parliament, or to treat it as void orunconstitutional.
These traits are all exemplifications of the quality which my friend Mr.Bryce has happily denominated the "flexibility"3 of the Britishconstitution. Every part of it can be expanded, curtailed, amended, orabolished, with equal ease. It is the most flexible polity in existence, and istherefore utterly different in character from the "rigid" constitutions (to useanother expression of Mr. Bryce's) the whole or some part of which can bechanged only by some extra-ordinary method of legislation.
Characteristics of non-sovereign lawmaking bodies.
CHARACTERISTICS OF NON-SOVEREIGN LAW-MAKING BODIES
From the attributes of a sovereign legislature it is possible to infernegatively what are the characteristics all (or some) of which are the marks ofa non-sovereign law-making body, and which therefore may be called the marks ornotes of legislative subordination.
3 See Bryce, Studies in History and Jurisprudence, i. Essay III.,Flexible and Rigid Constitutions.
Relation between Parliamentary sovereignty and an unwrittenconstitution.
leaning of ;rm "law-laking
ody.
These signs by which you may recognise the subordination of a law-makingbody are, first, the existence of laws affecting its constitution which suchbody must obey and cannot change; hence, secondly, the formation of a markeddistinction between ordinary laws and fundamental laws; and lastly, theexistence of some person or persons, judicial or otherwise, having authority topronounce upon the validity or constitutionality of laws passed by suchlaw-making body.
Wherever any of these marks of subordination exist with regard to agiven law-making body, they prove that it is not a sovereign legislature.
Observe the use of the words 'law-making body."
This term is here employed as an expression which may include under onehead4 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 intoone class things so different in importance and in dignity as, for example, theBelgian Parliament and an English School-board. This objection rests on amisconception. It would be ridiculous to overlook the profound differencesbetween a powerful legislature and a petty corporation. But there is nothingridiculous in calling attention to the points which they have in common. Thesole matter for consideration is whether the alleged similarity be real. Nodoubt when features of likeness between things which differ from one anotherboth in appearance and in dignity are pointed out, the immediate result is toproduce a sense of amusem*nt, but the apparent absurdity is no proof that thelikeness is unreal or undeserving of notice. A man differs from a rat. But thisdoes 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, canin general only be exercised reasonably, and any exercise of them is invalidwhich is not reasonable, and this is not true of the laws made, e.g., bythe Parliament of a British colony.
The objection admits of more than one reply. It is not universally truethat the bye-laws made by a corporation are invalid unless they are reasonable.But let it be assumed for the sake of argument that this restriction is always,as it certainly is often, imposed on the making of bye-laws. This concessiondoes not involve the consequence that bye-laws do not partake of the nature oflaws. 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 verydifferent degrees.
Thirdly, the bye-laws of a corporation are, it is urged, notlaws, because they affect only certain persons, e.g. in the case of arailway company the passengers on the railway, and do not, like the laws of acolonial legislature, affect all persons coming under the jurisdiction of thelegislature; or to put the same objection in another shape, the bye-laws of arailway company apply, it is urged, only to persons using the railway, inaddition to the general law
school-boards, town councils, and the like, which possess a limitedpower of making laws, but are not ordinarily called legislatures, and bodiessuch as the Parliaments of the British Colonies, of Belgium, or of France,which are ordinarily called "legislatures," but are not in reality sovereignbodies.
The reason for grouping together under one name such very differentkinds of "law-making" bodies is, that by far the best way of clearing up ourideas as to the nature of assemblies which, to use the foreignformula,5 are "legislative" without being "constituent," and whichtherefore are not sovereign legislatures, is to analyse the characteristics ofsocieties, such as English railway companies, which possess a certainlegislative authority, though the authority is dearly delegated and subject tothe obvious control of a superior legislature.
It will conduce to clearness of thought if we divide non-sovereignlaw-making bodies into the two great classes of obviously subordinate bodiessuch as corporations, the Council of India, etc., and such legislatures ofindependent countries as are legislative without being constituent, i.e.are non-sovereign legislative bodies.
The consideration of the position of the non-sovereign legislatureswhich exist under the complicated form of constitution known as a federalgovernment is best reserved for a separate chapter.6
of the land by which such persons are also bound, whereas the laws,e.g., of the New Zealand Parliament constitute the general law of thecolony.
The objection is plausible, but does not really show that the similarityinsisted upon between the position of a corporation and, e.g., acolonial legislature is unreal. In either case the laws made, whether bythe corporation or by the legislature, apply only to a limited class ofpersons, and are liable to be overridden by the laws of a superior legislature.Even in the case of a colony so nearly independent as New Zealand, theinhabitants are bound first by the statutes of the Imperial Parliament, and inaddition thereto by the Acts of the New Zealand Parliament. The very ruleswhich are bye-laws when made by a corporation would admittedly be laws if madedirectly by Parliament. Their character cannot be changed by the fact that theyare made by the permission of Parliament through a subordinate legislativebody. The Council of a borough, which for the present purpose is a betterexample of my meaning than a railway company, passes in accordance with thepowers conferred upon it by Parliament a bye-law prohibiting processions withmusic on Sunday. The same prohibition if contained in an Act of Parliamentwould be admittedly a law. It is none the less a law because made by a bodywhich is permitted by Parliament to legislate.
5 See p. 37, ante.
6 See Chap. III., post.
Subordinate Law-making Bodies
Corporations An English railway company is as good an example ascan be found of a subordinate law-making body. Such a company is in thestrictest sense a law-making society, for it can under the powers of its Actmake laws (called bye-laws) for the regulation (inter alia) oftravelling upon the railway,7 and can impose a penalty for thebreach of such laws, which can be enforced by proceedings in the Courts. Therules 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 hisown cost who, when he travels by rail from Oxford to Paddington, deliberatelyviolates a bye-law duly made by the Great Western Railway Company.
But though an English railway company is dearly a law-making body, it isclearly a non-sovereign law-making body. Its legislative power bears all themarks of subordination.
First, the company is bound to obey laws and (amongst others) the Act ofParliament creating the company, which it cannot change. This isobvious, and need not be insisted upon.
Secondly, there is the most marked distinction between the Actconstituting the company, not a line of which can be changed by the company,and the bye-laws which, within the powers of its Act, the company can both makeand change. Here we have on a very small scale the exact difference betweenconstitutional laws which cannot, and ordinary laws which can, be changed by asubordinate legislature, i.e. by the company. The company, if we mayapply to it the terms of constitutional law, is not a constituent, but iswithin certain limits a legislative assembly; and these limits are fixed by theconstitution of the company.
Thirdly, the Courts have the right to pronounce, and indeed are bound topronounce, on the validity of the company's bye-laws; that is, upon thevalidity, or to use political terms, on the constitutionality of the laws madeby the company as a law-making body. Note par-
7 See especially the Companies Clauses Consolidation Act, 1845 (8 &9 Viet. c. 20), secs. 103, 108 111. This Act is always embodied in thespecial Act constituting the company. Its enactments therefore form part of theconstitution of a railway company.
ticularly that it is not the function of any Court or judge to declarevoid or directly annul a bye-law made by a railway company. The function of theCourt is simply, upon any particular case coming before it which depends upon abye-law made by a railway company, to decide for the purposes of thatparticular case whether the bye-law is or is not within the powers conferred byAct of Parliament upon the company; that is to say, whether the bye-law is oris not valid, and to give judgment in the particular case according to theCourt's view 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 aparticular bye-law is or is not within the powers given to the company by Actof Parliament, for to understand this point goes a good way towardsunderstanding the exact way in which English or American Courts determine theconstitutionality of Acts passed by a non-sovereign legislature.
The London and North-Western Railway Company made a bye-law by which
any person travelling without the special permission of some dulyauthorised servant of the company in a carriage or by a train of a superiorclass to that for which his ticket was issued is hereby subject to a penaltynot exceeding forty shillings, and shall, in addition, be liable to pay hisfare according to the class of carriage in which he is travelling from thestation where the train originally started, unless he shows that he had nointention to defraud.
X, with the intention of defrauding the company, travelled in afirst-class carriage instead of a second-class carriage for which his ticketwas issued, and having been charged under the bye-law was convicted in thepenalty of ten shillings, and costs. On appeal by X, the Court determined thatthe bye-law was illegal and void as being repugnant to 8 Viet. c. 20, s. 103,or in effect to the terms of the Act incorporating the company,8 andthat therefore X could not be convicted of the offence charged against him.
A bye-law of the South-Eastern Railway Company required that a passengershould deliver up his ticket to a servant of the company when required to doso, and that any person travelling without a
8 Dyson v. L. &N.-W. Ry. Co., /Q. B. D. 32.
ticket or failing or refusing to deliver up his ticket should berequired to pay the fare from the station whence the train originally startedto the end of his journey. X had a railway ticket enabling him to travel on theSouth-Eastern Railway. Having to change trains and pass out of the company'sstation he was asked to show his ticket, and refused to do so, but without anyfraudulent intention. He was summoned for a breach of the bye-law, andconvicted in the amount of the fare from the station whence the train started.The Queen's Bench Division held the conviction wrong on the ground that thebye-law was for several reasons invalid, as not being authorised by the Actunder which it purported to be made.9
Now in these instances, and in other cases where the Courts pronounceupon the validity of a bye-law made by a body (e.g. a railway company ora school-board) having powers to make bye-laws enforceable by penalties, it isnatural to say that the Courts pronounce the bye-laws valid or invalid. Butthis is not strictly the case. What the judges determine is not that aparticular bye-law is invalid, for it is not the function of the Courts torepeal or annul the bye-laws made by railway companies, but that in aproceeding to recover a penalty from X for the breach of a bye-law judgmentmust be given on the basis of the particular bye-law being beyond the powers ofthe company, and therefore invalid. It may indeed be thought that thedistinction between annulling a bye-law and determining a case upon theassumption of such bye-law being void is a distinction without a difference.But this is not so. The distinction is not without importance even when dealingwith the question whether X, who is alleged to have broken a bye-law made by arailway company, is liable to pay a fine; it is of first-rate importance whenthe question before the Courts is one involving considerations ofconstitutional law, as for example when the Privy Council is called upon, asconstantly happens, to determine cases which involve the validity orconstitutionality 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 Benthamv. Hoyle, 3 Q. B. D. 289, and L. B. & S. C. Ry. Co. v.Watson, 3 C. P. D. 429; 4 C. P. D. (C. A.), 118.
Council of
British
India.
distinction will become more apparent as we proceed with our subject;the matter of consequence now is to notice the nature of the distinction, andto realise that when a Court in deciding a given case considers whether abye-law is, or is not, valid, the Court does a different thing from affirmingor annulling the bye-law itself.
Legislative Council of British India w Laws are madefor British India by a Legislative Council having very wide powers oflegislation. This Council, or, as it is technically expressed, the"Governor-General in Council," can pass laws as important as any Acts passed bythe British Parliament. But the authority of the Council in the way oflaw-making is as completely subordinate to, and as much dependent upon, Acts ofParliament as is the power of the London and North-Western Railway Company tomake bye-laws.
The legislative powers of the Governor-General and his Council arisefrom definite Parliamentary enactments.ai These Acts constitute whatmay be termed as regards the Legislative Council the constitution of India. Nowobserve, that under these Acts the Indian Council is in the strictest sense anon-sovereign legislative body, and this independently of the fact that thelaws or regulations made by the Governor-General in Council can be annulled ordisallowed by the Crown; and note that the position of the Council exhibits allthe marks or notes of legislative subordination.
First, the Council is bound by a large number of rules which cannot bechanged by the Indian legislative body itself, and which can be changed by thesuperior power of the Imperial Parliament.
Secondly, the Acts themselves from which the Council derives itsauthority cannot be changed by the Council, and hence in regard to the Indianlegislative body form a set of constitutional or fundamental laws, which, sincethey cannot be changed by the Council, stand in marked contrast with the lawsor regulations which the Council is
10 See Ilbert, Government of India, pp. 199-216, Digest ofStatutory Enactments, ss. 60-69.
11 The Government of India Act, 1833 (3 & 4 Will. IV. c. 85), ss.45-48, 51, 52; The Indian Councils Act, 1861 (24 & 25 Viet. c. 67), ss.16-25; The Government of India Act, 1865 (28 & 29 Viet. c. 17).
The Indian Council is in some instances under Acts of Parliament,e.g. 24 & 25 Viet. c. 67; 28 & 29 Viet. c. 17; 32 & 33 Viet.c. 98, empowered to legislate for persons outside India.
empowered to make. These fundamental rules contain, it must be added, anumber of specific restrictions on the subjects with regard to which theCouncil may legislate. Thus the Governor-General in Council has no power ofmaking laws which may affect the authority of Parliament, or any part of theunwritten laws or constitution of the United Kingdom, whereon may depend in anydegree the allegiance of any person to the Crown of the United Kingdom, or thesovereignty or dominion of the Crown over any part of India.12
Thirdly, the Courts in India (or in any other part of the BritishEmpire) may, when the occasion arises, pronounce upon the validity orconstitutionality of laws made by the Indian Council.
The Courts treat Acts passed by the Indian Council precisely in the sameway in which the King's Bench Division treats the bye-laws of a railwaycompany. No judge in India or elsewhere ever issues a decree which declaresinvalid, annuls, or makes void a law or regulation made by the Governor-Generalin Council. But when any particular case comes before the Courts, whether civilor criminal, in which the rights or liabilities of any party are affected bythe legislation of the Indian Council, the Court may have to consider anddetermine with a view to the particular case whether such legislation was orwas not within the legal powers of the Council, which is of course the samething as adjudicating as regards the particular case in hand upon the validityor constitutionality of the legislation in question. Thus suppose that X isprosecuted for the breach of a law or regulation passed by the Council, andsuppose the fact to be established past a doubt that X has broken this law. TheCourt before which the proceedings take place, which must obviously in theordinary course of things be an Indian Court, may be called upon to considerwhether the regulation which X has broken is within the powers given to theIndian Council by the Acts of Parliament making up the Indian constitution. Ifthe law is within such powers, or, in other words, is constitutional, the Courtwill by giving judgment against X give full effect to the law, just as effectis given to the bye-law of a railway company by the tribunal before whom anoffender is sued pronouncing judgment
12 See 24 & 25 Viet. c. 67. s. 22.
against him for the penalty. If, on the other hand, the Indian Courtdeem that the regulation is ultra vires or unconstitutional, they willrefuse to give effect to it, and treat it as void by giving judgment for thedefendant on the basis of the regulation being invalid or having no legalexistence. On this point the Empress v. Burah13 ismost instructive. The details of the case are immaterial; the noticeable thingis that the High Court held a particular legislative enactment of theGovernor-General in Council to be in excess of the authority given to him bythe Imperial Parliament and therefore invalid, and on this ground entertainedan appeal from two prisoners which, if the enactment had been valid, the Courtwould admittedly have been incompetent to entertain. The Privy Council, it istrue, held on appeal14 that the particular enactment was within thelegal powers of the Council and therefore valid, but the duty of the High Courtof Calcutta to consider whether the legislation of the Governor-General was orwas not constitutional, was not questioned by the Privy Council. To look at thesame thing from another point of view, the Courts in India treat thelegislation of the Governor-General in Council in a way utterly different fromthat 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 theGovernor-General need not be obeyed because it is unconstitutional or void. NoBritish Court can give judgment, or ever does give judgment, that an Act ofParliament need not be obeyed because it is unconstitutional. Here, in short,we have the essential difference between subordinate and sovereign legislativepower.ls
English Colonies with Representative and Responsible GovernmentsMany English colonies, and notably the Dominion of New Zealand (to whichcountry our attention had best for the sake of clearness be speciallydirected), possess representative assemblies which occupy a somewhat peculiarposition.
13 3 Ind. L. R. (Calcutta Series), p. 63.
14 Reg. v. Burah, 3 App. Cas. 889.
15 See especially Empress v. Burah and Book Singh, 3 Ind.L. R. (Calcutta Series, 1878), 63, 86-89, f°r the judgment ofMarkby J.
English colonies.
Powers exercised by colonial Parliaments
The Parliament of the Dominion of New Zealand exercises throughout thatcountry16 many of the ordinary powers of a sovereign assembly suchas the Parliament of the United Kingdom. It makes and repeals laws, it putsMinistries in power and dismisses them from office, it controls the generalpolicy of the New Zealand Government, and generally makes its will felt in thetransaction of affairs after the manner of the Parliament at Westminister. Anordinary observer would, if he looked merely at the everyday proceedings of theNew Zealand legislature, find no reason to pronounce it a whit less powerfulwithin its sphere than the Parliament of the United Kingdom. No doubt theassent of the Governor is needed in order to turn colonial Bills into laws: andfurther investigation would show our inquirer that for the validity of anycolonial Act there is required, in addition to the assent of the Governor, thesanction, either express or implied, of the Crown. But these assents areconstantly given almost as a matter of course, and may be compared (though notwith absolute correctness) to the Crown's so-called "veto" or right of refusingassent to Bills which have passed through the Houses of Parliament.
Yet for all this, when the matter is further looked into, the DominionParliament (together with other colonial legislatures) will be found to be anon-sovereign legislative body, and bears decisive marks of legislativesubordination. The action of the Dominion Parliament is restrained by lawswhich it cannot change, and are changeable only by the Imperial Parliament; andfurther, New Zealand Acts, even when assented to by the Crown, are liable to betreated by the Courts in New Zealand and elsewhere throughout the Britishdominions as void or unconstitutional, on the ground of their coming
16 No colonial legislature has as such any authority beyond theterritorial limits of the colony. This forms a considerable restriction on thepowers of a colonial Parliament, and a great part of the imperial legislationfor the colonies arises from the Act of a colonial legislature having, unlessgiven extended operation by some imperial statute, no effect beyond the limitsof the colony.
In various instances, however, imperial Acts have given extended powerof legislation to colonial legislatures. Sometimes the imperial Act authorisesa colonial legislature to make laws on a specified subject withextra-territorial operation [e.g. the Merchant Shipping Act, 1894, ss.478, 735, 736]. Sometimes an Act of the colonial legislature is given the forceof law throughout British dominions. (Compare Jenkyns, British Rule andJurisdiction beyond the Seas, p. 70.)
Colonial Laws Validity Act, 1865.
into conflict with laws of the Imperial Parliament, which the coloniallegislature has no authority to touch.17
That this is so becomes apparent the moment we realise the exactrelation between colonial and Imperial laws. The matter is worth some littleexamination, both for its own sake and for the sake of the light it throws onthe sovereignty of Parliament.
The charter of colonial legislative independence is the Colonial LawsValidity Act, 1865.18
This statute seems (oddly enough) to have passed through Parliamentwithout discussion; but it permanently defines and extends the authority ofcolonial legislatures, and its main provisions are of such importance as todeserve verbal citation:
Sec. 2. Any colonial law which is or shall be in any respect repugnantto 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,and shall, to the extent of such repugnancy, but not otherwise, be and remainabsolutely void and inoperative.
3. No colonial law shall be or be deemed to have been void orinoperative on the ground of repugnancy to the law of England, unless the sameshall be repugnant to the provisions of some such Act of Parliament, order, orregulation 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, shall beor be deemed to have been void or inoperative, by reason only of anyinstructions with reference to such law or the subject thereof which may havebeen given to such Governor by or on behalf of Her Majesty, by any
17 As also upon the ground of their being in strictness ultra vires,i.e. beyond the powers conferred upon the Dominion legislature. This is theground why a colonial Act is in general void, in so far as it is intended tooperate beyond the territory of the colony. "In 1879, the Supreme Court of NewZealand held that the Foreign Offenders Apprehension Act, 1863, of that colony,which authorises the deportation of persons charged with indictablemisdemeanours in other colonies, was beyond the competence of the New Zealandlegislature, for it involved detention on the high seas, which the legislaturecould not authorise, as it could legislate only for peace, order, and goodgovernment within the limits of the colony." Jenkyns, British Rule andJurisdiction beyond the Seas, p. 70, citing In re Gleich. OllivierBell and Fitzgerald's N. Z. Rep., S. C. p. 39.
18 28 & 29 Viet. c. 63. See on this enactment, Jenkyns, BritishRule and Jurisdiction beyond the Seas, pp. 71, 72.
instrument other than the letters-patent or instrument authorising suchGovernor to concur in passing or to assent to laws for the peace, order, andgood government of such colony, even though such instructions may be referredto in such letters-patent or last-mentioned instrument.
5. Every colonial legislature shall have, and be deemed at all times tohave had, full power within its jurisdiction to establish courts of judicature,and to abolish and reconstitute the same, and to alter the constitutionthereof, and to make provision for the administration of justice therein; andevery representative legislature shall, in respect to the colony under itsjurisdiction, have, and be deemed at all times to have had, full power to makelaws respecting the constitution, powers, and procedure of such legislature;provided that such laws shall have been passed in such manner and form as mayfrom time to time be required by any Act of Parliament, letters-patent, orderin 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, maywell be either exaggerated or quite possibly underrated. The statute is in onesense less important than it at first sight appears, because the principleslaid down therein were, before its passing, more or less assumed, though withsome hesitation, to be good law and to govern the validity of coloniallegislation. From another point of view the Act is of the highest importance,because it determines, and gives legislative authority to, principles which hadnever before been accurately defined, and were liable to be treated as open todoubt.19 In any case the terms of the enactment make it now possibleto state with precision the limits which bound the legislative authority of acolonial 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 thedescent of property, which gave the Governor authority to forbid publicmeetings, or which abolished trial by jury, might be inexpedient or unjust, butwould be a perfectly valid law, and would
19 Up to 1865 the prevalent opinion in England seems to have been thatany law seriously opposed to the principles of English law was repugnant to thelaw of England, and colonial laws were from time to time disallowed solely onthe ground of such supposed repugnacy and invalidity.
Acts of colonial
legislature maybe pronounced void by Courts.
be recognised as such by every tribunal throughout the BritishEmpire.20
The Dominion Parliament, on the other hand, cannot make any lawsinconsistent with any Act of Parliament, or with any part of an Act ofParliament, intended by the Imperial Parliament to apply to New Zealand.
Suppose, for example, that the Imperial Parliament were to pass an Actproviding a special mode of trial in New Zealand for particular classes ofoffences committed there, no enactment of the colonial Parliament, whichprovided that such offences should be tried otherwise than as directed by theimperial statute, would be of any legal effect. So again, no New Zealand Actwould be valid that legalised the slave trade in the face of the Slave TradeAct, 1824, 5 George IV. c. 113, which prohibits slave trading throughout theBritish dominions; nor would Acts passed by the Dominion Parliament be validwhich repealed, or invalidated, several provisions of the Merchant Shipping Act1894 meant to apply to the colonies, or which deprived a discharge under theEnglish Bankruptcy Act of the effect which, in virtue of the imperial statute,it has as a release from debts contracted in any part whatever of the Britishdominions. No colonial legislature, in short, can override imperial legislationwhich is intended to apply to the colonies. Whether the intention be expressedin so many words, or be apparent only from the general scope and nature of theenactment, is immaterial. Once establish that an imperial law is intended toapply to a given colony, and the consequence follows that any colonialenactment which contravenes that law is invalid andunconstitutional.21
Hence the Courts in the Dominion of New Zealand, as also in the rest ofthe British Empire, may be called upon to adjudicate upon the validity orconstitutionality of any Act of the Dominion Parliament.
20 Assuming, of course, that such Acts are not inconsistent with anyimperial statute applying to the colony. (Compare Robinson v.Reynolds, Macassey's N. Z. Rep. p. 562.)
21 See Tarring, Law Relating to the Colonies (2nd ed.), pp.232-247, for a list of imperial statutes which relate to the colonies ingeneral, and which therefore no colonial legislation can, except under powersgiven by some Act of the Imperial Parliament, contravene.
For if a New Zealand law really contradicts the provisions of an Act ofParliament extending to New Zealand, no Court throughout the British dominionscould legally, it is clear, give effect to the enactment of the DominionParliament. This is an inevitable result of the legislative sovereigntyexercised by the Imperial Parliament. In the supposed case the DominionParliament commands the judges to act in a particular manner, and the ImperialParliament commands them to act in another manner. Of these two commands theorder of the Imperial Parliament is the one which must be obeyed. This is thevery meaning of Parliamentary sovereignty. Whenever, therefore, it is allegedthat any enactment of the Dominion Parliament is repugnant to the provisions ofany Act of the Imperial Parliament extending to the colony, the tribunal beforewhich the objection is raised must pronounce upon the validity orconstitutionality of the colonial law.22
The constitution of New Zealand is created by and depends upon the NewZealand Constitution Act, 1852, 15 & 16 Viet. c. 72, and the Acts amendingthe same. One might therefore expect that the Parliament of the Dominion of NewZealand, which may conveniently be called the New Zealand Parliament, wouldexhibit that "mark of subordination" which consists in the inability of alegislative body to change fundamental or constitutional laws, or (what is thesame thing) in the dearly drawn distinction between ordinary laws which thelegislature can change and laws of the constitution which it cannot change, atany rate when acting in its ordinary legislative character. But thisanticipation is hardly borne out by an examination into the Acts creating theconstitution of New Zealand. A comparison of the Colonial Laws Validity Act,1865, s. 5, with the New Zealand Constitution Act, as subsequently amended,shows that the New Zealand Parliament can change the articles of theconstitution. This power, derived from imperial statutes, is of course in noway inconsistent with the legal sovereignty of the ImperialParliament.23 One
22 See Powell v. Apollo Candle Co., loApp. Cas. 282; Hodgev. 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 constitutionmust in some instances be passed in a manner different from the mode in whichother laws are passed. This is a faint recognition of the difference betweenfundamental and other laws. Compare 18 & 19 Viet. c. 55, Sched. I. s. 60;
Reason of this.
may fairly therefore assert that the New Zealand Parliament, in commonwith many other colonial legislative assemblies, is, though a "subordinate," atonce a legislative and a constituent assembly. It is a "subordinate"assembly24 because its powers are limited by the legislation of theImperial Parliament; it is a constituent assembly since it can change thearticles of the constitution of New Zealand. The authority of the New ZealandParliament to change the articles of the constitution of New Zealand is fromseveral points of view worth notice.
We have here a decisive proof that there is no necessary connectionbetween the written character and the immutability of a constitution. The NewZealand constitution is to be found in a written document; it is a statutoryenactment. Yet the articles of this constitutional statute can be changed bythe Parliament which it creates, and changed in the same manner as any otherlaw. This may seem an obvious matter enough, but writers of eminence so oftenuse language which implies or suggests that the character of a law is changedby its being expressed in the form of a statute as to make it worth whilenoting that a statutory constitution need not be in any sense an immutable
but there appears to have been considerable laxity in regard toobserving these constitutional provisions. Seejenks, Government of Victoria,pp. 247-249.
24 It is usually the case that a self-governing colony, such as NewZealand, has the power in one form or another to change the colonialconstitution. The extent, however, of this power, and the mode in which it canbe exercised, depends upon the terms of the Act of Parliament, or of thecharter creating or amending the colonial constitution, and differs indifferent cases. Thus the Parliament of New Zealand can change almost all,though not quite all, of the articles of the constitution, and can change themin the same manner in which it can change an ordinary colonial law. TheParliament of the Canadian Dominion cannot change the constitution of theDominion. The Parliament of the Australian Commonwealth, on the other hand,occupies a peculiar position. It can by virtue of the terms of the constitutionitself alter, by way of ordinary legislation, certain of the articles of theconstitution (see, e.g., Constitution of Commonwealth, ss. 65, 67),whilst it cannot, by way of ordinary legislation, change other articles of theconstitution. All the articles, however, of the constitution which cannot bechanged by ordinary Parliamentary legislation can subject, of course, tothe sanction of the Crown be altered or abrogated by the Houses of theParliament, and a vote of the people of the Commonwealth, as provided by theConstitution of the Commonwealth, s. 128. The point to be specially noted is,that the Imperial Parliament, as a rule, enables a self-governing colony tochange the colonial constitution. The exception in the case of Canada is moreapparent than real; the Imperial Parliament would no doubt give effect to anychange clearly desired by the inhabitants of the Canadian Dominion.
Colonial Parliament may be a "constituent" as well as legislative body.
constitution. The readiness again with which the English Parliament hasconceded constituent powers to colonial legislatures shows how little hold isexercised over Englishmen by that distinction between fundamental andnon-fundamental laws which runs through almost all the constitutions not onlyof the Continent but also of America. The explanation appears to be that inEngland we have long been accustomed to consider Parliament as capable ofchanging one kind of law with as much ease as another. Hence when Englishstatesmen gave Parliamentary government to the colonies, they almost as amatter of course bestowed upon colonial legislatures authority to deal withevery law, whether constitutional or not, which affected the colony, subject ofcourse to the proviso, rather implied than expressed, that this power shouldnot 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 theImperial Parliament. They are within their own sphere sovereign bodies; buttheir freedom of action is controlled by their subordination to the Parliamentof the United Kingdom.
The question may naturally be asked how the large amount of colonialliberty conceded to countries like New Zealand has been legally reconciled withImperial sovereignty?
The inquiry lies a little outside our subject, but is not really foreignto it, and well deserves an answer. Nor is the reply hard to find if we keep inmind the true nature of the difficulty which needs explanation.
The problem is not to determine what are the means by which the EnglishGovernment keeps the colonies in subjection, or maintains the politicalsovereignty of the United Kingdom. This is a matter of politics with which thisbook has no concern.
The question to be answered is how (assuming the law to be obeyedthroughout the whole of the British Empire) colonial legislative freedom ismade compatible with the legislative sovereignty of Parliament? How are theImperial Parliament and the colonial legislatures prevented from encroaching oneach other's spheres?
No one will think this inquiry needless who remarks that inconfederations, such as the United States, or the Canadian Dominion,
Conflicts averted by (i.) supremacy of British Parliament;
(n.) right of veto.
the Courts are constantly occupied in determining the boundaries whichdivide the legislative authority of the Central Government from that of theState Legislatures.
The assertion may sound paradoxical, but is nevertheless strictly true,that the acknowledged legal supremacy of Parliament is one main cause of thewide power of legislation allowed to colonial assemblies.
The constitutions of the colonies depend directly or indirectly uponimperial statutes. No lawyer questions that Parliament could legally abolishany colonial constitution, or that Parliament can at any moment legislate forthe colonies and repeal or override any colonial law whatever. Parliamentmoreover does from time to time pass Acts affecting the colonies, and thecolonial,25 no less than the English, Courts completely admit theprinciple that a statute of the Imperial Parliament binds any part of theBritish dominions to which the statute is meant to apply. But when once this isadmitted, it becomes obvious that there is little necessity for defining orlimiting the sphere of colonial legislation. If an Act of the New ZealandParliament contravenes an imperial statute, it is for legal purposes void; andif an Act of the New Zealand Parliament, though not infringing upon anystatute, is so opposed to the interests of the Empire that it ought not to bepassed, the British Parliament may render the Act of no effect by means of animperial statute.
This course, however, is rarely, if ever, necessary; for Parliamentexerts authority over colonial legislation by in effect regulating the use ofthe Crown's "veto" in regard to colonial Acts. This is a matter which itselfneeds a little explanation.
The Crown's right to refuse assent to bills which have passed throughthe Houses of Parliament is practically obsolete.26 The power
25 See Todd, Parliamentary Government, pp. 168-192.
26 This statement has been questioned see Hearn (2nd ed.), p. 63 but is, it is submitted, correct. The so-called "veto" has never beenemployed as regards any public bill since the accession of the House ofHanover. 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 ofveto was more than a century ago already obsolete. But the statement that apower is practically obsolete
ow con-cts be-/een im-jrial and lonial <;islation e oided.
of the Crown to negative or veto the bills of colonial legislaturesstands on a different footing. It is virtually, though not in name, the rightof the Imperial Parliament to limit colonial legislative independence, and isfrequently exercised.
This check on colonial legislation is exerted in two differentmanners.27
How right of "veto" exercised.
does not involve the assertion that it could under no conceivablecirc*mstances be revived. On the whole subject of the veto, and the differentsenses in which the expression is used, the reader should consult an excellentarticle by Professor Orelli of Zurich, to be found under the word "Veto" inEncyclopedia Britannica (gth ed.), xxiv. p. 208.
The history of the Royal Veto curiously illustrates the advantage whichsometimes arises from keeping alive in theory prerogatives which may seem to bepractically obsolete. The Crown's legislative "veto" has certainly long beenunused in England, but it has turned out a convenient method of regulating therelation between the United Kingdom and the Colonies. If the right of the Kingto refuse his assent to a bill which had passed the two Houses of Parliamenthad 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 aself-governing colony, e.g. New Zealand. It would, in other words, havebeen hard to create a parliamentary veto of colonial legislation. Yet theexistence of such a veto, which ought to be, and is, sparingly used, helps tohold together the federation known as the British Empire.
27 The mode in which the power to veto colonial legislation is exercisedmay be best understood from the following extract from the Rules andRegulations printed some years ago by the Colonial Office:
RULES AND REGULATIONS CHAPTER III
§1. Legislative Councils and Assemblies
48. In every colony the Governor has authority either to give or towithhold his assent to laws passed by the other branches or members of theLegislature, and until that assent is given no such law is valid or binding.
49. Laws are in some cases passed with suspending clauses; that is,although assented to by the Governor they do not come into operation or takeeffect in the colony until they shall have been specially confirmed by HerMajesty, and in other cases Parliament has for the same purpose empowered theGovernor to reserve laws for the Crown's assent, instead of himself assentingor refusing his assent to them.
50. Every law which has received the Governor's assent (unless itcontains a suspending clause) comes into operation immediately, or at the timespecified 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 thedate at which such disallowance is published in the colony.
51. In colonies having representative assemblies the disallowance of anylaw, or the Crown's assent to a reserved bill, is signified by order incouncil. The confirmation of an Act passed with a suspending clause, is notsignified by order in council unless this mode of confirmation is required bythe terms of the suspending clause itself, or by some special provision in theconstitution of the colony.
The Governor of a colony, say New Zealand, may directly refuse hisassent to a bill passed by both Houses of the New Zealand Parliament. In thiscase the bill is finally lost, just as would be a bill which had been rejectedby the colonial council, or as would be a bill passed
52. In Crown colonies the allowance or disallowance of any law isgenerally signified by despatch.
53. In some cases a period is limited, after the expiration of whichlocal enactments, though not actually disallowed, cease to have the authorityof law in the colony, unless before the lapse of that time Her Majesty'sconfirmation of them shall have been signified there; but the general rule isotherwise.
54. In colonies possessing representative assemblies, laws purport to bemade by the Queen or by the Governor on Her Majesty's behalf or sometimes bythe Governor alone, omitting any express reference to Her Majesty, with theadvice and consent of the council and assembly. They are almost invariablydesignated as Acts. In colonies not having such assemblies, laws are designatedas ordinances, and purport to be made by the Governor, with the advice andconsent of the Legislative Council (or in British Guiana of the Court ofPolicy).
The "veto," it will be perceived, may be exercised by one of twoessentially different methods: first, by the refusal of the Governor's assent;secondly, by the exercise of the royal power to disallow laws even whenassented to by the Governor. As further, the Governor may reserve bills for theroyal consideration, and as colonial laws are sometimes passed containing aclause which suspends their operation until the signification of the royalassent, the check on colonial legislation may be exercised in four differentforms
(1) The refusal of the Governor's assent to a bill.
(2) Reservation of a bill for the consideration of the Crown, and thesubsequent lapse of
the bill owing to the royal assent being refused, or not being givenwithin the statutory time.
(3) The insertion in a bill of a clause preventing it from coming intooperation until the
signification of the royal assent thereto, and the want of such royalassent.
(4) The disallowance by the Crown of a law passed by the ColonialParliament with the
assent of the Governor.
The reader should note, however, the essential difference between thethree first modes and the fourth mode of checking colonial legislation. Underthe three first a proposal law passed by the colonial legislature never comesinto operation in the colony. Under the fourth a colonial law which has comeinto operation in the colony is annulled or disallowed by the Crown from thedate of such disallowance. In the case of more than one colony, suchdisallowance must, under the Constitution Act or letters-patent, be signifiedwithin two years. See the British North American Act, 1867, sec. 56. Comparethe Australian Constitu-tiqns Act, 1842 (5 & 6 Viet. c. 76), secs. 32, 33;the Australian Constitutions Act, 1850, 13 & 14 Viet. c. 59; and theVictoria Constitution Act, 1855 (18 & 19 Viet. c. 55), sec. 3.
Under the Australian Commonwealth Act the King may disallow an Actassented to by the Governor-General within one year after theGovernor-General's assent. (Commonwealth of Australia Constitution Act, sec.59.)
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 theCrown. In such case the bill does not come into force until it has received theroyal assent, which is in effect the assent of the English Ministry, andtherefore indirectly of the Imperial Parliament.
The Governor, on the other hand, may, as representing the Crown, givehis assent to a New Zealand bill. The bill thereupon comes into forcethroughout New Zealand. But such a bill, though for a time a valid Act, is notfinally made law even in New Zealand, since the Crown may, after the Governor'sassent has been given, disallow the colonial Act. The case is thus put by Mr.Todd:
Although a governor as representing the Crown is empowered to give theroyal assent to bills, this act is not final and conclusive; the Crown itselfhaving, in point of fact, a second veto. All statutes assented to by thegovernor of a colony go into force immediately, unless they contain a clausesuspending their operation until the issue of a proclamation of approval by thequeen in council, or some other specific provision to the contrary; but thegovernor 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 coloniallegislation is subject to a real veto on the part of the imperial government,and no bill which the English Ministry think ought for the sake of imperialinterests to be negatived can, though passed by the New Zealand or othercolonial legislature, come finally into force. The home government is certainto negative or disallow any colonial law which, either in letter or in spirit,is repugnant to Parliamentary legislation, and a large number of Acts can begiven which on one ground or another have been either not assented to ordisallowed by the Crown. In 1868 the Crown refused assent to a Canadian Actreducing the salary of the Governor-General.29 In 1872 the Crownrefused assent to a
28 Todd, Parliamentary Government in the British Colonies, p.137.
29 Todd, Parliamentary Government in the British Colonies, p.144.
Canadian Copyright Act because certain parts of it conflicted withimperial legislation. In 1873 a Canadian Act was disallowed as being contraryto the express terms of the British North America Act, 1868; and on similargrounds in 1878 a Canadian Shipping Act was disallowed.30 So againthe Crown has at times in effect passed a veto upon Australian Acts forchecking Chinese immigration.31 And Acts passed by a coloniallegislature, allowing divorce on the ground solely of the husband's adultery or(before the passing of the Deceased Wife's Sister's Marriage Act, 1907, 7Edward VII. c. 47) legalising marriage with a deceased wife's sister or with adeceased husband's brother, have (though not consistently with the generaltenor of our colonial policy) been sometimes disallowed by the Crown, that is,in effect by the home government.
The general answer therefore to the inquiry, how colonial liberty oflegislation is made legally reconcilable with imperial sovereignty, is that thecomplete recognition of the supremacy of Parliament obviates the necessity forcarefully limiting the authority of colonial legislatures, and that the homegovernment, who in effect represent Parliament, retain by the use of theCrown's veto the power of preventing the occurrence of conflicts betweencolonial and imperial laws. To this it must be added that imperial treatieslegally bind the colonies, and that the "treaty-making power," to use anAmerican expression, resides in the Crown, and is therefore exercised by thehome government in accordance with the wishes of the Houses of Parliament, ormore strictly of the House of Commons; whilst the authority to make treatiesis, except where expressly allowed by Act of Parliament, not possessed by anycolonial government.32
It should, however, be observed that the legislature of a self-governingcolony is free to determine whether or not to pass laws necessary for givingeffect to a treaty entered into between the impe-
30 Ibid., pp. 147, 150.
31 As regards the Australian colonies such legislation has, I aminformed, been heretofore checked in the following manner. Immigration billshave been reserved for the consideration of the Crown, and the assent of theCrown not having been given, have never come into force.
32 See Todd, Parliamentary Government in the British Colonies,pp. 192-218.
rial government and a foreign power; and further, that there might inpractice be great difficulty in enforcing within the limits of a colony theterms of a treaty, e.g. as to the extradition of criminals, to whichcolonial sentiment was opposed. But this does not affect the principle of lawthat a colony is bound by treaties made by the imperial government, and doesnot, unless under some special provision of an Act of Parliament, possessauthority to make treaties with any foreign power.
Any one who wishes justly to appreciate the nature and the extent of thecontrol exerted by Great Britain over colonial legislation should keep twopoints carefully in mind. The tendency, in the first place, of the imperialgovernment is as a matter of policy to interfere less and less with the actionof the colonies, whether in the way of lawmaking33 orotherwise.34 Colonial Acts, in the second place, even when finallyassented to by the Crown, are, as already pointed out, invalid if repugnant toan Act of Parliament applying to the colony. The imperial policy therefore ofnon-intervention in the local affairs of British dependencies combines with thesupreme legislative authority of the Imperial Parliament to renderencroachments by the Parliament of the United Kingdom on the sphere of coloniallegislation, or
33 Thus the New Zealand Deceased Husband's Brother Act, 1900, No. 72,legalising marriage with a deceased husband's brother, the ImmigrationRestriction Act, 1901, passed by the Commonwealth Parliament, the Immigrants'Restriction Act, 1907, No. 15, passed by the Transvaal Legislature, have allreceived the sanction of the Crown. The last enactment illustrates theimmensely wide legislative authority which the home government will under somecirc*mstances concede to a colonial Parliament. The Secretary of State forIndia (Mr. Morley) "regrets that he cannot agree that the Act in question canbe regarded as similar to the legislation already sanctioned in otherself-governing colonies. . . . Section 2 (4) of the Transvaal Act introduces aprinciple to which no parallel can be found in previous legislation. Thisclause . . . will debar from entry into the Transvaal British subjects whowould be free to enter into any other colony by proving themselves capable ofpassing the educational tests laid down for immigrants. It will, for instance,permanently exclude from the Transvaal members of learned professions andgraduates of European Universities of Asiatic origin who may in future wish toenter the colony." See Parl. Paper [Cd. 3887], Correspondence relating toLegislation affecting Asiatics in the Transvaal, pp. 52, 53, and comparepp. 31, 32. Seep. ]iv,ante.
34 Except in the case of political treaties, such as the HagueConventions, the imperial government does not nowadays bind the colonies bytreaties, but secures the insertion in treaties of clauses allowing colonies toadhere to a treaty if they desire to do so.
Non-sovereign legislatures ofinde-pendent nations.
France.
by colonial Parliaments on the domain of imperial legislation, ofcomparatively rare occurrence.35
Foreign Non-sovereign Legislatures
We perceive without difficulty that the Parliaments of even thosecolonies, such as the Dominion of Canada, or the Australian Commonwealth, whichare most nearly independent states, are not in reality sovereign legislatures.This is easily seen, because the sovereign Parliament of the United Kingdom,which legislates for the whole British Empire, is visible in the background,and because the colonies, however large their practical freedom of action, donot act as independent powers in relation to foreign states; the Parliament ofa dependency cannot itself be a sovereign body. It is harder for Englishmen torealise that the legislative assembly of an independent nation may not be asovereign assembly. Our political habits of thought indeed are so based uponthe assumption of Parliamentary omnipotence, that the position of a Parliamentwhich represents an independent nation and yet is not itself a sovereign poweris apt to appear to us exceptional or anomalous. Yet whoever examines theconstitutions of civilised countries will find that the legislative assembliesof great nations are, or have been, in many cases legislative without beingconstituent bodies. To determine in any given case whether a foreignlegislature be a sovereign power or not we must examine the constitution of thestate to which it belongs, and ascertain whether the legislature whose positionis in question bears any of the marks of subordination. Such an investigationwill in many or in most instances show that an apparently sovereign assembly isin reality a non-sovereign law-making body.
France has within the last hundred and thirty years made trial of atleast twelve constitutions.36
35 The right of appeal to the Privy Council from the decision of theCourts of the colonies is another link strengthening the connection between thecolonies and England.
There have been, however, of recent years a good number of conflictsbetween imperial and colonial legislation as to matters affecting merchantshipping.
36 Demombynes, Les Constitutions Europeennes, ii. (2nd ed.), pp.1-5. See Appendix, Note I., Rigidity of French Constitutions.
ilicyof
iperial
ivern-
ent not to
terfere
th action
colonies.
Constitutional monarchy of Louis Philippe.
These various forms of government have, amidst all their differences,possessed in general one common feature. They have most of them been based uponthe recognition of an essential distinction between constitutional or"fundamental" laws intended to be either immutable or changeable only withgreat difficulty, and "ordinary" laws which could be changed by the ordinarylegislature in the common course of legislation. Hence under the constitutionswhich France has from time to time adopted the common Parliament or legislativebody has not been a sovereign legislature.
The constitutional monarchy of Louis Philippe, in outward appearance atleast, was modelled on the constitutional monarchy of England. In the Charternot a word could be found which expressly limits the legislative authoritypossessed by the Crown and the two Chambers, and to an Englishman it would seemcertainly arguable that under the Orleans dynasty the Parliament was possessedof sovereignty. This, however, was not the view accepted among French lawyers.Tocqueville writes:
The immutability of the Constitution of France is a necessaryconsequence of the laws of that country. ... As the King, the Peers, and theDeputies all derive their authority from the Constitution, these three powersunited cannot alter a law by virtue of which alone they govern. Out of the paleof the Constitution they are nothing; where, then, could they take their standto effect a change in its provisions? The alternative is clear: either theirefforts are powerless against the Charter, which continues to exist in spite ofthem, in which case they only reign in the name of the Charter; or they succeedin changing the Charter, and then the law by which they existed being annulled,they themselves cease to exist. By destroying the Charter, they destroythemselves. This is much more evident in the laws of 1830 than in those of1814. In 1814 the royal prerogative took its stand above and beyond theConstitution; but in 1830 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 theConstitution is equally immutable, because there appear to be no legal means ofchanging it. These remarks are not applicable to England. That country havingno written Constitution, who can assert when its Constitution ischanged?37
37 A. de Tocqueville, Democracy in America, ii. (translation),App. pp. 322, 323. CEuvres Completes, i. p. 311.
Republic of 1848.
Present Republic.
Tocqueville's reasoning38 may not carry conviction to anEnglishman, but the weakness of his argument is of itself strong evidence ofthe influence of the hold on French opinion of the doctrine which it isintended to support, namely, that Parliamentary sovereignty was not arecognised part of French constitutionalism. The dogma which is so naturallyassented to by Englishmen contradicts that idea of the essential differencebetween constitutional and other laws which appears to have a firm hold on mostforeign statesmen and legislators.
The Republic of 1848 expressly recognised this distinction; no singlearticle of the constitution proclaimed on 4th November 1848 could be changed inthe 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 ofthree-fourths, and not otherwise, convoke a constituent body with authority tomodify the constitution. This constituent and sovereign assembly differed innumbers, and otherwise, from the ordinary non-sovereign legislature.
The National Assembly of the French Republic exerts at least as muchdirect authority as the English Houses of Parliament. The French Chamber ofDeputies exercises at least as much influence on the appointment of Ministers,and controls the action of the government, at least as strictly as does ourHouse of Commons. The President, moreover, does not possess even a theoreticalright of veto. For all this, however, the French Parliament is not a sovereignassembly, but is bound by the laws of the constitution in a way in which no lawbinds our Parliament. The articles of the constitution, or "fundamental laws,"stand in a totally different position from the ordinary law of the land. Underarticle 8 of the constitution, no one of these fundamental enactments can belegally changed otherwise than subject to the following provisions:
8. Les Chambres auront le droit, par deliberations separees, prisesdans chacune a la majorite absolue des voix, soit spontanement, soit sur lademande du President de la
38 His view is certainly paradoxical. (See Duguit, Manuel de droitConstitutionnel Francais, s. 149, p. 1090.) As a matter of fact oneprovision of the Charter, namely, art. 23, regulating the appointment of Peers,was changed by the ordinary process of legislation. See Law of agth December1831, Helie, Les Constitutions de la France, p. 1006.
Republique, de declarer qu'il y a lieu de reviser les loisconstitutionnelles. Apres que chacune des deux Chambres aura pris cetteresolution, elles se reuniront en Assemblee nationalepourproceder a larevision. Les deliberations portant revision des loisconstitutionnelles, en tout ou en partie, devront etre prises a la majoriteabsolue des membres composant I'Assemblee nationale.39
Supreme legislative power is therefore under the Republic vested not inthe ordinary Parliament of two Chambers, but in a "national assembly," orcongress, composed of the Chamber of Deputies and the Senate sitting together.
The various constitutions, in short, of France, which are in thisrespect fair types of continental polities,40 exhibit, as comparedwith the expansiveness or "flexibility" of English institutions, thatcharacteristic which may be conveniently described as "rigidity."41
39 Duguit et Monnier, Les Constitutions de la France depuis 1789,pp. 320, 321. A striking example of the difference between English and Frenchconstitutionalism is to be found in the division of opinion which existsbetween French writers of authority on the answer to the inquiry whether theFrench Chambers, when sitting together, have constitutionally the right tochange the constitution. To an Englishman the question seems hardly to admit ofdiscussion, for Art. 8 of the constitutional laws enacts in so many words thatthese laws may be revised, in the manner therein set forth, by the Chamberswhen sitting together as a National Assembly. Many French constitutionaliststherefore lay down, as would any English lawyer, that the Assembly is aconstituent as well as a legislative body, and is endowed with the right tochange the constitution (Duguit, Manuel, s. 151; Moreau, Preciselementaire de droit constitutionnel (Paris, 1892), p. 149). But someeminent authorities maintain that this view is erroneous, and that in spite ofthe words of the constitution the ultimate right of constitutional amendmentmust be exercised directly by the French people, and that therefore anyalteration in the constitutional laws by the Assembly lacks, at any rate, moralvalidity unless it is ratified by the direct vote of the electors. (See, on theone side, Duguit, Manuel, s. 151; Bard et Robiquet, La Constitutionfrancaise de 1875 (2nd ed.), pp. 374-390, and on the other side, Esmein,Droit Constitutionnel (4th ed.), p. 907; Borgeaud, Etablissem*nt etRivision des Constitutions, pp. 303-307.)
40 No constitution better merits study in this as in other respects thanthe constitution of Belgium. Though formed after the English model, it rejectsor omits the principle of Parliamentary sovereignty. The ordinary Parliamentcannot change anything in the constitution; it is a legislative, not aconstituent body; it can declare that there is reason for changing a particularconstitutional provision, and having done so is ipso facto dissolved(apres cette declaration les deux chambres sont dissoutes deplein droit).The new Parliament thereupon elected has a right to change theconstitutional article which has been declared subject to change(Constitution deLa Belgique, Arts. 131, 71).
41 See Appendix, Note I., Rigidity of French Constitutions.
Flexible constitutions.
Rigid constitutions.
And here it is worth while, with a view to understanding theconstitution of our own country, to make perfectly dear to ourselves thedistinction already referred to between a "flexible" and a "rigid"constitution.
A "flexible" constitution is one under which every law of everydescription can legally be changed with the same case and in the same manner byone and the same body. The "flexibility" of our constitution consists in theright of the Crown and the two Houses to modify or repeal any law whatever;they can alter the succession to the Crown or repeal the Acts of Union in thesame manner in which they can pass an Act enabling a company to make a newrailway from Oxford to London. With us, laws therefore are calledconstitutional, because they refer to subjects supposed to affect thefundamental institutions of the state, and not because they are legally moresacred or difficult to change than other laws. And as a matter of fact, themeaning of the word "constitutional" is in England so vague that the term "aconstitutional law or enactment" is rarely applied to any English statute asgiving a definite description of its character.
A "rigid" constitution is one under which certain laws generally knownas constitutional or fundamental laws cannot be changed in the same manner asordinary 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 FrenchParliament, when acting in its ordinary capacity, to modify or repeal certaindefinite laws termed constitutional or fundamental. Under a rigid constitutionthe term "constitutional" as applied to a law has a perfectly definite sense.It means that a particular enactment belongs to the articles of theconstitution, and cannot be legally changed with the same ease and in the samemanner as ordinary laws. The articles of the constitution will no doubtgenerally, though by no means invariably, be found to include all the mostimportant and fundamental laws of the state. But it certainly cannot beasserted that where a constitution is rigid all its articles refer to mattersof supreme importance. The rule that the French Parliament must meet atVersailles was at one time one of the constitutional laws of the FrenchRepublic. Such an enactment, how-
itinction ween (ible and id con-utions.
ever practically important, would never in virtue of its own characterhave been termed constitutional; it was constitutional simply because it wasincluded in the articles of the constitution.42
The contrast between the flexibility of the English and the rigidity ofalmost every foreign constitution suggests two interesting inquiries.
First, does the rigidity of a constitution secure its permanenceand invest the fundamental institutions of the state with practicalimmutability?
To this inquiry historical experience gives an indecisive answer.
In some instances the fact that certain laws or institutions of a statehave 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 constitutionof Belgium stood for more than half a century without undergoing, in form atleast, any material change whatever. The constitution of the United States haslasted for more than a hundred years, but has not undergone anything like theamount of change which has been experienced by the constitution of Englandsince the death of George the Third.43 But if the inflexibility ofconstitutional laws has in certain instances checked the gradual andunconscious process of innovation by which the foundations of a commonwealthare undermined, the rigidity of constitutional forms has in other casesprovoked revolution. The twelve unchangeable
42 The terms "flexible" and "rigid" (originally suggested by my friendMr. Bryce) are, it should be remarked, used throughout this work without anyconnotation either of praise or of blame. The flexibility and expansiveness ofthe English constitution, or the rigidity and immutability of, e.g., theconstitution of the United States, may each be qualities which according to thejudgment of different critics deserve either admiration or censure. With suchjudgments this treatise has no concern. My whole aim is to make clear to myreaders the exact difference between a flexible and a rigid constitution. It isnot my object to pronounce any opinion on the question whether the flexibilityor rigidity of a given polity be a merit or a defect.
43 No doubt the constitution of the United States has in reality, thoughnot in form, changed a good deal since the beginning of last century; but thechange has been effected far less by formally enacted constitutional amendmentsthan by the growth of customs or institutions which have modified the workingwithout altering the articles of the constitution.
constitutions of France have each lasted on an average for less than tenyears, and have frequently perished by violence. Louis Philippe's monarchy wasdestroyed within seven years of the time when Tocqueville pointed out that nopower existed legally capable of altering the articles of the Charter. In onenotorious instance at least and other examples of the same phenomenonmight be produced from the annals of revolutionary France theimmutability of the constitution was the ground or excuse for its violentsubversion. The best plea for the Coup d'etat of 1851 was, that whilethe French people wished for the re-election of the President, the article ofthe constitution requiring a majority of three-fourths of the legislativeassembly in order to alter the law which made the President's reelectionimpossible, thwarted the will of the sovereign people. Had the RepublicanAssembly been a sovereign Parliament, Louis Napoleon would have lacked theplea, which seemed to justify, as well as some of the motives which tempted himto commit, the crime of the and of December.
Nor ought the perils in which France was involved by the immutabilitywith which the statesmen of 1848 invested the constitution to be looked upon asexceptional; they arose from a defect which is inherent in every rigidconstitution. The endeavour to create laws which cannot be changed is anattempt to hamper the exercise of sovereign power; it therefore tends to bringthe letter of the law into conflict with the will of the really supreme powerin the state. The majority of French electors were under the constitution thetrue sovereign of France; but the rule which prevented the legal re-election ofthe President in effect brought the law of the land into conflict with the willof the majority of the electors, and produced, therefore, as a rigidconstitution has a natural tendency to produce, an opposition between theletter of the law and the wishes of the sovereign. If the inflexibility ofFrench constitutions has provoked revolution, the flexibility of Englishinstitutions has, once at least, saved them from violent overthrow. To astudent, who at this distance of time calmly studies the history of the firstReform Bill, it is apparent, that in 1832 the supreme legislative authority ofParliament enabled the nation to carry through a political revolution under theguise of a legal reform.
ther ity of titu-se-
- per-ence?
The rigidity, in short, of a constitution tends to check gradualinnovation; but, just because it impedes change, may, under unfavourablecirc*mstances, occasion or provoke revolution.
Secondly, what are the safeguards which under a rigidconstitution can be taken against unconstitutional legislation?
The general answer to our inquiry (which of course can have noapplication to a country like England, ruled by a sovereign Parliament) is thattwo methods may be, and have been, adopted by the makers of constitutions, witha view to rendering unconstitutional legislation, either impossible, orinoperative.
Reliance may be placed upon the force of public opinion and upon theingenious balancing of political powers for restraining the legislature frompassing unconstitutional enactments. This system opposes unconstitutionallegislation by means of moral sanctions, which resolve themselves into theinfluence of public sentiment.
Authority, again, may be given to some person or body of persons, andpreferably to the Courts, to adjudicate upon the constitutionality oflegislative acts, and treat them as void if they are inconsistent with theletter or the spirit of the constitution. This system attempts not so much toprevent unconstitutional legislation as to render it harmless through theintervention of the tribunals, and rests at bottom on the authority of thejudges.
This general account of the two methods by which it may be attempted tosecure the rigidity of a constitution is hardly intelligible without furtherillustration. Its meaning may be best understood by a comparison between thedifferent policies in regard to the legislature pursued by two differentclasses of constitutionalists.
French constitution-makers and their continental followers have, as wehave seen, always attached vital importance to the distinction betweenfundamental and other laws, and therefore have constantly created legislativeassemblies which possessed "legislative" without possessing "constituent"powers. French statesmen have therefore been forced to devise means for keepingthe ordinary legislature within its appropriate sphere. Their mode of procedurehas been marked by a certain uniformity; they have declared on the face of theconstitution the exact limits imposed upon the authority of the legis-
lature; they have laid down as articles of the constitution whole bodiesof maxims intended to guide and control the course of legislation; they haveprovided for the creation, by special methods and under special conditions, ofa constituent body which alone should be entitled to revise the constitution.They have, in short, directed their attention to restraining the ordinarylegislature from attempting any inroad upon the fundamental laws of the state;but they have in general trusted to public sentiment,44 or at anyrate to political considerations, for inducing the legislature to respect therestraints imposed on its authority, and have usually omitted to providemachinery for annulling unconstitutional enactments, or for rendering them ofno effect.
These traits of French constitutionalism are specially noticeable in thethree earliest of French political experiments. The Monarchical constitution of1791, the Democratic constitution of 1793, the Directorial constitution of 1795exhibit, under all their diversities, two features in common.45 Theyeach, on the one hand, confine the power of the legislature within very narrowlimits indeed; under the Directory, for instance, the legislative body couldnot itself change any one of the 377 articles of the constitution, and theprovisions for creating a constituent assembly were so framed that not the veryleast alteration in any of these articles could have been carried out within aperiod of less than nine years.46 None of these constitutions, onthe other
44 "Aucun des pouvoirs institues par la constitution n'a le droit de lachanger dans son ensemble ni dans ses parties, sauf les reformes qui pourront yetre faites par la voie de la revision, conformement aux dispositions du titreVII. ci-dessus.
"L'Assemblee rationale constituante en remet le depot a la fidelite duCorps legislatif, du Roi et des juges, a la vigilance des peres de famille, auxepouses et aux meres, a 1'affection des jeunes citoyens, au courage de tous lesFrangais." Constitution de 1791, Tit. vii. Art. 8; Duguit et Monnier,Les Constitutions de la France depuis 1789, p. 34.
These are the terms in which the National Assembly entrusts theConstitution of 1791 to the guardianship of the nation. It is just possible,though not likely, that the reference to the judges is intended to contain ahint that the Courts should annul or treat as void unconstitutional laws. Underthe Constitution of the Year VIII, the senate had authority to annulunconstitutional laws. But this was rather a veto on what in England we shouldcall Bills than a power to make void laws duly enacted. See Constitution ofYear VIII., Tit. ii. Arts. 2.6, 28, Helie, Les Constitutions de laFrance, p. 579.
45 See Appendix, Note I, Rigidity of French Constitutions.
46 See Constitution of 1795, Tit. xiii. Art. 338, Helie, LesConstitutions de la France, p. 463.
French Revolutionary constitutions.
i tare ;afe-ds
nstun-:ti tu-il legis-n?
mards ded nti-il con-ion-
hand, contain a hint as to the mode in which a law is to be treatedwhich is alleged to violate the constitution. Their framers indeed hardly seemto have recognised the fact that enactments of the legislature might, withoutbeing in so many words opposed to the constitution, yet be of dubiousconstitutionality, and that some means would be needed for determining whethera given law was or was not in opposition to the principles of the constitution.
These characteristics of the revolutionary constitutions have beenrepeated in the works of later French constitutionalists. Under the presentFrench Republic there exist a certain number of laws (not it is true a verylarge number), which the Parliament cannot change; and what is perhaps of moreconsequence, the so-called Congress47 could at any time increase thenumber of fundamental laws, and thereby greatly decrease the authority offuture Parliaments. The constitution, however, contains no article providingagainst the possibility of an ordinary Parliament carrying through legislationgreatly in excess of its constitutional powers. Any one in fact who bears inmind the respect paid in France from the time of the Revolution onwards to thelegislation of de facto governments and the traditions of the Frenchjudicature, will assume with confidence that an enactment passed through theChambers, promulgated by the President, and published in the Bulletin desLois, will be held valid by every tribunal throughout the Republic.
This curious result therefore ensues. The restrictions placed on theaction of the legislature under the French constitution are not in realitylaws, since they are not rules which in the last resort will be enforced by theCourts. Their true character is that of maxims of political morality, whichderive whatever strength they possess from being formally inscribed in theconstitution and from the resulting support of public opinion. What is true ofthe constitution of France applies with more or less force to other politicswhich have been formed under the influence of French ideas. The Belgianconstitution, for example, restricts the action of the Parliament no less thandoes
47 The term is used by French writers, but does not appear in theLois Constitutionnelles, and one would rather gather that the propertitle for a so-called Congress is L'Assemblee Nationale.
the Republican constitution of France. But it is at least doubtfulwhether Belgian constitutionalists have provided any means whatever forinvalidating laws which diminish or do away with the rights (e.g. theright of freedom of speech) "guaranteed" to Belgian citizens. The jurists ofBelgium maintain, in theory at least, that an Act of Parliament opposed to anyarticle of the constitution ought to be treated by the Courts as void. Butduring the whole period of Belgian independence, no tribunal, it is said, hasever 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 circ*mstances,formal declarations of rights may, from their influence on popular feeling,possess greater weight than is generally attributed to them in England; but italso suggests the notion that in Belgium, as in France, the restrictions onParliamentary authority are supported mainly by moral or political sentiment,and are at bottom rather constitutional understandings than laws.
To an English critic, indeed, the attitude of continental and especiallyof revolutionary statesmen towards the ordinary legislature bears an air ofparadox. They seem to be almost equally afraid of leaving the authority of theordinary legislature unfettered, and of taking the steps by which thelegislature may be prevented from breaking through the bonds imposed upon itspower. The explanation of this apparent inconsistency is to be found in twosentiments which have influenced French constitution-makers from the veryoutbreak of the Revolution an over-estimate of the effect to be producedby general declarations of rights, and a settled jealousy of any interventionby the judges in the sphere of politics.48 We shall see, in a laterchapter, that the public law of France is still radically influenced by thebelief, even now almost universal among Frenchmen, that the law Courts must notbe allowed to interfere in any way whatever with matters of state, or indeedwith anything affecting the machinery of government.49
48 A. de Tocqueville, CEuvres Completes, i. pp. 167, 168.
49 See Chap. XII.
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ititu-
thear-5 of
mental rtitu-
;s"?
The authors of the American constitution have, for reasons that willappear in my next chapter, been even more anxious than French statesmen tolimit the authority of every legislative body throughout the Republic. Theyhave further shared the faith of continental politicians in the value possessedby general declarations of rights. But they have, unlike Frenchconstitution-makers, directed their attention, not so much to preventingCongress and other legislatures from making laws in excess of their powers, asto the invention of means by which the effect of unconstitutional laws may benullified; and this result they have achieved by making it the duty of everyjudge throughout the Union to treat as void any enactment which violates theconstitution, and thus have given to the restrictions contained in theconstitution on the legislative authority either of Congress or the Statelegislatures the character of real laws, that is, of rules enforced by theCourts. This system, which makes the judges the guardians of the constitution,provides the only adequate safeguard which has hitherto been invented againstunconstitutional legislation.
Subject.
Federalism best understood by studying constitution of United States.
Chapter III
PARLIAMENTARY SOVEREIGNTY AND FEDERALISM
My present aim is to illustrate the nature of Parliamentarysovereignty as it exists in England, by a comparison with the system ofgovernment known as Federalism as it exists in several parts of the civilisedworld, and especially in the United States of America.l
There are indeed to be found at the present time three other noteworthyexamples of federal government the Swiss Confederation, the Dominion ofCanada, and the German Empire.2 But while from a study of theinstitutions of each of these states one may draw illustrations which throwlight on our subject, it will be best to keep our attention throughout thischapter fixed mainly on the institutions of the great American Republic. Andthis for two reasons. The Union, in the first place, presents the mostcompletely developed type of federalism. All the features which mark thatscheme of government, and above all the control of the legislature by theCourts, are there exhibited in their most salient and perfect form; the SwissConfederation3, moreover, and the Dominion of Canada, are more orless
1 On the whole subject of American Federalism the reader should consultMr. Bryce's American Commonwealth, and with a view to matters treated ofin this chapter should read with special care vol. i. parti.
2 To these we must now (1908) add the Commonwealth of Australia. (SeeAppendix, Note IX., Australian Federalism), [and see further the South AfricaAct, 1909, 9 Ed. VII. c. 9],
3 Swiss federalism deserves an amount of attention which it has only ofrecent years begun to receive. The essential feature of the Swiss Commonwealthis that it is a genuine and
feguards
ivided
found-
of
ited
ites.
copied from the American model, whilst the constitution of the GermanEmpire is too full of anomalies, springing both from historical and fromtemporary causes, to be taken as a fair representative of any known form ofgovernment. The Constitution of the United States, in the second place, holds avery peculiar relation towards the institutions of England. In the principle ofthe distribution of powers which determines its form, the Constitution of theUnited States is the exact opposite of the English constitution, the veryessence of which is, as I hope I have now made dear, the unlimited authority ofParliament. But while the formal differences between the constitution of theAmerican Republic and the constitution of the English monarchy are, looked atfrom one point of view, immense, the institutions of America are in theirspirit little else than a gigantic development of the ideas which lie at thebasis of the political and legal institutions of England. The principle, inshort, which gives its form to our system of government is (to use a foreignbut convenient expression) "unitarianism," or the habitual exercise of supremelegislative authority by one central power, which in the particular case is theBritish Parliament. The principle which, on the other hand, shapes every partof 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 thefederal form of government. The contrast therefore between the two polities isseen in its most salient form, and the results of this difference are made allthe more visible because in every other respect the institutions of the Englishpeople 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 thegovernment, or the state.
We shall best understand the nature of federalism and the points inwhich a federal constitution stands in contrast with the Parliamentaryconstitution of England if we note, first, the conditions essential to
Conditions and aim of federalism.
Countries capable of union.
Existence of federal sentiment.
natural democracy, but a democracy based on Continental, and not onAnglo-Saxon, ideas of freedom and of government.
The constitution of the Commonwealth of Australia contains at least onefeature apparently suggested by Swiss federalism. See Appendix, Note IX.,Australian Federalism.
the existence of a federal state and the aim with which such a state isformed; secondly, the essential features of a federal union; and lastly,certain characteristics of federalism which result from its very nature, andform points of comparison, or contrast, between a federal polity and a systemof Parliamentary sovereignty. A federal state requires for its formation twoconditions.4 There must exist, in the first place, a body ofcountries such as the Cantons of Switzerland, the Colonies of America, or theProvinces of Canada, so closely connected by locality, by history, by race, orthe 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 toexperience) that lands which now form part of a federal state were at somestage of their existence bound together by dose alliance or by subjection to acommon sovereign. It were going further than facts warrant to assert that thisearlier connection is essential to the formation of a federal state. But it iscertain that where federalism flourishes it is in general the slowly-maturedfruit of some earlier and looser connection.
A second condition absolutely essential to the founding of a federalsystem is the existence of a very peculiar state of sentiment among theinhabitants of the countries which it is proposed to unite. They must desireunion, and must not desire unity. If there be no desire to unite, there isdearly no basis for federalism; the wild scheme entertained (it is said) underthe Commonwealth of forming a union between the English Republic and the UnitedProvinces was one of those dreams which may haunt the imagination ofpoliticians but can
4 For United States see Story, Commentaries on the Constitution ofthe United States (4th ed.), and Bryce, American Commonwealth.
For Canada see the British North America Act, 1867, 30 Viet., c. 3;Bourinot, Parliamentary Procedure and Practice in the Dominion ofCanada.
For Switzerland see Constitution Federate de la Confederation Swissedu 29 Mai 1874; Blumer, Handbuch des SchweizerischenBundesstaatsrechtes; Lowell, Governments and Parties in ContinentalEurope, ii. chaps, xi.-xiii.; Sir F. O. Adams's Swiss Confederation;and Appendix, Note VIII., Swiss Federalism.
For the Commonwealth of Australia, the Constitution whereof deservescareful examination, the reader should consult Quick and Garran, AnnotatedConstitution of the Australian Commonwealth; Moore, The Commonwealth ofAustralia; and Bryce, Studies in History and Jurisprudence, i. EssayVIII., "The Constitution of the Commonwealth of Australia." See further,Appendix, Note IX., Australian Federalism.
never be transformed into fact. If, on the other hand, there be a desirefor unity, the wish will naturally find its satisfaction, not under a federal,but under a Unitarian constitution; the experience of England and Scotland inthe eighteenth and of the states of Italy in the nineteenth century shows thatthe sense of common interests, or common national feeling, may be too strong toallow of that combination of union and separation which is the foundation offederalism. The phase of sentiment, in short, which forms a necessary conditionfor the formation of a federal state is that the people of the proposed stateshould wish to form for many purposes a single nation, yet should not wish tosurrender the individual existence of each man's State or Canton. We mayperhaps go a little farther, and say, that a federal government will hardly beformed unless many of the inhabitants of the separate States feel strongerallegiance to their own State than to the federal state represented by thecommon government. This was certainly the case in America towards the end ofthe eighteenth century, and in Switzerland at the middle of the nineteenthcentury. In 1787 a Virginian or a citizen of Massachusetts felt a far strongerattachment to Virginia or to Massachusetts than to the body of the confederatedStates. In 1848 the citizens of Lucerne felt far keener loyalty to their Cantonthan to the confederacy, and the same thing, no doubt, held true in a lessdegree of the men of Berne or of Zurich. The sentiment therefore which createsa federal state is the prevalence throughout the citizens of more or lessallied countries of two feelings which are to a certain extent inconsistent the desire for national unity and the determination to maintain theindependence of each man's separate State. The aim of federalism is to giveeffect as far as possible to both these sentiments.
A federal state is a political contrivance intended to reconcilenational unity and power with the maintenance of "state rights." The end aimedat fixes the essential character of federalism. For the method by whichFederalism attempts to reconcile the apparently inconsistent claims of nationalsovereignty and of state sovereignty consists of the formation of aconstitution under which the ordinary powers5 of sovereignty areelaborately divided between the common
5 See Appendix, Note II., Division of Powers in Federal States.
Essential characteristics of
federalism. United States.
Supremacy of constitution.
or national government and the separate states. The details of thisdivision vary under every different federal constitution, but the generalprinciple on which it should rest is obvious. Whatever concerns the nation as awhole should be placed under the control of the national government. Allmatters which are not primarily of common interest should remain in the handsof the several States. The preamble to the Constitution of the United Statesrecites that
We, the people of the United States, in order to form a more perfectunion, establish justice, ensure domestic tranquillity, provide for the commondefence, 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 the UnitedStates by the Constitution nor prohibited by it to the States are reserved tothe States respectively or to the people." These two statements, which arereproduced with slight alteration in the constitution of the SwissConfederation,6 point out the aim and lay down the fundamental ideaof federalism.
From the notion that national unity can be reconciled with stateindependence by a division of powers under a common constitution between thenation on the one hand and the individual States on the other, flow the threeleading characteristics of completely developed federalism, thesupremacy of the constitution the distribution among bodies with limitedand co-ordinate authority of the different powers of government theauthority of the Courts to act as interpreters of the constitution.
A federal state derives its existence from the constitution, just as acorporation derives its existence from the grant by which it is created. Hence,every power, executive, legislative, or judicial, whether it belong to thenation or to the individual States, is subordinate to and controlled by theconstitution. Neither the President of the United States nor the Houses ofCongress, nor the Governor of Massachusetts, nor the Legislature or GeneralCourt of Massachusetts, can legally exercise a single power which isinconsistent with the articles
6 Constitution Federate, Preamble, and art. 3.
onse-jences. 'ritten institution
of the Constitution. This doctrine of the supremacy of the constitutionis familiar to every American, but in England even trained lawyers find adifficulty in following it out of its legitimate consequences. The difficultyarises from the fact that under the English constitution no principle isrecognised which bears any real resemblance to the doctrine (essential tofederalism) that the Constitution constitutes the "supreme law of theland."7 In England we have laws which may be calledfundamental8 or constitutional because they deal with importantprinciples (as, for example, the descent of the Crown or the terms of unionwith Scotland) lying at the basis of our institutions, but with us there is nosuch thing as a supreme law, or law which tests the validity of other laws.There are indeed important statutes, such as the Act embodying the Treaty ofUnion with Scotland, with which it would be political madness to tampergratuitously; there are utterly unimportant statutes, such, for example, as theDentists Act, 1878, which maybe repealed or modified at the pleasure or capriceof Parliament; but neither the Act of Union with Scotland nor the Dentists Act,1878, has more claim than the other to be considered a supreme law. Eachembodies the will of the sovereign legislative power; each can be legallyaltered or repealed by Parliament; neither tests the validity of the other.Should the Dentists Act, 1878, unfortunately contravene the terms of the Act ofUnion, the Act of Union would be pro tanto repealed, but no judge woulddream of maintaining that the Dentists Act, 1878, was thereby rendered invalidor unconstitutional. The one fundamental dogma of English constitutional law isthe absolute legislative sovereignty or despotism of the King in Parliament.But this dogma is incompatible with the existence of a fundamental compact, theprovisions of which control every authority existing under theconstitution.9
In the supremacy of the constitution are involved three consequences:
7 See Constitution of United States, art. 6, cl. 2.
8 The expression "fundamental laws of England" became current during thecontroversy as to the payment of ship-money (1635). See Gardiner, History ofEngland, viii. pp. 84, 85.
9 Compare especially Kent, Commentaries, i. pp. 447-449.
Rigid constitution.
The constitution must almost necessarily be a "written" constitution.
The foundations of a federal state are a complicated contract. Thiscompact contains a variety of terms which have been agreed to, and generallyafter mature deliberation, by the States which make up the confederacy. To basean arrangement of this kind upon understandings or conventions would be certainto generate misunderstandings and disagreements. The articles of the treaty, orin other words of the consitution, must therefore be reduced to writing. Theconstitution must be a written document, and, if possible, a written documentof which the terms are open to no misapprehension. The founders of the AmericanUnion left at least one great question unsettled. This gap in the Constitutiongave an opening to the dispute which was the plea, if not the justification,for the War of Secession.10
The constitution must be what I have termed a "rigid"11 or"inex-pansive" constitution.
The law of the constitution must be either legally immutable, or elsecapable of being changed only by some authority above and beyond the ordinarylegislative bodies, whether federal or state legislatures, existing under theconstitution.
In spite of the doctrine enunciated by some jurists that in everycountry there must be found some person or body legally capable of changingevery institution thereof, it is hard to see why it should be heldinconceivable12 that the founders of a polity should have delib-
10 No doubt it is conceivable that a federation might grow up by theforce of custom, and under agreements between different States which were notreduced into writing, and it appears to be questionable how far the AchaeanLeague was bound together by anything equivalent to a written constitution. Itis, however, in the highest degree improbable, even if it be not practicallyimpossible, that in modern times a federal state could be formed without theframing of some document which, whatever the name by which it is called, wouldbe in reality a written constitution, regulating the rights and duties of thefederal government and the States composing the Federation.
11 See pp. 39, 64-66, ante.
12 Eminent American lawyers, whose opinion is entitled to thehighest respect, maintain that under the Constitution there exists no person,or body of persons, possessed of legal sovereignty, in the sense given byAustin to that term, and it is difficult to see that this opinion involves anyabsurdity. Compare Constitution of United States, art. 5. It would appearfurther that certain rights reserved under the Constitution of the GermanEmpire to
erately omitted to provide any means for lawfully changing its bases.Such an omission would not be unnatural on the part of the authors of a federalunion, since one main object of the States entering into the compact is toprevent further encroachments upon their several state rights; and in the fiftharticle of the United States Constitution may still be read the record of anattempt to give to some of its provisions temporary immutability. The question,however, whether a federal constitution necessarily involves the existence ofsome ultimate sovereign power authorised to amend or alter its terms is ofmerely speculative interest, for under existing federal governments theconstitution will be found to provide the means for its own improvement.13 It is, at any rate, certain that whenever the founders of afederal government hold the maintenance of a federal system to be of primaryimportance, supreme legislative power cannot be safely vested in any ordinarylegislature acting under the constitution.14 For so to vestlegislative sovereignty would be inconsistent with the aim of federalism,namely, the permanent division between the spheres of the national governmentand of the several States. If Congress could legally change the Constitution,New York and Massachusetts would have no legal guarantee for the amount ofindependence reserved to them under the Constitution, and would be as subjectto the sovereign power of Congress as is Scotland to the sovereignty ofParliament; the Union would cease to be a federal state, and would become aUnitarian republic. If, on the other hand, the legislature of
particular States cannot under the Constitution be taken away from aState without its assent. (See Reichsverfassung, art. 78.) The truthis that a Federal Constitution partakes of the nature of a treaty, and it isquite conceivable that the authors of the Constitution may intend to provide noconstitutional means of changing its terms except the assent of all the partiesto the treaty.
13 See e.g. South Africa Act, 1909, s. 152.
14 Under the Constitution of the German Empire the Imperial legislativebody can amend the Constitution. But the character of the Federal Council(Bundesrath) gives ample security for the protection of State rights. Nochange in the Constitution can be effected which is opposed by fourteen votesin the Federal Council. This gives a veto on change to Prussia and to variouscombinations of some among the other States. The extent to which nationalsentiment and State patriotism respectively predominate under a federal systemmay be conjectured from the nature of the authority which has the right tomodify the Constitution. See Appendix, Note II., Division of Powers in FederalStates.
South Carolina could of its own will amend the Constitution, theauthority of the central government would (from a legal point of view) beillusory; the United States would sink from a nation into a collection ofindependent countries united by the bond of a more or less permanent alliance.Hence the power of amending the Constitution has been placed, so to speak,outside the Constitution, and one may say, with sufficient accuracy for ourpresent purpose, that the legal sovereignty of the United States resides in theStates' governments as forming one aggregate body represented by three-fourthsof the several States at any time belonging to the Union.1S Now fromthe necessity for placing ultimate legislative authority in some body outsidethe Constitution a remarkable consequence ensues. Under a federal as under aUnitarian system there exists a sovereign power, but the sovereign is in afederal state a despot hard to rouse. He is not, like the English Parliament,an ever-wakeful legislator, but a monarch who slumbers and sleeps. Thesovereign of the United States has been roused to serious action but onceduring the course of more than a century. It needed the thunder of the CivilWar to break his repose, and it may be doubted whether anything short ofimpending revolution will ever again arouse him to activity. But a monarch whoslumbers for years is like a monarch who does not exist. A federal constitutionis capable of change, but for all that a federal constitution is apt to beunchangeable.16
15 "The Congress, whenever two-thirds of both houses shall deem itnecessary, shall propose amendments to this Constitution, or, on theapplication of the legislatures of two-thirds of the several States, shall calla convention for proposing amendments, which, in either case, shall be valid toall intents and purposes, as part of this Constitution, when ratified by thelegislatures of three-fourths of the several States, or by conventions inthree-fourths thereof, as the one or the other mode of ratification may beproposed by the Congress; provided that no amendments which may be made priorto the year one thousand eight hundred and eight shall in any manner affect thefirst and fourth clauses in the ninth section of the first article; and that noState, without its consent, shall be deprived of its equal suffrage in theSenate." Constitution of United States, art. 5. Compare Austin, i. p.278, and see Bryce, American Commonwealth, i. (3rd ed.), chap, xxxii.,on the Amendment of the Constitution.
16 [Note, however, the ease with which the provisions of theConstitution of the U.S., with regard to the election of Senators by theLegislature and the transference of such election to the people of each State,have been carried through by Amendment xvii., passed in 1913.]
Every legislative assembly existing under a federal constitution ismerely17 a subordinate law-making body, whose laws are of the natureof bye-laws, valid whilst within the authority conferred upon it by theconstitution, but invalid or unconstitutional if they go beyond the limits ofsuch authority.
There is an apparent absurdity18 in comparing the legislatureof the United States to an English railway company or a municipal corporation,but the comparison is just. Congress can, within the limits of its legalpowers, pass laws which bind every man throughout the United States. The GreatEastern Railway Company can, in like manner, pass laws which bind every manthroughout the British dominions. A law passed by Congress which in in excessof its legal powers, as contravening the Constitution, is invalid; a law passedby the Great Eastern Railway Company in excess of the powers given by Act ofParliament, or, in other words, by the legal constitution of the company, isalso invalid; a law passed by Congress is called an "Act" of Congress, and ifultra vires is described as "unconstitutional"; a law passed by theGreat Eastern Railway Company is called a "bye-law," and if ultra viresis called, not "unconstitutional," but "invalid." Differences, however, ofwords must not conceal from us essential similarity in things. Acts ofCongress, or of the Legislative Assembly of New York or of Massachusetts, areat bottom simply "bye-laws," depending for their validity upon their beingwithin the powers given to Congress or to the state legislatures by theConstitution. The bye-laws of the Great Eastern Railway Company, imposing finesupon passengers who travel over their line without a ticket, are laws, but theyare laws depending for their validity upon their being within the powersconferred upon the Company by Act of Parliament, i.e. by the Company'sconstitution. Congress and the Great Eastern Railway Company are in truth eachof them nothing more than subordinate law-making bodies. Their power differsnot 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 thatthe rights of the States under the Constitution are practically protected. Thiscondition of things exists in the German Empire.
18 Seep. 40, note4,ante.
Distribution of powers.
Division of
powers
carried
in fact
beyond
necessary
limit.
from the authority of the sovereign Parliament of the UnitedKingdom.19
The distribution of powers is an essential feature of federalism. Theobject for which a federal state is formed involves a division of authoritybetween the national government and the separate States. The powers given tothe nation form in effect so many limitations upon the authority of theseparate States, and as it is not intended that the central government shouldhave the opportunity of encroaching upon the rights retained by the States, itssphere of action necessarily becomes the object of rigorous definition. TheConstitution, for instance, of the United States delegates special and closelydefined powers to the executive, to the legislature, and to the judiciary ofthe 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 tothe States are reserved to the States respectively or to thepeople."20
This is all the amount of division which is essential to a federalconstitution. But the principle of definition and limitation of powersharmonises so well with the federal spirit that it is generally carried muchfarther than is dictated by the mere logic of the constitution. Thus theauthority assigned to the United States under the Constitution is notconcentrated in any single official or body of officials. The
19 See as to bye-laws made by municipal corporations, and the dependenceof their validity upon the powers conferred upon the corporation: Johnsonv. Mayor ofCroydon, 16 Q. B. D. 708; Reg. v. Powell, 51L. T.92; Munro v. Watson, 57 L. T. 366. See Bryce, AmericanCommonwealth, i. (3rd ed.), pp. 244, 245.
20 Constitution of United States, Amendments, art. 10. See provisions ofa similar character in the Swiss Constitution, Constitution Federate,art. 3. Compare the Constitution of the Canadian Dominion, British NorthAmerica Act, 1867, secs. 91, 92.
There exists, however, one marked distinction in principle between theConstitution of the United States and the Constitution of the CanadianDominion. The Constitution of the United States in substance reserves to theseparate States all powers not expressly conferred upon the nationalgovernment. The Canadian Constitution in substance confers upon the Dominiongovernment all powers not assigned exclusively to the Provinces. In this matterthe Swiss Constitution follows that of the United States.
The Constitution of the Australian Commonwealth follows in effect theexample of the Constitution of the United States. The powers conferred upon theCommonwealth Parliament are, though very large, definite; the powers reservedto the Parliaments of the States are indefinite. See Commonwealth Act, ss. 51,52, and 107, and Appendix, Note II., Division of Powers in Federal States, andNote IX., Australian Federalism.
President has definite rights, upon which neither Congress nor thejudicial department can encroach. Congress has but a limited, indeed a verylimited, 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 theFederal Courts. So, lastly, the judiciary have their own powers. They stand ona level both with the President and with Congress, and their authority (beingdirectly derived from the constitution) cannot, without a distinct violation oflaw, be trenched upon either by the executive or by the legislature. Where,further, States are federally united, certain principles of policy or ofjustice must be enforced upon the whole confederated body as well as upon theseparate parts thereof, and the very inflexibility of the constitution temptslegislators to place among constitutional articles maxims which (though not intheir nature constitutional) have special claims upon respect and observance.Hence spring additional restrictions on the power both of the federation and ofthe separate states. The United States Constitution prohibits both toCongress21 and to the separate States22 the passing of abill of attainder or an ex post facto law, the granting of any title ofnobility, or in effect the laying of any tax on articles exported from anyState,23 enjoins that full faith shall be given to the public actsand judicial proceedings of every other State, hinders any State from passingany law impairing the obligation of contracts,24 and prevents everyState from entering into any treaty, alliance, or confederation; thus itprovides that the elementary principles of justice, freedom of trade, and therights of individual property shall be absolutely respected throughout thelength and breadth of the Union. It further ensures that the right of thepeople to keep and bear arms shall not be infringed, while it also providesthat no member can be expelled from either House of Congress without theconcurrence of two-thirds of the House. Other federal constitutions go farbeyond that of the United States in ascribing among
21 Constitution of United States, art. i, sec. 9.
22 Ibid., art. i, sec. 10.
23 Ibid., art. i. sec. 9. But conf. art. i, sec. 10.
24 Ibid., art. i, sec. 10.
constitutional articles either principles or petty rules which aresupposed 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 sostriking an example of the connection between federalism and the "limitation ofpowers" as the way in which the principles of the federal Constitution pervadein America the constitutions of the separate States. In no case does thelegislature of any one State possess all the powers of "state sovereignty" leftto the States by the Constitution of the Republic, and every state legislatureis subordinated to the constitution of the State.25 The ordinarylegislature of New York or Massachusetts can no more change the stateconstitution than it can alter the Constitution of the United States itself;and, though the topic cannot be worked out here in detail, it may safely beasserted that state government throughout the Union is formed upon the federalmodel, and (what is noteworthy) that state constitutions have carried muchfurther than the Constitution of the Republic the tendency to clothe withconstitutional immutability any rules which strike the people as important.Illinois has embodied, among fundamental laws, regulations as toelevators.26
But here, as in other cases, there is great difficulty in distinguishingcause and effect. If a federal form of government has affected, as it probablyhas, the constitutions of the separate States, it is certain that featuresoriginally existing in the State constitutions have been reproduced in theConstitution of the Union; and, as we shall see in a moment, the mostcharacteristic institution of the United States, the Federal Court, appears tohave been suggested at least to the founders of the Republic, by the relationwhich before 1789 already existed between the state tribunals and the statelegislatures.27
25 Contrast with this the indefinite powers left to State Parliamentsunder the Commonwealth of Australia Constitution Act, ss. 106, 107. TheConstitutionalists of Australia who created the Commonwealth have been as muchinfluenced by the traditions of English Parliamentary sovereignty as Americanlegislators have in their dealings with the State Constitutions been influencedby the spirit of federalism.
26 SeeMwnn v. Illinois, 4 Otto, 113.
27 European critics of American federalism have, as has been wellremarked by an eminent French writer, paid in general too little attention tothe working and effect of the state
ivisionof jwers stin-jishes deral
om unitar-n system govern-ent.
The tendency of federalism to limit on every side the action ofgovernment and to split up the strength of the state among coordinate andindependent authorities is specially noticeable, because it forms the essentialdistinction between a federal system such as that of America or Switzerland,and a Unitarian system of government such as that which exists in England orRussia. We talk indeed of the English constitution as resting on a balance ofpowers, 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 theybear as applied to the United States. All the power of the English state isconcentrated in the Imperial Parliament, and all departments of government arelegally subject to Parliamentary despotism. Our judges are independent, in thesense of holding their office by a permanent tenure, and of being raised abovethe direct influence of the Crown or the Ministry; but the judicial departmentdoes not pretend to stand on a level with Parliament; its functions might bemodified at any time by an Act of Parliament; and such a statute would be noviolation of the law. The Federal Judiciary, on the other hand, are co-ordinatewith the President and with Congress, and cannot without a revolution bedeprived of a single right by President or Congress. So, again, the executiveand the legislature are with us distinct bodies, but they are not distinct inthe sense in which the President is distinct from and independent of the Housesof Congress. The House of Commons interferes with administrative matters, andthe Ministry are in truth placed and kept in office by the
constitutions, and have overlooked the great importance of the action ofthe state legislatures. See Boutmy, Etudes de Droit Constitutionnel (anded.), pp-103-111.
"It has been truly said that nearly every provision of the FederalConstitution that has worked well is one borrowed from or suggested by someState Constitution; nearly every provision that has worked badly is one whichthe Convention, for want of a precedent, was obliged to devise for itself." Bryce, American Commonwealth, i. (3rd ed.), p. 35. One capitalmerit of Mr. Bryce's book is that it for the first time reveals, even to thosewho had already studied American institutions, the extent to which the mainfeatures of the Constitution of the United States were suggested to its authorsby the characteristics of the State governments.
Authority of Courts.
House. A modern Cabinet would not hold power for a week if censured by anewly elected House of Commons. An American President may retain his post andexercise his very important functions even though his bitterest opponentscommand majorities both in the Senate and in the House of Representatives.Unitarianism, in short, means the concentration of the strength of the state inthe 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 ofco-ordinate bodies each originating in and controlled by the constitution.
Whenever there exists, as in Belgium or in France, a more or less rigidconstitution, the articles of which cannot be amended by the ordinarylegislature, the difficulty has to be met of guarding against legislationinconsistent with the constitution. As Belgian and French statesmen havecreated no machinery for the attainment of this object, we may conclude thatthey considered respect for the constitution to be sufficiently secured bymoral or political sanctions, and treated the limitations placed on the powerof Parliament rather as maxims of policy than as true laws. During a period, atany rate of more than sixty years, no Belgian judge has (it is said) everpronounced a Parliamentary enactment unconstitutional. No French tribunal, ashas been already pointed out, would hold itself at liberty to disregard anenactment, however unconstitutional, passed by the National Assembly, insertedin the Bulletin des Lois, and supported by the force of the government;and French statesmen may well have thought, as Tocqueville certainly did think,that in France possible Parliamentary invasions of the constitution were a lessevil than the participation of the judges in political conflicts. France, inshort, and Belgium being governed under Unitarian constitutions, thenon-sovereign character of the legislature is in each case an accident, not anessential property of their polity. Under a federal system it is otherwise. Thelegal supremacy of the constitution is essential to the existence of the state;the glory of the founders of the United States is to have devised or adoptedarrangements under which the Constitution became in reality as well as name thesupreme law of the land.
Supremacy of constitution secured by creation of Supreme Court.
This end they attained by adherence to a very obvious principle, and bythe invention of appropriate machinery for carrying this principle into effect.
The principle is clearly expressed in the Constitution of the UnitedStates (article 6):
The Constitution and the laws of the United States which shall be madein pursuance thereof . . . shall be the supreme law of the land, and the judgesin every State shall be bound thereby, anything in the constitution or laws ofany State to the contrary notwithstanding.28
The import of these expressions is unmistakable. Chancellor Kentwrites:
Every Act of Congress and every Act of the legislatures of the States,and every part of the constitution of any State, which are repugnant to theConstitution of the United States, are necessarily void. This is a clear andsettled principle of [our] constitutional jurisprudence.29
The legal duty therefore of every judge, whether he act as a judge ofthe State of New York or as a judge of the Supreme Court of the United States,is dear. He is bound to treat as void every legislative act, whether proceedingfrom Congress or from the state legislatures, which is inconsistent with theConstitution of the United States. His duty is as dear as that of an Englishjudge called upon to determine the validity of a bye-law made by the GreatEastern or any other Railway Company. The American judge must in givingjudgment obey the terms of the Constitution, just as his English brother mustin giving judgment obey every Act of Parliament bearing on the case.
To have laid down the principle with distinctness is much, but the greatproblem was how to ensure that the principle should be obeyed; for thereexisted a danger that judges depending on the federal government should wrestthe Constitution in favour of the central power, and that judges created by theStates should wrest it in favour of State rights or interests. This problem hasbeen solved by the creation of the Supreme Court and of the Federal Judiciary.
28 Constitution of United States, art. 6.
29 Kent, Commentaries, i. (i2th ed.), p. 314, and conf. Ibid.,p. 449.
Nature and action of Supreme Court.
Of the nature and position of the Supreme Court itself thus much aloneneed for our present purpose be noted. The Court derives its existence from theConstitution, and stands therefore on an equality with the President and withCongress; the members thereof (in common with every judge of the FederalJudiciary) hold their places during good behaviour, at salaries which cannot bediminished during a judge's tenure of office.30 The Supreme Courtstands at the head of the whole federal judicial department, which, extendingby its subordinate Courts throughout the Union, can execute its judgmentsthrough its own officers without requiring the aid of state officials. TheSupreme Court, though it has a certain amount of original jurisdiction, derivesits importance from its appellate character; it is on every matter whichconcerns the interpretation of the Constitution a supreme and final Court ofAppeal from the dedsion of every Court (whether a Federal Court or a StateCourt) throughout the Union. It is in fact the final interpreter of theConstitution, and therefore has authority to pronounce finally as a Court ofAppeal whether a law passed either by Congress or by the legislature of aState, e.g. New York, is or is not constitutional. To understand theposition of the Supreme Court we must bear in mind that there exist throughoutthe Union two dasses 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 York or Massachusetts, created by andexisting under the state constitutions; and that the jurisdiction of thefederal judiciary and the state judiciary is in many cases concurrent, forthough the jurisdiction of the federal Courts is mainly confined to casesarising under the Constitution and laws of the United States, it is alsofrequently dependent upon the character of the parties, and though there arecases with which no state Court can deal, such a Court may often entertaincases which might be brought in a federal Court, and constantly has to considerthe effect of the Constitution on the validity either of a law passed byCongress or of state legislation. That the Supreme Court should be a Court ofAppeal from the dedsion of the subordinate
30 Constitution of United States, art. 3, secs, i, 2.
How
authority of the Courts is exerted.
federal tribunals is a matter which excites no surprise. The point to benoted is that it is also a Court of Appeal from decisions of the Supreme Courtof any State, e.g. New York, which turn upon or interpret the articlesof the Constitution or Acts of Congress. The particular cases in which a partyaggrieved by the decision of a state Court has a right of appeal to the SupremeCourt of the United States are regulated by an Act of Congress of 24thSeptember 1789, the twenty-fifth section of which provides that
a final judgment or decree, in any suit in the highest court of law orequity of a State, may be brought up on error in point of law, to the SupremeCourt 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 thestate court, and the decision was against the validity; or provided thevalidity of any state authority was drawn in question, on the ground of itsbeing repugnant to the Constitution, treaties, or laws of the United States,and the decision was in favour of its validity; or provided the construction ofany clause of the Constitution or of a treaty, or statute of, or commissionheld under the United States, was drawn in question, and the decision wasagainst the title, right, privilege, or exemption, specially claimed under theauthority of the Union.31
Strip this enactment of its technicalities and it comes to this. A partyto a case in the highest Court, say of New York, who bases his claim or defenceupon an article in the Constitution or law made under it, stands in thisposition: If judgment be in his favour there is no further appeal; if judgmentgoes against him, he has a right of appeal to the Supreme Court of the UnitedStates. Any lawyer can see at a glance how well devised is the arrangement toencourage state Courts in the performance of their duty as guardians of theConstitution, and further that the Supreme Court thereby becomes the ultimatearbiter of 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 oflegislation and on the rights possessed by different authorities under theConstitution is one rarely exercised, for it is in fact a right which isconstantly exerted without exciting any more surprise on the
31 Kent, Commentaries, i. (i2th ed.), pp. 299, 300.
part of the citizens of the Union than does in England a judgment of theKing's Bench Division treating as invalid the bye-law of a railway company. TheAmerican tribunals have dealt with matters of supreme consequence; they havedetermined that Congress has the right to give priority to debts due to theUnited States,32 can lawfully incorporate a bank,33 has ageneral power to levy or collect taxes without any restraint, but subject todefinite principles of uniformity prescribed by the Constitution; the tribunalshave settled what is the power of Congress over the militia, who is the personwho has a right to command it,34 and that the power exercised byCongress during the War of Secession of issuing paper money wasvalid.35 The Courts again have controlled the power of the separateStates fully as vigorously as they have defined the authority of the UnitedStates. The judiciary have pronounced unconstitutional every ex post factolaw, every law taxing even in the slightest degree articles exported fromany State, and have again deprived of effect state laws impairing theobligation of contracts. To the judiciary in short are due the maintenance ofjustice, the existence of internal free trade, and the general respect for therights of property; whilst a recent decision shows that the Courts are preparedto uphold as consistent with the Constitution any laws which prohibit modes ofusing private property, which seem to the judges inconsistent with publicinterest.36 The power moreover of the Courts which maintains thearticles of the Constitution as the law of the land, and thereby keeps eachauthority within its proper sphere, is exerted with an ease and regularitywhich 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 decideanything but the cases before them. It is natural to
32 Kent, Commentaries, i. (i2th ed.), pp. 244-248.
33 Ibid., pp. 248-254.
34 Ibid., pp. 262-266.
35 Story, Commentaries on the Constitution (4* ed.), ii. secs.1116, 1117. SeeHepburn v. Gris-wold, 8 Wallace, 603, Dec. 1869, andKnox v. Lee, 12 Wallace, 457.
36 Munn v. Illinois, 4 Otto, Rep. 113. See especially theJudgments of Marshall, C. }., collected in The Writings of JohnMarshall upon the Federal Constitution (1839).
The true merit of the founders of the United States.
say that the Supreme Court pronounces Acts of Congress invalid, but infact this is not so. The Court never directly pronounces any opinion whateverupon an Act of Congress. What the Court does do is simply to determine that ina given case A is or is not entitled to recover judgment against X; butin determining that case the Court may decide that an Act of Congress is not tobe taken into account, since it is an Act beyond the constitutional powers ofCongress.37
If any one thinks this is a distinction without a difference he showssome ignorance of politics, and does not understand how much the authority of aCourt is increased by confining its action to purely judicial business. Butpersons who, like Tocqueville, have fully appreciated the wisdom of thestatesmen who created the Union, have formed perhaps an exaggerated estimate oftheir originality. Their true merit was that they applied with extraordinaryskill the notions which they had inherited from English law to the novelcirc*mstances of the new republic. To any one imbued with the traditions ofEnglish procedure it must have seemed impossible to let a Court decide uponanything but the case before it. To any one who had inhabited a colony governedunder a charter the effect of which on the validity of a colonial law wascertainly liable to be considered by the Privy Council, there was nothingstartling in empowering the judiciary to pronounce in given cases upon theconstitutionality of Acts passed by assemblies whose powers were limited by theConstitution, just as the authority of the colonial legislatures was limited bycharter or by Act of Parliament. To a French jurist, indeed, filled with thetraditions of the French Parliaments, all this might well be incomprehensible,but an English lawyer can easily see that the fathers of the republic treatedActs of Congress as English Courts treat bye-laws, and in forming the SupremeCourt may probably have had in mind the functions of the Privy Council. It isstill more certain that they had before their eyes cases in which the tribunalsof particular States had treated as unconstitutional, and therefore pronouncedvoid, Acts of the state legislature which contravened the state constitution.The earliest case of declaring a law unconstitutional
37 See Chap. II. pp. 42-45, ante.
The
Canadian
Dominion.
dates (it is said) from 1786, and took place in Rhode Island, which wasthen, and continued till 1842, to be governed under the charter of Charles II.An Act of the legislature was declared unconstitutional by the Courts of NorthCarolina in i/Sy38 and by the Courts of Virginia inlySS,39 whilst the Constitution of the United States was not adoptedtill 1789, and Marbury v. Madison, the first case in which the SupremeCourt dealt with the question of constitutionality, was decided ini8o3.40
But if their notions were conceptions derived from English law, thegreat statesmen of America gave to old ideas a perfectly new expansion, and forthe first time in the history of the world formed a constitution which shouldin strictness be "the law of the land," and in so doing created modernfederalism. For the essential characteristics of federalism thesupremacy of the constitution the distribution of powers theauthority of the judiciary reappear, though no doubt with modifications,in every true federal state.
Turn for a moment to the Canadian Dominion. The preamble to the BritishNorth America Act, 1867, asserts with diplomatic inaccuracy that the Provincesof the present Dominion have expressed their desire to be united into oneDominion "with a constitution similar in principle to that of the UnitedKingdom." If preambles were intended to express anything like the wholetruth, for the word "Kingdom" ought to have been substituted"States": since it is dear that the Constitution of the Dominion is inits essential features modelled on that of the Union. This is indeed denied,but in my judgment without adequate grounds, by competent Canadiancritics.41 The differences
38 Martin, 421.
39 iVa. Cas. 198.
40 i Cranch, 137. For the facts as to the early action of the StateCourts in declaring legislative enactments unconstitutional I am indebted, asfor much other useful criticism, to that eminent constitutionalist my friendthe late Professor Thayer of Harvard University.
41 The difference between the judgment as to the character of theCanadian Constitution formed by myself, and the judgment of competent andfriendly Canadian critics, may easily be summarised and explained. If we lookat the federal character of the Constituton of the Dominion, we must inevitablyregard it as a copy, though by no means a servile copy, of the Constitution ofthe United States. Now in the present work the Canadian Constitution isregarded exclusively as a federal government. Hence my assertion, which I stillhold to be
between the institutions of the United States and of the Dominion are ofcourse both considerable and noteworthy. But no one can study the provisions ofthe British North America Act, 1867, without seeing that its authors had theAmerican Constitution constantly before their eyes, and that if Canada were anindependent country it would be a Confederacy governed under a Constitutionvery similar to that of the United States. The Constitution is the law of theland; it cannot be changed (except within narrow limits allowed by the BritishNorth America Act, 1867) either by the Dominion Parliament42 or bythe Provincial Parliaments;43 it can be altered only by thesovereign power of the British Parliament.44 Nor does this arisefrom 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 whatthe Canadian Parliament cannot do change the colonial constitution.Throughout the Dominion, therefore, the Constitution is in the strictest sensethe immutable law of the land. Under this law again, you have, as you wouldexpect, the distribution of powers among bodies of co-ordinateauthority;45 though undoubtedly the powers bestowed on the DominionGovernment and Parliament are greater when compared with the powers reserved tothe
correct, that the government of the Dominion is modelled on that of theUnion. If, on the other hand, we compare the Canadian Executive with theAmerican Executive, we perceive at once that Canadian government is modelled onthe system of Parliamentary cabinet government as it exists in England, anddoes not in any wise imitate the Presidential government of America. This, ithas been suggested to me by a friend well acquainted with Canadianinstitutions, is the point of view from which they are looked upon by myCanadian critics, and is the justification for the description of theConstitution of the Dominion given in the preamble to the British North AmericaAct, 1867. The suggestion is a just and valuable one; in deference to it someof the expressions used in the earlier editions of this book have undergone aslight modification.
42 See, however, British North America Act, 1867 (30 Viet. c. 3), s. 94,which gives the Dominion Parliament a limited power (when acting in conjunctionwith a Provincial legislature) of changing to a certain extent the provisionsof the British North America Act, 1867.
43 The legislatures of each Province have, nevertheless, authority tomake laws for "the amendment from time to time, notwithstanding anything [inthe British North America Act, 1867] of the Constitution of the Province,except as regards the office of Lieutenant Governor." See British North AmericaAct, 1867, s. 92.
44 See for an example of an amendment of the Dominion Constitution by anImperial statute, the Parliament of Canada Act, 1875.
45 British North America Act, 1867, secs. 91, 92.
The Swiss Confederation.
Provinces than are the powers which the Constitution of the UnitedStates gives to the federal government. In nothing is this more noticeable thanin the authority given to46 the Dominion Government to disallowProvincial Acts.47
This right was possibly given with a view to obviate altogether thenecessity for invoking the law Courts as interpreters of the Constitution; thefounders of the Confederation appear in fact to have believed that
the care taken to define the respective powers of the severallegislative bodies in the Dominion would prevent any troublesome or dangerousconflict of authority arising between the central and localgovernments.48
The futility, however, of a hope grounded on a misconception of thenature of federalism is proved by the existence of two thick volumes of reportsfilled with cases on the constitutionality of legislative enactments, and by along list of decisions as to the respective powers possessed by the Dominionand by the Provincial Parliaments judgments given by the true SupremeCourt of the Dominion, namely, the Judicial Committee of the Privy Council. InCanada, as in the United States, the Courts inevitably become the interpretersof the Constitution.
Swiss federalism repeats, though with noteworthy variations, theessential traits of the federal polity as it exists across the Atlantic. TheConstitution is the law of the land, and cannot be changed either by thefederal or by the cantonal legislative bodies; the Constitution enforces adistribution of powers between the national government and the Cantons, anddirectly or indirectly defines and limits the power of every authority existingunder it. The Common Government has in Switzerland, as in America, three organs a Federal Legislature, a Federal Executive (Bundesmth), and aFederal Court (Bundesgericht).
Of the many interesting and instructive peculiarities which give toSwiss federalism an individual character, this is not the occasion to
46 Ibid., secs. 56, 90.
47 Bourinol, Parliamentary Procedure and Practice in the Dominion ofCanada, p. 76.
48 Bourinot, Parliamentary Procedure and Practice in the Dominion ofCanada, p. 694.
'?«,!
write in detail. It lies, however, within the scope of this chapter tonote that the Constitution of the Confederation differs in two most importantrespects from that of the United States. It does not, in the first place,establish anything like the accurate division between the executive and thejudicial departments of government which exists both in America and in Canada;the Executive exercises, under the head of "administrative law," manyfunctions49 of a judicial character, and thus, for example, till1893 dealt in effect with questions50 having reference to the rightsof religious bodies. The Federal Assembly is the final arbiter on all questionsas 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 occupiedgreatly with questions of public law (Staatsrecht), and so experienced astatesman as Dr. Dubs laments that the Federal Court should possessjurisdiction in matters of private law.51 When to this it is addedthat the judgments of the Federal Court are executed by the government, it atonce becomes clear that, according to any English standard, Swiss statesmanshiphas failed as distinctly as American statesmanship has succeeded in keeping thejudicial apart from the executive department of government, and that thisfailure constitutes a serious flaw in the Swiss Constitution. ThatConstitution, in the second place, does not in reality place the Federal Courton an absolute level with the Federal Assembly. That tribunal cannot questionthe constitutionality of laws or decrees passed by the FederalParliament.52 From this fact one might suppose that the FederalAssembly is (unlike Congress) a sovereign body, but this is not so. The reasonwhy all Acts of the Assembly must be treated as constitutional by the FederalTribunal is that the Constitution itself almost precludes the possibility ofencroachment upon its articles by the federal legislative body. No
49 Constitution Federate, art. 113, Lew; 27 June 1874, art. 59;and Dubs, Das offentliche Recht der schweizerischen Eidgenossenschaft,ii. (2nd ed.), p. 90.
50 The decision thereof belonged till 1893 to the Assembly, guided bythe 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 Federate, art. 113; and Dubs, ii. (2nd ed.), pp.92-95.
52 Constitution Federale, art. 113; and Dubs, ii. (2nd ed.), pp.92-95.
Comparison between system of federalism and of parliamentarysovereignty.
Weakness of federalism.
legal revision can take place without the assent both of a majority ofSwiss citizens and of a majority of the Cantons, and an ordinary law dulypassed by the Federal Assembly may be legally annulled by a popular veto. Theauthority of the Swiss Assembly nominally exceeds the authority of Congress,because in reality the Swiss legislative body is weaker than Congress. Forwhile in each case there lies in the background a legislative sovereign capableof controlling the action of the ordinary legislature, the sovereign power isfar more easily brought into play in Switzerland than in America. When thesovereign power can easily enforce its will, it may trust to its own action formaintaining its rights; when, as in America, the same power acts but rarely andwith difficulty, the Courts naturally become the guardians of the sovereign'swill expressed in the articles of the Constitution.
Our survey from a legal point of view of the characteristics common toall federal governments forcibly suggests conclusions of more than merely legalinterest, as to the comparative merits of federal government, and the system ofParliamentary sovereignty. Federal government means weak government.53The distribution of all the powers of the state among co-ordinateauthorities necessarily leads to the result that no one authority can wield thesame amount of power as under a Unitarian constitution as
53 This weakness springs from two different causes: first, the divisionof powers between the central government and the States; secondly, thedistribution of powers between the different members (e.g. the Presidentand the Senate) of the national government. The first cause of weakness isinherent in the federal system; the second cause of weakness is not (logicallyat least) inherent in federalism. Under a federal constitution the wholeauthority of the national government might conceivably be lodged in one personor body, but we may feel almost certain that in practice the fears entertainedby the separate States of encroachments by the central government on theirState rights will prohibit such a concentration of authority.
The statement that federal government means weak government should bequalified or balanced by the consideration that a federal system sometimesmakes it possible for different communities to be united as one state when theyotherwise could not be united at all. The bond of federal union may be weak,but it may be the strongest bond which circ*mstances allow.
The failure and the calamities of the Helvetic Republic are a warningagainst the attempt to force upon more or less independent states a greaterdegree of political unity than they will tolerate.
possessed by the sovereign. A scheme again of checks and balances inwhich the strength of the common government is so to speak pitted against thatof the state governments leads, on the face of it, to a certain waste ofenergy. A federation therefore will always be at a disadvantage in a contestwith Unitarian states of equal resources. Nor does the experience either of theUnited States or of the Swiss confederation invalidate this conclusion. TheUnion is threatened by no powerful neighbours and needs no foreignpolicy.54 Circ*mstances unconnected with constitutional arrangementsenable Switzerland to preserve her separate existence, though surrounded bypowerful and at times hostile nations. The mutual jealousies moreover incidentto federalism do visibly weaken the Swiss Republic. Thus, to take one exampleonly, each member of the Executive must belong to a differentcanton.ss But this rule may exclude from the government statesmen ofhigh merit, and therefore diminish the resources of the state. A rule that eachmember of the Cabinet should be the native of a different county would appearto Englishmen palpably absurd. Yet this absurdity is forced upon Swisspoliticians, and affords one among numerous instances in which the efficiencyof the public service is sacrificed to the requirements of federal sentiment.Switzerland, moreover, is governed under a form of democratic federalism whichtends towards unitarianism. Each revision increases the authority of the nationat the expense of cantonal independence. This is no doubt in part due to thedesire to strengthen the nation against foreign attack. It is perhaps also dueto another circ*mstance. Federalism, as it defines, and therefore limits, thepowers of each department of the administration, is unfavourable to theinterference or to the activity of government. Hence a federal government canhardly render services to the nation by undertaking for the national benefitfunctions which may be performed by individuals. This may be a merit of thefederal system; it is, however, a merit which does not commend itself to moderndemocrats, and no more curious instance can be found of the inconsistentcurrents of popular opinion
54 The latter part of statement is perhaps less true in 1908 than it wasin 1885.
55 Constitution Federate, art. 96.
Conservatism of federalism.
which may at the same time pervade a nation or a generation than thecoincidence in England of a vague admiration for federalism alongside with afar more decided feeling against the doctrines of so-called laissez faire. Asystem meant to maintain the status quo in politics is incompatiblewith schemes for wide social innovation.
Federalism tends to produce conservatism.
This tendency is due to several causes. The constitution of a Federalstate must, as we have seen, generally be not only a written but a rigidconstitution, that is, a constitution which cannot be changed by any ordinaryprocess of legislation. Now this essential rigidity of federal institutions isalmost certain to impress on the minds of citizens the idea that any provisionincluded in the constitution is immutable and, so to speak, sacred. The leastobservation of American politics shows how deeply the notion that theConstitution is something placed beyond the reach of amendment has impressedpopular imagination. The difficulty of altering the Constitution producesconservative sentiment, and national conservatism doubles the difficulty ofaltering the Constitution. The House of Lords has lasted for centuries; theAmerican Senate has now existed for more than one hundred years, yet to abolishor alter the House of Lords might turn out to be an easier matter than tomodify the constitution of the Senate.56 To this one must add that afederal constitution always lays down general principles which, from beingplaced in the constitution, gradually come to command a superstitiousreverence, and thus are in fact, though not in theory, protected from change orcriticism. The principle that legislation ought not to impair obligation ofcontracts has governed the whole course of American opinion. Of theconservative effect of such a maxim when forming an article of the constitutionwe may form some measure by the following reflection. If any principle of thelike kind had been recognised in England as legally binding on the Courts, theIrish Land Act would have been unconstitutional and void; the Irish Church Act,1869, would, in great part at least, have been from a legal point of view somuch waste paper, and there would have been great difficulty in legislating inthe
56 See, however, note 16, p. 81, ante.
way in which the English Parliament has legislated for the reform of theUniversities. One maxim only among those embodied in the Constitution of theUnited States would, that is to say, have been sufficient if adopted in Englandto have arrested the most vigorous efforts of recent Parliamentarylegislation.
it Federalism, lastly, means legalism the predominance of the^judiciary in the constitution the prevalence of a spirit of legalityamong the people.
That in a confederation like the United States the Courts become thepivot on which the constitutional arrangements of the country turn is obvious.Sovereignty is lodged in a body which rarely exerts its authority and has (soto speak) only a potential existence; no legislature throughout the land ismore than a subordinate lawmaking body capable in strictness of enactingnothing but bye-laws; the powers of the executive are again limited by theconstitution; the interpreters of the constitution are the judges. The Benchtherefore can and must determine the limits to the authority both of thegovernment and of the legislature; its decision is without appeal; theconsequence follows that the Bench of judges is not only the guardian but alsoat a given moment the master of the constitution.57 Nothing
57 The expression "master of the constitution" has been criticised onthe ground of exaggeration (Sidgwick, Elements of Politics, p. 616). Theexpression, however, though undoubtedly strong, is, it is submitted,justifiable, if properly understood. It is true, as my friend Mr. Sidgwick wellpointed out, that the action of the Supreme Court is restrained, first, by theliability of the judges to impeachment for misconduct, and, secondly, by thefear of provoking disorder. And to these restraints a third and more efficientcheck must be added. The numbers of the Court may be increased by Congress, andits decision in a given case has not even in theory that force as a decisiveprecedent which is attributable to a decision of the House of Lords; hence ifthe Supreme Court were to pronounce judgments which ran permanently counter tothe opinion of the party which controlled the government of the Union, itsaction could be altered by adding to the Court lawyers who shared theconvictions of the ruling party. (See Davis, American Constitutions; theRelations of the Three Departments as adjusted by a Century, pp. 52-54.) Itwould be idle therefore to maintain, what certainly cannot be asserted withtruth, that the Supreme Court is the sovereign of the United States. It is,however, I conceive, true that at any given moment the Court may, on a casecoming before it, pronounce a judgment which determines the working of theConstitution. The decision in the Dred Scott Case for example, and stillmore the judicial opinions delivered in deciding the case, had a distinctinfluence on the interpretation of the Constitution both by slave-owners and byAbolitionists. In terming the Court the "master of the constitution" it was notmy intention to suggest the exercise by it of irregular or revolu-
Dangers arising from position of judiciary.
puts in a stronger light the inevitable connection between federalismand the prominent position of the judicial body than the history of modernSwitzerland. The statesmen of 1848 desired to give the Bun-desgericht afar less authoritative position than is possessed by the American SupremeCourt. They in effect made the Federal Assembly for most, what it still is forsome purposes, a final Court of Appeal. But the necessities of the case weretoo strong for Swiss statesmanship; the revision of 1874 greatly increased thepower of the Federal Tribunal.
From the fact that the judicial Bench supports under federalinstitutions the whole stress of the constitution, a special danger arises lestthe judiciary should be unequal to the burden laid upon them. In no country hasgreater skill been expended on constituting an august and impressive nationaltribunal than in the United States. Moreover, as already pointed out, theguardianship of the Constitution is in America confided not only to the SupremeCourt but to every judge throughout the land. Still it is manifest that eventhe Supreme Court can hardly support the duties imposed upon it. No one candoubt that the varying decisions given in the legal-tender cases, or in theline of recent judgments of which Munn v. Illinois is a specimen,show that the most honest judges are after all only honest men, and when set todetermine matters of policy and statesmanship will necessarily be swayed bypolitical feeling and by reasons of state. But the moment that this biasbecomes obvious a Court loses its moral authority, and decisions which might bejustified on grounds of policy excite natural indignation and suspicion whenthey are seen not to be fully justified on grounds of law. American criticsindeed are to be found
tionary powers. No doubt, again, the Supreme Court may be influenced indelivering its judgments by fear of provoking violence. This apprehension isadmittedly a limit to the full exercise of its theoretical powers by the mostabsolute of despots. It was never my intention to assert that the SupremeCourt, which is certainly not the sovereign of the United States, was in theexercise of its functions free from restraints which limit the authority ofeven a sovereign power. It must further be noted, in considering how far theSupreme Court could in fact exert all the authority theoretically vested in it,that it is hardly conceivable that the opinions of the Court as to, say, theconstitutional limits to the authority of Congress should not be shared by alarge number of American citizens. Whenever in short the Court differed in itsview 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.
Legal spirit
of
federalism.-
who allege that the Supreme Court not only is proving but always hasproved too weak for the burden it is called upon to bear, and that it has fromthe first been powerless whenever it came into conflict with a State, or couldnot count upon the support of the Federal Executive. These allegationsundoubtedly hit a weak spot in the constitution of the great tribunal. Itsjudgments are without force, at any rate as against a State if the Presidentrefuses the means of putting them into execution. "John Marshall," saidPresident Jackson, according to a current story,58 "has deliveredhis judgment; let him now enforce it, if he can"; and the judgment was neverput into force. But the weight of criticisms repeated from the earliest days ofthe Union may easily be exaggerated.59 Laymen are apt to mistake thegrowth of judicial caution for a sign of judicial weakness. Foreign observers,moreover, should notice that in a federation the causes which bring a body suchas the Supreme Court into existence, also supply it with a source of ultimatepower. The Supreme Court and institutions like it are the protectors of thefederal compact, and the validity of that compact is, in the long run, theguarantee for the rights of the separate States. It is the interest of everyman who wishes the federal constitution to be observed, that the judgments ofthe federal tribunals should be respected. It is therefore no bold assumptionthat, as long as the people of the United States wish to keep up the balancedsystem of federalism, they will ultimately compel the central government tosupport the authority of the federal Court. Critics of the Court are almostdriven to assert that the American people are indifferent to State Rights. Theassertion may or may not be true; it is a matter on which no English criticshould speak with confidence. But censures on the working of a federal Courttell very little against such an institution if they establish nothing morethan 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. 182.
59 See Davis, American Constitutions; the Relations of the ThreeDepartments as adjusted by a Century. Mr. Davis is distinctly of opinionthat the power of the Courts both of the United States and of the separateStates has increased steadily since the foundation of the Union. See Davis,American Constitutions, pp. 55-57.
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 notjudicial, and where decisions of a Court control the action of government thereexists an irresistible temptation to appoint magistrates who agree (honestly itmay be) with the views of the executive. A strong argument pressed against Mr.Elaine's election was, that he would have the opportunity as President ofnominating four judges, and that a politician allied with railway companies waslikely to pack the Supreme Court with men certain to wrest the law in favour ofmercantile corporations. The accusation may have been baseless; the fact thatit should have been made, and that even "Republicans" should declare that thetime had come when "Democrats" should no longer be excluded from the Bench ofthe United States, tells plainly enough of the special evils which must beweighed against the undoubted benefits of making the Courts rather than thelegislature the arbiters of the constitution.
That a federal system again can flourish only among communities imbuedwith a legal spirit and trained to reverence the law is as certain as can beany conclusion of political speculation. Federalism substitutes litigation forlegislation, and none but a law-fearing people will be inclined to regard thedecision of a suit as equivalent to the enactment of a law. The main reason whythe United States has carried out the federal system with unequalled success isthat the people of the Union are more thoroughly imbued with legal ideas thanany other existing nation. Constitutional questions arising out of either theconstitutions of the separate States or the articles of the federalConstitution are of daily occurrence and constantly occupy the Courts. Hencethe citizens become a people of constitutionalists, and matters which excitethe strongest popular feeling, as, for instance, the right of Chinese to settlein the country, are determined by the judicial Bench, and the decision of theBench is acquiesced in by the people. This acquiescence or submission is due tothe Americans inheriting the legal notions of the common law, i.e. ofthe "most legal system of law" (if the expression may be allowed) in the world.Tocqueville long ago remarked that the Swiss fell far short of the
Americans in reverence for law and justice.60 The events ofthe last sixty years suggest that he perhaps underrated Swiss submission tolaw. But the law to which Switzerland is accustomed recognises widediscretionary power on the part of the executive, and has never fully severedthe functions of the judge from those of the government. Hence Swiss federalismfails, just where one would expect it to fail, in maintaining that completeauthority of the Courts which is necessary to the perfect federal system. Butthe Swiss, though they may not equal the Americans in reverence for judicialdecisions, are a law-respecting nation. One may well doubt whether there aremany states to be found where the mass of the people would leave so muchpolitical influence to the Courts. Yet any nation who cannot acquiesce in thefinality of possibly mistaken judgments is hardly fit to form part of a federalstate.61
60 See passage cited, pp. 108-109, P°st-
61 See Appendix, Note VIII., Swiss Federalism.
PART II THE RULE OF LAW
Chapter IV
THE RULE OF LAW: ITS NATURE AND GENERALAPPLICATIONS
T
the Rule f I 1 wo f eatures have at all times since the Norman Conquestchar-
of Law
acterised the political institutions of England.
The first of these features is the omnipotence or undisputed supremacythroughout the whole country of the central government. This authority of thestate or the nation was during the earlier periods of our history representedby the power of the Crown. The King was the source of law and the maintainer oforder. The maxim of the Courts, "toutfuit in luy et vient de lui alcommencement, "v was originally the expression of an actual andundoubted fact. This royal supremacy has now passed into that sovereignty ofParliament which has formed the main subject of the foregoingchapters.2
The second of these features, which is closely connected with the first,is the rule or supremacy of law. This peculiarity of our polity is wellexpressed in the old saw of the Courts, "La ley est le plus hauteinheritance, cjue le ray ad; car par la ley it meme et toutes ses sujets sontrules, et si la ley nefuit, nul roi, et nul inheritance sera."3
This supremacy of the law, or the security given under the Englishconstitution to the rights of individuals looked at from various points ofview, forms the subject of this part of this treatise.
1 Year Books, xxiv. Edward III.; cited Gneist, EnglischeVerwaltungsrecht, i. p. 454.
2 See Part I.
3 Year Books, xix. Henry VI., cited Gneist, EnglischeVerwaltungsrecht, i. p. 455.
The rule of law in England
noticed by foreign observers.
Foreign observers of English manners, such for example as Voltaire, DeLolrne, Tocqueville, or Gneist, have been far more struck than have Englishmenthemselves with the fact that England is a country governed, as is scarcely anyother part of Europe, under the rule of law; and admiration or astonishment atthe legality of English habits and feeling is nowhere better expressed than ina curious passage from Tocqueville's writings, which compares the Switzerlandand the England of 1836 in respect of the spirit which pervades their laws andmanners. He writes:
Tocqueville on the want of respect for law in Switzerland and contrastwith England.
I am not about to compare Switzerland4 with the UnitedStates, but with Great Britain. When you examine the two countries, or even ifyou only pass through them, you perceive, in my judgment, the most astonishingdifferences between them. Take it all in all, England seems to be much morerepublican than the Helvetic Republic. The principal differences are found inthe institutions of the two countries, and especially in their customs(moeurs).
1. In almost all the Swiss Cantons liberty of the press is a veryrecent thing.
2. In almost all of them individual liberty is by no means completelyguaranteed, and a man may be arrested administratively and detained in prisonwithout much formality.
3. The Courts have not, generally speaking, a perfectly independentposition.
4. In all the Cantons trial by jury is unknown.
5. In several Cantons the people were thirty-eight years ago entirelywithout political rights. Aargau, Thurgau, Tessin, Vaud, and parts of theCantons of Zurich and Berne were in this condition.
The preceding observations apply even more strongly to customs than toinstitutions.
i. In many of the Swiss Cantons the majority of the citizens are quitewithout the taste or desire for self-government, and have not acquiredthe habit 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 totake part in public affairs which seem to torment Englishmen throughout theirlives.
ii. The Swiss abuse the liberty of the press on account of its being arecent form of liberty, and Swiss newspapers are much more revolutionaryand much less practical than English newspapers.
iii. The Swiss seem still to look upon associations from much the samepoint 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 of1902; they refer to a period before the creation in 1848 of the Swiss FederalConstitution.
Bearing of Tocqueville s remarks on meaning of rule of law.
THE RULE OF LAW: ITS NATURE AND GENERAL APPLICATIONS
of revolution, and not as a slow and sure method for obtaining redressof wrongs. The art of associating and of making use of the right of associationis but little understood in Switzerland.
iv. The Swiss do not show the love of justice which is such a strongcharacteristic of the English. Their Courts have no place in the politicalarrangements of the country, and exert no influence on public opinion. The loveof justice, 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 showat bottom that respect for justice, that love of law, that dislike of usingforce, without which no free nation can exist, which strikes strangers soforcibly in England.
I sum up these impressions in a few words.
Whoever travels in the United States is involuntarily and instinctivelyso 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 of themunder any but a Republican government. In the same way it is impossible tothink of the English as living under any but a free government. But if violencewere to destroy the Republican institutions in most of the Swiss Cantons, itwould be by no means certain that after rather a short state of transition thepeople would not grow accustomed to the loss of liberty. In the United Statesand in England there seems to be more liberty in the customs than in the lawsof the people. In Switzerland there seems to be more liberty in the laws thanin the customs of the country.5
Tocqueville's language has a twofold bearing on our present topic. Hiswords point in the dearest manner to the rule, predominance, or supremacy oflaw as the distinguishing characteristic of English institutions. They furtherdirect attention to the extreme vagueness of a trait of national characterwhich is as noticeable as it is hard to portray. Tocqueville, we see, isclearly perplexed how to define a feature of English manners of which he atonce recognises the existence; he mingles or confuses together the habit ofself-government, the love of order, the respect for justice and a legal turn ofmind. All these sentiments are intimately allied, but they cannot withoutconfusion be identified with each other. If, however, a critic as acute asTocqueville found a difficulty in describing one of the most markedpeculiarities 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, CEuvres Completes, viii. pp. 455-457.
Three meanings of rule of law.
of the supremacy of law as being a characteristic of the Englishconstitution, are using words which, though they possess a real significance,are nevertheless to most persons who employ them full of vagueness andambiguity. If therefore we are ever to appreciate the full import of the ideadenoted by the term "rule, supremacy, or predominance of law," we must firstdetermine precisely what we mean by such expressions when we apply them to theBritish constitution.
When we say that the supremacy or the rule of law is a characteristic ofthe English constitution, we generally include under one expression at leastthree distinct though kindred conceptions.
We mean, in the first place, that no man is punishable or can belawfully made to suffer in body or goods except for a distinct breach of lawestablished in the ordinary legal manner before the ordinary Courts of theland. In this sense the rule of law is contrasted with every system ofgovernment based on the exercise by persons in authority of wide, arbitrary, ordiscretionary powers of constraint.
Modern Englishmen may at first feel some surprise that the "rule of law"(in the sense in which we are now using the term) should be considered as inany way a peculiarity of English institutions, since, at the present day, itmay seem to be not so much the property of any one nation as a trait common toevery civilised and orderly state. Yet, even if we confine our observation tothe existing condition of Europe, we shall soon be convinced that the "rule oflaw" even in this narrow sense is peculiar to England, or to those countrieswhich, like the United States of America, have inherited English traditions. Inalmost every continental community the executive exercises far widerdiscretionary authority in the matter of arrest, of temporary imprisonment, ofexpulsion from its territory, and the like, than is either legally claimed orin fact exerted by the government in England; and a study of European politicsnow and again reminds English readers that wherever there is discretion thereis room for arbitrariness, and that in a republic no less than under a monarchydiscretionary authority on the part of the government must mean insecurity forlegal freedom on the part of its subjects.
Contrast
between
England
ana the
Continent
at present
day.
Contrast between England ana Continent during eighteenth century.
If, however, we confined our observation to the Europe of the twentiethcentury, we might well say that in most European countries the rule of law isnow nearly as well established as in England, and that private individuals atany rate who do not meddle in politics have little to fear, as long as theykeep the law, either from the Government or from any one else; and we mighttherefore feel some difficulty in understanding how it ever happened that toforeigners the absence of arbitrary power on the part of the Crown, of theexecutive, and of every other authority in England, has always seemed astriking feature, we might almost say the essential characteristic, of theEnglish constitution.6
Our perplexity is entirely removed by carrying back our minds to thetime when the English constitution began to be criticised and admired byforeign thinkers. During the eighteenth century many of the continentalgovernments were far from oppressive, but there was no continental countrywhere men were secure from arbitrary power. The singularity of England was notso much the goodness or the leniency as the legality of the English system ofgovernment. When Voltaire came to England and Voltaire represented thefeeling of his age his predominant sentiment dearly was that he hadpassed out of the realm of despotism to a land where the laws might be harsh,but where men were ruled by law and not by caprice.7 He had goodreason to know the difference. In 1717 Voltaire was sent to the Bastille for apoem which he had not written, of which he did not know the author, and withthe sentiment of which he did not agree. What adds to the oddity, in Englisheyes, of the whole transaction is
6 "La liberte est le droit de faire tout ce que les lois permettent; etsi un citoyen pouvoit faire ce qu'elles defendant, il n'auroit plus de liberte,paree que les autres auroient tout de menne cepouvoir." Montesquieu,De I'Esprit des Lois, Livre XI. chap. iii.
"II y a aussi une nation dans le monde qui a pour objet direct de saconstitution la liberte politique." Ibid. chap. v. The Englishare this nation.
7 "Les tirconstances qui contraignaient Voltaire a chercher un refugechez nos voisins devaient lui inspirer une grande sympathie pour desinstitutions ou il n'y avait nulle place a 1'arbitraire. 'La raison est libreici et n'y connait point de contrainte.' On y respire un air plus genereux, Tonse sent au milieu de citoyens qui n'ont pas tort de porter le front haut, demarcher fierement, surs qu'on n'eut pu toucher a un seul cheveu de leur tete,et n'ayant a redoubter ni lettres de cachet, ni captivite immotivee." Desnoiresterres, Voltaire, i. p. 365.
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 aboutto pay a visit to a prison which he "had not seen."8 In 1725Voltaire, then the literary hero of his country, was lured off from the tableof a Duke, and was thrashed by lackeys in the presence of their noble master;he was unable to obtain either legal or honourable redress, and because hecomplained of this outrage, paid a second visit to the Bastille. This indeedwas the last time in which he was lodged within the walls of a French gaol, buthis whole life was a series of contests with arbitrary power, and nothing buthis fame, his deftness, his infinite resource, and ultimately his wealth, savedhim from penalties far more severe than temporary imprisonment. Moreover, theprice at which Voltaire saved his property and his life was after all exilefrom France. Whoever wants to see how exceptional a phenomenon was thatsupremacy of law which existed in England during the eighteenth century shouldread such a book as Morley's Life of Diderot. The effort lasting fortwenty-two years to get the Encyclopedic published was a struggle on thepart of all the distinguished literary men in France to obtain utterance fortheir thoughts. It is hard to say whether the difficulties or the success ofthe contest bear the strongest witness to the wayward arbitrariness of theFrench Government.
Royal lawlessness was not peculiar to specially detestable monarchs suchas Louis the Fifteenth: it was inherent in the French system of administration.An idea prevails that Louis the Sixteenth at least was not an arbitrary, as heassuredly was not a cruel ruler. But it is an error to suppose that up to 1789anything like the supremacy of law existed under the French monarchy. Thefolly, the grievances, and the mystery of the Chevalier D'Eon made as muchnoise little more than a century ago as the imposture of the Claimant in ourown day. The memory of these things is not in itself worth reviving. What doesdeserve to be kept in remembrance is that in 1778, in the days of Johnson, ofAdam Smith, of Gibbon, of Cowper, of Burke, and of Mansfield, during thecontinuance of the American war and within
8 Desnoiresterres, i. pp. 344-364.
eleven years of the assembling of the States General, a brave officerand a distinguished diplomatist could for some offence still unknown, withouttrial and without conviction, be condemned to undergo a penance and disgracewhich could hardly be rivalled by the fanciful caprice of the tormentsinflicted by Oriental despotism.9 Nor let it be imagined that duringthe latter part of the eighteenth century the government of France was morearbitrary than that of other countries. To entertain such a supposition is tomisconceive utterly the condition of the continent. In France, law and publicopinion counted for a great deal more than in Spain, in the petty States ofItaly, or in the Principalities of Germany. All the evils of despotism whichattracted the notice of the world in a great kingdom such as France existedunder worse forms in countries where, just because the evil was so muchgreater, it attracted the less attention. The power of the French monarch wascriticised more severely than the lawlessness of a score of petty tyrants, notbecause the French King ruled more despotically than other crowned heads, butbecause the French people appeared from the eminence of the nation to have aspecial claim to freedom, and because the ancient kingdom of France was thetypical representative of despotism. This explains the thrill of enthusiasmwith which all Europe greeted the fall of the Bastille. When the fortress wastaken, there were not ten prisoners within its walls; at that very momenthundreds of debtors languished in English goals. Yet all England hailed thetriumph of the French populace with a fervour which to Englishmen of thetwentieth century is at first sight hardly comprehensible. Reflection makesclear enough the cause of a feeling which spread through the length and breadthof the civilised world. The Bastille was the outward and visible sign oflawless power. Its fall was felt, and felt truly, to herald in for the rest ofEurope that rule of law which already existed in England.10
9 It is worth notice that even after the meeting of the States Generalthe King was apparently reluctant to give up altogether the powers exercised bylettres de cachet. See "Declaration des intentions du Roi," art. 15,Plouard, Les Constitutions franchises, p. 10.
10 For English sentiment with reference to the servitude of the French,see Goldsmith, Citizen of the World, iii. Letter iv.; and see Ibid.,Letter xxxvii. p. 143, for a contrast between
Every man subject to ordinary law administered by ordinary tribunals.
We mean in the second place,ll when we speak of the"rule of law" as a characteristic of our country, not only that with us no manis above the law, but (what is a different thing) that here every man, whateverbe his rank or condition, is subject to the ordinary law of the realm andamenable to the jurisdiction of the ordinary tribunals.
In England the idea of legal equality, or of the universal subjection ofall classes to one law administered by the ordinary Courts, has been pushed toits utmost limit. With us every official, from the Prime Minister down to aconstable or a collector of taxes, is under the same responsibility for everyact done without legal justification as any other citizen. The Reports aboundwith cases in which officials have been brought before the Courts, and made, intheir personal capacity, liable to punishment, or to the payment of damages,for acts done in their official character but in excess of their lawfulauthority. A colonial governor,12 a secretary of state,13a military officer,14 and all subordinates, though carrying out thecommands of their official superiors, are as responsible for any act which thelaw does not authorise as is any private and unofficial person. Officials, suchfor example as soldiers15 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 whichhave no jurisdiction over their fellow-countrymen; officials, that is to say,are to a certain extent governed under what may be termed official law. Butthis fact is in no way inconsistent with the
the execution of Lord Ferrers and the impunity with which a Frenchnobleman was allowed to commit murder because of his relationship to the Royalfamily; and for the general state of feeling throughout Europe, Tocqueville,CEuvres Completes, viii. pp. 57- 72. The idea of the rule of law in thissense implies, or is at any rate closely connected with, the absence of anydispensing power on the part either of the Crown or its servants. See Bill ofRights, Preamble i, Stubbs, Select Charters (2nd ed.), p. 523. CompareMiller v. Knox, 6 Scott, i; Attorney-General v.Kissane, 32 L.R. Ir. 220.
11 For first meaning see p. no, ante.
12 Mostyn v. Fabregas, Cowp. 161; Musgrave v.Pulido, 5 App. Cas. 102; Governor Wall's Case, 28 St. Tr. 51.
13 Entick v. Carrington, 19 St. Tr. 1030.
14 Phillips v. Eyre, L. R., 4 Q. B. 225.
15 As to the legal position of soldiers, see Chaps. VIII, and IX.,post.
P;pect n d
France.
principle that all men are in England subject to the law of the realm;for though a soldier or a clergyman incurs from his position legal liabilitiesfrom which other men are exempt, he does not (speaking generally) escapethereby from the duties of an ordinary citizen.
An Englishman naturally imagines that the rule of law (in the sense inwhich we are now using the term) is a trait common to all civilised societies.But this supposition is erroneous. Most European nations had indeed, by the endof the eighteenth century, passed through that stage of development (from whichEngland emerged before the end of the sixteenth century) when nobles, priests,and others could defy the law. But it is even now far from universally truethat in continental countries all persons are subject to one and the same law,or that the Courts are supreme throughout the state. If we take France as thetype of a continental state, we may assert, with substantial accuracy, thatofficials under which word should be included all persons employed inthe service of the state are, or have been, in their official capacity,to some extent exempted from the ordinary law of the land, protected from thejurisdiction of the ordinary tribunals, and subject in certain respects only toofficial law administered by official bodies.16
There remains yet a third and a different sense in which the "rule oflaw" or the predominance of the legal spirit may be described as a specialattribute of English institutions. We may say that the constitution is pervadedby the rule of law on the ground that the general principles of theconstitution (as for example the right to personal liberty, or the right ofpublic meeting) are with us the result of judicial decisions determining therights of private persons in particular cases brought before theCourts;17 whereas under many foreign constitutions the security(such as it is) given to the rights of individuals results, or appears toresult, from the general principles of the constitution.
General rules of constitutional law are results of ordinary law of theland.
16 See Chapter XII. as to the contrast between the rule of law andforeign administrative law.
17 Compare Calvin's Case, 7 co*ke, Rep. i; Campbell v.Hall, Cowp. 204; Wilkes v. Wood, 19 St. Tr. 1153;Mostyn v. Fabregas, Cowp. 161. Parliamentary declarations of thelaw such as the Petition of Right and the Bill of Rights have a certainaffinity to judicial decisions.
This is one portion at least of the fact vaguely hinted at in thecurrent but misguiding statement that "the constitution has not been made buthas 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 dothey resemble trees, which, once planted, are "aye growing" while men "aresleeping." In every stage of their existence they are made what they are byhuman voluntary agency.18
Yet, though this is so, the dogma that the form of a government is asort of spontaneous growth so closely bound up with the life of a people thatwe can hardly treat it as a product of human will and energy, does, though in aloose and inaccurate fashion, bring into view the fact that some politics, andamong them the English constitution, have not been created at one stroke, and,far from being the result of legislation, in the ordinary sense of that term,are the fruit of contests carried on in the Courts on behalf of the rights ofindividuals. Our constitution, in short, is a judge-made constitution, and itbears on its face all the features, good and bad, of judge-made law.
Hence flow noteworthy distinctions between the constitution of Englandand the constitutions of most foreign countries.
There is in the English constitution an absence of those declarations ordefinitions of rights so dear to foreign constitutionalists. Such principles,moreover, as you can discover in the English constitution are, like all maximsestablished by judicial legislation, mere generalisations drawn either from thedecisions or dicta of judges, or from statutes which, being passed to meetspecial grievances, bear a dose resemblance to judicial decisions, and are ineffect judgments pronounced by the High Court of Parliament. To put what isreally the same thing in a somewhat different shape, the relation of the rightsof individuals to the principles of the constitution is not quite the same incountries like Belgium, where the constitution is the result of a legislativeact, as it is in England, where the constitution itself is based upon legaldecisions. In Belgium, which may be taken as a type of
18 Mill, Representative Government, p. 4.
Contrast between the English constitution and Foreign constitutions.
countries possessing a constitution formed by a deliberate act oflegislation, you may say with truth that the rights of individuals to personalliberty flow from or are secured by the constitution. In England the right toindividual liberty is part of the constitution, because it is secured by thedecisions of the Courts, extended or confirmed as they are by the HabeasCorpus Acts. If it be allowable to apply the formulas of logic to questionsof law, the difference in this matter between the constitution of Belgium andthe English constitution may be described by the statement that in Belgiumindividual rights are deductions drawn from the principles of the constitution,whilst in England the so-called principles of the constitution are inductionsor generalisations based upon particular decisions pronounced by the Courts asto the rights of given individuals.
This is of course a merely formal difference. Liberty is as well securedin Belgium as in England, and as long as this is so it matters nothing whetherwe say that individuals are free from all risk of arbitrary arrest, becauseliberty of person is guaranteed by the constitution, or that the right topersonal freedom, or in other words to protection from arbitrary arrest, formspart of the constitution because it is secured by the ordinary law of the land.But though this merely formal distinction is in itself of no moment, providedalways that the rights of individuals are really secure, the question whetherthe right to personal freedom or the right to freedom of worship is likely tobe secure does depend a good deal upon the answer to the inquiry whether thepersons who consciously or unconsciously build up the constitution of theircountry begin with definitions or declarations of rights, or with thecontrivance of remedies by which rights may be enforced or secured. Now, mostforeign constitution-makers have begun with declarations of rights. For thisthey have often been in nowise to blame. Their course of action has more oftenthan not been forced upon them by the stress of circ*mstances, and by theconsideration that to lay down general principles of law is the proper andnatural function of legislators. But any knowledge of history suffices to showthat foreign constitutionalists have, while occupied in denning rights, giveninsufficient attention to the absolute necessity for the provision of adequateremedies by which the rights they
proclaimed might be enforced. The Constitution of 1791 proclaimedliberty of conscience, liberty of the press, the right of public meeting, theresponsibility of government officials.19 But there never was aperiod in the recorded annals of mankind when each and all of these rights wereso insecure, one might almost say so completely nonexistent, as at the heightof the French Revolution. And an observer may well doubt whether a good numberof these liberties or rights are even now so well protected under the FrenchRepublic as under the English Monarchy. On the other hand, there runs throughthe English constitution that inseparable connection between the means ofenforcing a right and the right to be enforced which is the strength ofjudicial legislation. The saw, ubijus ibi remedium, becomes from thispoint of view something much more important than a mere tautol-ogousproposition. In its bearing upon constitutional law, it means that theEnglishmen whose labours gradually framed the complicated set of laws andinstitutions which we call the Constitution, fixed their minds far moreintently on providing remedies for the enforcement of particular rights or(what is merely the same thing looked at from the other side) for avertingdefinite wrongs, than upon any declaration of the Rights of Man or ofEnglishmen. The Habeas Corpus Acts declare no principle and define norights, but they are for practical purposes worth a hundred constitutionalarticles guaranteeing individual liberty. Nor let it be supposed that thisconnection between rights and remedies which depends upon the spirit of lawpervading English institutions is inconsistent with the existence of a writtenconstitution, or even with the existence of constitutional declarations ofrights. The Constitution of the United States and the constitutions of theseparate States are embodied in written or printed documents, and containdeclarations of rights.20 But the statesmen of America
19 See Plouard, Les Constitutions Francises, pp. 14-16; Duguitand Monnier, Les Constitutions de la France (znd ed.), pp. 4, 5.
20 The Petition of Right, and the Bill of Rights, as also the AmericanDeclarations of Rights, contain, it may be said, proclamations of generalprinciples which resemble the declarations of rights known to foreignconstitutionalists, and especially the celebrated Declaration of the Rights ofMan (Declaration des Droits de I'Homme et du Citoyen) of 1789. But theEnglish and American Declarations on the one hand, and foreign declarations ofrights on the other, though bearing an apparent resemblance to each other, areat bottom remarkable
have shown unrivalled skill in providing means for giving legal securityto the rights declared by American constitutions. The rule of law is as markeda feature of the United States as of England.
The fact, again, that in many foreign countries the rights ofindividuals, 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 thisimportant result. The general rights guaranteed by the constitution may be, andin foreign countries constantly are, suspended. They are something extraneousto and independent of the ordinary course of the law. The declaration of theBelgian constitution, that individual liberty is "guaranteed," betrays a way oflooking at the rights of individuals very different from the way in which suchrights are regarded by English lawyers. We can hardly say that one right ismore guaranteed than another. Freedom from arbitrary arrest, the right toexpress one's opinion on all matters subject to the liability to paycompensation for libellous or to suffer punishment for seditious or blasphemousstatements, and the right to enjoy one's own property, seem to Englishmen allto rest upon the same basis, namely, on the law of the land. To say that the"constitution guaranteed" one class of rights more than the other would be toan Englishman an unnatural or a senseless form of speech. In the Belgianconstitution the words have a definite meaning. They imply that no law invadingpersonal freedom can be passed without a modification of the constitution madein the special way in which alone the constitution can be legally changed oramended. This, however, is not the point to which our immediate attentionshould be directed. The matter to be noted is, that where the right toindividual freedom is a result de-
rather by way of contrast than of similarity. The Petition of Right andthe Bill of Rights are not so much "declarations of rights" in the foreignsense of the term, as judicial condemnations of claims or practices on the partof the Crown, which are thereby pronounced illegal. It will be found thatevery, or nearly every, clause in the two celebrated documents negatives somedistinct claim made and put into force on behalf of the prerogative. No doubtthe Declarations contained in the American Constitutions have a real similarityto the continental declarations of rights. They are the product ofeighteenth-century ideas; they have, however, it is submitted, the distinctpurpose of legally controlling the action of the legislature by the Articles ofthe Constitution.
Summary of meanings of Rule of
Law
duced from the principles of the constitution, the idea readily occursthat the right is capable of being suspended or taken away. Where, on the otherhand, the right to individual freedom is part of the constitution because it isinherent in the ordinary law of the land, the right is one which can hardly bedestroyed without a thorough revolution in the institutions and manners of thenation. The so-called "suspension of the Habeas Corpus Act" bears, it istrue, a certain similarity to what is called in foreign countries "suspendingthe constitutional guarantees." But, after all, a statute suspending the HabeasCorpus Act falls very far short of what its popular name seems to imply;and though a serious measure enough, is not, in reality, more than a suspensionof one particular remedy for the protection of personal freedom. The HabeasCorpus Act may be suspended and yet Englishmen may enjoy almost all therights of citizens. The constitution being based on the rule of law, thesuspension of the constitution, as far as such a thing can be conceivedpossible, would mean with us nothing less than a revolution.
That "rule of law," then, which forms a fundamental principle of theconstitution, has three meanings, or may be regarded from three differentpoints of view.
It means, in the first place, the absolute supremacy or predominance ofregular law as opposed to the influence of arbitrary power, and excludes theexistence of arbitrariness, of prerogative, or even of wide discretionaryauthority on the part of the government. Englishmen are ruled by the law, andby the law alone; a man may with us be punished for a breach of law, but he canbe punished for nothing else.
It means, again, equality before the law, or the equal subjection of allclasses to the ordinary law of the land administered by the ordinary LawCourts; the "rule of law" in this sense excludes the idea of any exemption ofofficials or others from the duty of obedience to the law which governs othercitizens or from the jurisdiction of the ordinary tribunals; there can be withus nothing really corresponding to the "administrative law" (droitadministratif) or the "administrative tribunals" (tribunauxadministratifs) of France.21 The notion which lies
21 See Chap. XII.
Influence of "Rule of Law" on leading provisions of constitution.
at the bottom of the "administrative law" known to foreign countries is,that affairs or disputes in which the government or its servants are concernedare beyond the sphere of the civil Courts and must be dealt with by special andmore or less official bodies. This idea is utterly unknown to the law ofEngland, and indeed is fundamentally inconsistent with our traditions andcustoms.
The "rule of law," lastly, may be used as a formula for expressing thefact that with us the law of the constitution, the rules which in foreigncountries naturally form part of a constitutional code, are not the source butthe consequence of the rights of individuals, as defined and enforced by theCourts; that, in short, the principles of private law have with us been by theaction of the Courts and Parliament so extended as to determine the position ofthe Crown and of its servants; thus the constitution is the result of theordinary law of the land.
General propositions, however, as to the nature of the rule of law carryus but a very little way. If we want to understand what that principle in allits different aspects and developments really means, we must try to trace itsinfluence throughout some of the main provisions of the constitution. The bestmode of doing this is to examine with care the manner in which the law ofEngland deals with the following topics, namely, the right to personalfreedom;22 the right to freedom of discussion;23 theright of public meeting;24 the use of martial law;25 therights and duties of the army;26 the collection and expenditure ofthe public revenue;27 and the responsibility ofMinisters.28 The true nature further of the rule of law as it existsin England will be illustrated by contrast with the idea of droitadministratif, or administrative law, which prevails in many continentalcountries.29 These topics will each be treated of in their dueorder. The object, however, of this treatise, as the reader should remember, isnot to provide minute and full information, e.g. as to the HabeasCorpus Acts, or other enactments protecting the liberty of the subject; butsimply to show that these leading heads of constitutional law, which have
22 Chap. V.
23 Chap. VI.
24 Chap. VII.
25 Chap. VIII.
26 Chap. IX.
27 Chap. X.
28 Chap. XI.
29 Chap. XII.
been enumerated, these "articles," so to speak, of the constitution, areboth governed by, and afford illustrations of, the supremacy throughout Englishinstitutions of the law of the land.30 If at some future day the lawof the constitution should be codified, each of the topics I have mentionedwould be dealt with by the sections of the code. Many of these subjects areactually dealt with in the written constitutions of foreign countries, andnotably in the articles of the Belgian 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, whichbears on the matter in hand, as for example the right to personal freedom, andto consider how far the principle therein embodied is recognised by the law ofEngland; and if it be so recognised, what are the means by which it ismaintained or enforced by our Courts. One reason why the law of theconstitution is imperfectly understood is, that we too rarely put it side byside with the constitutional provisions of other countries. Here, as elsewhere,comparison is essential to recognition.
30 The rule of equal law is in England now exposed to a new peril. "TheLegislature has thought fit," writes Sir F. Pollock, "by the Trade DisputesAct, 1906, to confer extraordinary immunities on combinations both of employersand of workmen, and to some extent on persons acting in their interests. Legalscience has evidently nothing to do with this violent empirical operation onthe body politic, and we can only look to jurisdictions beyond seas for thefurther judicial consideration of the problems which our Courts wereendeavouring (it is submitted, not without a reasonable measure of success) towork out on principles of legal justice." Pollock, Law of Torts(8th ed.), p. v.
How secured in England.
Chapter V
THE RIGHT TO PERSONAL FREEDOM
The seventh article of the Belgian constitution establishes in thatcountry principles which have long prevailed in England. The terms thereof socuriously illustrate by way of contrast some marked features of Englishconstitutional law as to be worth quotation.
Art 7. La liberte individuelle estgarantie.
Nul ne pent lire poursuivi que dans les cas prevus par la loi, etdans la forme qu 'elk present.
Hors le cas de flagrant delit, mul ne pent etre arrete qu'en vertu deI'ordonnance motivee du juge, qui doit etre signifiee au moment deI'arrestation, ou au plus tard dans les vingt-quatre heures.1
The security which an Englishman enjoys for personal freedom does notreally depend upon or originate in any general proposition contained in anywritten document. The nearest approach which our statute-book presents to thestatement contained in the seventh article of the Belgian constitution is thecelebrated thirty-ninth article2 of the Magna Charta:
Nullus liber hom*o capiatur, vel imprisonetur, aut dissaisiatur, aututlagetur, out exuletur, aut aliquo modo destruatur, nee super eum ibimus, neesuper eum mit-temus, nisi per legale judicium parium suorum vel per legemterrae,
1 Constitution de la Belgique, art. 7.
2 See Stubbs, Charters (znd ed.), p. 301.
which should be read in combination with the declarations of thePetition of Right. And these enactments (if such they can be called) are ratherrecords of the existence of a right than statutes which confer it. Theexpression again, "guaranteed," is, as I have already pointed out, extremelysignificant; it suggests the notion that personal liberty is a specialprivilege 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 usfreedom of person is not a special privilege but the outcome of the ordinarylaw of the land enforced by the Courts. Here, in short, we may observe theapplication to a particular case of the general principle that with usindividual rights are the basis, not the result, of the law of theconstitution.
The proclamation in a constitution or charter of the right to personalfreedom, or indeed of any other right, gives of itself but slight security thatthe right has more than a nominal existence, and students who wish to know howfar the right to freedom of person is in reality part of the law of theconstitution must consider both what is the meaning of the right and, a matterof even more consequence, what are the legal methods by which its exercise issecured.
The right to personal liberty as understood in England means insubstance a person's right not to be subjected to imprisonment, arrest, orother physical coercion in any manner that does not admit of legaljustification. That anybody should suffer physical restraint is in Englandprima facie illegal, and can be justified (speaking in very general terms)on two grounds only, that is to say, either because the prisoner or personsuffering restraint is accused of some offence and must be brought before theCourts to stand his trial, or because he has been duly convicted of someoffence and must suffer punishment for it. Now personal freedom in this senseof the term is secured in England by the strict maintenance of the principlethat no man can be arrested 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 bythe
3 See as to arrests, Stephen, Commentaries, iv. (i4th ed.), pp.303-312.
provision of adequate legal means for the enforcement of this principle.These methods are twofold;4 namely, redress for unlawful arrest orimprisonment by means of a prosecution or an action, and deliverance fromunlawful imprisonment by means of the writ of habeas corpus. Let usexamine the general character of each of these remedies.
REDRESS FOR ARREST
If we use the term redress in a wide sense, we may say that a person whohas suffered a wrong obtains redress either when he gets the wrongdoer punishedor when he obtains compensation for the damage inflicted upon him by thewrong.
Each of these forms of redress is in England open to every one whosepersonal freedom has been in any way unlawfully interfered with. Suppose, forexample, that X without legal justification assaults A, by knocking himdown, or deprives A of his freedom as the technical expressiongoes, "imprisons" him whether it be for a length of time, or only forfive minutes; A has two courses open to him. He can have X convicted ofan assault and thus cause him to be punished for his crime, or he can bring anaction of trespass against X and obtain from X such compensation for the damagewhich A has sustained from X's conduct as a jury think that A deserves.Suppose that in 1725 Voltaire had at the instigation of an English lord beentreated in London as he was treated in Paris. He would not have needed todepend for redress upon the goodwill of his friends or upon the favour of theMinistry. He could have pursued one of two courses. He could by taking theproper steps have caused all his assailants to be brought to trial ascriminals. He could, if he had preferred it, have brought an action againsteach and all of them: he could have sued the nobleman who caused him to bethrashed, the footmen who thrashed him, the policemen who threw him into gaol,
4 Another means by which personal liberty or other rights may beprotected is the allowing a man to protect or assert his rights by forceagainst a wrongdoer without incurring legal liability for injury done to theaggressor. The limits within which English law permits so-called"self-defence," or, more accurately, "the assertion of legal rights by the useof a person's own force," is one of the obscurest among legal questions. SeeAppendix, Note IV., Right of Self-Defence.
.proceedings for wrongful arrest.
and the gaoler or lieutenant who kept him there. Notice particularlythat the action for trespass, to which Voltaire would have had recourse, can bebrought, or, as the technical expression goes, "lies," against every personthroughout the realm. It can and has been brought against governors ofcolonies, against secretaries of state, against officers who have tried byCourt-martial persons not subject to military law, against every kind ofofficial high or low. Here then we come across another aspect of the "rule oflaw." No one of Voltaire's enemies would, if he had been injured in England,have been able to escape from responsibility on the plea of acting in anofficial character or in obedience to his official superiors.5 Norwould any one of them have been able to say that the degree of his guilt couldin any way whatever be determined by any more or less official Court. Voltaire,to keep to our example, would have been able in England to have brought eachand all of his assailants, including the officials who kept him in prison,before an ordinary Court, and therefore before judges and jurymen who were notat all likely to think that official zeal or the orders of official superiorswere 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, weshall do well to notice the strict adherence of the judges in this as in othercases to two maxims or principles which underlie the whole law of theconstitution, and the maintenance of which has gone a great way both to ensurethe supremacy of the law of the land and ultimately to curb the arbitrarinessof the Crown. The first of these maxims or principles is that every wrongdoeris individually responsible for every unlawful or wrongful act in which hetakes 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 underthe 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 asindividually responsible for the wrong done to him. Now this doctrine ofindividual responsibility is the real
5 Contrast the French Code Penal, art. 114.
foundation of the legal dogma that the orders of the King himself are nojustification for the commission of a wrongful or illegal act. The ordinaryrule, therefore, that every wrongdoer is individually liable for the wrong hehas committed, is the foundation on which rests the great constitutionaldoctrine of Ministerial responsibility. The second of these noteworthy maximsis, that the Courts give a remedy for the infringement of a right whether theinjury done be great or small. The assaults and imprisonment from whichVoltaire suffered were serious wrongs; but it would be an error to fancy, aspersons who have no experience in the practice of the Courts are apt to do, theproceedings for trespass or for false imprisonment can be taken only wherepersonal liberty is seriously interfered with. Ninety-nine out of every hundredactions for assault or false imprisonment have reference to injuries which inthemselves are trifling. If one ruffian gives another a blow, if a policemanmakes an arrest without lawful authority, if a schoolmaster keeps a scholarlocked up at school for half an hour after he ought to have let the child gohome,6 if in short X interferes unlawfully to however slight adegree with the personal liberty of A, the offender exposes himself toproceedings in a Court of law, and the sufferer, if he can enlist thesympathies of a jury, may recover heavy damages for the injury which he has oris supposed to have suffered. The law of England protects the right to personalliberty, as also every other legal right, against every kind of infringement,and gives the same kind of redress (I do not mean, of course, inflicts the samedegree of punishment or penalty) for the pettiest as for the gravest invasionsof personal freedom. This seems to us so much a matter of course as hardly tocall for observation, but it may be suspected that few features in our legalsystem have done more to maintain the authority of the law than the fact thatall offences great and small are dealt with on the same principles and by thesame Courts. The law of England now knows nothing of exceptional offencespunished by extraordinary tribunals.7
6 Hunter v. Johnson, 13 Q. B. D. 225.
7 Contrast with this the extraordinary remedies adopted under the oldFrench monarchy for the punishment of powerful criminals. As to which seeFlechier, Memoires sur les Grand-Jours tenues a Clermont en 1665-66.
The right of a person who has been wrongfully imprisoned on regaininghis freedom to put his oppressor on trial as a criminal, or by means of anaction to obtain pecuniary compensation for the wrong which he has endured,affords a most insufficient security for personal freedom. If X keepsA in confinement, it profits A little to know that if he couldrecover his freedom, which he cannot, he could punish and fine X. What .A wantsis to recover his liberty. Till this is done he cannot hope to punish the foewho has deprived him of it. It would have been little consolation for Voltaireto know that if he could have got out of the Bastille he could recover damagesfrom his enemies. The possibility that he might when he got free have obtainedredress for the wrong done him might, so far from being a benefit, havecondemned him to lifelong incarceration. Liberty is not secure unless the law,in addition to punishing every kind of interference with a man's lawfulfreedom, provides adequate security that every one who without legaljustification is placed in confinement shall be able to get free. This securityis provided by the celebrated writ of habeas corpus and the HabeasCorpus Acts.
WRIT OF HABEAS CORPUS8
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 about theHabeas Corpus Acts, you should consult the ordinary legal textbooks. Myobject is solely to explain generally the mode in which the law of Englandsecures the right to personal freedom. I shall therefore call attention to thefollowing points: first, the nature of the writ; secondly, the effect of theso-called Habeas Corpus Acts; thirdly, the precise effect of what iscalled (not quite accurately) the Suspension of the Habeas Corpus Act;and, lastly, the relation of any Act suspending the operation of the HabeasCorpus Act to an Act of Indemnity. Each of these matters has a dose bearingon the law of the constitution.
K|Sture of Writ.
Nature of Writ
Legal documents constantly give the best explanation and illustration oflegal principles. We shall do well therefore to examine with care the followingcopy of a writ of habeas corpus:
Victoria, by the Grace of God, of the United Kingdom of Great Britainand Ireland Queen, Defender of the Faith,
ToJ. K., Keeper of our Gaol ofJersey, in the Island of Jersey, andto]. C. Viscount of said Island, greeting. We command you that you have thebody ofC.C. W. detained in our prison under your custody, as it is said,together with the day and cause of his being taken and detained, by whatsoevername he may be called or known, in our Court before us, at Westminster, on thei8th day of January next, to undergo and receive all and singular such mattersand things which our said Court shall then and there consider of him in thisbehalf; and have there then this Writ. Witness THOMAS Lord DENMAN,at Westminster, the 2 jrd day of December in the 8th year
of*1- By the Court,
Robinson.9
At the instance of C. C.W. ,. n
K. M. K.
W. A. L., 7 Gray's Inn Square, London, Attorney for the saidC. C. W.
8 See Stephen, Commentaries (i4th ed.), iii. pp. 697-707;16 Car. I. c. 10; 31 Car. II. c. 2; 56 George III. c. 100; Forsyth,Opinions, 436-452, 481.
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 upona person by whom a prisoner is alleged to be kept in confinement to bring suchprisoner to "have his body," whence the name habeas corpus before the Court to let the Court know on what ground the prisoner is confined,and thus to give the Court the opportunity of dealing with the prisoner as thelaw may require. The essence of the whole transaction is that the Court can bythe writ of habeas corpus cause any person who is imprisoned to beactually brought before the Court and obtain knowledge of the reason why he isimprisoned; and then having him before the Court, either then and there set himfree or else see that he is dealt with in whatever way the law requires, as,for example, brought speedily to trial.
9 Cants Wilson's Case, 7 Q. B. 984, 988. In this particular casethe writ calls upon the gaoler of the prison to have the body of the prisonerbefore the Court by a given day. It more ordinarily calls upon him to have theprisoner before the Court "immediately after the receipt of this writ."
Writ of
habeas
corpus.
The writ can be issued on the application either of the prisoner himselfor of any person on his behalf, or (supposing the prisoner cannot act) then onthe application of any person who believes him to be unlawfully imprisoned. Itis issued by the High Court, or during vacation by any judge thereof; and theCourt or a judge should and will always cause it to be issued on beingsatisfied by affidavit that there is reason to suppose a prisoner to bewrongfully deprived of his liberty. You cannot say with strictness that thewrit is issued "as a matter of course," for some ground must be shown forsupposing that a case of illegal imprisonment exists. But the writ is granted"as a matter of right," that is to say, the Court will always issue itif prima fade ground is shown for supposing that the person on whosebehalf 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 an official or aprivate individual, who has, or is supposed to have, another in his custody.Any disobedience to the writ exposes the offender to summary punishment forcontempt of Court,10 and also in many cases to heavy penaltiesrecoverable by the party aggrieved. n To put the matter,therefore, in the most general terms, the case stands thus. The High Court ofJustice possesses, as the tribunals which make up the High Court used topossess, the power by means of the writ of habeas corpus to cause anyperson who is alleged to be kept in unlawful confinement to be brought beforethe 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 moreoveris one which the Court always will exercise whenever ground is shown by anyapplicant whatever for the belief that any man in England is unlawfullydeprived of his liberty.
The Habeas Corpus Acts
The right to the writ of habeas corpus existed at common law longbefore the passing in 1679 of the celebrated Habeas CorpusAct,12 31
10 Rex v. Winton, 5 T. R. 89, and conf. 56Geo. HI. c. 100, s. 2;see Corner, Practice of the Crown Side of the Court of Queen's Bench.
11 31 Car. II. c. 2, s. 4.
12 See also 16 Car. I. c. 10, s. 6.
fUbeas Corpus Act,
*79< 3i Or. II.
C. 2.
Habeas Cor-yus Acts.
Car. II. c. 2, and you may wonder how it has happened that this and thesubsequent Act, 56 Geo. III. c. 100, are treated, and (for practical purposes)rightly treated, as the basis on which rests an Englishman's security for theenjoyment of his personal freedom. The explanation is, that prior to 1679 theright 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 bywhich 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 thepart of the gaoler or other person who has the prisoner in custody. The earlierAct of Charles the Second applies to persons imprisoned on a charge of crime;the later Act of George the Third applies to persons deprived of their libertyotherwise than on a criminal accusation.
Take these two classes of persons separately.
A person is imprisoned on a charge of crime. If he is imprisoned withoutany 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 ofhis detention is to ensure his being brought to trial. His position in thiscase differs according to the nature of the offence with which he is charged.In the case of the lighter offences known as misdemeanours he has,generally13 the right to his liberty on giving security with propersureties that he will in due course surrender himself to custody and appear andtake his trial on such indictment as may be found against him in respect of thematter with which he is charged, or (to use technical expressions) he has theright to be admitted to bail. In the case, on the other hand, of the moreserious offences, such as felonies or treasons, a person who is once committedto prison is not entitled to be let out on bail. The right of the prisoner isin this case simply the right to a speedy trial. The effect of the writ ofhabeas corpus would be evaded either if the Court did not examine intothe validity of the warrant on which the prisoner was detained, and if thewarrant were not valid release him, or if the Court, on ascertaining that hewas legally imprisoned, did not cause
13 See Stephen, Digest of the Law of Criminal Procedure, art.276, notei, and also art. 136 and p. 89, note i. Compare the IndictableOffences Act, 1848 (11 & 12 Viet. c. 42), s. 23.
'-inbeas Cor-Jus Act,
him according to circ*mstances either to go out on bail or to bespeedily brought to trial.
The Act provides against all these possible failures of justice. The lawas to persons imprisoned under accusations of crime stands through the combinedeffect of the rules of the common law and of the statute in substance asfollows. The gaoler who has such person in custody is bound when called upon tohave the prisoner before the Court with the true cause of his commitment. Ifthe cause is insufficient, the prisoner must of course be discharged; if thecause is sufficient, the prisoner, in case he is charged with a misdemeanour,can in general 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 tried at thefirst sessions after his committal, or if he is not then tried, upon beingbailed, unless the witnesses for the Crown cannot appear. If he is not tried atthe second sessions after his commitment, he can insist upon his releasewithout bail. The net result, therefore, appears to be that while the HabeasCorpus Act is in force no person committed to prison on a charge of crimecan be kept long in confinement, for he has the legal means of insisting uponeither being let out upon bail or else of being brought to a speedy trial.
A person, again, who is detained in confinement but not on a charge ofcrime needs for his protection the means of readily obtaining a legal decisionon the lawfulness of his confinement, and also of getting an immediate releaseif he has by law a right to his liberty. This is exactly what the writ ofhabeas corpus affords. Whenever any Englishman or foreigner is allegedto be wrongfully deprived of liberty, the Court will issue the writ, have theperson aggrieved brought before the Court, and if he has a right to liberty sethim free. Thus if a child is forcibly kept apart from his parents,14if a man is wrongfully
14 See The Queen v. Nash, loQ. B. D. (C. A.) 454; and compareRe Agar-Ellis, 24 Ch. D. (C. A.) 317. For recent instances of effectof Habeas Corpus Act see Bamardo v. Ford [1892], A. C.326; Barnardo v. McHugh [1891], A. C. 388; Reg. v. Jackson[1891], i Q. B. (C. A.) 671; Cox v. Hakes, 15 App. Cas. 506;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 childrenindependently of Habeas Corpus Acts, Reg. v. Gyngall[1893], 2 Q. B. (C. A.) 232.
As to appeal to Privy Council, see AH. Gen. for Hong Kong v.Kwok-A-Sing (1873) L R 5 P. C. 179.
kept in confinement as a lunatic, if a nun is alleged to be preventedfrom leaving her convent, if, in short, any man, woman, or child is, oris asserted on apparently good grounds to be, deprived of liberty, the Courtwill always issue a writ of habeas corpus to any one who has theaggrieved person in his custody to have such person brought before the Court,and if he is suffering restraint without lawful cause, set him free. Till,however, the year 1816 (56 Geo. III.) the machinery for obtaining the writ wasless perfect15 in the case of persons not accused of crime than inthe case of those charged with criminal offences, and the effect of 56 Geo. HI.c. 100, was in substance to apply to non-criminal cases the machinery of thegreat Habeas Corpus Act, 31 Car. II. c. 2.
At the present day, therefore, the securities for personal freedom arein England as complete as laws can make them. The right to its enjoyment isabsolutely acknowledged. Any invasion of the right entails either imprisonmentor fine upon the wrongdoer; and any person, whether charged with crime or not,who is even suspected to be wrongfully imprisoned, has, if there exists asingle individual willing to exert himself on the victim's behalf, thecertainty of having his case duly investigated, and, if he has been wronged, ofrecovering his freedom. Let us return for a moment to a former illustration,and suppose that Voltaire has been treated in London as he was treated inParis. He most certainly would very rapidly have recovered his freedom. Theprocedure would not, it is true, have been in 1726 quite as easy as it is nowunder the Act of George the Third. Still, even then it would have been withinthe power of any one of his friends to put the law in motion. It would havebeen at least as easy to release Voltaire in 1726 as it was in 1772 to obtainby means of habeas corpus the freedom of the slave James Sommersett whenactually confined in irons on board a ship lying in the Thames and bound forJamaica.16
15 The inconvenience ultimately remedied by the Habeas CorpusAct, 1816, was in practice small, for the judges extended to all cases ofunlawful imprisonment the spirit of the Habeas Corpus Act, 1679, andenforced 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.
The whole history of the writ of habeas corpus illustrates thepredominant attention paid under the English constitution to "remedies," thatis, to modes of procedure by which to secure respect for a legal right, and bywhich to turn a merely nominal into an effective or real right. The HabeasCorpus Acts are essentially procedure Acts, and simply aim at improving thelegal mechanism by means of which the acknowledged right to personal freedommay be enforced. They are intended, as is generally the case with legislationwhich proceeds under the influence of lawyers, simply to meet actual andexperienced difficulties. Hence the Habeas Corpus Act of Charles theSecond's reign was an imperfect or very restricted piece of legislative work,and Englishmen waited nearly a century and a half (1679-1816) before theprocedure for securing the right to discharge from unlawful confinement wasmade complete. But this lawyer-like mode of dealing with a fundamental righthad with all its defects the one great merit that legislation was directed tothe right point. There is no difficulty, and there is often very little gain,in declaring the existence of a right to personal freedom. The true difficultyis to secure its enforcement. The Habeas Corpus Acts have achieved thisend, and have therefore done for the liberty of Englishmen more than could havebeen achieved by any declaration of rights. One may even venture to say thatthese Acts are of really more importance not only than the generalproclamations of the Rights of Man which have often been put forward in foreigncountries, but even than such very lawyer-like documents as the Petition ofRight or the Bill of Rights, though these celebrated enactments show almostequally with the Habeas Corpus Act that the law of the Englishconstitution is at bottom judge-made law.17
Every critic of the constitution has observed the effect of theHabeas Corpus Acts in securing the liberty of the subject; what hasreceived less and deserves as much attention is the way in which the right toissue a writ of habeas corpus, strengthened as that right is by statute,determines the whole relation of the judicial body towards the execu-
17 Compare Imperial Constitution of 1804, ss. 60-63, under which acommittee of the Senate was empowered to take steps for putting an end toillegal arrests by the Government. See Plouard, Les ConstitutionsFratifaises, p. 161.
tive. The authority to enforce obedience to the writ is nothing lessthan the power to release from imprisonment any person who in the opinion ofthe Court is unlawfully deprived of his liberty, and hence in effect to put anend to or to prevent any punishment which the Crown or its servants may attemptto inflict in opposition to the rules of law as interpreted by the judges. Thejudges therefore are in truth, though not in name, invested with the means ofhampering or supervising the whole administrative action of the government, andof at once putting a veto upon any proceeding not authorised by the letter ofthe law. Nor is this power one which has fallen into disuse by want ofexercise. It has often been put forth, and this too in matters of the greatestconsequence; the knowledge moreover of its existence governs the conduct of theadministration. 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 writof habeas corpus keep a hold on the acts of the executive. In 1839Canadian rebels, found guilty of treason in Canada and condemned totransportion, arrived in official custody at Liverpool on their way to VanDiemen's Land. The friends of the convicts questioned the validity of thesentence under which they were transported; the prisoners were thereupon takenfrom prison and brought upon a writ of habeas corpus before the Court ofExchequer. Their whole position having been considered by the Court, it wasultimately held that the imprisonment was legal. But had the Court taken adifferent view, the Canadians would at once have been released fromconfinement.18 In 1859 an English officer serving in India was dulyconvicted of manslaughter and sentenced to four years' imprisonment: he wassent to England in military custody to complete there his term of punishment.The order under which he was brought to this country was technically irregular,and the convict having been brought on a writ of habeas corpus beforethe Queen's Bench, was on this purely technical ground set at liberty.19 So, 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.
19 In re Allen, 30 L. J. (Q. B.), 38.
iffect of yrit of abcas corns on au-hority of Jdges.
and again considered, in the case of persons brought before them by thewrit of habeas corpus, questions as to the legality of impressment, andas to the limits within which the right of impressment may be exercised; andif, on the one hand, the judges have in this particular instance (which by theway is almost a singular one) supported the arbitrary powers of theprerogative, they have also strictly limited the exercise of this power withinthe bounds prescribed to it by custom or by statute.20 Moreover, asalready pointed out, the authority of the civil tribunals even when notactually put into force regulates the action of the government. In 1854 a bodyof Russian sailors were found wandering about the streets of Guildford, withoutany visible means of subsistence; they were identified by a Russian navalofficer as deserters from a Russian man-of-war which had put into an Englishport; they were thereupon, under his instructions and with the assistance ofthe superintendent of police, conveyed to Portsmouth for the purpose of theirbeing carried back to the Russian ship. Doubts arose as to the legality of thewhole proceeding. The law officers were consulted, who thereupon gave it astheir opinion that "the delivering-up of the Russian sailors to the Lieutenantand the assistance offered by the police for the purpose of their beingconveyed back to the Russian ship were contrary to law."21 Thesailors were presumably released; they no doubt would have been delivered bythe Court had a writ of habeas corpus been applied for. Here then we seethe judges in effect restraining the action of the executive in a matter whichin most countries is considered one of administration or of policy lying beyondthe range of judicial interference. The strongest examples, however, ofinterference by the judges with administrative proceedings are to be found inthe decisions given under the Extradition Acts. Neither the Crown nor anyservant of the Crown has any right to expel a foreign criminal from the countryor to sur-
20 See Case of Pressing Mariners, 18 St. Tr. 1323; Stephen,Commentaries, ii. (i4th ed.), p. 574; conf. Corner, Forms of Writs onCrown Side of Court of Queen's Bench, (or form of habeas corpus for animpressed seaman.
21 SeeForsyth, Opinions, p. 468.
render him to his own government for trial.22 A Frenchforger, robber, 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 tosurrender foreign criminals to the authorities of their own state has beenfound so inconvenient, that in recent times Extradition Acts have empowered theCrown to make treaties with foreign states for the mutual extradition ofcriminals or of persons charged with crime. The exercise of this authority is,however, hampered by restrictions which are imposed by the statute under whichalone it exists. It therefore often happens that an offender arrested under thewarrant of a Secretary of State and about to be handed over to the authoritiesof his own country conceives that, on some ground or other, his case does notfall within the precise terms of any Extradition Act. He applies for a writ ofhabeas corpus; he is brought up before the High Court; every technicalplea he can raise obtains full consideration,23 and if on any groundwhatever it can be shown that the terms of the Extradition Act have not beencomplied with, or that they do not justify his arrest and surrender, he is as amatter of course at once set at liberty.24 It is easy to perceivethat the authority of the judges, exercised, as it invariably must be, insupport of the strict rules of law, cuts down the discretionary powers of theCrown. It
22 See, however, Rex, v. Lundy, 2 Ventris, 314; Rex v.Kimberley, 2 Stra., 848; East India Company v. Campbell, iVes. Senr., 246; Mure v. Kaye, 4 Taunt. 34; and Chitty,Criminal Law (1826), pp. 14, 16, in support of the opinion that theCrown possessed a common law right of extradition as regards foreign criminals.This opinion may possibly once have been correct. (Compare, however, Reg. v.Bernard, Annual Register for 1858, p. 328, for opinion of Campbell,C.}., cited In re Castioni [1891], iQ. B. 149, 153, by Sir C.Russell, arguendo.) It has, however, in any case (to use the words of ahigh authority) "ceased to be law now. If any magistrate were now to arrest aperson on this ground, the validity of the commitment would certainly betested, and, in the absence of special legislative provisions, the prisoner ascertainly discharged upon application to one of the superior Courts." Clarke, Extradition (3rd ed.), p. 27. The case of Musgrove v. ChunTeeong Toy [1891], A. C. 272, which establishes that an alien has not alegal right, enforceable by action, to enter British territory, suggests thepossible existence of a common law right on the part of the Crown to expel analien from British territory.
23 In re Bellencontre [1891], 2 Q. B. 122.
24 In re Coppin, L. R. 2 Ch. 47; The Queen v. Wilson, 3 Q.B. D. 42.
often prevents the English government from meeting public danger bymeasures of precaution which would as a matter of course be taken by theexecutive of any continental country. Suppose, for example, that a body offoreign anarchists come to England and are thought by the police on stronggrounds of suspicion to be engaged in a plot, say for blowing up the Houses ofParliament. Suppose also that the existence of the conspiracy does not admit ofabsolute proof. An English Minister, if he is not prepared to put theconspirators on their trial, has no means of arresting them, or of expellingthem from the country.25 In case of arrest or imprisonment theywould at once be brought before the High Court on a writ of habeas corpus,and unless some specific legal ground for their detention could be shownthey would be forthwith set at liberty. Of the political or, to use foreignexpressions, of the "administrative" reasons which might make the arrest orexpulsion of a foreign refugee highly expedient, the judges would hear nothing;that he was arrested by order of the Secretary of State, that his imprisonmentwas a simple administrative act, that the Prime Minister or the Home Secretarywas prepared to make affidavit that the arrest was demanded by the most urgentconsiderations of public safety, or to assure the Court that the whole matterwas one of high policy and concerned national interests, would be no answerwhatever to the demand for freedom under a writ of habeas corpus. Allthat any judge could inquire into would be, whether there was any rule ofcommon or of statute law which would authorise interference with a foreigner'spersonal freedom. If none such could be found, the applicants would assuredlyobtain their liberty. The plain truth is that the power possessed by the judgesof controlling the administrative conduct of the executive has been, ofnecessity, so exercised as to prevent the development with us of any systemcorresponding to the "administrative law" of continental states. It strikes atthe root of those theories as to the nature of administrative acts, and as tothe "separation of powers," on which, as will be shown in a laterchapter,26 the droit administratif of France
25 Contrast the dealings of Louis Philippe's Government in 1833 with theduch*esse de Berry, for which see Gregoire, H/sfoirede France, i.pp. 356 361.
26 See Chap. XII.
Contests of seventeenth century about position of judges.
depends, and it deprives the Crown, which now means the Ministry of theday, of all discretionary authority. The actual or possible intervention, inshort, of the Courts, exercisable for the most part by means of the writ ofhabeas corpus, confines the action of the government within the strictletter of the law; with us the state can punish, but it can hardly prevent thecommission of crimes.
We can now see why it was that the political conflicts of theseventeenth century often raged round the position of the judges, and why thebattle might turn on a point so technical as the inquiry, what might be aproper return to a writ of habeas corpus.27 Upon the degreeof authority and independence to be conceded to the Bench depended the colourand working of our institutions. To supporters, on the one hand, of theprerogative who, like Bacon, were not unfrequently innovators or reformers,judicial independence appeared to mean the weakness of the executive, and thepredominance throughout the state of the conservative legalism, which found arepresentative in co*ke. The Parliamentary leaders, on the other hand, saw, moreor less distinctly, that the independence of the Bench was the sole securityfor the maintenance of the common law, which was nothing else than the rule ofestablished customs modified only by Acts of Parliament, and that co*ke inbattling for the power of the judges was asserting the rights of the nation;they possibly also saw, though this is uncertain, that the maintenance of rigidlegality, inconvenient as it might sometimes prove, was the certain road toParliamentary sovereignty.28
Suspension of the Habeas Corpus Act
During periods of political excitement the power or duty of the Courtsto issue a writ of habeas corpus, and thereby compel the speedy trial orrelease of persons charged with crime, has been found an inconvenient ordangerous limitation on the authority of the executive government. Hence hasarisen the occasion for statutes which are popularly called Habeas CorpusSuspension Acts. I say "popularly
27 Darnel's Case, 3 St. Tr. i.
28 See Gardiner, History of England, ii. chap, xxii., for anadmirable statement of the different views entertained as to the position ofthe judges.
Suspension of Habeas Corpus Act
called," because if you take (as you may) the Act 34 Geo. III. c.5429 as a type of such enactments, you will see that it hardlycorresponds with its received name. The whole effect of the Act, which does noteven mention the Habeas Corpus Act, is to make it impossible for anyperson imprisoned under a warrant signed by a Secretary of State on a charge ofhigh treason, or on suspicion of high treason, to insist upon being eitherdischarged or put on trial. No doubt this is a great diminution in thesecurities for personal freedom provided by the Habeas Corpus Acts; butit falls very far short of anything like a general suspension of the right tothe writ of habeas corpus; it in no way affects the privileges of anyperson not imprisoned on a charge of high treason; it does not legalise anyarrest, imprisonment, or punishment which was not lawful before the SuspensionAct passed; it does not in any wise touch the claim to a writ of habeascorpus possessed by every one, man, woman, or child, who is held inconfinement otherwise than on a charge of crime. The particular statute 34 Geo.III. c. 54 is, and (I believe) every other Habeas Corpus Suspension Actaffecting
29 Of which s. i enacts "that every person or persons that are or shallbe in prison within the kingdom of Great Britain at or upon the day on whichthis Act shall receive his Majesty's royal assent, or after, by warrant of hissaid Majesty's most honorable Privy Council, signed by six of the said PrivyCouncil, for high treason, suspicion of high treason, or treasonable practices,or by warrant, signed by any of his Majesty's secretaries of state, for suchcauses as aforesaid, may be detained in safe custody, without bail ormainprize, until the first day of February one thousand seven hundredand ninety-five; and that no judge or justice of the peace shall bail or tryany such person or persons so committed, without order from his said Majesty'sPrivy Council, signed by six of the said Privy Council, till the said first dayof February one thousand seven hundred and ninety-five; and law orstatute to the contrary notwithstanding."
The so-called suspension of the Habeas Corpus Act under a statutesuch as 34 Geo. III. c. 54, produces both less and more effect than would thetotal repeal of the Habeas Corpus Acts. The suspension, while it lasts,makes it possible for the government to arrest and keep in prison any personsdeclared in effect by the government to be guilty or suspected of treasonablepractices, and such persons have no means of obtaining either a discharge or atrial. But the suspension does not affect the position of persons not detainedin custody under suspicion of treasonable practices. It does not thereforetouch the ordinary liberty of ordinary citizens. The repeal of the HabeasCorpus Acts, on the other hand, would deprive every man in England of onesecurity against wrongful imprisonment, but since it would leave alive the nowunquestionable authority of the judges to issue and compel obedience to a writof habeas corpus at common law, it would not, assuming the Bench to dotheir duty, increase the power of the government to imprison persons suspectedof treasonable practices, nor materially diminish the freedom of any class ofEnglishmen. Compare Blackstone, Comm. iii. p. 138.
England, has been an annual Act, and must, therefore, if it is tocontinue in force, be renewed year by year. The sole, immediate, and directresult, therefore, of suspending the Habeas Corpus Act is this: theMinistry may for the period during which the Suspension Act continues in forceconstantly defer the trial of persons imprisoned on the charge of treasonablepractices. This increase in the power of the executive is no trifle, but itfalls far short of the process known in some foreign countries as "suspendingthe constitutional guarantees," or in France as the "proclamation of a state ofsiege";30 it, indeed, extends the arbitrary powers of the governmentto a far less degree than many so-called Coercion Acts. That this is so may beseen by a mere enumeration of the chief of the extraordinary powers which wereconferred by comparatively recent enactments on the Irish executive. Under theAct of 1881 (44 Viet. c. 4) the Irish executive obtained the absolute power ofarbitrary and preventive arrest, and could without breach of law detain inprison any person arrested on suspicion for the whole period for which the Actcontinued in force. It is true that the Lord Lieutenant could arrest onlypersons suspected of treason or of the commission of some act tending tointerfere with the maintenance of law and order. But as the warrant itself tobe issued by the Lord Lieutenant was made under the Act conclusive evidence ofall matters contained therein, and therefore (inter alia) of the truthof the assertion that the arrested person or "suspect" was reasonablysuspected, e.g. of treasonable practices, and therefore liable toarrest, the result dearly followed that neither the Lord Lieutenant nor anyofficial acting under him could by any possibility be made liable to any legalpenalty for any arrest, however groundless or malicious, made in due formwithin the words of the Act. The Irish government, therefore, could arrest anyperson whom the Lord Lieutenant thought fit to imprison, provided only that thewarrant was in the form and contained the allegations required by the statute.Under the Prevention of Crime (Ireland) Act, 1882 45 & 46 Viet. c.25 the Irish executive was armed with the following (among other)extraordinary powers. The government could in the case of certain
30 See Duguit, Manuel de Droit Constitutionnel, pp. 510-513, andarticle "Etat de Siege" in Cheruel, Dictionnaire Historique des Institutionsde la France (6th ed.).
crimes31 abolish the right to trial by jury,32could arrest strangers found out of doors at night under suspiciouscirc*mstances,33 could seize any newspaper which, in the judgment ofthe Lord Lieutenant, contained matter inciting to treason orviolence,34 and could prohibit any public meeting which the LordLieutenant believed to be dangerous to the public peace or safety. Add to thisthat the Prevention of Crime Act, 1882, re-enacted (incidentally as it were)the Alien Act of 1848, and thus empowered the British Ministry to expel fromthe United Kingdom any foreigner who had not before the passing of the Act beenresident in the country for three years.35 Not one of theseextraordinary powers flows directly from a mere suspension of the HabeasCorpus Act; and, in truth, the best proof of the very limited legal effectof such so-called suspension is supplied by the fact that before a HabeasCorpus Suspension Act runs out its effect is, almost invariably,supplemented by legislation of a totally different character, namely, an Act ofIndemnity.
An Ad of Indemnity
Reference has already been made to Acts of Indemnity as the supremeinstance of Parliamentary sovereignty.36 They are retrospectivestatutes which free persons who have broken the law from responsibility for itsbreach, and thus make lawful acts which when they were committed were unlawful.It is easy enough to see the connection between a Habeas CorpusSuspension Act and an Act of Indemnity. The Suspension Act, as alreadypointed out, does not free any person from civil or criminal liability for aviolation of the law. Suppose that a Secretary of State or his subordinatesshould, during the suspension of the Habeas Corpus Act, arrest andimprison a per-
31 Viz, (a) treason or treason-felony; (ft) murder ormanslaughter; (c) attempt to murder; (d) aggravated crime ofviolence against the person; (e) arson, whether by law or by statute;attack on dwelling-house.
32 Sect. i.
33 Sect. 12.
34 Sect. 13.
35 Sect. 15.
36 See pp. 10, -n,ante.
fectly innocent man without any cause whatever, except (it may be) thebelief that it is conducive to the public safety that the particular person say, an influential party leader such as Wilkes, Fox, or O'Connell should be at a particular crisis kept in prison, and thereby deprived ofinfluence. Suppose, again, that an arrest should be made by orders of theMinistry under circ*mstances which involve the unlawful breaking into a privatedwelling-house, the destruction of private property, or the like. In each ofthese instances, and in many others which might easily be imagined, theSecretary of State who orders the arrest and the officials who carry out hiscommands have broken the law. They may have acted under the bona fidebelief 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 arrestsfrom criminal and civil liability for the wrong they have committed. Thesuspension, indeed, of the Habeas Corpus Act may prevent the personarrested from taking at the moment any proceedings against a Secretary of Stateor the officers who have acted under his orders. For the sufferer is of courseimprisoned on the charge of high treason or suspicion of treason, and thereforewill not, while the suspension lasts, be able to get himself discharged fromprison. The moment, however, that the Suspension Act expires he can, of course,apply for a writ of habeas corpus, and ensure that, either by means ofbeing put on his trial or otherwise, his arbitrary imprisonment shall bebrought to an end. In the cases we have supposed the prisoner has been guiltyof no legal offence. The offenders are in reality the Secretary of State andhis subordinates. The result is that on the expiration of the Suspension Actthey are liable to actions or indictments for their illegal conduct, and canderive no defence whatever from the mere fact that, at the time when theunlawful arrest took place, the Habeas Corpus Act was, partially at anyrate, not in force. It is, however, almost certain that, when the suspension ofthe Habeas Corpus Act makes it possible for the government to keepsuspected persons in prison for a length of time without bringing them totrial, a smaller or greater number of unlawful acts will be committed, if notby the members of the Ministry themselves, at any rate by their agents. We mayeven go farther than this, and say that the
Act of Endemnity.
unavowed object of a Habeas Corpus Suspension Act is to enablethe government to do acts which, though politically expedient, may not bestrictly legal. The Parliament which destroys one of the main guarantees forindividual freedom must hold, whether wisely or not, that a crisis has arisenwhen the rights of individuals must be postponed to considerations of state. ASuspension Act would, in fact, fail of its main object, unless officials feltassured that, as long as they bona fide, and uninfluenced by malice orby corrupt motives, carried out the policy of which the Act was the visiblesign, they would be protected from penalties for conduct which, though it mightbe technically a breach of law, was nothing more than the free exertion for thepublic good of that discretionary power which the suspension of the HabeasCorpus Act was intended to confer upon the executive. This assurance isderived from the expectation that, before the Suspension Act ceases to be inforce, Parliament will pass an Act of Indemnity, protecting all persons whohave acted, or have intended to act, under the powers given to the governmentby the statute. This expectation has not been disappointed. An Act suspendingthe Habeas Corpus Act, which has been continued for any length of time,has constantly been followed by an Act of Indemnity. Thus the Act to whichreference has already been made, 34 Geo. III. c. 54, was continued in force bysuccessive annual re-enactments for seven years, from 1794 to 1801. In thelatter year an Act was passed, 41 Geo. III. c. 66, "indemnifying such personsas since the first day of February, 1793, have acted in the apprehending,imprisoning, or detaining in custody in Great Britain of persons suspected ofhigh treason or treasonable practices." It cannot be disputed that theso-called suspension of the Habeas Corpus Act, which every one knowswill probably be followed by an Act of Indemnity, is, in reality, a far greaterinterference with personal freedom than would appear from the very limitedeffect, in a merely legal point of view, of suspending the right of personsaccused of treason to demand a speedy trial. The Suspension Act, coupled withthe prospect of an Indemnity Act, does in truth arm the executive witharbitrary powers. Still, there are one or two considerations which limit thepractical importance that can fairly be given to an expected Act of Indemnity.The relief to be obtained
from it is prospective and uncertain. Any suspicion on the part of thepublic, that officials had grossly abused their powers, might make it difficultto obtain a Parliamentary indemnity for things done while the Habeas CorpusAct was suspended. As regards, again, the protection to be derived from theAct by men who have been guilty of irregular, illegal, oppressive, or cruelconduct, everything depends on the terms of the Act of Indemnity. These may beeither narrow or wide. The Indemnity Act, for instance, of 1801, gives a verylimited 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 ortreasonable practices. Any no doubt such a defence would cover any irregularityor merely formal breach of the law, but there certainly could be imagined actsof spite or extortion, done under cover of the Suspension Act, which wouldexpose the offender to actions or prosecutions, and could not be justifiedunder the terms of the Indemnity Act. Reckless cruelty to a political prisoner,or, still more certainly, the arbitrary punishment or the execution of apolitical prisoner, between 1793 and 1801, would, in spite of the IndemnityAct, have left every man concerned in the crime liable to suffer punishment.Whoever wishes to appreciate the moderate character of an ordinary Act ofIndemnity passed by the Imperial Parliament, should compare such an Act as 41Geo. III. c. 66, with the enactment whereby the Jamaica House of Assemblyattempted to cover Governor Eyre from all liability for unlawful deeds done insuppressing rebellion during 1866. An Act of Indemnity, again, though it is thelegalisation of illegality, is also, it should be noted, itself a law. It issomething in its essential character, therefore, very different from theproclamation of martial law, the establishment of a state of siege, or anyother proceeding by which the executive government at its own will suspends thelaw of the land. It is no doubt an exercise of arbitrary sovereign power; butwhere the legal sovereign is a Parliamentary assembly, even acts of stateassume the form of regular legislation, and this fact of itself maintains in nosmall degree the real no less than the apparent supremacy of law.
Chapter VI
THE RIGHT TO FREEDOM OF DISCUSSION
Principles laid down in foreign constitution.
The Declaration of the Rights of Man1 and the FrenchConstitution of 1791 proclaim freedom of discussion and the liberty of thepress in terms which are still cited in text-books2 as embodyingmaxims of French jurisprudence.
La libre communication des pensees et des opinions est un des droitsles plus pre-tieux de I'homme; tout ritoyen peut doncparler, ecrire, imprimerlibrement, saufa repondre de I'abus de cette liberte dans les cas determinespar la loi. "3
La constitution garantit, comme droit naturel et civil... la libretea tout homme de parler, d'ecrire, d'imprimer et publier ses pensees, sans queses ecrits puissent etre soumis a aucunecensureou inspection avantleurpublication.*
Belgian law, again, treats the liberty of the press as a fundamentalarticle of the constitution.
Art. 18. La presse est libre; la censure nepourrajamais etre etablie:ilnepeutetre exige de cautionnement des ecrivains, editeurs ouimprimeurs.
Lorsque I'auteur est connu et domicilie en Belgique, I'editeur,I'imprimeur ou le distributeurne peut etrepoursuivi.5
1 Duguit et Monnier, Les Constitutions de la France, p. i.
2 Bourguignon, Elements Generaux de LegislationFrangiise, p. 468.
3 Declar. des droits, art. n, Plouard, p. 16, Duguit et Monnier,p. 2.
4 Constitution de 1791, Tit. i; Plouard, p. 18, Duguit etMonnier, p. 4.
5 Constitution de la Belgique, art. 18.
P3-?e-lis-sh
English law only secures that no one shall be punished except forstatements proved to be breach of law.
Both the revolutionists of France and the constitutionalists of Belgiumborrowed their ideas about freedom of opinion and the liberty of the press fromEngland, and most persons form such loose notions as to English law that theidea prevails in England itself that the right to the free expression ofopinion, and especially that form of it which is known as the "liberty of thepress," are fundamental doctrines of the law of England in the same sense inwhich they were part of the ephemeral constitution of 1791 and still areembodied in the articles of the existing Belgian constitution; and, further,that our Courts recognise the right of every man to say and write what hepleases, especially on social, political, or religious topics, without fear oflegal penalties. Yet this notion, justified though it be, to a certain extent,by the habits of modern English life, is essentially false, and conceals fromstudents the real attitude of English law towards what is called "freedom ofthought," and is more accurately described as the "right to the free expressionof opinion." As every lawyer knows, the phrases "freedom of discussion" or"liberty of the press" are rarely found in any part of the statute-book noramong the maxims of the common law.6 As terms of art they are indeedquite unknown to our Courts. At no time has there in England been anyproclamation of the right to liberty of thought or to freedom of speech. Thetrue state of things cannot be better described than in these words from anexcellent treatise on the law of libel:
Our present law permits any one to say, write, and publish what hepleases; but if he make a bad use of this liberty he must be punished. If heunjustly attack an individual, the person defamed may sue for damages; if, onthe other hand, the words be written or printed, or if treason or immorality bethereby inculcated, the offender can be tried for the misdemeanour either byinformation or indictment.7
Any man may, therefore, say or write whatever he likes, subject to therisk of, it may be, severe punishment if he publishes any statement (either byword of mouth, in writing, or in print) which he is not legally entitled tomake. Nor is the law of England specially
6 It appears, however, in the Preamble to Lord Campbell's Act, 1843, 6& 7 Viet. c. 96.
7 Odgers, Libel and Slander, Introd. (3rd ed.), p. 12.
Libels on individuals.
favourable to free speech or to free writing in the rules which itmaintains in theory and often enforces in fact as to the kind of statementswhich a man has a legal right to make. Above all, it recognises in general nospecial privilege on behalf of the "press," if by that term we mean, inconformity with ordinary language, periodical literature in general, andparticularly the newspapers. In truth there is little in the statute-book whichcan be called a "press law."8 The law of the press as it exists hereis merely part of the law of libel, and it is well worth while to trace outwith some care the restrictions imposed by the law of libel on the "freedom ofthe press," by which expression I mean a person's right to make any statementhe likes in books or newspapers.
There are many statements with regard to individuals which no man isentitled to publish in writing or print; it is a libel (speaking generally)thus to publish any untrue statement about another which is calculated toinjure his interests, character, or reputation. Every man who directly orindirectly makes known or, as the technical expression goes, "publishes" such astatement, gives currency to a libel and is liable to an action for damages.The person who makes a defamatory statement and authorises its publication inwriting, the person who writes, the publisher who brings out for sale, theprinter who prints, the vendor who distributes a libel, are each guilty ofpublication, and may each severally be sued. The gist of the offence being themaking public, not the writing of the libel, the person who having read a libelsends it on to a friend, is a libeller; and it would seem that a man who readsaloud a libel, knowing it to be such, may be sued. This separate liability ofeach person concerned in a wrongful act is, as already pointed out, a verynoticeable characteristic of our law. Honest belief, moreover, and goodintentions on the part of
8 For exceptions to this, see e.g. 8 & 9 Viet. c. 75; 44& 45 Viet. c. 60, s. 2. It is, however, true, as pointed out by oneof my critics (see the Law of the Press, by Fisher & Strahan, 2nded. 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 theproprietors of newspapers from the full amount of liability which attaches toother persons for the bona fide publication of defamatory statementsmade at public meetings and the like. See especially the Libel Law AmendmentAct, 1888 (51 & 52 Viet. c. 64), s. 4. Whether this deviation from theprinciples of the common law is, or is not, of benefit to the public, is anopen question which can be answered only by experience.
a libeller, are no legal defence for his conduct. Nor will it avail himto show that he had good reason for thinking the false statement which he madeto be true. Persons often must pay heavy damages for giving currency tostatements which were not meant to be falsehoods, and which were reasonablybelieved to be true. Thus it is libellous to publish of a man who has beenconvicted of felony but has worked out his sentence that he "is a convictedfelon." It is a libel on the part of X if X publishes that B has told him thatA's bank has stopped payment, if, though B in fact made the statement toX, and X believed the report to be true, it turns out to be false. Nor, again,are expressions of opinion when injurious to another at all certain not toexpose the publisher of them to an action. A "fair" criticism, it is oftensaid, is not libellous; but it would be a grave mistake to suppose thatcritics, either in the press or elsewhere, have a right to publish whatevercriticisms they think true. Every one has a right to publish fair and candidcriticism. But "a critic must confine himself to criticism, and not make it theveil for personal censure, nor allow himself to run into reckless and unfairattacks merely from the love of exercising his power ofdenunciation."9 A writer in the press and an artist or actor whoseperformances are criticised are apt to draw the line between "candid criticism"and "personal censure" at very different points. And when on this matter thereis a difference of opinion between a critic and his victim, the delicatequestion what is meant by fairness has to be determined by a jury, and may beso answered as greatly to curtail the free expression of critical judgments.Nor let it be supposed that the mere "truth" of a statement is of itselfsufficient to protect 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 thepublic. To write, for example, and with truth of A that he many years agocommitted acts of immorality may very well expose the writer X to criminalproceedings, and X if put on his trial will be bound to prove not only thatA was in fact guilty of the faults imputed to him, but also that thepublic had an interest in the knowl-
9 Whistler v. Ruskin, "The Times," Nov. 27, 1878, per Huddleston,B.
edge of A's misconduct. If X cannot show this, he will find thatno supposed right of free discussion or respect for liberty of the press willbefore an English judge save him from being found guilty of a misdemeanour andsent to prison.
We have spoken so far in very general terms of the limits placed by thelaw of libel on freedom of discussion as regards the character of individuals.Let us now observe for a moment the way in which the law of libel restricts intheory, at least, the right to criticise the conduct of the government.
Every person commits a misdemeanour who publishes (orally or otherwise)any words or any document with a seditious intention. Now a seditious intentionmeans an intention to bring into hatred or contempt, or to excite disaffectionagainst the King or the government and constitution of the United Kingdom as bylaw established, or either House of Parliament, or the administration ofjustice, or to excite British subjects to attempt otherwise than by lawfulmeans the alteration of any matter in Church or State by law established, or topromote feelings of illwill and hostility between different classes.10And if the matter published is contained in a written or printed documentthe publisher is guilty of publishing a seditious libel. The law, it is true,permits the publication of statements meant only to show that the Crown hasbeen misled, or that the government has committed errors, or to point outdefects in the government or the constitution with a view to their legalremedy, or with a view to recommend alterations in Church or State by legalmeans, and, in short, sanctions criticism on public affairs which is bonafide intended to recommend the reform of existing institutions by legalmethods. But any one will see at once that the legal definition of a seditiouslibel might easily be so used as to check a great deal of what is ordinarilyconsidered allowable discussion, and would if rigidly enforced be inconsistentwith prevailing forms of political agitation.
The case is pretty much the same as regards the free expression ofopinion on religious or moral questions." Of late years circ*mstances
10 See Stephen, Digest of the Criminal the Law (6th ed.), arts.96, 97, 98. -LI Ibid., arts. 179-183.
Libels on government.
have recalled attention to the forgotten law of blasphemy. But itsurprises most persons to learn that, on one view of the law, any one whopublishes a denial of the truth of Christianity in general or of the existenceof God, whether the terms of such publication are decent or otherwise, commitsthe misdemeanour of publishing a blasphemous libel, and is liable toimprisonment; that, according to another view of the law, any one is guilty ofpublishing a blasphemous libel who publishes matter relating to God, JesusChrist, or the Book of Common Prayer intended to wound the feelings of mankind,or to excite contempt against the Church by law established, or to promoteimmorality; and that it is at least open to grave doubt how far thepublications which thus wound the feelings of mankind are exempt from thecharacter of blasphemy because they are intended in good faith to propagateopinions which the person who publishes them regards as true.12 Mostpersons, again, are astonished to find that the denial of the truth ofChristianity or of the authority of the Scriptures, by "writing, printing,teaching, or advised speaking" on the part of any person who has been educatedin or made profession of Christianity in England, is by statute a criminaloffence entailing very severe penalities.13 When once, however, theprinciples of the common law and the force of the enactments still contained inthe statute-book are really appreciated, no one can maintain that the law ofEngland recognises anything like that natural right to the free communicationof thoughts and opinions which was proclaimed in France a little over a hundredyears 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 madeabout individuals, or the expression of opinion about public affairs, orspeculative matters, depends wholly upon the answer to the question who are todetermine whether a given publication is or is not a libel. The reply (as weall
12 See especially Stephen, Digest of the Criminal Law (6th ed.),art. 179, and contrast Odgers (3rd ed.), pp. 475-490, where a view of the lawis maintained differing from that of Sir J. F. Stephen.
13 See 9 & 10 Will. HI. c. 35, as altered by 53 Geo. III. c. 160,and Stephen's Digest of the Criminal Law, art. 181. Conf.Attorney-General v. Bradlaugh, 14 Q. B. D. (C. A.), 667, p. 719,judgment of Lindley, L. J.
Expression of opinion on religious or moral questions.
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 oflibel depends wholly upon their judgment, and they have to determine thequestions of truth, fairness, intention, and the like, which affect the legalcharacter of a published statement.14
Freedom of discussion is, then, in England little else than the right towrite or say anything which a jury, consisting of twelve shopkeepers, think itexpedient should be said or written. Such "liberty" may vary at different timesand seasons from unrestricted license to very severe restraint, and theexperience of English history during the last two centuries shows that underthe law of libel the amount of latitude conceded to the expression of opinionhas, in fact, differed greatly according to the condition of popular sentiment.Until very recent times the law, moreover, has not recognized any privilege onthe part of the press. A statement which is defamatory or blasphemous, if madein a letter or upon a card, has exactly the same character if made in a book ora newspaper. The protection given by the Belgian constitution to the editor,printer, or seller of a newspaper involves a recognition of special rights onthe part of persons connected with the press which is quite inconsistent withthe general theory of English law. It is hardly an exaggeration to say, fromthis point of view, that liberty of the press is not recognised in England.
Why then has the liberty of the press been long reputed as a specialfeature of English institutions?
The answer to this inquiry is, that for about two centuries the relationbetween the government and the press has in England been marked by all thosecharacteristics which make up what we have termed the "rule" or "supremacy" oflaw, and that just because of this, and not because of any favour shown by thelaw of England towards freedom of discussion, the press, and especially thenewspaper press, has practically enjoyed with us a freedom which till
14 "The truth of the matter is very simple when stripped of allornaments of speech, and a man of plain common sense may easily understand it.It is neither more nor less than this: that a man may publish anything whichtwelve of his countrymen think is not blamable, but that he ought to bepunished if he publishes that which is blamable [i.e. that which twelveof his countrymen think is blamable]. This in plain common sense is thesubstance of all that has been said on the matter." Rex v. Cutbill,27 St. Tr. 642, 675.
Why the liberty of the press has been thought peculiar to England.
The position of the press in modern England. No censorship.
recent years was unknown in continental states. Any one will see thatthis is so who examines carefully the situation of the press in modern England,and then contrasts it either with the press law of France or with the legalcondition of the press in England during the sixteenth and seventeenthcenturies.
The present position of the English press is marked by two features.
First, "the liberty of the press," says Lord Mansfield, "consists inprinting without any previous license, subject to the consequences oflaw."15 Lord Ellenborough says:
The law of England is a law of liberty, and consistently with thisliberty we have not what is called an imprimatur; there is no suchpreliminary license necessary; but if a man publish a paper, he is exposed tothe penal consequences, as he is in every other act, if it beillegal.16
These dicta show us at once that the so-called liberty of the press is amere application of the general principle, that no man is punishable except fora distinct breach of the law.17 This principle is radicallyinconsistent with any scheme of license or censorship by which a man ishindered from writing or printing anything which he thinks fit, and is hard toreconcile even with the right on the part of the Courts to restrain thecirculation of a libel, until at any rate the publisher has been convicted ofpublishing it. It is also opposed in spirit to any regulation requiring fromthe publisher of an intending newspaper a preliminary deposit of a certain sumof money, for the sake either of ensuring that newspapers should be publishedonly by solvent persons, or that if a newspaper should contain libels thereshall be a certainty of obtaining damages from the proprietor. No sensibleperson will argue that to demand a deposit from the owner of a newspaper, or toimpose other limitations upon the right of publishing periodicals, is ofnecessity inexpedient or unjust. All that is here insisted upon is, that suchchecks and preventive measures are inconsistent with the pervading principle ofEnglish law, that
15 Rex v. Dean of St. Asaph, 3 T. R. 431 (note).
16 Rex v. Cobbett, 29 St. Tr. 49; see Odgers, Libel andSlander (yd ed.), p. 10.
17 Seep, no,ante.
men are to be interfered with or punished, not because they may or willbreak the law, but only when they have committed some definite assignable legaloffence. Hence, with one exception,18 which is a quaint survivalfrom a different system, no such thing is known with us as a license to print,or a censorship either of the press or of political newspapers. Neither thegovernment nor any other authority has the right to seize or destroy the stockof a publisher because it consists of books, pamphlets, or papers which in theopinion of the government contain seditious or libellous matter. Indeed, theCourts themselves will, only under very special circ*mstances, even for thesake of protecting an individual from injury, prohibit the publication orrepublication of a libel, or restrain its sale until the matter has gone beforea jury, and it has been established by their verdict that the words complainedof are libellous.19 Writers in the press are, in short, like everyother person, subject to the law of the realm, and nothing else. Neither thegovernment nor the Courts have (speaking generally) any greater power toprevent or oversee the publication of a newspaper than the writing and sendingof a letter. Indeed, the simplest way of setting forth broadly the position ofwriters in the press is to say that they stand in substantially the sameposition as letterwriters. A man who scribbles blasphemy on a gate20and a man who prints blasphemy in a paper or in a book commit exactly the sameoffence, and are dealt with in England on the same principles. Hence alsowriters in and owners of newspapers have, or rather had until very recently, nospecial privilege protecting them from liability.21 Look at thematter which way you will, the main feature of liberty of the press asunderstood in England is that the press (which
18 I.e. the licensing of plays. See the Theatres Act, 1843,6 & 7 Vict- c- 68; Stephen,Commentaries (i4th ed.), iii. p. 227.
19 Compare Odgers, Libel and Slander (yd ed.), chap, xiii.,especially pp. 388-399, with the first edition of Mr. Odgers' work, pp. 13-16.
20 Reg. v. Pooley, cited Stephen, Digest of the Criminal Law(6th ed.), p. 125.
21 This statement must be to a certain extent qualified in view of theLibel Act, 1843, 6 & 7 Vict. c. 96, the Newspaper Libel and RegistrationAct, 1881,44 & 45 Vict. c. 60, and the Law of Libel Amendment Act, 1888, 51& 52 Vict. c. 64, which do give some amount of special protection tobona fide reports, e.g. of public meetings, in newspapers.
Healt with
wry
Courts.
means, of course, the writers in it) is subject only to the ordinary lawof the land.
Secondly, press offences, in so far as the term can be used withreference to English law, are tried and punished only by the ordinary Courts ofthe country, that is, by a judge and jury.22
Since the Restoration,23 offences committed through thenewspapers, or, in other words, the publication therein of libels whetherdefamatory, seditious, or blasphemous, have never been tried by any specialtribunal. Nothing to Englishmen seems more a matter of course than this. Yetnothing has in reality contributed so much to free the periodical press fromany control. If the criterion whether a publication be libellous is the opinionof the jury, and a man may publish anything which twelve of his countrymenthink is not blama-ble, it is impossible that the Crown or the Ministry shouldexert any stringent control over writings in the press, unless (as indeed maysometimes happen) the majority of ordinary citizens are entirely opposed toattacks on the government. The times when persons in power wish to check theexcesses of public writers are times at which a large body of opinion orsentiment is hostile to the executive. But under these circ*mstances it must,from the nature of things, be at least an even chance that the jury called uponto find a publisher guilty of printing seditious libels may sympathise with thelanguage which the officers of the Crown deem worthy of punishment, and hencemay hold censures which are prosecuted as libels to be fair and laudablecriticism of official errors. Whether the control indirectly exercised over theexpression of opinion by the verdict of twelve commonplace Englishmen is at thepresent day certain to be as great a protection to the free expression ofopinion, even in political matters, as it proved a century ago, when thesentiment of the governing
22 The existence, however, of process by criminal information, and therule that truth was no justification, had the result that during the eighteenthcentury seditious libel rose almost to the rank of a press offence, to be dealtwith, if not by separate tribunals, at any rate by special rules enforced by aspecial procedure.
23 See as to the state of the press under the Commonwealth, Masson,Life of Milton, iii. pp. 265-297. Substantially the possibility oftrying press offences by special tribunals was put an end to by the abolitionof the Star Chamber in 1641, 16 Car. I. c. 10.
body was different from the prevalent feeling of the class from whichjurymen were chosen, is an interesting speculation into which there is no needto enter. What is certain is, that the practical freedom of the English pressarose in great measure from the trial with us of "press offences," like everyother 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 of thepress," "press offences," "censorship of the press," and the like, are all butunknown to English lawyers, simply because any offence which can be committedthrough the press is some form of libel, and is governed in substance by theordinary law of defamation.
These things seem to us at the present day so natural as hardly to benoticeable; let us, however, glance as I have suggested at the press law ofFrance both before and since the Revolution; and also at the condition of thepress in England up to nearly the end of the seventeenth century. Such a surveywill prove to us that the treatment in modern England of offences committedthrough the newspapers affords an example, as singular as it is striking, ofthe legal spirit which now pervades every part of the English constitution.
An Englishman who consults French authorities is struck with amazementat two facts: press law24 has long constituted and still constitutesto a certain extent a special department of French legislation, and pressoffences have been, under every form of government which has existed in France,a more or less special class of crimes. The Acts which have been passed inEngland with regard to the press since the days of Queen Elizabeth do not innumber equal one-tenth,
24 The press is now governed in France by the Loi sur la liberte dela presse, 2<)-^o}uill. 1881. This law repeals all earlier edicts,decrees, laws, ordinances, etc. on the subject. Immediately before this law waspassed there were in force more than thirty enactments regulating the positionof the French press, and inflicting penalties on offences which could becommitted by writers in the press; and the three hundred and odd closelyprinted pages of Dalloz, treating of laws on the press, show that theenactments then in vigour under the Republic were as nothing compared to thewhole mass of regulations, ordinances, decrees, and laws which, since theearliest days of printing down to the year 1881, have been issued by Frenchrulers with the object of controlling the literary expression of opinion andthought. See Dalloz, Repertoire, vol. xxxvi., "Presse," pp.384-776, and especially Tit. I. chap, i., Tit. II. chap, iv.; Roger et Sorel,Codes et Loi Usuelles, "Presse," 637-652; Duguit, Manuel de DroitConstitutionnel, pp. 575-582.
Comparison with the press law of France.
or even one-twentieth, of the laws enacted during the same period on thesame subject in France. The contrast becomes still more marked if we comparethe state of things in the two countries since the beginning of the eighteenthcentury, and (for the sake of avoiding exaggeration) put the laws passed sincethat date, and which were till 1881 in force in France, against every Actwhich, whether repealed or unrepealed, has been passed in England since theyear 1700. It will be found that the French press code consisted, till afterthe establishment of the present Republic, of over thirty enactments, whilstthe English Acts about the press passed since the beginning of the last centurydo not exceed a dozen, and, moreover, have gone very little way towardstouching 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 1700 in substance prevailed that thegovernment has nothing to do with the guidance of opinion, and that the soleduty of the state is to punish libels of all kinds, whether they are expressedin writing or in print. Hence the government has (speaking generally) exercisedno special control over literature, and the law of the press, in so far as itcan be said to have existed, has been nothing else than a branch or anapplication of the law
of libel.
In France, literature has for centuries been considered as theparticular concern of the state. The prevailing doctrine, as may be gatheredfrom the current of French legislation, has been, and still to a certain extentis, that it is the function of the administration not only to punishdefamation, slander, or blasphemy, but to guide the course of opinion, or, atany rate, to adopt preventive measures for guarding against the propagation inprint of unsound or dangerous doctrines. Hence the huge amount and the specialand repressive character of the press laws which have existed in France.
Up to the time of the Revolution the whole literature of the country wasavowedly controlled by the state. The right to print or sell books and printedpublications of any kind was treated as a special privilege or monopoly ofcertain libraries; the regulations (reglements) of 1723
(some part of which was till quite recently in force)25 andof 1767 confined the right of sale and printing under the severest penalties oflibrarians who were duly licensed.26 The right to publish, again,was submitted to the strictest censorship, exercised partly by the University(an entirely ecclesiastical body), partly by the Parliaments, partly by theCrown. The penalties of death, of the galleys, of the pillory, were from timeto time imposed upon the printing or sale of forbidden works. These punishmentswere often evaded; but they after all retained practical force till the veryeve of the Revolution. The most celebrated literary works of France werepublished abroad. Montesquieu's Esprit des Lois appeared at Geneva.Voltaire's Henriade was printed in England; the most remarkable of hisand of Rousseau's writings were published in London, in Geneva, or inAmsterdam. In 1775 a work entitled Philosophic de la Nature wasdestroyed by the order of the Parliament of Paris, the author was decreedguilty of treason against God and man, and would have been burnt if he couldhave been arrested. In 1781, eight years before the meeting of the StatesGeneral, Raynal was pronounced by the Parliament guilty of blasphemy on accountof his Histoire des Indes.21 The point, however, to remarkis, not so much the severity of the punishments which under the AncienRegime were intended to suppress the expression of heterodox or falsebeliefs, as the strict maintenance down to 1789 of the right and duty of thestate to guide the literature of the country. It should further be noted thatdown to that date the government made no marked distinction between periodicaland other literature. When the Lettres Philosophiques could be burnt bythe hangman, when the publication of the Henriade and theEncyclopedic depended on the goodwill of the King, there was no need forestablishing special restrictions on newspapers. The daily or weekly press,moreover, hardly existed in France till the opening of the StatesGeneral.28
25 See Dalloz, Repertoire, vol. xxxvi., "Presse," Tit. I.chap. i. Compare Roger et Sorel, Codes etLois, "Presse,"pp. 637-652.
26 Ibid.
27 See Dalloz, Repertoire, vol. xxxvi., "Presse," Tit. I.chap. i. Compare Roger et Sorel, Codes etLois, "Presse,"pp. 637-652.
28 See Rocquain, L'Esprit Revolutionnaire avant la Revolution,for a complete list of "Livres Condantnes" from 1715 to 1789.Rocquain's book is fill of information on the arbitrariness of the FrenchGovernment during the reigns of Louis XV. and Louis XVI.
The Revolution (it may be fancied) put an end to restraints upon thepress. The Declaration of the Rights of Man proclaimed the right of everycitizen to publish and print his opinions, and the language has beencited29 in which the Constitution of 1791 guaranteed to every manthe natural right of speaking, printing, and publishing his thoughts withouthaving his writings submitted to any censorship or inspection prior topublication. But the Declaration of Rights and this guarantee were practicallyworthless. They enounced a theory which for many years was utterly opposed tothe practice of every French government.
The Convention did not establish a censorship, but under the plea ofpreventing the circulation of seditious works it passed the law of 29th March1793, which silenced all free expression of opinion. The Directory imitated theConvention. Under the First Empire the newspaper press became the property ofthe government, and the sale, printing, and publication of books was whollysubmitted to imperial control and censorship.30
The years which elapsed from 1789 to 1815 were, it may be suggested, arevolutionary era which provoked or excused exceptional measures of stateinterference. Any one, however, who wants to see how consonant to the ideaswhich have permanently governed French law and French habits is the notion thatthe administration should by some means keep its hand on the nationalliterature of the country, ought to note with care the course of legislationfrom the Restoration to the present day. The attempt, indeed, to control thepublication of books has been by slow degrees given up; but one governmentafter another has, with curious uniformity, proclaimed the freedom and ensuredthe subjection of the newspaper press. From 1814 to 1830 the censorship waspractically established (aist Oct. 1814), was partially abolished, wasabolished (1819), was reestablished and extended (1820), and was re-abolished(1828).31 The Revolution of July 1830 was occasioned by an attemptto destroy the liberty of the press. The Charter made the abolition of thecensorship part of the constitution, and since that date no system ofcensorship
29 Seep. 146,ante.
30 Dalloz, Repertoire, xxxvi., "Presse," Tit. I. chap. i.
31 See Duguit, Traite de Droit Constitutionnel, i. pp. 91, 92.
has been in name re-established. But as regards newspapers, thecelebrated decree of lyth February 1852 enacted restrictions more rigid thananything imposed under the name of la censure by any government sincethe fall of Napoleon I. The government took to itself under this law, inaddition to other discretionary powers, the right to suppress any newspaperwithout the necessity of proving the commission of any crime or offence by theowner of the paper or by any writer in its columns.32 No one,further, could under this decree set up a paper without official authorisation.Nor have different forms of the censorship been the sole restrictions imposedin France on the liberty of the press. The combined operations of enactmentspassed during the existence of the Republic of 1848, and under the Empire, was(among other things) to make the signature of newspaper articles by theirauthors compulsory,33 to require a large deposit from any person whowished to establish a paper,34 to withdraw all press offenceswhatever from the cognisance of a jury,35 to re-establish orreaffirm the provision contained in the reglement of 1723 by which noone could carry on the trade of a librarian or printer (commerce de lalibrairie) without a license. It may, in fact, be said with substantialtruth that between 1852 and 1870 the newspapers of France were as muchcontrolled by the government as was every kind of literature before 1789, andthat the Second Empire exhibited a retrogression towards the despoticprinciples of the Ancien Regime. The Republic,36
32 Decret, 17 Fevrier, 1852, sec. 32, Roger et Sorel, Codes et Lois,p. 648.
33 Roger et Sorel, Codes et Lois, p. 646. Lois, 16 Julliet 1850.
34 Roger et Sorel, Codes et Lois, p. 646. Lois, 16 Juillet 1850.
35 Lois, 31 Dec. 1851.
36 One thing is perfectly dear and deserves notice. The legislation ofthe existing Republic was not till 1881, any more than that of the Restorationor the Empire, based on the view of the press which pervades the modern law ofEngland. "Press law" still formed a special department of the law of France."Press offences" were a particular class of crimes, and there were at least twoprovisions, and probably several more, to be found in French laws whichconflicted with the doctrine of the liberty of the press as understood inEngland. A law passed under the Republic (6th July 1871. Roger et Sorel,Codes et Lois, p. 652) reimposed on the proprietors of newspapers thenecessity of making a large deposit, with the proper authorities, as a securityfor the payment of fines or damages incurred in the course of the management ofthe paper. A still later law (29th December 1875, s. 5. Roger et Sorel,Codes et Lois, p. 652), while it submitted some press offences to thejudgment of a jury, subjected
Contrast with position of press in England during seventeenth century.
it is true, has abolished the restraints on the liberty of the presswhich grew up both before and under the Empire. But though for the lasttwenty-seven years the ruling powers in France have favoured the liberty orlicense of the press, nothing is more plain than that until quite recently theidea that press offences were a peculiar class of offences to be dealt with ina special way and punished by special courts was accepted by every party inFrance. This is a matter of extreme theoretical importance. It shows howforeign to French notions is the idea that every breach of law ought to bedealt with by the ordinary law of the land. Even a cursory survey and noother is possible in these lectures of French legislation with regard toliterature proves, then, that from the time when the press came into existenceup to almost the present date the idea has held ground that the state, asrepresented by the executive, ought to direct or control the expression ofopinion, and that this control has been exercised by an official censorship by restrictions on the right to print or sell books and by thesubjection of press offences to special laws administered by special tribunals.The occasional relaxation of these restrictions is of importance. But theirrecurring revival is of far more significance than their temporaryabolition.37
Let us now turn to the position of the English press during thesixteenth and seventeenth centuries.
The Crown originally held all presses in its own hands, allowed no oneto print except under special license, and kept all presses subject toregulations put forward by the Star Chamber in virtue of the royal prerogative:the exclusive privilege of printing was thus given to
others to the cognisance of Courts of which a jury formed no part. Thelaw of 2gth July 1881 establishes the freedom of the press. Recent Frenchlegislation exhibits, no doubt, a violent reaction against all attempts tocheck the freedom of the press, but in its very effort to secure this freedombetrays the existence of the notion that offences committed through the pressrequire in some sort exceptional treatment.
37 Note the several laws passed since 1881 to repress the abuse offreedom in one form or another by the press, e.g. the law of 2nd August 1882,modified and completed by the law of i6th March 1898, for the suppression ofviolations of moral principles (outrages aux bonnes mozurs) by thepress, the law of 28th July 1894, to suppress the advocacy of anarchicalprinciples by the press, and the law of i6th March 1893, giving the Frenchgovernment special powers with regard to foreign newspapers, or newspaperspublished in a foreign language. Conf. Duguit, Manuel de DroitConstitutionnel, p. 582.
ninety-seven London stationers and their successors, who, as theStationers' Company, constituted a guild with power to seize all publicationsissued by outsiders; the printing-presses ultimately conceded to theUniversities existed only by a decree of the Star Chamber.
Side by side with the restrictions on printing which appear tohave more or less broken down there grew up a system of licensing whichconstituted a true censorship.38
Press offences constituted a special class of crimes cognisable by aspecial tribunal the Star Chamber which sat without a jury andadministered severe punishments.39 The Star Chamber indeed fell in1641, never to be revived, but the censorship survived the Commonwealth, andwas under the Restoration (1662) given a strictly legal foundation by thestatute 13 & 14 Car. II. c. 33, which by subsequent enactments was kept inforce till 1695.40
There existed, in short, in England during the sixteenth and seventeenthcenturies every method of curbing the press which was then practised in France,and which has prevailed there almost up to the present day. In England, as onthe Continent, the book trade was a monopoly, the censorship was in fullvigour, the offences of authors and printers were treated as special crimes andseverely punished by special tribunals. This similarity or identity of theprinciples with regard to the treatment of literature originally upheld by thegovernment of England and by the government of France is striking. It isrendered still more startling by the contrast between the subsequent history oflegislation in the two countries. In France (as we have already seen) thecensorship, though frequently abolished, has almost as frequently beenrestored. In England the system of licensing, which was the censorship underanother name, was terminated rather than abolished in 1695. The House ofCommons, which refused to continue the Licensing Act, was certainly not imbuedwith any 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 (3rd ed.)/ pp. 10-13.
39 Gardiner, History of England, vii. pp. 51, 130; ibid.,viii. pp. 225, 234.
40 See Macaulay, History of England, iv. chaps, xix, xxi.
"iginal
eness
d sub-
quent
likeness
tween
?ss law
England
do?
mce.
of 1695 neither avowed nor entertained the belief that the "freecommunication of thoughts and opinions was one of the most valuable of therights of man."41 They refused to renew the Licensing Act, and thusestablished freedom of the press without any knowledge of the importance ofwhat they were doing. This can be asserted with confidence, for the Commonsdelivered to the Lords a document which contains the reasons for their refusingto renew the Act.
This paper completely vindicates the resolution to which the Commons hadcome. 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 intoexistence. They pointed out concisely, clearly, forcibly, and sometimes with agrave irony which is not unbecoming, the absurdities and iniquities of thestatute which was about to expire. But all their objections will be found torelate to matters of detail. On the great question of principle, on thequestion whether the liberty of unlicensed printing be, on the whole, ablessing or a curse to society, not a word is said. The Licensing Act iscondemned, not as a thing essentially evil, but on account of the pettygrievances, the exactions, the jobs, the commercial restrictions, thedomiciliary visits, which were incidental to it. It is pronounced mischievousbecause it enables the Company of Stationers to extort money from publishers,because it empowers the agents of the government to search houses under theauthority of general warrants, because it confines the foreign book trade tothe port of London; because it detains valuable packages of books at the CustomHouse till the pages are mildewed. The Commons complain that the amount of thefee which the licenser may demand is not fixed. They complain that it is madepenal in an officer of the Customs to open a box of books from abroad, exceptin the presence of one of the censors of the press. How, it is very sensiblyasked, is the officer to know that there are books in the box till he hasopened it? Such were the arguments which did what Milton's Areopagiticahad failed to do.42
How slight was the hold of the principle of the liberty of the press onthe statesmen who abolished the censorship is proved by their entertaining, twoyears later, a bill (which, however, never passed) to prohibit the unlicensedpublication of news.43 Yet while the solemn declaration by theNational Assembly of 1789 of the right to the free expression of thoughtremained a dead letter, or at best a speculative
41 See Declaration of the Rights of Man, art. 11, p. 146,ante.
42 Macaulay, History of England, iv. pp. 541, 542.
43 Macaulay, History of England, iv. pp. 771, 772.
uestions
ggested
original
nilarity
.d final
fference
tween
ess law
France
dot
igland.
maxim of French jurisprudence which, though not without influence, wasconstantly broken in upon by the actual law of France, the refusal of theEnglish Parliament in 1695 to renew the Licensing Act did permanently establishthe freedom of the press in England. The fifty years which followed were aperiod of revolutionary disquiet fairly comparable with the era of theRestoration in France. But the censorship once abolished in England was neverrevived, and all idea of restrictions on the liberty of the press other thanthose contained in the law of libel have been so long unknown to Englishmen,that the rare survivals in our law of the notion that literature ought to becontrolled by the state appear to most persons inexplicable anomalies, and aretolerated only because they produce so little inconvenience that theirexistence is forgotten.
To a student who surveys the history of the liberty of the press in! France and in England two questions suggest themselves. How doesit happen that down to the end of the seventeenth century the principles upheldby the Crown in each country were in substance the same? What, again, is theexplanation of the fact that from the beginning of the eighteenth century theprinciples governing the law of the press in the two countries have been, asthey still continue to be, essentially different? The similarity and thedifference each seems at first sight equally perplexing. Yet both one and theother admit of explanation, and the solution of an apparent paradox is worthgiving because of its dose bearing on the subject of this lecture, namely, thepredominance of the spirit of legality which distinguishes the law of theconstitution.
The ground of the similarity between the press law of England and ofFrance from the beginning of the sixteenth till the beginning of the eighteenthcentury, is that the governments, if not the people, of each country wereduring that period influenced by very similar administrative notions and bysimilar ideas as to the relation between the state and individuals. In England,again, as in every European country, the belief prevailed that a King wasresponsible for the religious belief of his subjects. This responsibilityinvolves the necessity for regulating the utterance and formation of opinion.But this direction or control cannot be exercised without governmentalinterference
Reasons for later dissimilarity.
with that liberty of the press which is at bottom the right of every manto print any opinion which he chooses to propagate, subject only to risk ofpunishment if his expressions contravene some distinct legal maxim. During thesixteenth and seventeenth centuries, in short, the Crown was in England, as inFrance, extending its administrative powers; the Crown was in England, as inFrance, entitled, or rather required by public opinion, to treat the control ofliterature as an affair of state. Similar circ*mstances produced similarresults; in each country the same principles prevailed; in each country thetreatment of the press assumed, therefore, a similar character.
The reason, again, why, for nearly two centuries, the press has beentreated in France on principles utterly different from those which have beenaccepted in England, lies deep in the difference of the spirit which hasgoverned the customs and laws of the two countries.
In France the idea has always flourished that the government, whetherRoyal, Imperial, or Republican, possesses, as representing the state, rightsand powers as against individuals superior to and independent of the ordinarylaw of the land. This is the real basis of that whole theory of a droitadministmtif,44 which it is so hard for Englishmen fully tounderstand. The increase, moreover, in the authority of the central governmenthas at most periods both before and since the Revolution been, or appeared tomost Frenchmen to be, the means of removing evils which oppressed the mass ofthe people. The nation has in general looked upon the authority of the statewith the same favour with which Englishmen during the sixteenth centuryregarded the prerogative of the Crown. The control exercised in different formsby the executive over literature has, therefore, in the main fully harmonisedwith the other institutions of France. The existence, moreover, of an elaborateadministrative system, the action of which has never been subject to thecontrol of the ordinary tribunals, has always placed in the hands of whateverpower was supreme in France the means of enforcing official surveillance ofliterature. Hence the censorship (to speak of no other modes of checking
44 See Chap. XJ1. post.
isons
original
lilarity.
the liberty of the press) has been on the whole in keeping with thegeneral action of French governments and with the average sentiment of thenation, whilst there has never been wanting appropriate machinery by which tocarry the censorship into effect.
No doubt there were heard throughout the eighteenth century, and havebeen heard ever since, vigorous protests against the censorship, as againstother forms of administrative arbitrariness; and at the beginning of the GreatRevolution, as at other periods since, efforts were made in favour of freediscussion. Hence flowed the abolition of the censorship, but this attempt tolimit the powers of the government in one particular direction was quite out ofharmony with the general 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 the means ofresuming its control over the press, whenever popular feeling should for amoment favour the repression of free speech. Hence arose the constantlyrecurring restoration of the abolished censorship or of restraints which,though not called by the unpopular name of la censure, were morestringent than has ever been any Licensing Act. Restrictions, in short, on whatEnglishmen understand by the liberty of the press have continued to exist inFrance and are hardly now abolished, because the exercise of preventive anddiscretionary authority on the part of the executive harmonises with thegeneral spirit of French law, and because the administrative machinery, whichis the creation of that spirit, has always placed (as it still places) in thehands of the executive the proper means for enforcing discretionary authority.
In England, on the other hand, the attempt made by the Crown during thesixteenth and seventeenth centuries to form a strong central administration,though it was for a time attended with success, because it met some of theneeds of the age, was at bottom repugnant to the manners and traditions of thecountry; and even at a time when the people wished the Crown to be strong, theyhardly liked the means by which the Crown exerted its strength.
Hundreds of Englishmen who hated toleration and cared little for freedomof speech, entertained a keen jealousy of arbitrary power,
and a fixed determination to be ruled in accordance with the law of theland.45 These sentiments abolished the Star Chamber in 1641, andmade the re-establishment of the hated Court impossible even for the franticloyalty of 1660. But the destruction of the Star Chamber meant much more thanthe abolition of an unpopular tribunal; it meant the rooting up from itsfoundations of the whole of the administrative system which had been erected bythe Tudors and extended by the Stuarts. This overthrow of a form ofadministration which contradicted the legal habits of Englishmen had no directconnection with any desire for the uncontrolled expression of opinion. TheParliament which would not restore the Star Chamber or the Court of HighCommission passed the Licensing Act, and this statute, which in factestablishes the censorship, was, as we have seen, continued in force for someyears after the Revolution. The passing, however, of the statute, though not atriumph of toleration, was a triumph of legality. The power of licensingdepended henceforward, not on any idea of inherent executive authority, but onthe statute law. The right of licensing was left in the hands of thegovernment, but this power was regulated by the words of a statute; and, whatwas of more consequence, breaches of the Act could be punished only byproceedings in the ordinary Courts. The fall of the Star Chamber deprived theexecutive of the means for exercising arbitrary power. Hence the refusal of theHouse of Commons in 1695 to continue the Licensing Act was something verydifferent from the proclamation of freedom of thought contained in the FrenchDeclaration of Rights, or from any of the laws which have abolished thecensorship in France. To abolish the right of the government to control thepress, was, in England, simply to do away with an exceptional authority, whichwas 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 ofopinion could be effectively enforced.
To sum the whole matter up, the censorship though constantly abolishedhas been constantly revived in France, because the exertion of discretionarypowers by the government has been and still is in
45 See Selden's remarks on the illegality of the decrees of the StarChamber, cited Gardiner, History of England, vii. p. 51.
harmony with French laws and institutions. The abolition of thecensorship was final in England, because the exercise of discretionary power bythe Crown was inconsistent with our system of administration and with the ideasof English law. The contrast is made the more striking by the paradoxical fact,that the statesmen who tried with little success to establish the liberty ofthe press in France really intended to proclaim freedom of opinion, whilst thestatesmen who would not pass the Licensing Act, and thereby founded the libertyof the press in England, held theories of toleration which fell far short offavouring unrestricted liberty of discussion. This contrast is not onlystriking in itself, but also affords the strongest illustration that can befound of English conceptions of the rule of law.
Right of
public
meeting.
Principles of English law as to right of public meeting.
Chapter VII
THE RIGHT OF PUBLIC MEETING1
Ti
The law of Belgium2 with regard to public meetings iscontained in the nineteenth article of the constitution, which is probablyintended in the main to reproduce the law of England, and runs as follows:
Rules of Belgian constitution.
Art. 19. Les Beiges ont le droit de s'assembler paisiblementet sans armes, en se conformant aux lois, qui peuvent regler I'exerdce de cedroit, sans neanmoins le soumettre a une autorisation prealable.
Cette disposition ne s'applique point aux rassemblements en pleinair, qui restent entierement soumis aux lois de police.3
The restrictions on the practice of public meeting appear to be morestringent in Belgium than in England, for the police have with us no specialauthority to control open-air assemblies. Yet just as it cannot with strictaccuracy be asserted that English law recognises the liberty of the press, soit can hardly be said that our constitution knows of such a thing as anyspecific right of public meeting. No better in-
1 See generally as to the right of public meeting, Stephen,Commentaries, iv. (i4th ed.), pp. 174-178, and Kenny, Outlines ofCriminal Law (3rd ed.), pp. 280-286. See Appendix, Note V., Questionsconnected with the Right of Public Meeting.
2 See Law Quarterly Review, iv. p. 159. See also as to right ofpublic meeting in Italy, ibid.
p. 78; in France, ibid. p. 165; in Switzerland, ibid. p.169; in United States, ibid. p. 257. See as to history of law of publicmeeting in France, Duguit, Manuel de Droit Constitutional, pp. 554-559-
3 Constitution de la Belgique, art. 19.
stance can indeed be found of the way in which in England theconstitution is built up upon individual rights than our rules as to publicassemblies. The right of assembling is nothing more than a result of the viewtaken by the Courts as to individual liberty of person and individual libertyof speech. There is no special law allowing A, B, and C to meettogether either in the open air or elsewhere for a lawful purpose, but theright of A to go where he pleases so that he does not commit a trespass,and to say what he likes to B so that his talk is not libellous orseditious, the right of B to do the like, and the existence of the samerights of C, D, E, and F, and so on ad infinitum, lead to theconsequence that A, B, C, D, and a thousand or ten thousand otherpersons, may (as a general rule)4 meet together in any place whereotherwise they each have a right to be for a lawful purpose and in a lawfulmanner. A has a right to walk down the High Street or to go on to acommon. B has the same right. C, D, and all their friends have the same rightto 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 thathe thinks an Act ought to be passed abolishing the House of Lords, or that theHouse of Lords are bound to reject any bill modifying the constitution of theirHouse, and as B may make the same remark to any of his friends, theresult ensues that A and ten thousand more may hold a public meeting either tosupport the government or to encourage the resistance of the Peers. Here thenyou have in substance that right of public meeting for political and otherpurposes which is constantly treated in foreign countries as a specialprivilege, to be exercised only subject to careful restrictions. The assertion,however, that A, B, C, and D, and a hundred thousand more persons, justbecause they may each go where they like, and each say what they please, have aright to hold meetings for the discussion of political and other topics, doesnot of course mean that it is impossible for persons so to exercise the rightof meeting as to break the law. The object of a meeting may be to commit acrime 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 anagreement on the part of A, B, and C to meet together may not underexceptional circ*mstances be a conspiracy.
Meeting not unlawful because it will excite unlawful opposition.
peace, in which case the meeting itself becomes an unlawfulassembly.5 The mode in which a meeting is held may threaten a breachof the peace on the part of those holding the meeting, and therefore inspirepeaceable citizens with reasonable fear; in which case, again, the meeting willbe unlawful. In either instance the meeting may lawfully be broken up, and themembers of it expose themselves to all the consequences, in the way of arrest,prosecution, and punishment, which attend the doing of unlawful acts, or, inother words, the commission of crimes.
A public meeting which, from the conduct of those engaged in it, as, forexample, through their marching together in arms, or through their intention toexcite a breach of the peace on the part of opponents,6 fillspeaceable citizens with reasonable fear that the peace will be broken, is anunlawful assembly. But a meeting which in not otherwise illegal doesnot7 become an unlawful assembly solely because it will exciteviolent and unlawful opposition, and thus may indirectly lead to a breach ofthe peace. Suppose, for example, that the members of the Salvation Army proposeto hold a meeting at Oxford, suppose that a so-called Skeleton Army announcethat they will attack the Salvationists and disperse them by force, suppose,lastly, that thereupon peaceable citizens who do not like the quiet of the townto be disturbed and who dread riots, urge the magistrates to stop the meetingof the Salvationists. This may seem at first sight a reasonable request, butthe magistrates cannot, it is submitted,8 legally take the coursesuggested to them. That under the present state of the law this must be so ison reflection pretty dear. The right of A
<j For the meaning of the term "unlawful assembly" seeAppendix, Note V., Questions connected with the Right of Public Meeting.
6 Compare O'Kelly v. Harvey, 14 L. R. Ir. 105, Humphriesv. Connor, 17 Ir. C. L. R. i, 8, 9, judgment of Fitzgerald,J.
7 This statement must be read subject to the limitations stated, p. 174,post.
8 I assume, of course, that the Salvationists meet together, asthey certainly do, for a lawful purpose, and meet quite peaceably, and withoutany intent either themselves to break the peace or to incite others to a breachthereof. The magistrates, however, could require the members of the SkeletonArmy, or perhaps even the members of the Salvation Army, to find sureties forgood behaviour or to keep the peace. Compare Kenny, Outlines of Criminal Law(3rd ed.), pp. 282, 486; Wise v. Dunning [1902], iK. B. 167.
to walk down the High Street is not, as a rule,9 taken awayby the threat of X to knock A down if A takes his proposed walk.It is true that A's going into the High Street may lead to a breach ofthe peace, but A no more causes the breach of the peace than a man whosepocket 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 walkdown the High Street is not affected by the threats of X, the right of A, B,and C to march down the High Street together is not diminished by theproclamation of X, Y, and Z that they will not suffer
A, B, and C to take their walk. Nor does it make any differencethat A,
B, and C call themselves the Salvation Army, or that X, Y, and Zcall themselves the Skeleton Army. The plain principle is that A's rightto do a lawful act, namely, walk down the High Street, cannot be diminished byX's threat to do an unlawful act, namely, to knock A down. This is theprinciple established, or rather illustrated, by the case of Beatty v.Citibanks.10 The Salvation Army met together atWeston-super-Mare with the knowledge that they would be opposed by the SkeletonArmy. The magistrates had put out a notice intended to forbid the meeting. TheSalvationists, however, assembled, were met by the police, and told to obey thenotice. X, one of the members, declined to obey and was arrested. He wassubsequently, with others, convicted by the magistrates of taking part in anunlawful assembly. It was an undoubted fact that the meeting of the SalvationArmy was likely to lead to an attack by the Skeleton Army, and in this sensecause a breach of the peace. The conviction, however, of X by the magistrateswas quashed on appeal to the Queen's Bench Division.
Field, J. says:
What has happened here is that an unlawful organisation [the SkeletonArmy] has assumed to itself the right to prevent the appellants and others fromlawfully 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 compare Humphries v. Connor, 17 Ir.C. L. R. i.
10 9 Q. B. D. 308.
his doing it may cause another to do an unlawful act. There is noauthority for such a proposition.u
The principle here laid down is thus expressed by an Irish judge in acase which has itself received the approval of the English King's BenchDivision.12
Much has been said on both sides in the course of the argument about thecase of Beatty v. Citibanks.131 am not sure that Iwould have taken the same view of the facts of that case as was adopted by theCourt that decided it; but I agree with both the law as laid down by theJudges, and their application of it to the facts as they understood them. Theprinciple underlying the decision seems to me to be that an act innocent initself, done with innocent intent, and reasonably incidental to the performanceof a duty, to the carrying on of business, to the enjoyment of legitimaterecreation, or generally to the exercise of a legal right, does not becomecriminal because it may provoke persons to break the peace, or otherwise toconduct themselves in an illegal way.14
Nor is it in general an answer to the claim of, e.g. theSalvationists, to exercise their right of meeting, that whilst such exercisemay excite wrongdoers to break the peace, the easiest way of keeping it is toprevent the meeting, for "if danger arises from the exercise of lawful rightsresulting in a breach of the peace, the remedy is the presence of sufficientforce to prevent that result, not the legal condemnation of those who exercisethose rights."15
n Beatty v. Citibanks, 9 Q. B. D. 308, at p. 314. Beatyv. Glenister, W. N. 1884, p. 93; Reg. v. Justices of Londonderry,28 L. R. Ir. 440; with which contrast Wise v. Dunning [1902],i K. B. 167, and the Irish cases, Humphries v. Connor, 17 Ir. C. L. R.i; Reg. v. M'Naghton, 14 Cox C. C. 572; O'Kelly v. Harvey,14 L. R. Ir. 105.
It is to noted that the King's Bench Division in deciding Wise v.Dunning did not mean to overrule Beatty v. Citibanks, andapparently conceived that they were following Keg. v. Justices ofLondonderry.
See also Appendix, Note V., Questions connected with the Right of PublicMeeting.
12 See Reg. v. Justices of Londonderry, 28 L. R. Ir. 440;Wise v. Dunning [1902], i K. B. 167, 179, judgment of Darling, J.139Q.B. 0.308.
14 The Queen v. Justices of Londonderry, 28 L. R. Ir. 440,pp. 461, 462, judgment of Holmes, J.
15 Reg. v. Justices of Londonderry, 28 L. R. Ir. 440, p. 450,judgment of O'Brien, J.
The principle, then, that a meeting otherwise in every respect lawfuland peaceable is not rendered unlawful merely by the possible or probablemisconduct of wrongdoers, who to prevent the meeting are determined to breakthe peace, is, it is submitted,16 well established, whence itfollows that in general an otherwise lawful public meeting cannot be forbiddenor broken up by the magistrates simply because the meeting may probably ornaturally lead to a breach of the peace on the part of wrongdoers.
To the application of this principle there exist certain limitations orexceptions. They are grounded on the absolute necessity for preserving theKing's peace.
FIRST LIMITATION
If there is anything unlawful in the conduct of the persons convening oraddressing a meeting, and the illegality is of a kind which naturally provokesopponents to a breach of the peace, the speakers at and the members of themeeting may be held to cause the breach of the peace, and the meeting itselfmay thus become an unlawful meeting. If, for example, a Protestantcontroversialist surrounded by his friends uses in some public place wherethere is a large Roman Catholic population, abusive language which is in factslanderous of Roman Catholics, or which he is by a local by-law forbidden touse in the streets, and thereby provokes a mob of Roman Catholics to break thepeace, the meeting may become an unlawful assembly. And the same result mayensue where, though there is nothing in the mode in which the meeting iscarried on which provokes a breach of the
16 Wise v. Dunning [1902], i K. B. 167, or rather someexpressions used in the judgments in that case, may undoubtedly be cited aslaying down the broader rule, that a public meeting in itself lawful, andcarried on, so far as the promoters and the members of it are concerned,perfectly peaceably, may become unlawful solely because the natural consequenceof the meeting will be to produce an unlawful act, viz. a breach of the peaceon the part of opponents (see pp. 175, 176, judgment of Alverstone, C. J.; p.178, judgment of Darling,}.; pp. 179, 180, judgment of Channell, J.). Itshould be noted, however, that Wise v. Dunning has reference, not to thecirc*mstances under which a meeting becomes an unlawful assembly, but to thedifferent question, what are the circ*mstances under which a person may berequired to find sureties for good behaviour? (see Kenny, Outlines ofCriminal Law, p. 486).
(2) Where meeting lawful but peace can only be kept by dispersing it.
peace, yet the object of the meeting is in itself not strictly lawful,and may therefore excite opponents to a breach of the peace.17
SECOND LIMITATION
Where a public meeting, though the object of the meeting and the conductof the members thereof are strictly lawful, provokes a breach of the peace, andit is impossible to preserve or restore the peace by any other means than bydispersing the meeting, then magistrates, constables, and other persons inauthority may call upon the meeting to disperse, and, if the meeting does notdisperse, it becomes an unlawful assembly.18 Let us suppose, forexample, that the Salvation Army hold a meeting at Oxford, that a so-calledSkeleton Army come together with a view to preventing the Salvationists fromassembling, and that it is in strictness impossible for the peace to bepreserved by any other means than by requiring the Salvationists to disperse.Under these circ*mstances, though the meeting of the Salvation Army is initself perfectly lawful, and though the wrongdoers are the members of theSkeleton Army, yet the magistrates may, it would seem, if they can in no otherway preserve the peace, require the Salvationists to disperse, and if theSalvationists do not do so, the meeting becomes an unlawful assembly; and it ispossible that, if the magistrates 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 themeeting.19 But the only justification for preventing theSalvationists from exercising their legal rights is the necessity of thecase. If the peace can be preserved, not by breaking up an otherwise lawfulmeeting, but by arresting the wrongdoers in this case the Skeleton Army the
17 Compare Wise v. Dunning [1902], i K. B. 167, and O'Kelly v.Harvey, 14 L. R. Ir. 105.
18 See especially O'Kelly v. Harvey, 14 L. R. Ir. 105.
19 It is particularly to be noted that in O'Kelly v. Harvey, 14L. R. Ir. 105, the case in which is carried furthest the right of magistratesto preserve the peace by dispersing a lawful meeting, X, the magistrate againstwhom an action for assault was brought, believed that there would be a breachof the peace if the meeting broken up continued assembled, and that there wasno other way by which the breach of the peace could be avoided but by stoppingand dispersing the meeting. Ibid. p. 109, judgment of Law, C.
:ations >htof c
ine ally itions dill om.
magistrates or constables are bound, it is submitted, to arrest thewrongdoers and to protect the Salvationists in the exercise of their lawfulrights.20
One point, however, deserves special notice since it is apt to beoverlooked.
The limitations or restrictions which arise from the paramount necessityfor preserving the King's peace are, whatever their extent, and as totheir exact extent some fair doubt exists, in reality nothing else thanrestraints, which, for the sake of preserving the peace, are imposed upon theordinary freedom of individuals.
Thus if A, a religious controversialist, acting alone and unaccompaniedby friends and supporters, addresses the public in, say, the streets ofLiverpool, and uses language which is defamatory or abusive, or, without beingguilty of defamation, uses terms of abuse which he is by a local by-lawforbidden to use in the streets, and thereby, as a natural result of hisoratory, excites his opponents to a breach of the peace, he may be held liablefor the wrongful acts of which his language is the cause though not the legaljustification, and this though he does not himself break the peace, nor intendto cause others to violate it. He may, certainly, be called upon to findsureties for his good behaviour, and he may, probably, be prevented by thepolice from continuing addresses which are exciting a breach of the peace, for
the cases with respect to apprehended breaches of the peace show thatthe law does regard the infirmity of human temper to the extent of consideringthat a breach of the peace, although an illegal act, may be the naturalconsequence 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 and to preventhim from pursuing a course which in itself is perfectly legal. Thus A, azealous Protestant lady, walks through a crowd of Roman Catholics wearing aparty emblem, namely, an orange lily,
20 This is particularly well brought out in O'Kelly v. Harvey,14 L. R. Ir. 105.
21 Wise v. Dunning [1902], i K. B. 167, at pp. 179, 180,judgment of Channell, J.
Meeting not made unlawful by official proclamation of its illegality.
which under the circ*mstances of the case is certain to excite, and doesexcite, the anger of the mob. She has no intention of provoking a breach of thepeace, she is doing nothing which is in itself unlawful; she exposes herself,however, to insult, and to pressing danger of public attack. A riot has begun;X, a constable who has no other means of protecting A, or ofrestoring the peace, requests her to remove the lily. She refuses to do so. Hethen, without use of any needless force, removes the flower and therebyrestores the peace. The conduct of X is apparently legal, and A has no groundof 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 werewithin their rights, but that the King's peace could not be restored withoutcompelling A to remove the lily.22
No public meeting, further, which would not otherwise be illegal,becomes so (unless in virtue of some special Act of Parliament) in consequenceof any proclamation or notice by a Secretary of State, by a magistrate, or byany other official. Suppose, for example, that the Salvationists advertisethroughout the town that they intend holding a meeting in a field which theyhave hired near Oxford, that they intend to assemble in St. Giles's and marchthence with banners flying and bands playing to their proposed place ofworship. Suppose that the Home Secretary thinks that, for one reason oranother, it is undesirable that the meeting should take place, and servesformal notice upon every member of the army, or on the officers who are goingto conduct the so-called "campaign" at Oxford, that the gath-
22 Humphries v. Connor, 17 Ir. C. L. R. i. The case isvery noticeable; it carries the right of magistrates or constables to interferewith the legal conduct of A, for the sake of preventing or terminating abreach 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 Irishjudge has doubted whether it was not in this case carried too far. "I do notsee where we are to draw the line. If [X] is at liberty to take a lily from oneperson [A] because the wearing of it is displeasing to others, who may make itan excuse for a breach of the peace, where are we to stop? It seems to me thatwe 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 theQueen's subjects, which, if carried into effect to the full extent of theprinciple, might be accompanied by constitutional danger. If it had beenalleged that the lady wore the emblem with an intent to provoke a breach of thepeace, it would render her a wrongdoer; and she might be chargeable as a personcreating a breach of the peace,"Humphries v. Connor, 17Ir. C. L.R. i, at pp. 8, 9, per Fitzgerald, J.
ering must not take place. This notice does not alter the character ofthe meeting, though, if the meeting be illegal, the notice makes any one whor*ads it aware of the character of the assembly, and thus affects hisresponsibility for attending it.23 Assume that the meeting wouldhave been lawful if the notice had not been issued, and it certainly will notbecome unlawful because a Secretary of State has forbidden it to take place.The proclamation has under these circ*mstances as little legal effect as wouldhave a proclamation from the Home Office forbidding me or any other person towalk down the High Street. It follows, therefore, that the government haslittle 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 unlawfulbecause of the mode in which they are conducted. This is certainly a singularinstance of the way in which adherence to the principle that the properfunction of the state is the punishment, not the prevention, of crimes,deprives the executive of discretionary authority.
A meeting, lastly, may be lawful which, nevertheless, any wise orpublic-spirited person would hesitate to convene. For A, B, and C may have aright to hold a meeting, although their doing so will as a matter of factprobably excite opponents to deeds of violence, and possibly produce bloodshed.Suppose a Protestant zealot were to convene a meeting for the purpose ofdenouncing the evils of the confessional, and were to choose as the scene ofthe open-air gathering some public place where meetings were usually held inthe midst of a large town filled with a population of Roman Catholic poor. Themeeting would, it is conceived, be lawful, but no one can doubt that it mightprovoke violence on the part of opponents. Neither the government, however, northe magistrates could (it is submitted), as a rule, at any rate, prohibit andprevent the meeting from taking place. They might, it would seem, prevent themeeting if the Protestant controversialist and his friends intended to pursue acourse of conduct, e.g. to give utterance to libellous abuse, whichwould be both illegal and might naturally produce a breach of the peace, or ifthe
23 See Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n.s.)543.
circ*mstances were such that the peace could not be preserved otherwisethan by preventing the meeting.24 But neither the government nor themagistrates can, it is submitted, solely on the ground that a public meetingmay provoke wrongdoers to a breach of the peace, prevent loyal citizens frommeeting together peaceably and for a lawful purpose. Of the policy or of theimpolicy of denying to the highest authority in the state very wide power totake in their discretion precautionary measures against the evils which mayflow from the injudicious exercise of legal rights, it is unnecessary here tosay anything. The matter which is worth notice is the way in which the rules asto the right of public meeting illustrate both the legal spirit of ourinstitutions and the process by which the decisions of the courts as to therights of individuals have in effect made the right of public meeting a part ofthe law of the constitution.
24 See pp. 171-172, ante, and compare O'Kelly v.Harvey, 14 L. R. Ir. 105, with Reg. v. Justices of Londonderry,28 L. R. Ir. 440, and Wise v. Dunning [1902], i K. B. 167,with Beatty v. Citibanks, 9 Q. B. D. 308. And the magistratesmight probably bind over the conveners of the meeting to find sureties fortheir 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 berequired to find sureties for good behaviour, or to keep the peace, if there bereasonable grounds to fear that he may commit some offence, or may inciteothers to do so, or even that he may act in some manner which would naturallytend to induce other people (against his desire) to commit one." Kenny,Outlines of Criminal Law, p. 486.
Chapter VIII
MARTIAL LAW
towards the executive, they are part, and a most important part, of thelaw 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 of citizensagainst any servant of the Crown. This is the significance of the assertionthat in this country the law of the constitution is part of the ordinary law ofthe land. The fact that a Secretary of State cannot at his discretion and forreasons of state arrest, imprison, or punish any man, except, of course, wherespecial powers are conferred upon him by statute, as by an Alien Act or by anExtradition Act, is simply a result of the principle that a Secretary of Stateis governed in his official as in his private conduct by the ordinary law ofthe realm. Were the Home Secretary to assault the leader of the Opposition in afit of anger, or were the Home Secretary to arrest him because he thought hispolitical opponent's freedom dangerous to the state, the Secretary of Statewould in either case be liable to an action, and all other penalties to which aperson exposes himself by committing an assault. The fact that the arrest of aninfluential politician whose speeches might excite disturbance was a strictlyadministrative act would afford no defence to the Minister or to the constableswho obeyed his orders.
The subjects treated of in this chapter and in the next three chaptersdearly belong to the field of constitutional law, and no one would think ofobjecting to their treatment in a work on the law of the constitution that theyare really part of private law. Yet, if the matter be looked at carefully, itwill be found that, just as rules which at first sight seem to belong to thedomain of private law are in reality the foundation of constitutionalprinciples, so topics which appear to belong manif estiy to the law ofconstitution depend with us at bottom on the principles of private or ofcriminal law. Thus the position of a soldier is in England governed, as weshall see, by the principle, that though a soldier is subject to specialliabilities in his military capacity, he remains while in the ranks, as he waswhen out of them, subject to all the liabilities of an ordinary citizen. So,from a legal point of view, ministerial responsibility is simply oneapplication of the doctrine
The rights already treated of in the foregoing chapter, as for examplethe right to personal freedom or the right to free expression of opinion, donot, it maybe suggested, properly belong to the province of constitutional lawat all, but form part either of private law strictly so called, or of theordinary criminal law. Thus A's right to personal freedom is, it may besaid, only the right of A not to be assaulted, or imprisoned, by X,or (to look at the same thing from another point of view) is nothing elsethan the right of A, if assaulted by X, to bring an action against X,or to have X punished as a criminal for the assault. Now in this suggestionthere lies an element of important truth, yet it is also undoubted that theright to personal freedom, the right to free discussion, and the like, appearin the forefront of many written constitutions, and are in fact the chiefadvantages which citizens hope to gain by the change from a despotic to aconstitutional form of government.
The truth is that these rights may be looked upon from two points ofview. They may be considered simply parts of private or, it may be, of criminallaw; thus the right to personal freedom may, as already pointed out, be lookedat as the right of A not to have the control of his body interfered withby X. But in so far as these rights hold good against the governing body in thestate, or in other words, in so far as these rights determine the relation ofindividual citizens
which pervades English law,1 that no one can plead thecommand of a superior, were it the order of the Crown itself, in defence ofconduct otherwise not justified by law.
Turn the matter which way you will, you come back to the all-importantconsideration on which we have already dwelt, that whereas under many foreignconstitutions the rights of individuals flow, or appear to flow, from thearticles of the constitution, in England the law of the constitution is theresult, not the source of the rights of individuals. It becomes, too, more andmore apparent that the means by which the Courts have maintained the law of theconstitution have been the strict insistence upon the two principles, first of"equality before the law," which negatives exemption from the liabilities ofordinary citizens or from the jurisdiction of the ordinary Courts, and,secondly, of "personal responsibility of wrongdoers," which excludes the notionmat any breach of law on the part of a subordinate can be justified by theorders of his superiors; the legal dogma, as old at least as the time of Edwardthe Fourth, that, if any man arrest another without lawful warrant, even by theKing's command, he shall not be excused, but shall be liable to an action forfalse imprisonment, is not a special limitation imposed upon the royalprerogative, but the application to acts done under royal orders of thatprinciple of individual responsibility which runs through the whole law oftorts.2
"Martial law,"3 in the proper sense of that term, in which itmeans the suspension of ordinary law and the temporary government of a countryor parts of it by military tribunals, is unknown to the law ofEngland.4 We have nothing equivalent to what is called in France the
1 See Mommsen, Romische Staatsrecht, p. 672, for the existence ofwhat seems to have been a similar principle in early Roman law.
2 SeeHearn, Government of England (2nd ed.), chap, iv.; andcompare Gardiner, History, x. pp. 144, 145.
3 SeeForsyth, Opinions, pp. 188-216,481-563; Stephen, Historyof the Criminal Law, i. pp. 201-216; Rex v. Pinney, 5 C.& P. 254; 3 St. Tr. (n. s.) 11; Reg. v. Vincent, 9 C. & P. 91; 3St. Tr. (n. s.) 1037; Reg. v. Neale, 9 C. & P. 431.
4 This statement has no reference to the law of any other country thanEngland, even though such country may form part of the British Empire. Withregard to England in time of peace the statement is certainly true. As to howfar, if at all, it ought to be qualified with
In what sense martial law recognised by English law.
"Declaration of the State of Siege,"5 under which theauthority ordinarily vested in the civil power for the maintenance of order andpolice passes entirely to the army (autorite militaire). This is anunmistakable proof of the permanent supremacy of the law under ourconstitution.
The assertion, however, that no such thing as martial law exists underour system of government, though perfectly true, will mislead any one who doesnot attend carefully to the distinction between two utterly different senses inwhich the term "martial law" is used by English writers.
Martial law is sometimes employed as a name for the common law right ofthe Crown and its servants to repel force by force in the case of invasion,insurrection, riot, or generally of any violent resistance to the law. Thisright, or power, is essential to the very existence of orderly government, andis most assuredly recognised in the most ample manner by the law of England. Itis a power which has in itself no special connection with the existence of anarmed force. The Crown has the right to put down breaches of the peace. Everysubject, whether a civilian or a soldier, whether what is called a "servant ofthe government," such for example as a policeman, or a person in no wayconnected with the administration, not only has the right, but is, as a matterof legal duty,6 bound to assist in putting down breaches of thepeace. No doubt policemen or soldiers are the persons who, as being speciallyemployed in the maintenance of order, are most generally called upon tosuppress a riot, but it is dear that all loyal subjects are bound to take theirpart in the suppression of riots.
It is also dear that a soldier has, as such, no exemption from liabilityto the law for his conduct in restoring order. Officers, magistrates,
regard to a state of war, see Appendix, Note X., Martial Law in Englandduring Time of War or Insurrection.
5 See Lot sur I'etat de siege, yAout 1849, Roger etSorel,Codes el Lois, p. 436; Loi ^AvriltSrJB, art. i, and generallyDuguit, Manuel de Droit Constitutionnel, s. 76, pp. 510-513, 926. See p.i86,pos(.
6 Compare Miller v. Knox, 6 Scott i. See statement ofCommissioners including Bowen, L. J., andR. B. Haldane, Q. C., for Inquiringinto the Disturbances at Featherstone in 1893 [C. 7234], and see Appendix, NoteVI., Duty of Soldiers called upon to disperse Unlawful Assembly.
soldiers, policemen, ordinary citizens, all occupy in the eye of the lawthe same position; they are, each and all of them, bound to withstand and putdown breaches of the peace, such as riots and other disturbances; they are,each and all of them authorised to employ so much force, even to the taking oflife, as may be necessary for that purpose, and they are none of them entitledto use more; they are, each and all of them, liable to be called to accountbefore a jury for the use of excessive, that is, of unnecessary force; they areeach, it must be added for this is often forgotten liable, intheory at least, to be called to account before the Courts for non-performanceof their duty as citizens in putting down riots, though of course the degreeand kind of energy which each is reasonably bound to exert in the maintenanceof order may depend upon and differ with his position as officer, magistrate,soldier, or ordinary civilian. Whoever doubts these propositions should studythe leading case of Rex v. Pinney,7 in which was fullyconsidered the duty of the Mayor of Bristol in reference to the Reform Riots of1831.
So accustomed have people become to fancy that the maintenance of thepeace is the duty solely of soldiers or policemen, that many students willprobably feel surprise on discovering, from the doctrine laid down in Rex v.Pinney, how stringent are the obligations of a magistrate in time oftumult, and how unlimited is the amount of force which he is bound to employ insupport of the law. A student, further, must be on his guard against beingmisled, as he well might be, by the language of the Riot Act.8 Thatstatute provides, in substance, that if twelve rioters continue together for anhour after a magistrate has made a proclamation to them in the terms of the Act(which proclamation is absurdly enough called reading the Riot Act) orderingthem to disperse, he may command the troops to fire upon the rioters or chargethem sword in hand.9 This, of course, is not the language, but it isthe effect of the enactment. Now the error into which an uninstructed reader islikely to fall, and into which magis-
7 5 C. & P. 254; 3 St. Tr. (n. s.) 11.
8 i Geo. I. stat. 2, c. 5.
9 See Stephen, History of the Criminal Law, i. pp. 202-205.
In what sense martial law not recognised by English law.
trates and officers have from time to time (and notably during theGordon riots of 1780) in fact fallen, is to suppose that the effect of the RiotAct is negative as well as positive, and that, therefore, the military cannotbe employed without the fulfilment of the conditions imposed by the statute.This notion is now known to be erroneous; the occasion on which force can beemployed, and the kind and degree of force which it is lawful to use in orderto put down a riot, is determined by nothing else than the necessity of thecase.
If, then, by martial law be meant the power of the government or ofloyal citizens to maintain public order, at whatever cost of blood or propertymay be necessary, martial law is assuredly part of the law of England. Even,however, as to this kind of martial law one should always bear in mind that thequestion whether the force employed was necessary or excessive will, especiallywhere death has ensued, be ultimately determined by a judge andjury,10 and that the estimate of what constitutes necessary forceformed by a judge and jury, sitting in quiet and safety after the suppressionof a riot, may differ considerably from the judgment formed by a general ormagistrate, who is surrounded by armed rioters, and knows that at any moment ariot may become a formidable rebellion, and the rebellion if unchecked become asuccessful revolution.
Martial law is, however, more often used as the name for the governmentof a country or a district by military tribunals, which more or less supersedethe jurisdiction of the Courts. The proclamation of martial law in this senseof the term is, as has been already pointed out,11 nearly equivalentto the state of things which in France and many other foreign countries isknown as the declaration of a
10 This statement does not contradict anything decided by Ex parte D.F. Marais [1902], A. C. 109, nor is it inconsistent with the language usedin the judgment of the Privy Council, if that language be strictly construed,as it ought to be, in accordance with the important principles that, first, "acase is only an authority for what it actually decides" (Quinn v.Leathern [1901], A. C. 506, judgment of Halsbury, L. C.), and, secondly,"every judgment must be read as applicable to the particular facts proved, orassumed to be proved, since the generality of the expressions which may befound there are not intended to be expositions of the whole law, but governedand qualified by the particular facts of the case in which such expressions areto be found" (ibid.).
11 Seep. 182, ante.
ench jw as to ate of ege.
"state of siege," and is in effect the temporary and recognisedgovernment of a country by military force. The legal aspect of this conditionof affairs in states which recognise the existence of this kind of martial lawcan hardly be better given than by citing some of the provisions of the lawwhich at the present day regulates the state of siege in France:
7. Aussitot I'etat de siege declare, les pouvoirs dont I'autoritecivile etait revetue pour le maintien de I'ordre et de la police passent toutentiers a I'autorite militaire. L'autorite civile continueneanmoins a exercer ceux de ces pouvoirs dont I'autorite militaire ne I'a pasdessaisie.
8. Lest ribunaux militaires peuvent etre saisis de la connaissancedes crimes et delits contre la siirete de la Republique, contre laconstitution, centre I'ordre et la paix publique, quelle que soit la qualitedes auteurs principaux et des complices.
9. L'autorite militaire a le droit, 1° De faire desperquisitions, dejour et de nuit, dans le domicile des titoyens; 2° D'eloigner les repris de justice et les individus qui n'ontpas leurdomicile dans les lieux, soumis a I'etat de siege; 3°D'ordonner la remise des armes et munitions, et de proceder a leur rechercheeta leur enlevement; 4° D'interdire les publications et lesreunions qu'ellejuge de nature a exciter ou a entretenir ledesordre.12
We may reasonably, however, conjecture that the terms of the law givebut a faint conception of the real condition of affairs when, in consequence oftumult or insurrection, Paris, or some other part of France, is declared in astate of siege, and, to use a significant expression known to some continentalcountries, "the constitutional guarantees are suspended." We shall hardly gofar wrong if we assume that, during this suspension of ordinary law, any manwhatever is liable to arrest, imprisonment, or execution at the will of amilitary tribunal consisting of a few officers who are excited by the passionsnatural to civil war. However this may be, it is dear that in France, evenunder the present Republican government, the suspension of law involved in theproclamation of a state of siege is a thing fully recognised by theconstitution, and (strange though the fact may appear) the authority ofmilitary Courts during a state of siege is greater under the Republic than itwas under the monarchy of Louis Philippe.13
12 Roger et Sorel, Codes et Lois, pp. 436, 437.
13 See Geoffroy's Case, 24 Journal du Palais, p. 1218,cited by Forsyth, Opinions, p. 483. Conf.,
Now, this kind of martial law is in England utterly unknown to theconstitution. Soldiers may suppress a riot as they may resist an invasion, theymay fight rebels just as they may fight foreign enemies, but they have no rightunder the law to inflict punishment for riot or rebellion. During the effort torestore peace, rebels may be lawfully killed just as enemies may be lawfullyslaughtered in battle, or prisoners may be shot to prevent their escape, butany execution (independently of military law) inflicted by a Court-martial isillegal, and technically murder. Nothing better illustrates the noble energywith which judges have maintained the rule of regular law, even at periods ofrevolutionary violence, than Wolfe Tone's Case.14 In 1798,Wolfe Tone, an Irish rebel, took part in a French invasion of Ireland. Theman-of-war in which he sailed was captured, and Wolfe Tone was brought to trialbefore a Court-martial in Dublin. He was thereupon sentenced to be hanged. Heheld, however, no commission as an English officer, his only commission beingone from the French Republic. On the morning when his execution was about totake place application was made to the Irish King's Bench for a writ ofhabeas corpus. The ground taken was that Wolfe Tone, not being amilitary person, was not subject to punishment by a Court-martial, or, ineffect, that the officers who tried him were attempting illegally to enforcemartial law. The Court of King's Bench at once granted the writ. When it isremembered that Wolfe Tone's substantial guilt was admitted, that the Court wasmade up of judges who detested the rebels, and that in 1798 Ireland was in themidst of a revolutionary crisis, it will be admitted that no more splendidassertion of the supremacy of the law can be found than the protection of WolfeTone by the Irish Bench.
however, for statement of limits imposed by French law on action ofmilitary authorities during state of siege, Duguit, Manuel de DroitConstitutionnel, pp. 512, 513. 14 27 St. Tr. 614.
Chapter IX
THE ARMY'
Th ;
The English army may for the purposes of this treatise be treated asconsisting of the Standing Army or, in technical language, the RegularForces2 and of the Territorial Force,3 which, like theMilitia,4 is a territorial army for the defence of the UnitedKingdom. Each of these forces has been rendered subordinate to the law of theland. My object is not to give even an outline of the enactments affecting thearmy, but simply to explain the legal principles on which this supremacy of thelaw throughout the army has been secured.
1 See Stephen, Commentaries, ii. bookiv. chap, viii.;Gneist, Das Englische Verwaltungsrecht, ii. 952-966; Manual ofMilitary Law.
As to Standing Army, i Will. & Mary, c. 5; see the ArmyDiscipline and Regulation Act, 1879, 42 & 43 Viet. c. 33; the Army Act,i.e. the Army Act, 1881, 44 & 45 Viet. c. 58, with the amendmentsmade up to 1907.
2 "The expressions 'regular forces' and 'His Majesty's regular forces'mean officers and soldiers who by their commission, terms of enlistment, orotherwise, are liable to render continuously for a term military service to HisMajesty in any part of the world, including, subject to the modifications inthis Act mentioned, the Royal Marines and His Majesty's Indian forces and theRoyal Malta Artillery, and subject to this qualification, that when the reserveforces are subject to military law such forces become during the period oftheir being so subject part of the regular forces" (Army Act, s. 190 (8)).
3 See the Territorial and Reserve Forces Act, 1907 (7 Edw. VII. c. 9),especially s. 6, s. i, sub-s. (6), and the Army Act.
4 Tlie Militia the Territorial and Reserve Forces Act,1907, does not repeal the various Militia Acts. Until these Acts are repealedthe statutory power of raising the militia, either regular or local, and offorming thereof regiments and corps will continue to exist. (For the lawregulating the militia see 13 Car. II. stat. i. c. 6; 14 Car. II. c. 3; 15 Car.II. c. 4; the Militia
Standing Army. Its existence reconciled with Parliamentary government bythe annual Mutiny Acts.
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 little about the regularforces, or what we now call the "army." The reason of this is that historicallythe militia is an older institution than the permanent army, and the existenceof a standing army is historically, and according to constitutional theories,an anomaly. Hence the standing army has often been treated by writers ofauthority as a sort of exceptional or subordinate topic, a kind of excrescence,so to speak, on the national and constitutional force known as themilitia.5 As a matter of fact, of course, the standing army is nowthe real national force, and the territorial force is a body of secondaryimportance.
THE STANDING ARMY
A permanent army of paid soldiers, whose main duty is one of absoluteobedience to commands, appears at first sight to be an institution inconsistentwith that rule of law or submission to the civil authorities, and especially tothe judges, which is essential to popular
Act, 1802, 42 Geo. III. c. 90; Militia Act, 1882,45 & 46 Viet. c.49; and Regulation of the Forces Act, 1881,44 & 45 Viet. c. 57.) Themilitia as long as it exists is in theory a local force levied by conscription,but the power of raising it by ballot has been for a considerable timesuspended, and the militia has been in fact recruited by voluntary enlistment.Embodiment converts the militia into a regular army, but an army which cannotbe called upon to serve abroad. Embodiment can lawfully take place only in case"of imminent national danger or of great emergency," the occasion being firstcommunicated to Parliament if sitting, or if not sitting, proclaimed by Orderin Council (Militia Act, 1882, s. 18; 2 Steph. Comm. (1401 ed.) p. 469). Themaintenance of discipline among the members of the militia when embodieddepends on the passing of the Army (Annual) Act, or in popular language, on thecontinuance of the Mutiny Act (see p. 232, post).
The position of the militia, however, is affected by the Territorial andReserve Forces Act, 1907, in two ways:
(1) All the units of the general (or regular) militia may, and will, itis 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, ceaseto exist as such.
The actual position of the militia, however, until the Acts on which itsexistence depends have been repealed, is worth noting, as it is conceivablethat Parliament may think it worth while to keep alive the historical right ofthe Crown to raise the militia. 5 In the seventeenth century Parliamentapparently meant to rely for the defence of England upon this national armyraised from the counties and placed under the guidance of country gentlemen.See 14 Car. II. c. 3.
or Parliamentary government; and in truth the existence of permanentpaid forces has often in most countries and at times in England notablyunder the Commonwealth been found inconsistent with the existence ofwhat, by a lax though intelligible mode of speech, is called a freegovernment.6 The belief, indeed, of our statesmen down to a timeconsiderably later than the Revolution of 1689 was that a standing army must befatal to English freedom, yet very soon after the Revolution it became apparentthat the existence of a body of paid soldiers was necessary to the safety ofthe nation. Englishmen, therefore, at the end of the seventeenth and thebeginning of the eighteenth centuries, found themselves placed in this dilemma.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 ofnational independence. Yet English statesmanship found almost by accident apractical escape from this theoretical dilemma, and the Mutiny Act, though anenactment passed in a hurry to meet an immediate peril, contains the solutionof an apparently insolvable problem.
In this instance, as in others, of success achieved by what is calledthe practical good sense, the political instinct, or the statesmanlike tact ofEnglishmen, we ought to be on our guard against two errors.
We ought not, on the one hand, to fancy that English statesmen actedwith some profound sagacity or foresight peculiar to themselves, and not to befound among the politicians of other countries. Still less ought we, on theother, to imagine that luck or chance helps Englishmen out of difficulties withwhich the inhabitants of other countries cannot cope. Political common sense,or political instinct, means little more than habitual training in the conductof affairs; this
6 See, e.g. Macaulay, History, iii. pp. 42-47. "Throughoutthe period [of the Civil War and the Interregnum] the military authoritiesmaintained with great strictness their exclusive jurisdiction over offencescommitted both by officers and soldiers. More than once conflicts took placebetween the civil magistrates and the commanders of the army over thisquestion." Firth, Cromwell's Army, p. 310, Mr. Firth givesseveral examples (pp. 310-312) of the assertion or attempted assertion of theauthority of the civil power even during a period of military predominance.
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 principles of government thanhave till recently prevailed in other lands. The statesmen of the Revolutionsucceeded in dealing with difficult problems, not because they struck out newand brilliant ideas, or because of luck, but because the notions of law andgovernment which had grown up in England were in many points sound, and becausethe statesmen of 1689 applied to the difficulties of their time the notionswhich were habitual to the more thoughtful Englishmen of the day. The positionof the army, in fact, was determined by an adherence on the part of the authorsof the first Mutiny Act to the fundamental principle of English law, that asoldier may, like a clergyman, incur special obligations in his officialcharacter, but is not thereby exempted from the ordinary liabilities ofcitizenship.
The object and principles of the first Mutiny Act7 of 1689are exactly the same as the object and principles of the Army Act,8under which the English army is in substance now governed. A comparison of thetwo statutes shows at a glance what are the means by which the maintenance ofmilitary discipline has been reconciled with the maintenance of freedom, or, touse a more accurate expression, with the 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 anykind of 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 shallbe, raised during this exigence of affairs, in their duty an exact disciplinebe observed; and that soldiers who shall mutiny or stir up sedition, or shalldesert their majesties' service, be brought to a more exemplary and speedypunishment than the usual forms of law will allow.9
7 i Will. & Mary, c. 5.
8 Combined with the Army (Annual) Act, passed each year.
9 See Clode, Military Forces of the Crown, i. p. 499. Compare 47Viet. c. 8. The variations in the modern Acts, though slight, are instructive.
This recital states the precise difficulty which perplexed the statesmenin 1689. 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 militarylaw,"10 stands in a two-fold relation: the one is his relationtowards his fellow-citizens outside the army; the other is his relation towardsthe members of the army, and especially towards his military superiors; anyman, in short, subject to military law has duties and rights as a citizen aswell as duties and rights as a soldier. His position is each respect is underEnglish law governed by definite principles.
A SOLDIER'S POSITION AS A CITIZEN
The fixed doctrine of English law is that a soldier, though a member ofa standing army, is in England subject to all the duties and liabilities of anordinary citizen. "Nothing in this Act contained" (so runs the first MutinyAct) "shall extend or be construed to exempt any officer or soldier whatsoeverfrom the ordinary process of law."11 These words contain the due toall our legislation with regard to the standing army whilst employed in theUnited Kingdom. A soldier by his contract of enlistment undertakes manyobligations in addition to the duties incumbent upon a civilian. But he doesnot escape from any of the duties of an ordinary British subject.
The results of this principle are traceable throughout the Mutiny Acts.
10 Part V. of the Army Act points out who under English law are "personssubject to military law," that is to say, who are liable to be tried andpunished by Court-martial for military, and in some circ*mstances for civil,offences under the provisions of the Act.
For our present purpose such persons (speaking broadly at any rate)appear to come within three descriptions: first, persons belonging tothe regular forces, or, in popular language, the standing army (see Army Act,ss. 175 (i), 190 (8)); secondly, persons belonging to the territorial force, incertain circ*mstances, viz. when they are being trained, when acting with anyregular forces, when embodied, and when called out for actual military servicefor purposes of defence (Army Act, ss. 176, 190 (6) (a)); thirdly, persons notbelonging to the regular forces or to the auxiliary forces who are eitheremployed by, or followers of, the army on active service beyond the seas(ibid. s. 176 (9) (10)). The regular forces include the Royal Marineswhen on shore and the reserve forces when called out. See Army Act, secs. 175,176; conf. Marks v. Frogley [1898], i Q. B. (C. A.) 888.
11 Will. & Mary, c. 5, s. 6; see Clode, Military Forces of theCrown, i. p. 500.
Criminal liability.
Civil liability.
Order of superiors no defence to charge of crime.
A soldier is subject to the same criminal liability as acivilian.12 He may when in the British dominions be put on trialbefore any competent "civil" (i.e. non-military) Court for any offencefor which he would be triable if he were not subject to military law, and thereare certain offences, such as murder, for which he must in general be tried bya civil tribunal.13 Thus, if a soldier murders a companion or robs atraveller whilst quartered in England or in Van Diemen's Land, his militarycharacter will not save him from standing in the dock on the charge of murderor theft.
A soldier cannot escape from civil liabilities, as, for example,responsibility for debts; the only exemption which he can claim is that hecannot be forced to appear in Court, and could not, when arrest for debt wasallowable, be arrested for any debt not exceeding £30.14
No one who has entered into the spirit of continental legislation canbelieve that (say in France or Prussia) the rights of a private individualwould thus have been allowed to override the claims of the public service.
In all conflicts of jurisdiction between a military and a civil Courtthe authority of the civil Court prevails. Thus, if a soldier is acquitted orconvicted of an offence by a competent civil Court, he cannot be tried for thesame offence by a Court-martial;15 but an acquittal or conviction bya Court-martial, say for manslaughter or robbery, is no plea to an indictmentfor the same offence at the Assizes.16
When a soldier is put on trial on a charge of crime, obedience tosuperior orders is not of itself a defence.17
12 Compare Army Act, secs. 41, 144, 162.
13 Compare, however, the Jurisdiction in Homicide Act, 1862, 25 & 26Viet. c. 65, and Clode, Military Forces of the Crown, i. pp. 206,207.
14 See Army Act, s. 144. Compare Clode, Military Forces of the Crown,i.pp. 207, 208, and Thurston v. Mills, 16 East, 254.
15 Army Act, s. 162, sub-ss. 1-6.
16 Ibid. Contrast the position of the army in relation to the lawof the land in France. The fundamental principle of French law is, as itapparently always has been, that every kind of crime or offence committed by asoldier or person subject to military law must be tried by a military tribunal.See Code de Justice Militaire, arts. 55, 56, 76, 77, andLeFaure,LesLois Militaires, pp. 167, 173.
17 Stephen, History of the Criminal Law, i. pp. 204-206, andcompare Clode, Military Forces of the Crown, ii. pp. 125-155. Theposition of a soldier is curiously illustrated by the following
This is a matter which requires explanation.
A soldier is bound to obey any lawful order which he receives from hismilitary superior. But a soldier cannot any more than a civilian avoidresponsibility for breach of the law by pleading that he broke the law inbona fide obedience to the orders (say) of the commander-in-chief. Hencethe position of a soldier is in theory and may be in practice a difficult one.He may, as it has been well said, be liable to be shot by a Court-martial if hedisobeys an order, and to be hanged by a judge and jury if he obeys it. Hissituation and the line of his duty may be seen by considering how soldiersought to act in the following cases.
During a riot an officer orders his soldiers to fire upon rioters. Thecommand to fire is justified by the fact that no less energetic course ofaction would be sufficient to put down the disturbance. The soldiers are, underthese circ*mstances, dearly bound from a legal, as well as from a military,point of view to obey the command of their officer. It is a lawful order, andthe men who carry it out are performing their duty both as soldiers and ascitizens.
An officer orders his soldiers in a time of political excitement thenand there to arrest and shoot without trial a popular leader against whom nocrime has been proved, but who is suspected of treasonable designs. In such acase there is (it is conceived) no doubt that the
case. X was a sentinel on board the Achille when she was payingoff. "The orders to him from the preceding sentinel were, to keep off allboats, unless they had officers with uniforms in them, or unless the officer ondeck allowed them to approach; and he received a musket, three blankcartridges, and three balls. The boats pressed; upon which he called repeatedlyto 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 tothe jury to find, whether the sentinel did not fire under the mistakenimpression that it was his duty; and they found that he did. But a case beingreserved, the judges were unanimous that it was, nevertheless, murder. Theythought it, however, a proper case for a pardon; and further, they were ofopinion, that if the act had been necessary for the preservation of the ship,as if the deceased had been stirring up a mutiny, the sentinel would have beenjustified." Russell,Crimes and Misdemeanors (4th ed.), i. p. 823,on the authority of Rex v. Thomas, East, T., 1816, MS., Bayley,J. The date of the decision is worth noticing; no one can suppose that thejudges of 1816 were disposed to underrate the rights of the Crown and itsservants. The judgment of the Court rests upon and illustrates theincontrovertible principle of the common la w that the fact of a person being asoldier and of his acting strictly under orders, does not of itself exempt himfrom criminal liability for acts which would be crimes if done by a civilian.
soldiers who obey, no less than the officer who gives the command, areguilty of murder, and liable to be hanged for it when convicted in due courseof law. In such an extreme instance as this the duty of soldiers is, even atthe risk of disobeying their superior, to obey the law of the land.
An officer orders his men to fire on a crowd who he thinks could not bedispersed without the use of firearms. As a matter of fact the amount of forcewhich he wishes to employ is excessive, and order could be kept by the merethreat that force would be used. The order, therefore, to fire is not in itselfa lawful order, that is, the colonel, or other officer, who gives it is notlegally justified in giving it, and will himself be held criminally responsiblefor the death of any person killed by the discharge of firearms. What is, froma legal point of view, the duty of the soldiers? The matter is one which hasnever been absolutely decided; the following answer, given by Mr. JusticeStephen, is, it may fairly be assumed, as nearly correct a reply as the stateof the authorities makes it possible to provide:
I do not think, however, that the question how far superior orders wouldjustify 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 anddetermined. Probably upon such an argument it would be found that the order ofa military superior would justify his inferiors in executing any orders forgiving which they might fairly suppose their superior officer to have goodreasons. Soldiers might reasonably think that their officer had good groundsfor ordering them to fire into a disorderly crowd which to them might notappear to be at that moment engaged in acts of dangerous violence, but soldierscould hardly suppose that their officer could have any good grounds forordering them to fire a volley down a crowded street when no disturbance of anykind was either in progress or apprehended. The doctrine that a soldier isbound under all circ*mstances whatever to obey his superior officer would befatal to military discipline itself, for it would justify the private inshooting the colonel by the orders of the captain, or in deserting to the enemyon the field of battle on the order of his immediate superior. I think it isnot less monstrous to suppose that superior orders would justify a soldier inthe massacre of unoffending civilians in time of peace, or in the exercise ofinhuman cruelties, such as the slaughter of women and children, during arebellion. The only line that presents itself to my mind is that a soldiershould be protected by orders for which he might reasonably believe his officerto have good grounds. The inconvenience of being subject to two jurisdictions,the sympathies of which are not unlikely to be opposed to each
iier's ition as nber of
y-
other, is an inevitable consequence of the double necessity ofpreserving on the one hand the supremacy of the law, and on the other thediscipline of the army.18
The hardship of a soldier's position resulting from this inconvenienceis much diminished by the power of the Crown to nullify the effect of an unjustconviction by means of a pardon.19 While, however, a soldier runs nosubstantial risk of punishment for obedience to orders which a man of commonsense may honestly believe to involve no breach of law, he can under nocirc*mstances escape the chance of his military conduct becoming the subject ofinquiry before a civil tribunal, and cannot avoid liability on the ground ofobedience to superior orders for any act which a man of ordinary sense musthave known to be a crime.20
A SOLDIER'S POSITION AS A MEMBER OF THE ARMY
A citizen on entering the army becomes liable to special duties as being"a person subject to military law." Hence acts which if done by a civilianwould be either no offence at all or only slight misdemeanours, e.g. aninsult or a blow offered to an officer, may when done by a soldier becomeserious crimes and expose the person guilty of them to grave punishment. Asoldier's offences, moreover, can be tried and punished by a Court-martial. Hetherefore in his military character of a soldier occupies a position totallydifferent from that of a civilian; he has not the same freedom, and in additionto his duties as
18 Stephen, History of the Criminal Law of England, i. pp. 205,206. Compare language of Willes,}., in Keighly v. Bell, 4 F.& F. 763. See also opinion of Lord Bowen, cited in Appendix, Note VI., Dutyof Soldiers called upon to disperse an Unlawful Assembly.
19 As also by the right of the Attorney-General as representing theCrown to enter a nolle prosequi. See Stephen, History of the CriminalLaw, i. p. 496, and Archbold, Pleading in Criminal Cases (22nd ed.),p. 125.
20 Buron v. Denman, 2 Ex. 167, is sometimes cited as showing thatobedience to the orders of the Crown is a legal justification to an officer forcommitting a breach of law, but the decision in that case does not, in any way,support the doctrine erroneously grounded upon it. What the judgment inBuron v. Denman shows is, that an act done by an English military ornaval officer in a foreign country to a foreigner, in discharge of ordersreceived from the Crown, may be an act of war, but does not constitute anybreach of law for which an action can be brought against the officer in anEnglish Court. Compare Feather v. The Queen, 6B. &S. 257, 295,perCuriam.
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 a soldier'sown position as a military man, the rule of the ordinary law is, at any rate intime of peace, excluded 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, andwhether a given proceeding, alleged to depend upon military law, is reallyjustified by the rules of law which govern the army.
Hence flow the following (among other) consequences.
The civil Courts determine21 whether a given person is or isnot "a person subject to military law."22
Enlistment, which constitutes the contract23 by which aperson becomes subject to military law, is a civil proceeding, and a civilCourt may sometimes have to inquire whether a man has been duly enlisted, orwhether he is or is not entitled to his discharge.24
If a Court-martial exceeds its jurisdiction, or an officer, whetheracting as a member of a Court-martial or not, does any act not authorised bylaw, the action of the Court, or of the officer, is subject to the supervisionof the Courts.
The proceedings by which the Courts of law supervise the acts ofCourts-martial and of officers may be criminal or civil. Criminal proceedingstake the form of an indictment for assault, false imprisonment, manslaughter,or
21 See Wolfe Tone's Case, 27 St. Tr. 614; Douglas'sCase, 3 Q. B. 825; Fry v. Ogle, cited Manual of MilitaryLaw, chap. vii. s. 41.
22 See Army Act, ss. 175-184.
23 "The enlistment of the soldier is a species of contract between thesovereign and the soldier, and under the ordinary principles of law cannot bealtered without the consent of both parties. The result is that the conditionslaid down in the Act under which a man was enlisted cannot be varied withouthis consent." Manual of Military Law, chap. x. s. 18.
24 See Army Act, s. 96, for special provisions as to the delivering to amaster of an apprentice who, being under twenty-one, has enlisted as a soldier.Under the present law, at any rate, it can very rarely happen that a Courtshould be called upon to consider whether a person is improperly detained inmilitary custody as a soldier. See Army Act, s. 100, sub-ss. 2, 3. The Courtsused to interfere, when soldiers were impressed, in cases of improperimpressment. See Clode, Military Forces, ii. pp. 8, 587.
A civil Court may also be called upon to determine whether a personsubject to military law has, or has not, a right to resign his commission,Hearson v. Churchill [1892], 2 Q. B. (C. A.) 144.
even murder. Civil proceedings may either be preventive, i.e. torestrain the commission or continuance of an injury; or remedial, i.e.to afford a remedy for injury actually suffered. Broadly speaking, thecivil jurisdiction of the Courts of law is exercised as against the tribunal ofa Court-martial by writs of prohibition or certiorari; and as againstindividual officers by actions for damages. A writ of habeas corpus alsomay be directed to any officer, governor of a prison, or other, who has in hiscustody any person alleged to be improperly detained under colour of militarylaw.25
Lastly, the whole existence and discipline of the standing army, at anyrate in time of peace, depends upon the passing of what is known as an annualMutiny Act,26 or in strict correctness of the Army (Annual) Act. Ifthis Act were not in force a soldier would not be bound by military law.Desertion would be at most only a breach of contract, and striking an officerwould be no more than an assault.
THE TERRITORIAL 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 isfrom its nature, in this too like the militia, a body hardly capable of beingused for the overthrow of Parliamentary government. But even with regard to theterritorial force, care has been taken to ensure that it shall be subject tothe rule of law. The members of this local army are (speaking in general terms)subject to military law only when in training or when the force isembodied.27 Embodi-
25 Manual of Military Law, chap. viii. s. 8. It should, however,be noted that the Courts of law will not, in general at any rate, deal withrights dependent on military status and military regulations.
26 The case stands thus: The discipline of the standing army depends onthe Army Act, 1881, 44 & 45 Viet. c. 58, which by s. 2 continues in forceonly for such time as may be specified in an annual Act, which is passedyearly, and called the Army (Annual) Act. This Act keeps in existence thestanding army and continues the Army Act in force. It is therefore, instrictness, 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 onembodiment, a man of the territorial force may be liable to be tried byCourt-martial, though not otherwise subject to military law. (Territorial andReserve Forces Act, 1907, s. 20; see also as to cases of concurrentjurisdiction of a Court-martial and a Court of summary jurisdiction, ibid.ss. 24, 25.)
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 imminentnational danger or great emergency, or unless the emergency requires it, untilParliament has had an opportunity of presenting an address against theembodiment of the territorial force. The general effect of the enactments onthe subject is that, at any rate when there is a Parliament in existence, theembodiment of the territorial force cannot, except under the pressure of urgentnecessity, be carried out without the sanction of Parliament.28 Addto this, that the maintenance of discipline among the members of theterritorial force when it is embodied depends on the continuance in force ofthe Army Act and of the Army (Annual) Act.29
28 Compare the Territorial and Reserve Forces Act, 1907, s. 7, theReserve Forces Act, 1882, ss. 12, 13, and the Militia Act, 1882, s. 18, and seenote 4, p. 188, ante.
29 There exists an instructive analogy between the position of personssubject to military law, and the position of the clergy of the EstablishedChurch.
A clergyman of the National Church, like a soldier of the National Army,is subject to duties and to Courts to which other Englishmen are not subject.He is bound by restrictions, as he enjoys privileges peculiar to his class, butthe clergy are no more than soldiers exempt from the law of the land. Any deedwhich would be a crime or a wrong when done by a layman, is a crime or a wrongwhen done by a clergyman, and is in either case dealt with by the ordinarytribunals.
Moreover, as the Common Law Courts determine the legal limits to thejurisdiction of Courts-martial, so the same Courts in reality determine(subject, of course, to Acts of Parliament) what are the limits to thejurisdiction of ecclesiastical Courts.
The original difficulty, again, of putting the clergy on the samefooting as laymen, was at least as great as that of establishing the supremacyof the civil power in all matters regarding the army. Each of thesedifficulties was met at an earlier date and had been overcome with morecompleteness in England than in some other countries. We may plausiblyconjecture that this triumph of law was due to the acknowledged supremacy ofthe King in Parliament, which itself was due to the mode in which the King,acting together with the two Houses, manifestly represented the nation, andtherefore was able to wield the whole moral authority of the state.
Chapter X
THE REVENUE1
A
Js in treating of the army my aim was simply to point out what were theprinciples determining the relation of the armed forces of the country to thelaw on the land, so in treating of the revenue my aim is not to give even asketch of the matters connected with the raising, the collection, and theexpenditure of the national income, but simply to show that the collection andexpenditure of the revenue, and all things appertaining thereto, are governedby strict rules of law. Attention should be fixed upon three points, thesource of the public revenue the authority for expendingthe public revenue and the securities provided by law for the dueappropriation of the public revenue, that is, for its being expended in theexact manner which the law directs.
SOURCE OF PUBLIC REVENUE
It is laid down by Blackstone and other authorities that the revenueconsists 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 needhardly trouble ourselves at all with the hereditary revenue of the Crown,arising from Crown lands, droits of admiralty, and the
i Stephen, Commentaries, ii. bk. iv. chap, vii.; Hearn,Government of England (2nd ed.), c. 13, pp. 351-388; May,Parliamentary Practice, chap, xxi.; see Exchequer and Audit Act, 1866, 29& 30 Viet. c. 39, and i& 2 Viet. c. 2, s. 2.
like. It forms an insignificant portion of the national resources,amounting to not much more than £500,000 a year. It does not, moreover,at the present moment belong specially to the Crown, for it was commuted at thebeginning of the reign of the present King,2 as it was at thebeginning of the reign of William IV. and of the reign of Queen Victoria, for afixed "civil list,"3 or sum payable yearly for the support of thedignity of the Crown. The whole then of the hereditary revenue is now paid intothe national exchequer and forms part of the income of the nation. We may,therefore, putting the hereditary revenue out of our minds, direct our wholeattention to what is oddly enough called the "extraordinary," but is in realitythe ordinary, or Parliamentary, revenue of the nation.
The whole of the national revenue had come to amount in a normal year tosomewhere about £i44,ooo,ooo.4 It is (if we put out of sightthe small hereditary revenue of the Crown) raised wholly by taxes imposed bylaw. The national revenue, therefore, depends wholly upon law and uponstatute-law; it is the creation of Acts of Parliament.
While no one can nowadays fancy that taxes can be raised otherwise thanin virtue of an Act of Parliament, there prevails, it may be suspected, withmany of us a good deal of confusion of mind as to the exact relation betweenthe raising of the revenue and the sitting of Parliament. People often talk asthough, if Parliament did not meet, no taxes would be legally payable, and theassembling of Parliament were therefore secured by the necessity of filling thenational exchequer. This idea is encouraged by the study of periods, such asthe reign of Charles I., during which the Crown could not legally obtainnecessary supplies without the constant intervention of Parliament. But thenotion that at the present day no money could legally be levied if Parliamentceased to meet is unfounded. Millions of money would come into the Exchequereven though Parliament did not sit at
2 Civil List Act, 1901, i 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 i8th April1907 (172 Hansard (4th ser.), col. 1180), gave the total revenue for the year(Exchequer receipts) 1906-7 at £144,814,060. [See as to the burden oftaxes and rates in later years, Law and Opinion (2nd ed.), pp.lxxxiv.-lxxxvii.]
all. For though all taxation depends upon Act of Parliament, it is farfrom being the case that all taxation now depends upon annual or temporaryActs.
Taxes are made payable in two different ways, i.e. either bypermanent or by yearly Acts.
Taxes, the proceeds of which amounted in the year 1906-7 to at leastthree-fourths of the whole yearly revenue, are imposed by permanent Acts; suchtaxes are the land tax,5 the excise,6 the stampduties,7 and by far the greater number of existing taxes. Thesetaxes would continue to be payable even though Parliament should not beconvened for years. We should all, to take an example which comes home to everyone, be legally compellable to buy the stamps for our letters even thoughParliament did not meet again till (say) A.D. 1910.
Other taxes and notably the income tax the proceeds ofwhich make up the remainder of the national income, are imposed by yearlyActs.8 If by any chance Parliament should not be convened for ayear, no one would be under any legal obligation to pay income tax.
This distinction between revenue depending upon permanent Acts andrevenue 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, andthat no one can be forced to pay a single shilling by way of taxation whichcannot be shown to the satisfaction of the judges to be due from him under Actof Parliament.
AUTHORITY FOR EXPENDING REVENUE
At one time revenue once raised by taxation was in truth and in realitya grant or gift by the Houses of Parliament to the Crown. Such grants as weremade to Charles the First or James the First were
^ 38 George III. c. 5.
6 See Stephen, Commentaries, ii. pp. 552, 553.
7 Stamp Act, 1891, 54 & 55 Viet. c. 39.
8 The only taxes imposed annually or by yearly Acts are the customs dutyon tea, which for the year ending 3ist March 1907 amounted to £5,888,288,and the income tax, which for the same year amounted to £31,891,949,giving a total of annual taxation raised by annual grant of£37,780,237.
moneys truly given to the King. He was, as a matter of moral duty,bound, out of the grants made to him, as out of the hereditary revenue, todefray the expenses of government; and the gifts made to the King by Parliamentwere never intended to be "money to put into his own pocket," as the expressiongoes. Still it was in truth money of which the King or his Ministers could anddid regulate the distribution. One of the singularities which mark the Englishconstitution is the survival of mediaeval notions, which more or lessidentified the Kings's property with the national revenue, after the passingaway of the state of society to which such ideas naturally belonged; in thetime of George the Third many public expenses, as, for example, the salaries ofthe judges, were charged upon the civil list, and thus were mixed up with theKing's private expenditure. At the present day, however, the whole publicrevenue is treated, not as the King's property, but as public income; and as tothis two matters deserve special observation.
First, the whole revenue of the nation is paid into the Bank ofEngland9 to the "account of his Majesty's Exchequer,"10mainly through the Inland Revenue Office. That office is a mere place for thereceipt of taxes; it is a huge money-box into which day by day moneys paid astaxes are dropped, and whence such moneys are taken daily to the Bank. What, Iam told, takes place is this. Each day large amounts are received at the InlandRevenue Office; two gentlemen come there each afternoon in a cab from the Bank;they go through the accounts for the day with the proper officials; they do notleave till every item is made perfectly dear; they then take all the moneyreceived, and drive off with it and pay it into the Bank of England.
Secondly, not a penny of revenue can be legally expended exceptunder the authority of some Act of Parliament.
9 Or into the Bank of Ireland. See Exchequer and Audit Departments Act,1866 (29 & 30 Viet. c. 39), s. 10.
10 Ibid, and Control and Audit of Public Receipts andExpenditure, pp. 7, 8. But a system of appropriations in aid has beenintroduced during the last few years under which certain moneys which beforewere treated as extra receipts, and paid into the Exchequer, are not paid intothe Exchequer, but are applied by the department where they are received inreduction of the money voted by Parliament.
This authority may be given by a permanent Act, as, for example, by theQvil List Act, i & 2 Viet. c. 2, or by the National Debt and Local LoansAct, 1887; or it may be given by the Appropriation Act, that is, the annual Actby which Parliament "appropriates" or fixes the sums payable to objects (thechief of which is the support of the army and navy) 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 year11 anational income raised by different taxes amounting to nearly£144,000,000 per annum. This £144,000,000 constitutes the revenueor "consolidated fund."
Every penny of it is, unless the law is broken, paid away in accordancewith Act of Parliament. The authority to make payments from it is given in manycases by permanent Acts; thus the whole of the interest on the National Debt ispayable out of the Consolidated Fund under the National Debt and Local LoansAct, 1887. The order or authority to make payments out of it is in other casesgiven by a yearly Act, namely, the Appropriation Act, which determines the modein which the supplies granted by Parliament (and not otherwise appropriated bypermanent Acts) are to be spent. In either case, and this is the point to bearin mind, payments made out of the national revenue are made by and under theauthority of the law, namely, under the directions of some special Act ofParliament.
The details of the method according to which supplies are annually votedand appropriated by Parliament are amply treated of in works which deal withParliamentary practice.12 The matter which requires our attention isthe fact that each item of expenditure (such, for example, as the wages paid tothe army and navy) which is not directed and authorised by some permanent Actis ultimately authorised by the Appropriation Act for the year, or by specialActs which for convenience are passed prior to the Appropriation Act and
11 Seep. 201,anted).
12 See especially May, Parliamentary Practice, chap. xxi.
Security for proper expenditure.
are enumerated therein. The expenditure, therefore, no less than theraising of taxation, depends wholly and solely upon Parliamentary enactment.
SECURITY FOR THE PROPER APPROPRIATION OF THE REVENUE
What, it may be asked, is the real security that moneys paid by thetaxpayers are expended by the government in accordance with the intention ofParliament?
The answer is that this security is provided by an elaborate scheme ofcontrol and audit. Under this system not a penny of public money can beobtained by the government without the authority or sanction of persons (quiteindependent, be it remarked, of the Cabinet) whose duty it is to see that nomoney is paid out of the Exchequer except under legal authority. To the sameofficial ultimately comes the knowledge of the way in which money thus paid outis actually expended, and they are bound to report to Parliament upon anyexpenditure which is or may appear to be not authorised by law.
The centre of this system of Parliamentary control is the Comptrollerand 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 House ofCommons, or a peer of Parliament. He in common with his subordinate theAssistant Comptroller and Auditor General is appointed by a patent underthe Great Seal, holds his office during good behaviour, and can be removed onlyon an address from both Houses of Parliament.14 He is head of theExchequer and Audit Department. He thus combines in his own person twocharacters which formerly belonged to different officials. He is controller ofthe 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 hisown mind, to keep carefully distinct from each other.
13 Control and Audit of Public Receipts and Expenditure, 1885.
14 The Exchequer and Audit Departments Act, 1886 (29 & 30 Viet. c.39), sec. 3.
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 the nationalrevenue, which, it will be remembered, is lodged in the Bank of England to theaccount of the Exchequer, is paid out under legal authority, that is, under theprovisions of some Act of Parliament.
The Comptroller General is enabled to do this because, whenever theTreasury (through which office alone the public moneys are drawn out from theBank) needs to draw out money for the public service, the Treasury must make arequisition to the Comptroller General authorising the payment from the publicmoneys at the Bank of the definite sum required.1S
The payments made by the Treasury are, as already pointed out, madeeither under some permanent Act, for what are technically called "ConsolidatedFund services," as, for example, to meet the interest on the National Debt, orunder the yearly Appropriation Act, for what are technically called "supplyservices," as, for example, to meet 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 theterms of the Act under which it is demanded. He must also satisfy himself thatevery legal formality, necessary for obtaining public money from the Bank, hasbeen duly complied with. Unless, and until, he is satisfied he ought not togrant, and will not grant, a credit for the amount required; and until thiscredit is obtained, the money required cannot be drawn out of the Bank.
The obtaining from the Comptroller General of a grant of credit mayappear to many readers a mere formality, and we may suppose that it is in mostcases given as a matter of course. It is, however, a formality which gives anopportunity to an official, who has no interest in deviating from the law, forpreventing the least irregularity on the part of the government in the drawingout of public money.
The Comptroller's power of putting a check on government expenditurehas, oddly enough, been pushed to its extreme length in
15 See Control and Audit of Public Receipts and Expenditure,1885, pp. 61-64, and Forms, No. 8 to No. 12.
comparatively modern times. In 1811 England was in the midst of thegreat war with France; the King was a lunatic, a Regency Bill was not yetpassed, and a million pounds were required for the payment of the navy. LordGrenville, the then Auditor of the Exchequer, whose office corresponded to acertain extent with that of the present Comptroller and Auditor General,refused to draw the necessary order on the Bank, and thus prevented themillion, though granted by Parliament, from being drawn out. The ground of hislordship's refusal was that he had received no authority under the Great Sealor the Privy Seal, and the reason why there was no authority under the PrivySeal was that the King was incapable of affixing the Sign Manual, and that theSign Manual not being affixed, the clerks of the Privy Seal felt, or said theyfelt, that they could not consistently with their oaths allow the issue ofletters of Privy Seal upon which the warrant under the Privy Seal was thenprepared. All the world knew the true state of the case. The money was grantedby Parliament, and the irregularity in the issue of the warrants was purelytechnical, yet the law officers members themselves of the Ministry advised that Lord Grenville and the clerks of the Privy Seal were in theright. This inconvenient and, as it seems to modern readers, unreasonabledisplay of legal scrupulosity masked, it may be suspected, a good deal ofpolitical byplay. If Lord Grenville and his friends had not been anxious thatme Ministry should press on the Regency Bill, the officials of the Exchequerwould perhaps have seen their way through the technical difficulties which, asit was, appeared insurmountable, and it is impossible not to suspect that LordGrenville acted rather as a party leader than as Auditor of the Exchequer. Butbe this as it may, the debates of i8ii16 prove to demonstration thata Comptroller General can, if he chooses, put an immediate check on anyirregular dealings with public moneys.
In exercise of his duty as Auditor the Comptroller General audits allthe public accounts;17 he reports annually to Parliament upon the
16 Cobbett'sParl. Debates, xviii. pp. 678, 734, 787.
17 In auditing the accounts he inquires into the legality of thepurposes for which public money has been spent, and in his report to Parliamentcalls attention to any expenditure of doubtful legality.
accounts of the past year. Accounts of the expenditure under theAppropriation Act are submitted by him at the beginning of every session to thePublic Accounts Committee of the House of Commons a Committee appointedfor the examination of the accounts showing the appropriation of thesums granted by Parliament to meet the public expenditure. This examination isno mere formal or perfunctory supervision; a glance at the reports of theCommittee shows that the smallest expenses which bear the least appearance ofirregularity, even if amounting only to a pound or two, are gone into anddiscussed by the Committee. The results of their discussions are published inreports submitted to Parliament.
The general result of this system of control and audit is, that inEngland we possess accounts of the national expenditure of an accuracy whichcannot be rivalled by the public accounts of other countries, and that everypenny of the national income is expended under the authority and in accordancewith the provisions of some Act of Parliament.18
How, a foreign critic might ask, is the authority of the ComptrollerGeneral compatible with the orderly transaction of public business; how, inshort, does it happen that difficulties like those which arose in 1811 are notof constant recurrence?
18 The main features of the system for the control and audit of nationalexpenditure have been authoritatively summarised as follows:
"The gross revenue collected is paid into the Exchequer.
"Issues from the Exchequer can only be made to meet expenditure whichhas been sanctioned by Parliament, and to an amount not exceeding the sumsauthorised.
"The issues from the Exchequer and the audit of Accounts are under thecontrol of the Comptroller and Auditor General, who is an independent officerresponsible to the House of Commons, and who can only be removed by vote ofboth Houses of Parliament.
"Such payments only can be charged against the vote of a year asactually came in course of payment within the year.
"The correct appropriation of each item of Receipt and Expenditure isensured.
"All unexpended balances of the grants of a year are surrendered to theExchequer, as also are all extra Receipts and the amount ofAppropriations-in-Aid received in excess of the sum estimated to be taken inaid of the vote.
"The accounts of each year are finally reviewed by the House of Commons,through the Committee of Public Accounts, and any excess of expenditure overthe amount voted by Parliament for any service must receive legislativesanction." Control and Audit of Public Receipts and Expenditure,1885, pp. 24, 25.
The general answer of course is, that high English officials, andespecially officials removed from the sphere of politics, have no wish ortemptation to hinder the progress of public business; the Auditor of theExchequer was in 1811, be it noted, a peer and a statesman. The more technicalreply is, that the law provides two means of overcoming the perversity orfactiousness of any Comptroller who should without due reason refuse hissanction to the issue of public money. He can be removed from office on anaddress of the two Houses, and he probably might, it has been suggested, becoerced into the proper fulfilment of his duties by a mandamus19from the High Court of Justice. The worth of this suggestion, made by acompetent lawyer, has never been, and probably never will be tested. But thepossibility that the executive might have to seek the aid of the Courts inorder to get hold of moneys granted by Parliament, is itself a curious proof ofthe extent to which the expenditure of the revenue is governed by law, or, whatis the same thing, may become dependent on the decision of the judges upon themeaning of an Act of Parliament.
19 See Bowyer, Commentaries on Constitutional Law, p. 210; Hearn,Government of England (and ed.), p. 375.
Chapter XI
THE RESPONSIBILITY OF MINISTERS
Ministerial responsibility means two utterly different things. It meansin ordinary parlance the responsiblity of Ministers to Parliament, or, theliability of Ministers to lose their offices if they cannot retain theconfidence of the House of Commons.
This is a matter depending on the conventions of the constitution withwhich law has no direct concern.
It means, when used in its strict sense, the legal responsibility ofevery Minister for every act of the Crown in which he takes part.
This responsibility, which is a matter of law, rests on the followingfoundation. There is not to be found in the law of England, as there is foundin most foreign constitutions, an explicit statement that the acts of themonarch must always be done through a Minister, and that all orders given bythe Crown must, when expressed in writing, as they generally are, becountersigned by a Minister. Practically, however, the rule exists.
In order that an act of the Crown may be recognised as an expression ofthe Royal will and have any legal effect whatever, it must in general be donewith the assent of, or through some Minister or Ministers who will be heldresponsible for it. For the Royal will can, speaking generally, be expressedonly in one of three different ways, viz. (i) by order in Council; (2) byorder, commission, or warrant under the sign-manual; (3) by proclamations,writs, patents, letters, or other documents under the Great Seal.
An order in Council is made by the King "by and with the advice of hisPrivy Council"; and those persons who are present at the meeting of the Councilat 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 coun-tersignature of one responsible Minister or of morethan one; though it is not unfrequently authenticated by some one of the sealsfor the use of which a Secretary of State is responsible. The Great Seal isaffixed to a document on the responsibility of the Chancellor, and there may beother persons also, who, as well as the Chancellor, are made responsible forits being affixed. The result is that at least one Minister and often more musttake part in, and therefore be responsible for, any act of the Crown which hasany legal effect, e.g. the making of a grant, the giving of an order, orthe signing of a treaty.1
The Minister or servant of the Crown who thus takes part in givingexpression to the Royal will is legally responsible for the act in which he isconcerned, and he cannot get rid of his liability by pleading that he acted inobedience to royal orders. Now supposing that the act done is illegal, theMinister concerned in it becomes at once liable to criminal or civilproceedings in a Court of Law. In some instances, it is true, the only legalmode in which his offence could be reached may be an impeachment. But animpeachment itself is a regular though unusual mode of legal procedure before arecognised tribunal, namely, the High Court of Parliament. Impeachments indeedmay, though one took place as late as 1805, be thought now obsolete, but thecause why this mode of enforcing Ministerial responsibility is almost out ofdate is partly that Ministers are now rarely in a position where there is evena temptation to commit the sort of crimes for which impeachment is anappropriate remedy, and partly that the result aimed at by impeachment couldnow in many cases be better obtained by proceedings before an ordinary Court.The point,
i On the whole of this subject the reader should consult Anson,Law and Custom of the Constitution, vol. ii., The Crown (3rd ed.), App.to ch. i. pp. 50-59. Anson gives by far the best and fullest account with whichI am acquainted of the forms for the expression of the Royal pleasure and ofthe effect of these forms in enforcing the legal responsibility of Ministers.See also Clode, Military Forces of the Crown, ii. pp. 320, 321; Huronv.Denman, 2 Ex. 167, 189, and the Great Seal Act, 1884, 47 & 48 Viet.c. 30.
however, which should never be forgotten is this: it is nowwell-established law that the Crown can act only through Ministers andaccording to certain prescribed forms which absolutely require the co-operationof some Minister, such as a Secretary of State or the Lord Chancellor, whothereby becomes not only morally but legally responsible for the legality ofthe act in which he takes part. Hence, indirectly but surely, the action ofevery servant of the Crown, and therefore in effect of the Crown itself, isbrought under the supremacy of the law of the land. Behind Parliamentaryresponsibility lies legal liability, and the acts of Ministers no less than theacts of subordinate officials are made subject to the rule of law.
Introduction.
Chapter XII
RULE OF LAW COMPARED WITH DROITADMINISTRATE?'
/;
"n many continental countries, and notably in France, there exists ascheme of administrative law2 known to Frenchmen as droitadministmtif which rests on ideas foreign to the fundamentalassumptions of our English common law, and especially to what we have termedthe rule of law. This opposition is specially apparent in the protection givenin foreign countries to servants of the State, or, as we say in England, of theCrown, who, whilst acting in pursuance
1 On droit administratif see Aucoc, Conferences suriadministration et le droit administratif (yd ed.); Berthelemy, TraiteElementaire de Droit Administratif ($th ed. 1908); Chardon,L'Administration de la France, Les Fonctionnaires (1908); Duguit,Manuel de Droit Constitutionnel (1907); Duguit, Traite de DroitConstitutionnel (1911); Duguit, L'Etat, lesgouvernants et les agents(1903); Esmein, Elements de Droit Constitutionnel (1896); Hauriou,Precis de Droit Administratif; Jac-quelin, La JuridictionAdministrative (1891); Jacquelin, Les Principes Dominants du ContentieuxAdministratif (1899); Jeze, Les Principes Generaux du DroitAdministratif (1904); Laferriere. Traite de la JuridictionAdministrative, 2 vols. (2nd ed. 1896); Teissier, La Responsabilite dela Puissance Publique(i<)o6).
It is not my aim in this chapter to give a general account of droitadministratif. My object is to treat of droit administratif in sofar as its fundamental principles conflict with modern English ideas of therule of law, and especially to show how it always has given, and still doesgive, special protection or privileges to the servants of the state. I cannot,however, avoid mentioning some other aspects of a noteworthy legal system oromit some notice of the mode in which the administrative law of France, basedas it originally was on the prerogatives of the Crown under the ancienregime, has of recent years, by the genius of French legists, been more orless "judirialised" if so I may render the French term"juridictionnaliser" and incorporated with the law of the land.
2 Known in different countries by different names, e.g. inGermany as Verwaltungsrecht. The administrative law of France comesnearer than does the Verwaltungsrecht of Germany
of official orders, or in the bona fide attempt to dischargeofficial duties, are guilty of acts which in themselves are wrongful orunlawful. The extent of this protection has in France with which countrywe are for the most part concerned varied from time to time. It was onceall but complete; it is now far less extensive than it was thirty-six yearsago.3 It forms only one portion of the whole system of droitadministratif, but it is the part of French law to which in this chapter Iwish to direct particularly the attention of students. I must, however, impressupon them that the whole body of droit administratif is well worth theirstudy. It has been imitated in most of the countries of continental Europe. Itillustrates, by way of contrast, the full meaning of that absolute supremacy ofthe ordinary law of the land a foreign critic might say of that intenselegalism which we have found to be a salient feature of Englishinstitutions. It also illustrates, by way of analogy rather than of contrast,some phases in the constitutional history of England. For droitadministratif has, of recent years, been so developed as to meet therequirements of a modern and a democratic society, and thus throws light uponone stage at least in the growth of English constitutional law.4
Our subject falls under two main heads. The one head embraces the natureand the historical growth of droit administratif, and especially of thatpart thereof with which we are chiefly concerned. The other head covers acomparison between the English rule of law and the droit administratifof France.
For the term droit administratif English legal phraseologysupplies no proper equivalent. The words "administrative law," which are itsmost natural rendering, are unknown to English judges and counsel, and are inthemselves hardly intelligible without further explanation.
(conf. Otto Mayer, Le Droit Administratif Allemand, i. (Frenchtranslation), p. 293 s. 17), to the rule of law as understood by Englishmen.Here, as elsewhere, it is the similarity as much as the dissimilarity betweenFrance and England which prompts comparison. The historical glories of Frencharms conceal the important fact that among the great States of Europe, Franceand England have the most constantly attempted, though with unequal success, tomaintain the supremacy of the civil power against any class which defies thelegitimate sovereignty of the nation.
3 Or than it still is throughout the German Empire. See Duguit,L'Etat, p. 624, note i.
4 See pp. 246-251, post.
This absence from our language of any satisfactory equivalent for theexpression droit administratif is significant; the want of a name arisesat bottom from our non-recognition of the thing itself. In England, and incountries which, like the United States, derive their civilisation from Englishsources, the system of administrative law and the very principles on which itrests are in truth unknown. This absence from the institutions of the AmericanCommonwealth of anything answering to droit administratif arrested theobservation of Tocqueville from the first moment when he began hisinvestigations into the characteristics of American democracy. In 1831 hewrites to an experienced French judge (magistral), Monsieur DeBlosseville, to ask both for an explanation of the contrast in this matterbetween French and American institutions, and also for an authoritativeexplanation of the general ideas (notions generales) governing thedroit administratif of his country.5 He grounds his requestfor information on his own ignorance6 about this special branch ofFrench jurisprudence, and dearly implies that this want of knowledge is notuncommon among French lawyers.
When we know that a legist of Tocqueville's genius found it necessary toask for instruction in the "general ideas" of administrative law, we may safelyassume that the topic was one which, even in the eyes of a French lawyer, borean exceptional character, and need not wonder that Englishmen find it difficultto appreciate the nature of rules which are, admittedly, foreign to the spiritand traditions of our
5 Tocqueville's language is so remarkable and bears so closely onour topic that it deserves quotation: "Ce qui m'empeche le plus, je vonsavoue, de savoir ce qui sefait sur ces differents points en Amerique, c'estd'ignorer, a peu pres completement, ce qui existe en France. Vous savez que,chez nous, le droit administratif et le droit civil forment comme deux mondessepares, qui ne vivent point toujours en paix, mais qui ne sont ni assez amisni assez ennemis pour se bien connaitre. }'ai toujours vecu dans I'un et suisfort ignorant de ce qui se passe dans I'autre. En meme temps quej'ai senti lebesoin d'aajuerir les notions generales qui me manquent a eel egard, j'ai pensequeje ne pouvais mieux fairequedem'adresser a vous." Tocqueville,CEuvres Completes, vii. pp. 67, 68.
6 This want of knowledge is explainable, if not justifiable. In 1831Tocqueville was a youth of not more than twenty-six years of age. There were atthat date already to be found books on droit administratif written tomeet the wants of legal practitioners. But the mass of interestingconstitutional literature represented by the writings of Laferriere, Hauriou,Duguit, Jeze, or Berthelemy which now elucidates the theory, and traces thehistory of a particular and most curious branch of French law, had not comeinto existence.
institutions. It is, however, this very contrast between administrativelaw 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 thelaw of the land which are firmly established in modern England, that mainlymakes it worth while to study, not of course the details, but what Tocquevillecalls the notions generates of French droit administmtif. Our aimshould be to seize the general nature of administrative law and the principleson which the whole system of droit administratif depends, to note thesalient characteristics by which this system is marked, and, lastly, to makedear to ourselves how it is that the existence of a scheme of administrativelaw makes the legal situation of every government official in France differentfrom the legal situation of servants of the State in England, and in factestablishes a condition of things fundamentally inconsistent with whatEnglishmen regard as the due supremacy of the ordinary law of the land.
Droit administratif, or "administrative law," has been defined byFrench authorities in general terms as "the body of rules which regulate therelations of the administration or of the administrative authority towardsprivate citizens";7 and Aucoc in his work on droit administratifdescribes his topic in this very general language:8
Administrative law determines (i) the constitution and the relations ofthose organs of society which are charged with the care of those socialinterests (interets collectifs) which are the object of publicadministration, by which term is meant the different representatives of societyamong which the State is the most important, and (2) the relation of theadministrative authorities toward the citizens of the State.
These definitions are wanting in precision, and their vagueness is notwithout significance. As far, however, as an Englishman may venture to deducethe meaning of droit administratif from foreign treatises, it may, forour present purpose, be best described as that
7 "On le definit ordinairement I'ensemble des regies qui regissentles rapports de I'administration ou de I'autoriteadministrativeavec lescitoyens." Aucoc, Droit Administratif, i. s. 6.
8 "Nous prefererions dire, pour notrepart: Le droit administratifdetermine: i°la constitution et les rapports des organes de la societecharges du soin des interets collectifs qui font I'objet de I'adminis-trationpublique, c'est-a-dire des differentes personnifications de la societe, dontI'ttat est la plus importante; 2° les rapports des autoritesadministratives avec les dtoyens." Ibid.
W Historica/ development.
portion of French law which determines, (i.) the position andliabilities of all State officials, (ii.) the civil rights and liabilities ofprivate individuals in their dealings with officials as representatives of theState, and (iii.) the procedure by which these rights and liabilities areenforced.
An English student will never, it should particularly be noticed,understand this branch of French law unless he keeps his eye firmly fixed uponits historical aspect, and carefully notes the changes, almost amounting to thetransformation, which droit administratif has undergone between 1800 and1908, and above all during the last thirty or forty years. The fundamentalideas which underlie this department of French law are, as he will discover,permanent, but they have at various times been developed in different degreesand in different directions. Hence any attempt to compare the administrativelaw of France with our English rule of law will be deceptive unless we notecarefully what are the stages in the law of each country which we bring intocomparison. If, for instance, we compare the law of England and the law ofFrance as they stand in 1908, we are likely to fancy (in my judgmenterroneously) that, e.g. in regard to the position or privileges of theState and its servants when dealing with private citizens, there may be littleessential difference between the laws of the two countries. It is only when weexamine the administrative law of France at some earlier date, say between 1800and 1815, or between the accession to the throne of Louis Philippe (1830) andthe fall of the Second Empire (1870), 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 inFrance but in any country where this scheme of State or official law hasobtained recognition.
The modern administrative law of France has grown up, or at any ratetaken its existing form, during the nineteenth century; it is the outcome ofmore than a hundred years of revolutionary and constitutionalconflict.9 Its development may conveniently be divided into threeperiods, marked by the names of the Napoleonic Empire and
9 For the history of droit administratif see especiallyLaferriere, i. (2nded.),bk. i. c. i.-iv. pp. 137-301. The Second Republic(1848-1851) produced little permanent effect on French administrative law. Ihave included it in the second of our three periods.
the Restoration (1800-1830), the Orleanist Monarchy and the SecondEmpire (1830-1870), the Third Republic (1870-1908).
FIRST PERIOD: NAPOLEON AND THE RESTORATION, 1800-1830
In the opinion of French men true droit administratif owes itsorigin to the consular constitution of the Year VOX (1800) created by Bonaparteafter the coup d'etat of the i8th of Brumaire. But legists,10no less than historians, admit that the ideas on which droit administratifrests, may be rightly traced back, as they have been byTocqueville,u to the ancien regime; every feature ofBonaparte's governmental fabric recalls some characteristic of the ancientmonarchy; his Conseil d'Etat revives the Conseil du Roi, hisPrefects are copies of the royal Intendants. Yet in this instance publicopinion has come to a right conclusion. It was from Bonaparte that moderndroit administratif received its form. If he was the restorer of theancien regime, he was also the preserver of the Revolution. Whatever heborrowed from the traditions of old France he adapted to the changed conditionsof the new France of 1800. At his touch ancient ideas received a new characterand a new life. He fused together what was strongest in the despotic traditionsof the monarchy with what was strongest in the equally despotic creed ofJacobinism. Nowhere is this fusion more dearly visible than in the methods bywhich Bonaparte's legislation and policy gave full ex-
10 "Aussi haut que I'on remonte dans notre histoire, depuis que desjuridictions regulieres ont etc instituees, on ne trouve p charges d'epoque oules corps judiciaires charges d'appliquer les lois civiles et criminelles aientete en meme temps appeles it statuer sur les difficultes en matiered'administration publiaue." Laferriere, i. p. 139, and compareibid. p. 640.
11 "Ce qui apparait.. . quand on etudie les paperasses administrates,c'est I intervention continuelle du pouvoir administratif dans la spherejudidaire. Les legistes administratifs nous disent sans cesse, que leplus grandvice du gouvemement interieur de I'ancien regime etait que lesjugesadministraient. On pourrait se plaindre avec autant de raison de ce que lesadministrateurs jugeaient. La seule difference est que nous avons corrige I'ancien regime sur le premier point, et I'avons imite sur le second. J'avais eujusqu 'a present la simplicite de croire que ce que nous appelons la justiceadministrative etait une creation de Napoleon. C'est du pur ancien regimeconserve; et le principe que lors meme qu 'il s'agit de contrat,c'est-a-dire d'un engagementformel et reguilierement pris entre unparticulier et I'Etat, c'est a I'Etat a juger la cause, cet axiome, inconnuchez la plupart des nations modemes, etait tenu pouraussi sacrepar un intendantde I'ancien regime, qu'il pourrait I'etre de nos jours par lepersonnage quiressemble leplus a celui-la, je veux dire un prefet." Tocqueville,CEuvres Completes, vi. pp. 221, 222.
Droit administratif its two leading principles.
Privileges of the State.
Separation of powers.
pression to the ideas or conceptions of royal prerogative underlying theadministrative practice of the ancien regime, and emphasised thejealousy felt in 1800 by every Frenchman of the least interference by the lawCourts with the free action of the government. This jealousy itself, thoughtheoretically justified by revolutionary dogma, was inherited by the Revolutionfrom the statecraft of the monarchy.
Any one who considers with care the nature of the droit administratifof France, or the topics to which it applies, will soon discover that itrests, and always has rested, at bottom on two leading ideas alien to theconceptions of modern Englishmen.
The first of these ideas is that the government, and every servant ofthe government, possesses, as representative of the nation, a whole body ofspecial rights, privileges, or prerogatives as against private citizens, andthat the extent of these rights, privileges, or prerogatives is to bedetermined on principles different from the considerations which fix the legalrights and duties of one citizen towards another. An individual in his dealingswith the State does not, according to French ideas, stand on anything like thesame footing as that on which he stands in dealings with hisneighbour.12
The second of these general ideas is the necessity of maintaining theso-called "separation of powers" (separation des pouvoirs), or, in otherwords, of preventing the government, the legislature, and the Courts fromencroaching upon one another's province. The expression, however, separation ofpowers, as applied by Frenchmen to the relations of the executive and theCourts, with which alone we are here concerned, may easily mislead. It means,in the mouth of a
12 "Un particulier qui n'execute pas un marche doit a I'entrepreneurune indemnite proportionnee au gain dont il le prive; le Code civil I'etablitainsi. L'administration qui rompt un tel marche ne doit d'indemnite qu'enraison de la perte eprouvee. C'est la regie de la jurisprudence administrative.A mains que le droit ne s'y oppose, elle tient que I'Etat, c'est-a-dire lacollection de tous les citoyens, et le tresor public, c'est-a-dire Vensemble detous les contribuables, doivent passer avant le citoyen ou le contribuableisoles, defendant un interet individuel." Vivien, EtudesAdministratives, i. pp. 141-142. This was the language of a French lawyerof high authority writing in 1853. The particular doctrine which it contains isnow repudiated by French lawyers. Vivien's teaching, however, even though it beno longer upheld, illustrates the general view taken in France of the relationbetween the individual and the state. That Vivien's application of this view isnow repudiated, illustrates the change which French droit administratifand the opinion of Frenchmen has undergone during the last fifty-fiveyears.
French statesman or lawyer, something different from what we mean inEngland by the "independence of the judges," or the like expressions. Asinterpreted by French history, by French legislation, and by the decisions ofFrench tribunals, it means neither more nor less than the maintenance of theprinciple that while the ordinary judges ought to be irremovable and thusindependent of the executive, the government and its officials ought (whilstacting officially) to be independent of and to a great extent free from thejurisdiction of the ordinary Courts.13 It were curious to follow outthe historical growth of the whole theory as to the "separation of powers." Itrests apparently upon Montesquieu's Esprit des Lois, Book XI. c. 6, andis in some sort the offspring of a double misconception; Montesquieumisunderstood on this point the principles and practice of the Englishconstitution, and his doctrine was in turn, if not misunderstood, exaggerated,and misapplied by the French statesmen of the Revolution. Their judgment wasbiassed, at once by knowledge of the inconveniences and indeed the gross evilswhich had resulted from the interference of the French "parliaments" in mattersof State and by the belief that these Courts would offer opposition, as theyhad done before, to fundamental and urgently needed reforms. Nor were theleaders of French opinion uninfluenced by the traditional desire, felt asstrongly by despotic democrats as by despotic kings, to increase the power ofthe central government by curbing the authority of the law Courts. Theinvestigation, however, into the varying fate of a dogma which has undergone adifferent development on each side of the Atlantic would lead us too far fromour immediate topic. All that we need note is the extraordinary influenceexerted in France, and in all countries which have followed French examples, bythis part of Montesquieu's teaching, and the extent to which it still underliesthe political and legal institutions of the French Republic.
To the combination of these two general ideas may be traced fourdistinguishing characteristics of French administrative law.
The first of these characteristics is, as the reader will at onceperceive, that the relation of the government and its officials towards
13 See Aucoc, Droit Administratif, ss. 20, 24.
(2) Law Courts without jurisdiction in matters concerning the State andadministrative liti-tation to be etermined by administrative Courts.
private citizens must be regulated by a body of rules which are inreality laws, but which may differ considerably from the laws which govern therelation of one private person to another. This distinction between ordinarylaw and administrative law is one which since 1800 has been fully recognised inFrance, and forms an essential part of French public law, as it must form apart of the public law of any country where administrative law in the truesense exists.14
The second of these characteristics is that the ordinary judicialtribunals which determine ordinary questions, whether they be civil orcriminal, between man and man, must, speaking generally, have no concernwhatever with matters at issue between a private person and the State, i.e.with questions of administrative law, but that such questions, in so far asthey form at all matter of litigation (contentieux administratif), mustbe determined by administrative Courts in some way connected with thegovernment or the administration.
No part of revolutionary policy or sentiment was more heartily acceptedby Napoleon than the conviction that the judges must never be allowed to hamperthe action of the government. He gave effect to this conviction in twodifferent ways.
In the first place, he constituted, or reconstituted, two classes ofCourts. The one class consisted of "judicial" or, as we should say, "commonlaw" Courts. They performed, speaking generally, but two functions. The onefunction was the decision of disputes in strictness between private persons;this duty was discharged by such Courts as the Courts of First Instance and theCourts of Appeal. The other function was the trial of all criminal cases; thisduty was discharged by such Courts as the Correctional Courts (TribunauxCorrectionnels) or the Courts of Assize15 (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 tocorrect the errors in law of the inferior judicial Courts.16 Theother class of so-called Courts were and are the administrative Courts, such asthe Courts of the Prefects
14 Of course it is possible that rules of administrative law may existin a country, e.g. in Belgium, where these rules are enforced only bythe ordinary Courts.
15 The Courts of Assize are the only Courts in France where thereis trial by jury.
16 The Cour de Cassation is not in strictness a Court of Appeal.
(Conseil de Prefecture)11 and the Council of State.The function of these bodies, in so far as they acted judicially (for theyfulfilled many duties that were not judicial), was to determine questions ofadministrative law. The two kinds of Courts stood opposed to one another. Thejudicial Courts had, speaking generally,18 no concern with questionsof administrative law, or, in other words, with cases in which the interest ofthe State or its servants was at issue; to entrust any judicial Court with thedecision of any administrative suit would have been deemed in 1800, as indeedit is still deemed by most Frenchmen, a violation of the doctrine of theseparation of powers, and would have allowed the interference by mere judgeswith cases in which the interest of the State or its servants was at issue. Theadministrative Courts, on the other hand, had, speaking generally, no directconcern with matters which fell within the jurisdiction of the judicialtribunals, but when we come to examine the nature of the Council of State weshall find that this restriction on the authority of a body which in Napoleon'stime formed part of the government itself was far less real than the strictlimitations imposed on the sphere of action conceded to the common law Courts.
Napoleon, in the second place, displayed towards the ordinary judges thesentiment of contemptuous suspicion embodied in revolutionary legislation. Thelaw of 16-24 August i/cjo19 is one among a score of examples whichbetray the true spirit of the Revolution. The judicial tribunals are therebyforbidden to interfere in any way whatever with any acts of legislation.Judicial functions, it is laid down, must remain separate from administrativefunctions. The judges must not, under penalty of forfeiture, disturb or in anyway interfere
17 With the Courts, or Councils, of the Prefects an English student needhardly concern himself.
18 There existed even under Napoleon exceptional instances, and theirnumber has been increased, in which, mainly from motives of immediateconvenience, legislation has given to judicial Courts the decision of matterswhich from their nature should fall within the sphere of the administrativetribunals, just as legislation has exceptionally given to administrativetribunals matters which would naturally fall within the jurisdiction of thejudicial Courts. These exceptional instances cannot be brought within any oneclear principle, and may for our purpose be dismissed from consideration.
19 Tit. ii. arts. 11-13.
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 spirit of theseenactments. He held, as even at a much later date did all persons connectedwith the executive government, that
the judges are the enemies of the servants of the State, and thatthere is always reason to fear their attempts to compromise the publicinterests by their malevolent, or at best rash, interference in the usualcourse of government business.20
This fear was during the Empire, at any rate, assuredly groundless.Administrative officials met with no resistance from the Courts. After theRevolution the judges exhibited boundless humility and servile submission, theytrembled before the power and obeyed the orders, often insolent enough, of thegovernment.21 It is difficult, however, to see how in the days ofNapoleon the ordinary judges could, whatever their courage or boldness, haveinterfered 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 haveno right to determine, for instance, the meaning and legal effect in case it beseriously disputed of official documents, as, for example, of a letteraddressed by a Minister of State to a subordinate, or by a general to a personunder his command. They are even now in certain cases without jurisdiction asto questions arising between a private person and a department of thegovernment. In Napoleon's time22 they could not, without the consentof the government, have entertained criminal or civil proceedings against anofficial for a wrong done or a
20 "On asubi I'influence de ce prejuge dominant chez les gauvemants,dans Vadministration et meme chez la plupart des jurisconsultes, que les agentsjudidaires sont les ennemis nes des agents adminis-tratifs, qu'il y atoujours a craindre leurs tentatives de compramettre la chosepubliquepar leurintervention malveillante ou tout au mains inconsideree dans la marche normale de I'adminis-tration." Jeze (ed.1904), p. 139.
21 "Les agents administratifs, dans leur arbitraire veritablementinoui, ne recmtrerent aucune resistance chez les agents judidaires. Ceux-d,apres la Revolution, ont montre une humilite sans limite et une soumissionservile. C'est en tremblant au'ils ont toujours obei aux ordres parfoisinsolents du Gouvemement." Jeze, p. 128.
22 See Constitution of Year VIII., art. 75, p. 227, post.
l) Con-icts of irisdicti
crime committed by such official in respect of private individuals whenacting in discharge of his official duties. The incompetence, however, of thejudicial Courts did not mean, even under Napoleon, that a person injured by anagent of the government was without a remedy. He might bring his grievancebefore, and obtain redress from, the administrative tribunals, i.e. insubstance the Council of State, or proceedings might, where a crime or a wrongwas complained of, be, with the permission of the government, taken before theordinary Courts.
The co-existence of judicial Courts and of administrative Courtsion results of necessity in raising questions of jurisdiction. A,for example, in some judicial Court claims damages against X for abreach of contract, or it may be for what we should term an assault or falseimprisonment. X's defence in substance is that he acted merely as a servant ofthe State, and that the case raises a point of administrative law determinableonly by an administrative tribunal, or, speaking broadly, by the Council ofState. 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 thatthe conflict must be determined by the judicial Courts, i.e. theordinary judges, for that the judges of the land are the proper authorities todefine the limits of their own jurisdiction. This view, which is so natural toan English lawyer, is radically opposed to the French conception of theseparation of powers, since it must, if systematically carried out, enable theCourts to encroach on the province of the administration. It contradicts theprinciple still recognised as valid by French law that administrative bodiesmust never be troubled in the exercise of their functions by any act whateverof the judicial power;23 nor can an Englishman, who recollects thecases on general warrants, deny that our judges have often interfered with theaction of the administration. The worth of Montesquieu's doctrine is open toquestion, but if his theory be sound, it is clear that judicial bodies oughtnot to be allowed to pronounce a final judgment upon the limits of their ownauthority.
23 See Aucoc, Droit Administratif, s. 24.
(4) Pro-tection of officials.
Act of State.
Under the legislation of Napoleon the right to determine such questionsof jurisdiction was in theory reserved to the head of the State, but was ineffect given to the Council of State, that is, to the highest of administrativeCourts. Its authority in this matter was, as it still is, preserved in twodifferent ways. If a case before an ordinary or judicial Court dearly raised aquestion of administrative law, the Court was bound to see that the inquiry wasreferred to the Council of State for decision. Suppose, however, the Courtexceeded, or the government thought that it exceeded, its jurisdiction andtrenched upon the authority of the administrative Court, a prefect, who, be itremarked, is a mere government official, could raise a conflict, that is tosay, could, by taking the proper steps, insist upon the question ofjurisdiction being referred for decision to the Council of State. We can hardlyexaggerate the extent of the authority thus conferred upon the Council. It hasthe right to fix the limits of its own power, it could in effect take out ofthe hands of a judicial Court a case of which the Court was alreadyseised.24
The fourth and most despotic characteristic of droit administratiflies in its tendency to protect25 from the supervision orcontrol of the ordinary law Courts any servant of the State who is guilty of anact, however illegal, whilst acting in bona fide obedience to the ordersof his superiors and, as far as intention goes, in the mere discharge of hisofficial duties.
Such an official enjoyed from 1800 till 1872 a triple protection(gar-antie desfonctionnaires).
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(acte de gouvernement).
24 Up to 1828 it was possible to raise a conflict (eleuer un conflit)in any criminal no less than in any civil case. Nor is it undeserving ofnotice that, whilst a conflict could be raised in order to prevent a judicialCourt from encroaching on the sphere of an administrative Court, there was inNapoleon's time and still is no legal means for raising a conflict with a viewto prevent an administrative Court from encroaching on the sphere of a judicialCourt.
25 This protection of officials may be displayed in parts of French law(e.g. Code Penal, art. 114) which do not technically belong to droitadministratif, but it is in reality connected with the whole system ofadministrative law.
Obedience to orders
The law of France has always recognised an indefinite class of acts,i.e. acts of State, which, as they concern matters of high policy or ofpublic security, or touch upon foreign policy or the execution of treaties, orconcern dealings with foreigners, must be left to the uncontrolled discretionof the government, and lie quite outside the jurisdiction of any Courtwhatever. What may be the exact definition of an act of State is even now, itwould appear in France, a moot point on which high authorities are not entirelyagreed. It is therefore impossible for any one but a French lawyer to determinewhat are the precise qualities which turn conduct otherwise illegal into an actof State of which no French Court could take cognisance. Of recent years thetendency of French lawyers has certainly been to narrow down the sense of anambiguous term which lends itself easily to the justification of tyranny. Wemay feel sure, however, that during the Napoleonic era and for long afterwardsany transaction on the part of the government or its servants was deemed to bean act of State which was carried out bona fide with the object offurthering the interest or the security of the country.
In the second place, the French Penal Code, Art. 114,26protected, as it still protects, an official from the penal consequences of anyinterference with the personal liberty of fellow citizens when the actcomplained of is done under the orders of his official superior.27
26 "Art. 114. Lorsqu'unfonctionnaire public, un agent ou un preposedu Gouvernement, aura ordonne ou fait quelque acte arbitraire, et attentatoiresoit a la liberte individuelle, soit aux droits civiques d'un ou de plusieursdtoyens, soit a la Charte, il sera condamne a la peine de la degradationtivique.
"Si neanmoins iljustifie qu 'il a agi par ordre de ses superieurspour des objets du ressort de ceux-ci, sur lesquels il leur etait du obeissancehierarchique, il sera exempte de la peine, laquelle sera, dans ce cos,appliquee seulement aux superieurs qui auront donne I'ordre." Code Penal, art. 114; and Garcon, Code Penal annote, p. 245. Withthis read Garcon, Code Penal, arts. 34 and 87, compare Coded'instruction criminelle, art. 10; Duguit, Manuel, pp. 524-527, andgenerally Duguit, L'£tat. ch. v. s. 10, pp. 615-634.
27 None but a French criminalist can pronounce with anything likecertainty on the full effect of Art. 114, but Garcon's comment thereon (CodePenal, pp. 245-255) suggests to an English lawyer that an offender whobrings himself within the exemption mentioned in the second clause of theArticle, though he may be found guilty of the offence charged, cannot bepunished for it under Art. 114, or any other Article of the Penal Code, andthat Art. 114 protects a very wide class of public servants. (See Garcon,comment under heads D and E, pp. 249-252, and under G, p. 253, and para. 100,p. 254. Read also Duguit, Manuel, ss. 75-77, especially pp. 504, 527;Duguit, L'£tat, pp. 615-634.)
In the third place, under the celebrated Article 7528 of theConstitution of the Year VIII., i.e. of 1800, no official could, withoutthe permission of the Council of State, be prosecuted or otherwise be proceededagainst, for any act done in relation to his official duties.
The protection given was ample. Article 75 reads indeed as if it appliedonly to prosecutions, but was construed by the Courts so as to embrace actionsfor damages.29 Under the Napoleonic Constitution no servant of theState, whether a prefect, a mayor, or a policeman, whose conduct, howeverunlawful, met with the approval of the government, ran any real risk ofincurring punishment or of paying damages for any act which purported to bedone in discharge of his official duties.
The effect practically produced by the four characteristics of droitadministratif, and especially the amount of the protection provided forofficials acting in obedience to the orders of their superiors, depends in themain on the answer to one question: What at a given time is found to be theconstitution and the character of the Council of State? Was it then underNapoleon a law Court administering judicially a particular branch of Frenchlaw, or was it a department of the executive government? The answer is plain.The Council, as constituted or revived by Bonaparte, was the very centre of hiswhole governmental fabric. It consisted of the most eminent administrators whomNapoleon could gather round him. The members of the Council were entitled andwere bound to give the supreme ruler advice. The Council, or some of theCouncillors, took part in affairs of all descriptions. It is hardly anexaggeration to say that, subject to the absolute will of Napoleon, the membersof 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 CodePenal a prefect, a policeman, or any other servant of the State, actingbona fide under the orders of his proper official superior, can be indanger of punishment for crimes such as assault, unlawful imprisonment, and thelike.
28 "Les agents du Gouvernement, autres que les ministres, ne peuventetre poursuivis pour des faits relatifs a leurs fonctions, qu'en vertu d'unedecision du conseil d'etat: en ce cas, la poursuite a lieu devant les tribunauxordinaires." Duguit and Monnier, Les Constitutions de la France(deuxieme ed.), p. 127.
29 See Jacquelin, Les Principes Dominants du ContentieuxAdministratif, p. 127.
with questions of administration, with questions of administrative law.In 1800 it is probable that administrative suits were not very dearly separatedfrom governmental business. The Council, moreover, even when acting judicially,was more of a Ministry than of a Court, and when the Council, acting as aCourt, had given its decision, or tendered its advice, it possessed no meansfor compelling the executive to give effect to its decisions. As a matter offact, years have sometimes elapsed before the executive of the day has thoughtfit to put the judgments of the Council into force, and it was not till 1872that 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 a given case did or did not concernadministrative law, and therefore whether it fell within its own jurisdictionor within the jurisdiction of the ordinary Courts. Thus the state of thingswhich existed in France at the beginning of the nineteenth century bore somelikeness 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 theJudicial Committee of the Privy Council, and if the Cabinet, in its characterof a Judicial Committee, determined all questions arising between thegovernment on the one side, and private individuals on the other, anddetermined them with an admitted reference to considerations of public interestor of political expediency. Nor was any material change produced by the fall ofNapoleon. The restored monarchy eagerly grasped the prerogatives created by theEmpire. There was even a sort of return to the unrestrained arbitrariness ofthe Directory. It was not until 1828, that is, within two years of theexpulsion of Charles X., that public opinion enforced some restriction on themethods 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 administmtif of our first period. The administrative law of to-dayhas been built up on the foundations laid by Napoleon. The Courts created byhim still exist; their jurisdiction is still defined in accordance, in themain, with the lines which he laid down. True it is that machinery invented tosupport a scheme of rational absolutism has in later times been used by legistsand reformers for the promotion of
Monarchical period.
legal liberty. But it is a fact never to be forgotten that theadministrative law of France originated in ideas which favour the prerogativesof the government as the proper defence for the interest of the nation.
SECOND PERIOD: THE ORLEANS MONARCHY AND THE SECOND EMPIRE1830-187030
This period deserves the special attention of English students.Napoleonic Imperialism was absolutism; the Restoration was reaction; neitheradmits of satisfactory comparison with any governmental system known to modernEngland. The forty years, on the other hand, which intervened between theexpulsion of Charles X. and the fall of Napoleon III., though marked by threeviolent changes the Revolution of 1848, the coup d'etat of 1851,the overthrow of the Second Empire in 1870 form, as a whole, a time ofcivil order. During these forty years France was, with the exception of notmore than six months, governed under the established law of the land. An age ofpeaceful progress gives an opening for illuminative comparison between thepublic law of France and the public law of England. This remark is particularlyapplicable to the reign of Louis Philippe. He was, in the eyes of Englishmen,above all things, a constitutional king.31 His Parliamentaryministries, his House of peers, and his House of deputies, the whole frameworkand the very spirit of his government, seemed to be modelled upon theconstitution of England; under his rule the supremacy of the ordinary law ofthe land, administered by the ordinary law Courts, was, as Englishmen supposed,as securely established in France as in England. They learn with surprise, thatduring the whole of these forty years few, if any, legislative or Parliamentaryreforms32 touched the essential characteristics of droitadministratif as established by Napoleon. It re-
30 Little account need be taken of the Second Republic, 1848-1851. Itslegislative reforms in administrative law did not outlive its brief andtroubled duration.
31 His accession to the throne was aided by an obvious, but utterlysuperficial, analogy between the course of the English Revolution in theseventeenth century and of the great French Revolution in the eighteenth andnineteenth centuries. Louis Philippe, it was supposed, was exactly the man toperform in France the part which William III. had played in England, and closethe era of revolution.
32 It was, however, gradually reformed to a great extent by a process ofjudicial legislation, i.e. by the Council of State acting in the spiritof a law Court.
mained, as it still does, a separate body of law, dealt with byadministrative Courts. With this law the judicial Courts continued to have, asthey still have, no concern. The introduction of Parliamentary government tookfrom the Council of State, during the reign of Louis Philippe, many of itspolitical functions. It remained, however, as it does to-day, the greatadministrative Court. It preserved what it does not now retain,33the right to define the jurisdiction of the judicial Courts. Servants of theState remained in possession of every prerogative or privilege ensured to themby custom or by Napoleonic legislation. Droit administratif, in short,retained till 1870 all its essential features. That this was so is apparentfrom two considerations:
First, the Council of State never, during the period with which we areconcerned, became a thoroughly judicial body.
This indeed is a point on which an English critic must speak with somehesitation. He will remember how easily a Frenchman, even though wellacquainted with England, might at the present moment misinterpret the workingof English institutions, and imagine, for instance, from the relation of theLord Chancellor to the Ministry, that the Cabinet, of which the Chancellor isalways a member, could influence the judgment given in an action entered in theChancery Division of the High Court, whereas, as every Englishman knows,centuries have passed since the Lord Chancellor, when acting as a judge inChancery, was in the slightest degree guided by the interest or the wishes ofthe Cabinet. An English critic will also remember that at the present day theCouncil of State commands as profound respect as any Court in France, and standin popular estimation on a level with the Court of Cassation the highestof judicial tribunals and further, that the repute of the Council hasrisen during every year since 1830. Yet, subject to the hesitation whichbecomes any one who comments on the working of institutions which are not thoseof his own country, an English lawyer must conclude that between 1830 and 1870the Council, while acting as an administrative tribunal, though tending everyyear to become more and more judicialised, was to a considerable extent anofficial or governmental
33 See as to present Conflict-Court, p. 238, post.
No diminution in protection of officials.
body, the members of which, when acting in the discharge ofquasi-judicial functions, were likely to be swayed by ministerial or officialsentiment. This assertion does not imply that the Council, consisting ofpersons of the highest eminence and character, did not aim at doing or did notconstantly do justice. What is meant is that the Council's idea of justice wasnot likely to be exactly the same as that entertained by judicial or common lawCourts.
Secondly, the legal protection of officials suffered no diminution.
No man could be made liable before any Court whatever for carrying outan act of State (acte de gouvernement) .34 And under the ruleof Louis Philippe, as under the Second Empire, wide was the extension given,both in theory and in practice, to this indefinite and undefined expression.
In 1832 the duch*esse de Berry attempted to raise a civil war in LaVendee. She was arrested. The king dared not let her leave the country. Hewould not put on trial the niece of his wife. Republicans and Legitimists alikewished 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 toturn the duch*ess into a popular heroine. The case was debated in Parliamentagain and again. Petitions demanded that she should either be set at liberty orbrought before a jury. The government refused to take either course. She wasdetained in prison until private circ*mstances deprived her both of credit andof popularity. She was then quietly shipped off to Sicily. The conduct of thegovernment, or in fact of the king, was illegal from beginning to end. TheMinistry confessed, through the mouth of Monsieur Thiers, that the law had beenviolated. A vote of the Chamber of Deputies not be it noted an act oflegislation supplied, it was held, full justification for a breach ofthe law.35 This was the kind of authority ascribed in 1832 by theconstitutional Ministers of a constitutional monarch to an act of State. Thismost elastic of
34 Seep. 22.5,ante.
35 "M. Thiers, dans la seance du zojuin, avaua hautement toutcecju'il y avail eu d'illegal dans I'arrestation, la detention, la mise enliberte de la duch*esse; c'etait a la Chambre a decider si Von avail agi dansI'interet bien entendu du salut public. La Chambrepassa a I'ordre dujour." Gregoire, Hi'stoirede France, i. p. 364. See also ibid.pp. 292-308, 356 364.
pleas was, it would seem, the excuse or the defence for the dealings ofNapoleon III. with the property of the Orleans family; nor is it easy tobelieve that even as late as 1880 some of the proceedings against theunauthorised congregations were not examples of the spirit which places an actof State above the law of the land.
The Penal Code Article ii4,36 protecting from punishment,though not from legal condemnation, an agent of the government who though hecommitted a crime acted in obedience to the commands of his official superiors,remained, as it still remains, in full force.
The celebrated Article 75 of the Constitution of the Year VIII.,37which made it impossible to take legal proceedings for a crime or a wrongagainst any official without the permission of the Council of State, whichsurely in this case must have acted in accordance with the government of theday, still stood unrepealed.
Public opinion refused to regard the Council as a judicial tribunal, andcondemned the protection extended to official wrongdoers. Hear on this pointthe 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 prosecuted38 foroffences relating to their several functions by virtue of a decree of theConseil d'Etat; in which case the prosecution takes place before the ordinarytribunals." This clause survived the "Constitution de 1'An VIII.," and it isstill maintained in spite of the just complaints of the nation. I have alwaysfound the utmost difficulty in explaining its meaning to Englishmen orAmericans. They were at once led to conclude that the Conseil d'Etat in Francewas a great tribunal, established in the centre of the kingdom, which exerciseda preliminary and somewhat tyrannical jurisdiction in all political causes. Butwhen I told them that the Conseil d'Etat was not a judicial body, in the commonsense of the term, but an administrative council composed of men dependent onthe Crown, so that the King, after having ordered one of his servants, called aPrefect, to commit an injustice, has the power of commanding another of hisservants, called a Councillor of State, to prevent the former from beingpunished; when I demonstrated to them that the citizen
36 See p. 226, note 26, ante.
37 See pp. 226-227, ante.
38 This term was extended by legal decisions so as to cover actions fordamages. See Jacquelin, Les Principes Dominants du ContentieuxAdministratif, p. 127.
who has been injured by the order of the sovereign is obliged to solicitfrom the sovereign permission to obtain redress, they refused to credit soflagrant an abuse, and were tempted to accuse me of falsehood or of ignorance.It frequently happened before the Revolution that a Parliament issued a warrantagainst a public officer who had committed an offence, and sometimes theproceedings were stopped by the authority of the Crown, which enforcedcompliance with its absolute and despotic will. It is painful to perceive howmuch lower we are sunk than our forefathers, since we allow things to passunder the colour of justice and the sanction of the law which violence alonecould impose upon them.39
This classical passage from Tocqueville's Democracy in Americawas published in 1835, when, at the age of 30, he had obtained a fame whichhis friends compared to that of Montesquieu. His estimate of droitadministratif assuredly had not changed when towards the end of his life hepublished L'Ancien Regime et la Revolution, by far the most powerful andthe most mature of his works. He writes:
We have, it is true, expelled the judicial power from the sphere ofgovernment into which the ancien regime had most unhappily allowed itsintroduction, but at the very same time, as any one can see, the authority ofthe government has gradually been introducing itself into the natural sphere ofthe Courts, and there we have suffered it to remain as if the confusion ofpowers was not as dangerous if it came from the side of the government as if itcame from the side of the Courts, or even worse. For the intervention of theCourts of Justice into the sphere of government only impedes the management ofbusiness, whilst the intervention of government in the administration ofjustice depraves citizens and turns them at the same time both intorevolutionists and slaves.40
These are the words of a man of extraordinary genius who well knewFrench history, who was well acquainted with the France of his day, who had foryears sat in Parliament, who at least once had been
39 A. de Tocqueville, Democracy in America, i. (translation), p.101; CEuvres Completes, i. pp. 174' 175-
40 "Nous avons, il est vrai, chasse la justice de la sphereadministrative ou I'anden regime I'avait laissee s'introduirefort indument;mais dans le meme temps, comme on le voit, legouvernement s'introduisait sanscesse dans la sphere naturelk de la justice, et nous I'y avons laisse: comme sila confusion des pouvoirs n 'etait pas aussi dangereuse de ce cote que deI'autre, et meme fire; car
V intervention de la justice dans I'administration ne nuit qu'auxaffaires, tandis que I 'intervention de I'administration dans la justicedeprave les hommes et tenda les rendre toutalafois revolutionnaires etserviles." Tocqueville, L'Ancien Regime et la Revolution,septieme edition, p. 81.
a member of the Cabinet, and to whom the public life of his own countrywas as well known as the public life of England to Macaulay. Tocqueville'slanguage may bear marks of an exaggeration, explainable partly by his turn ofmind, and partly by the line of thought which made him assiduously study andpossibly overrate the closeness of the connection between the weaknesses ofmodern democracy and the vices of the old monarchy. Be this as it may, heassuredly expressed the educated opinion of his time. A writer who hasadmirably brought into view the many merits of the Council of State and themethods by which it has in matters of administrative litigation acquired foritself more and more of a judicial character, acutely notes that till the laterpart of the nineteenth century the language of everyday life, which is the bestexpression of popular feeling, applied the terms "courts of justice" or"justice" itself only to the judicial or common law Courts.41 Whatstronger confirmation can be found of the justice of Tocqueville's judgment forthe time at least in which he lived?
We can now understand the way in which from 1830 to 1870 the existenceof a droit administratif affected the whole legal position of Frenchpublic servants, and rendered it quite different from that of Englishofficials.
Persons in the employment of the government, who formed, be it observed,a more important part of the community than do the whole body of English civilservants, occupied in France a situation in some respects resembling that ofsoldiers in England. For the breach of official discipline they were, we maysafely assume, readily punishable in one form or another. But if like Englishsoldiers they were subject to official discipline, they enjoyed what evensoldiers in England do not possess, a very large amount of protection againstproceedings before the judicial Courts for wrongs done to private citizens. Theposition, for instance, of say a prefect or a policeman, who in theover-zealous discharge of his duties had broken the law by committing anassault or a trespass, was practically unassailable. He might plead that thewrong done was an act of State. If this defence
Effect of droit administratif onposition of French officials.
41 Jeze, p. 138, note i.
Repeal of Art. 75.
would not avail him he might shelter himself behind Article 114 of thePenal Code, and thus escape not indeed an adverse verdict but the possibilityof punishment. But after all, if the Ministry approved of his conduct, he hadno need for legal defences. He could not, without the assent of the Council ofState, be called upon to answer for his conduct before any Court of law.Article 75 was the palladium of official privilege or irresponsibility. Nor letany one think that this arm of defence had grown rusty with time and could notin practice be used. Between 1852 and 1864 there were 264 applications forauthorisations under Article 75 to take proceedings against officials. Only 34were granted, or, in other words, 230 were refused.42 The manifestinjustice of the celebrated Article had been long felt. Even in 1815 Napoleonhad promised its modification.
THIRD PERIOD: THE THIRD REPUBLIC, 1870-1908
Within two years from the fall of the Second Empire public opinioninsisted upon three drastic reforms in the administrative or official law ofFrance.
On the igth of September 1870 Article 75 was repealed.
It had survived the Empire, the Restoration, the Orleans Monarchy, theRepublic of 1848, and the Second Empire. The one thing which astonishes anEnglish critic even more than the length of time during which the celebratedArticle had withstood every assault, is the date, combined with the method ofits abolition. It was abolished on the igth of September 1870, when the Germanarmies were pressing on to Paris. It was abolished by a Government which hadcome into office through an insurrection, and which had no claim to actualpower or to moral authority except the absolute necessity for protecting Franceagainst invasion. It is passing strange that a provisional government, occupiedwith the defence of Paris, should have repealed a fundamental principle ofFrench law. Of the motives which led men placed in temporary authority by theaccidents of a revolution to carry through a legal innovation which, inappearance
42 See Jacquelin, Les Principes Dominants du ContentieuxAdministratif, p. 364.
It is worth notice that the principle of Article 75 was, at any ratetill lately, recognised in more than one State of the German Empire.
at least, alters the whole position of French officials, no foreignobserver can form a certain opinion. It is, however, a plausible conjecture,confirmed by subsequent events, that the repeal of Article 75 was lightlyenacted and easily tolerated, because, as many lawyers may have suspected, iteffected a change more important in appearance than in reality, and did notafter all gravely touch the position of French functionaries or the course ofFrench administration.43
A circ*mstance which fills an English lawyer with further amazement isthat the repeal of Article 75 became, and still without any direct confirmationby any legislative assembly remains, part of the law of the land. Here we comeacross an accepted principle of French constitutional law which betrays theimmense authority conceded both by the law and by the public opinion of Franceto any de facto and generally accepted government. Such a body, even iflike the provisional government of 1848 it is called to office one hardly knowshow, by the shouts of a mob consisting of individuals whose names for the mostpart no one now knows at all, is deemed to possess whilst it continues in powerthe fullest legislative authority. It is, to use French terms, not only alegislative but a constituent authority. It can issue decrees, known by thetechnical name of decree laws (decrets lots),44 which, untilregularly repealed by some person or body with acknowledged legislativeauthority, are often as much law of the land as any Act passed with the utmostformality by the present French National Assembly. Contrast with this readyacceptance of gov-
43 For some confirmation of this view, see Aucoc, DroitAdministratif, ss. 419-426; Jacquelin, Juridiction Administrative,p. 427; Laferriere, i. bk. iii. ch. vii.
The admission, however, involved in the repeal of Article 75 of thegeneral principle that officials are at any rate prima facie liable forillegal acts, in the same way as private persons, marks, it is said bycompetent authorities, an important change in the public opinion of France, andis one among other signs of a tendency to look with jealousy on the power ofthe State.
44 See for the legal doctrine and for examples of such decree laws,Duguit, Manuel, pp. 1037, 1038; Moreau, Le Reglement Administratif,pp. 103, 104. Such decree laws were passed by the provisional governmentbetween the 24th of February and the 4th of May 1848; by Louis Napoleon betweenthe coup d'etat of 2nd December 1851 and 2gth March 1852, that is, aruler who, having by a breach both of the law of the land and of his oathsusurped supreme power, had not as yet received any recognition by a nationalvote; and lastly, by the Government of National Defence between 4th September1870 and i2th February 1871, that is, by an executive which might in strictnessbe called a government of necessity.
ernmental authority the view taken by English Courts and Parliaments ofevery law passed from 1642 to 1660 which did not receive the Royal assent. Someof them were enacted by Parliaments of a ruler acknowledged both in England andin many foreign countries as the head of the English State; the Protector,moreover, died in peace, and was succeeded without disturbance by his sonRichard. Yet not a single law passed between the outbreak of the Rebellion andthe Restoration is to be found in the English Statute Book. The scrupulouslegalism of English lawyers acknowledged in 1660 no Parliamentary authority butthat Long Parliament which, under a law regularly passed and assented to byCharles I., could not be dissolved without its own consent. A student ispuzzled whether most to admire or to condemn the sensible but, it may be, tooeasy acquiescence of Frenchmen in the actual authority of any de factogovernment, or the legalism carried to pedantic absurdity of Englishmen,who in matters of statesmanship placed technical legality above those rules ofobvious expediency which are nearly equivalent to principles of justice. Thisapparent digression is in reality germane to our subject. It exhibits thedifferent light in which, even in periods of revolution, Frenchmen andEnglishmen have looked upon the rule of law. The strange story of Article 75needs a few words more for its completion. The decree law of igth September1870 reads as if it absolutely subjected officials accused of any breach of thelaw to the jurisdiction of the judicial Courts. This, moreover, was in fact theview taken by both the judicial and the administrative Courts between 1870 andi872.4s But judicial decisions can in France, as elsewhere,frustrate the operation of laws which they cannot repeal. After 1870proceedings against officials, and officials of all ranks, became frequent.This fact is noteworthy. The government wished to protect its own servants. Itbrought before the newly constituted Conflict-Court46 a case raisingfor reconsideration the effect of the decree law of igth September 1870. TheCourt held that, though proceedings against officials might be taken withoutthe leave of the
45 See in support of this view, Jacquelin, Les Principes Dominants duContentieux Administratif, pp. 127-144.
46 See pp. 239-240, post.
'Deci-msof mnril of ate be-me igments.
Crea-nof ie-
ndent nflict->urt.
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 whetherany particular case fell within the jurisdiction of the judicial Courts or ofthe administrative Courts, that is in effect of the Council ofState.47 The principle of this decision has now obtained generalacceptance. Thus a judgment grounded on that doctrine of the separation ofpowers which embodies traditional jealousy of interference by ordinary judgesin affairs of State has, according, at any rate, to one high authority, reducedthe effect of the repeal of Article 75 almost to nothing. "To sum the matterup," writes Duguit, "the only difference between the actual system and thatwhich existed under the Constitution of the Year VIE. is that before 1870 theprosecution of State officials was subject to the authorisation of the Councilof State, whilst to-day it is subject to the authorisation of theConflict-Court."48
Under the law of 24th May i872,49 the decisions of theCouncil of State concerning cases of administrative law received for the firsttime the obligatory force of judgments. They had hitherto been in theory, andfrom some points of view even in practice, as already pointed out,50nothing but advice given to the head of the State.
The same law51 which enhanced the authority of the Council'sdecisions diminished its jurisdiction. The Council had, since 1800, decidedwhether a given case, or a point that might arise in a given case, fell withinthe 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 supportof an interpretation of the law which has now received general approval,Laferriere, i. pp. 637-654; Berthelemy, p. 65; Duguit, Manuel, s. 67,pp. 463,464; Jeze, pp. 133-135.
48 "Finalement la seule difference entre le systeme actuel etceluidela constitution del'an VIII., c'est qu'avant 1870 la poursuite contreles fonctionnaires etait subordonnee a I'autorisatim du Conseil d'ttat,etqu'aujourd'hui elle estsubordonne a I'autorisation du tribunaldesconflits." Duguit, Manuel, p. 464.
49 Sect. 9.
50 See pp. 227-228, ante.
51 Law of 24th May 1872, Tit. iv. art. 25-28.
thority or power was, in 1872, transferred to a separate and newlyconstituted Conflict-Court.52
This Conflict-Court has been carefully constituted so as to representequally the authority of the Court of Cassation the highest judicialCourt in France and the authority of the Council of State thehighest administrative Court in France. It consists of nine members: three members of the Court of Cassation elected by their colleagues; threemembers of the Council of State, also elected by their colleagues; two otherpersons elected by the above six judges of the Conflict-Court. All these eightmembers of the Court hold office for three years. They are re-eligible, and arealmost invariably re-elected. The Minister of Justice (garde des sceaux)for the time being, who is a member of the Ministry, is ex officioPresident of the Court. He rarely attends. The Court elects from its ownmembers a Vice-President who generally presides.53 TheConflict-Court comes near to an absolutely judicial body; it commands,according to the best authorities, general confidence. But its connection withthe Government of the day through the Minister of Justice (who is notnecessarily a lawyer) being its President, and the absence on the part of itsmembers of that permanent tenure of office,54 which is the bestsecurity for perfect judicial independence, are defects, which, in the opinionof the fairest among French jurists, ought to be removed,55 andwhich, as long as they exist, detract from the judicial character of theConflict-Court. An Englishman, indeed, can hardly fail to surmise that theCourt must still remain a partly official body which may occasionally be swayedby the policy of a Ministry, and still more often be influenced by official orgovernmental ideas. Nor is this suspicion diminished by the knowledge that aMinister of Justice has
52 Such a separate Conflict-Court had been created under the SecondRepublic, 1848-1851. It fell to the ground on the fall of the Republic itselfin consequence of the coup d'etat of 1851.
53 See Appendix, Note XL, Constitution of Tribunal des Conflits;Berthelemy (5th ed.), pp. 880,881; Chardon, p. 412.
54 A member of the Council of State does not hold this position asCouncillor for life. He may be removed from the Council by the government. Butno Councillor has been removed since 1875.
55 Laferriere, i. p. 24; Chardon, p. 4, note 2; Jeze, pp. 133,134.
within the year 1908 defended his position as President of the Court onthe ground that it ought to contain some one who represents the interests ofthe government.56
These three thorough-going reforms were carried out by legislativeaction. They obviously met the requirements of the time.57 They wererapid; they appeared to be sudden. This appearance is delusive. They were inreality the outcome of a slow but continuous revolution in French publicopinion and also of the perseverance with which the legists of the Council ofState, under the guidance of French jurisprudence and logic, developed out ofthe arbitrariness of administrative practice a fixed system of trueadministrative law. To understand this evolution of droit administratifduring the lapse of more than a century (1800-1908) we must cast a glanceover the whole development of this branch of French law and regard it in thelight in which it presents itself, not so much to an historian of France as toa lawyer who looks upon the growth of French public law from an historicalpoint of view. We shall then see that the years under consideration fall intothree periods or divisions.58 They are:
The Period of Unnoticed Growth, 1800-18 (Periode D'elaborationSecrete)
During these years the Council, by means of judicial precedents, createda body of maxims, in accordance with which the Council in fact acted whendeciding administrative disputes.
The Period of Publication, 1818-60 (Periode de Divulgation)
During these forty-two years various reforms were carried out, partly bylegislation, but, to a far greater extent, by judge-made law.
56 Seejeze, Revue de Droit public, etc. (1908), vol. xxv.p. 257.
57 They were either tacitly sanctioned (decree law of igth September1870) or enacted (law of 24th May 1872) even before the formal establishment ofthe Republic (1875) by a National Assembly of which the majority were so farfrom being revolutionists, or even reformers, that they desired the restorationof the monarchy.
58 SeeHauriou,pp. 245-268. These periods do not precisely correspondwith the three eras marked by political changes in the annals of France underwhich we have already considered (see pp. 217-218, ante) thehistoryof droit administratif.
The judicial became more or less separated off from the administrativefunctions of the Council. Litigious business (le contentieux administratif)was in practice assigned to and decided by a special committee(section), and, what is of equal consequence, such business was decidedby a body which acted after the manner of a Court which was addressed byadvocates, heard arguments, and after public debate delivered judicialdecisions. These decisions were reported, became the object of much publicinterest, and were, after a manner with which English lawyers are wellacquainted, moulded into a system of law. The judgments, in short, of theCouncil acquired the force of precedent. The political revolutions of France,which have excited far too much notice, whilst the uninterrupted growth ofFrench institutions has received too little attention, sometimes retarded orthrew back, but never arrested the continuous evolution of droitadministratif; even under the Second Empire this branch of Frenchjurisprudence became less and less arbitrary and developed more and more into asystem of fixed and subtle legal rules.
The Period of Organisation, 1860-1908 (Periode d'Organisation)
During the last forty-eight years, marked as they have been in France bythe change from the Empire to a Republic, by the German invasion, and by civilwar, the development of droit administratif has exhibited a singular andtranquil regularity. Sudden innovations have been rare and have produced littleeffect. The reforms introduced by the decree law of igth September 1870, and bythe law of 24th May 1872, are, taken together, considerable; but they inreality give effect to ideas which had since 1800 more or less guided thejudicial legislation and practice both of the Council of State and of the Courtof Cassation. If the legal history of France since 1800 be looked at as awhole, an Englishman may reasonably conclude that the arbitrary authority ofthe executive as it existed in the time of Napoleon, and even as it wasexercised under the reign of Louis Philippe or of Louis Napoleon, hasgradually, as far as the jurisdiction of the administrative Courts isconcerned, been immensely curtailed, if not absolutely brought to an end.Droit administratif, though administered by bodies
which are perhaps not in strictness Courts, and though containingprovisions not reconcilable with the modern English conception of the rule oflaw, comes very near to law, and is utterly different from the capriciousprerogatives of despotic power.
A comparison between the administrative law of France and our Englishrule of law, if taken from the right point of view, suggests some interestingpoints of likeness, no less than of unlikeness.
It will be observed that it is "modern" English notions which we havecontrasted with the ideas of administrative law prevalent in France and othercontinental states. The reason why the opposition between the two is drawn inthis form deserves notice. At a period which historically is not very remotefrom us, the ideas as to the position of the Crown which were current, if notpredominant in England, bore a very dose analogy to the doctrines which havegiven rise to the droit administratif of France.59 Similarbeliefs moreover necessarily produced similar results, and there was a timewhen it must have seemed possible that what we now call administrative lawshould become a permanent part of English institutions. For from the accessionof the Tudors till the final expulsion of the Stuarts the Crown and itsservants maintained and put into practice, with more or less success and withvarying degrees of popular approval, views of government essentially similar tothe theories which under different forms have been accepted by the Frenchpeople. The personal failings of the Stuarts and the confusion caused by thecombination oi a religious with a political movement have tended to mask thetrue character of the legal and constitutional issues raised by the politicalcontests of the seventeenth century. A lawyer, who regards the matter from anexclusively legal point of view, is tempted to assert that the real subject indispute between statesmen such as Bacon and Wentworth on the one hand, and co*keor Eliot on the other, was whether a strong administration of the continentaltype should, or should not, be permanently established in England. Bacon andmen like him no doubt underrated the risk that an increase in the power of
59 This is illustrated by the similarity between the views at one timeprevailing both in England and on the continent as to the relation between thegovernment and the press. See pp. 161-164, ante.
(B) Comparison between droit administratif and rule of law.
I. Likeness.
ist Point. Droit administratif not opposed to English ideascurrent in sixteenth and seventeenth centuries.
the Crown should lead to the establishment of despotism. But advocatesof the prerogative did not (it may be supposed) intend to sacrifice theliberties or invade the ordinary private rights of citizens; they were struckwith the evils flowing from the conservative legalism of co*ke, and with thenecessity for enabling the Crown as head of the nation to cope with theselfishness of powerful individuals and classes. They wished, in short, to givethe government the sort of rights conferred on a foreign executive by theprinciples of administrative law. Hence for each feature of French droitadministratif one may find some curious analogy either in the claims putforward or in the institutions favoured by the Crown lawyers of the seventeenthcentury.
The doctrine, propounded under various metaphors by Bacon, that theprerogative was something beyond and above the ordinary law is like the foreigndoctrine that in matters of high policy (acte de gouvernement) theadministration has a discretionary authority which cannot be controlled by anyCourt. The celebrated dictum that the judges, though they be "lions," yetshould be "lions under the throne, being circ*mspect that they do not check oroppose any points of sovereignty,"60 is a curious anticipation ofthe maxim formulated by French revolutionary statesmanship that the judges areunder no circ*mstances 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 theprerogative, from judicial cognisance. The constantly increasing power of theStar Chamber and of the Council gave practical expression to prevalent theoriesas to the Royal prerogative, and it is hardly fanciful to compare these Courts,which were in reality portions of the executive government, with the Conseild'etat and other Tribunaux administratifs of France. Nor is aparallel wanting to the celebrated Article 75 of the Constitution of the YearVIII.61 This parallel is to be found in Bacon's attempt to preventthe judges by means of the writ De non procedendo Rege inconsulto from
60 Gardiner, History of England, iii. p. 2.
61 Seep. 227,ante.
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 havebeen, to some extent, analogous to that provision which has been found in somany French constitutions, according to which no agent of the Government can besummoned before a tribunal, for acts done in the exercise of his office,without a preliminary authorisation by the Council of State. The effect of theEnglish writ being confined to cases where the King was himself supposed to beinjured, would have been of less universal application, but the principle onwhich it rested would have been equally bad.62
The principle moreover admitted of unlimited extension, and this, we mayadd, was perceived by Bacon. He writes to the King:
The writ is a mean provided by the ancient law of England to bring anycase (hat may concern your Majesty in profit or power from the ordinaryBenches, tobe tried and judged before the Chancellor of England, by theordinary and legal part of this power. And your Majesty knoweth yourChancellor is ever a principal counsellor and instrument of monarchy, ofimmediate dependence on the king; and therefore like to be a safe and tenderguardian of the regal rights.63
Bacon's innovation would, if successful, have formally established thefundamental dogma of administrative law, that administrative questions must bedetermined by administrative bodies.
The analogy between the administrative ideas which still prevail on theContinent64 and the conception of the prerogative which wasmaintained by the English crown in the seventeenth century has considerablespeculative interest. That the administrative ideas supposed by many Frenchwriters to have been originated by the statesmanship of the great Revolution orof the first Empire are to a great extent developments of the traditions andhabits of the French monarchy is past a doubt, and it is a curious inquiry howfar the efforts made by the Tudors or Stuarts to establish a strong govern-
62 Gardiner, History of England, iii. p. 7, note 2.
63 Abbot, Francis Bacon, p. 234.
64 It is worth noting that the system of "administrative law," thoughmore fully juditialised in France than elsewhere, exists in one form or anotherin most of the Continental States.
and Point. Droit ad-ministratif is case-law.
ment were influenced by foreign examples. This, however, is a problemfor historians. A lawyer may content himself with noting that French historythrows light on the causes both of the partial success and of the ultimatefailure of the attempt to establish in England a strong administrative system.The endeavour had a partial success, because circ*mstances, similar to thosewhich made French monarchs ultimately despotic, tended in England during thesixteenth and part of the seventeenth century to augment the authority of theCrown. The attempt ended in failure, partly because of the personaldeficiencies of the Stuarts, but chiefly because the whole scheme ofadministrative law was opposed to those habits of equality before the law whichhad long been essential characteristics of English institutions.
Droit administmtif is in its contents utterly unlike any branchof modern English law, but in the method of its formation it resembles Englishlaw far more closely than does the codified dvil law of France. For droitadministratifis, like the greater part of English law, "case-law," or"judge-made law."65 The precepts thereof are not to be found in anycode; they are based upon precedent: French lawyers cling to the belief thatdroit administmtif cannot be codified, just as English and Americanlawyers maintain, for some reason or other which they are never able to makevery dear, that English law, and especially the common law, does not admit ofcodification. The true meaning of a creed which seems to be illogical becauseits apologists cannot, or will not, give the true grounds for their faith, isthat the devotees of droit administmtif in France, in common with thedevotees of the common law in England, know that the system which they eachadmire is the product of judicial legislation, and dread that codificationmight limit, as it probably would, the essentially legislative authority of thetribunaux administratifs in France, or of the judges in England. Theprominence further given throughout every treatise on droit administratifto the contentieux administmtif recaps the importance in Englishlawbooks given to matters of procedure. The cause is
65 See Dicey, Law and Opinion in England, Leet. XI. p. 359, andAppendix, Note IV. p. 481. It may be suspected that English lawyers underratethe influence at the present day exerted by precedent (Jurisprudence) inFrench Courts.
in each case the same, namely, that French jurists and English lawyersare each dealing with a system of law based on precedent.
Nor is it irrelevant to remark that the droit administratif ofFrance, just because it is case-law based on precedents created or sanctionedby tribunals, has, like the law of England, been profoundly influenced by thewriters of text-books and commentaries. There are various branches of Englishlaw which have been reduced to a few logical principles by the books ofwell-known writers. Stephen transformed pleading from a set of rules derivedmainly from the experience of practitioners into a coherent logical system.Private international law, as understood in England at the present day, hasbeen developed under the influence first of Story's Commentaries on theConflict of Laws, and next, at a later date, of Mr. Westiake's PrivateInternational Law. And the authority exercised in every field of Englishlaw by these and other eminent writers has in France been exerted, in the fieldof administrative law, by authors or teachers such as Cormenin, Macarel,Vivien, Laferriere, and Hauriou. This is no accident. Wherever Courts havepower to form the law, there writers of textbooks will also have influence.Remark too that, from the very nature of judge-made law, Reports have in thesphere of droit administratif an importance equal to the importancewhich they possess in every branch of English law, except in the rare instancesin which a portion of our law has undergone codification.
But in the comparison between French droit administratif and thelaw of England a critic ought not to stop at the points of likeness arisingfrom their each of them being the creation of judicial decisions. There existsa further and very curious analogy between the process of their historicaldevelopment. The Conseil d'Etat has been converted from an executiveinto a judicial or quasi-judicial body by the gradual separation of itsjudicial from its executive functions through the transference of the former tocommittees (sections), which have assumed more and more distinctly theduties of Courts. These "judicial committees" (to use an English expression) atfirst only advised the Conseil d'Etat or the whole executive body,though it was soon understood that the Council would, as a general rule, followor ratify the decision of its judicial committees. This recalls to a student ofEnglish law the fact that the growth of our whole judicial system
may historically be treated as the transference to parts of the King'sCouncil of judicial powers originally exercised by the King in Council; and itis reasonable to suppose that the rather ill-defined relations between theConseil d'Etat as a whole, and the Comite du contentieux,66may explain to a student the exertion, during the earlier periods ofEnglish history, by the King's Council, of hardly distinguishable judicial andexecutive powers; it explains also how, by a natural process which may haveexcited very little observation, the judicial functions of the Council becameseparated from its executive powers, and how this differentiation of functionsgave birth at last to Courts whose connection with the political executive weremerely historical. This process, moreover, of differentiation assisted attimes, in France no less than in England, by legislation, has of quite recentyears changed the Conseil d'Etat into a real tribunal of droitadministratif, as it created in England the Judicial Committee of the PrivyCouncil for the regular and judicial decision of appeals from the colonies tothe Crown in Council. Nor, though the point is a minor one, is it irrelevant tonote that, as the so-called judgments of the Conseil d'Etat were, till1872, not strictly "judgments," but in reality advice on questions of droitadministratif given by the Conseil d'Etat to the head of theExecutive, and advice which he was not absolutely bound to follow, so the"judgments" of the Privy Council, even when acting through its judicialcommittee, though in reality judgments, are in form merely humble advicetendered by the Privy Council to the Crown. This form, which is now a meresurvival, carries us back to an earlier period of English constitutionalhistory, when the interference by the Council, i.e. by the executive,with judicial functions, was a real menace to that supremacy of the law whichhas been the guarantee of English freedom, and this era in the history ofEngland again is curiously illustrated by the annals of droit administratifafter the restoration of the Bourbons, 1815-30.
At that date the members of the Conseil d'Etat, as we haveseen,67 held, as they still hold, office at the pleasure of theExecutive; they were to a great extent a political body; there existed furtherno Con-
66 See Laferriere, i. p. 236.
67 See pp. 227 228, ante.
flirt-Court; or rather the Conseil d'Etat was itself theConflict-Court, or the body which determined the reciprocal jurisdiction of theordinary law Courts and of the administrative Courts, i.e. speakingbroadly, the extent of the Council's own jurisdiction. The result was that theConseil d'Etat used its powers to withdraw cases from the decision ofthe law Courts, and this at a time when government functionaries were fullyprotected by Article 75 of the Constitution of the Year VIII, from being maderesponsible before the Courts for official acts done in excess of their legalpowers. Nevertheless, the Conseil d'Etat, just because it was to a greatextent influenced by legal ideas, resisted, and with success, exertions ofarbitrary power inspired by the spirit of Royalist reaction. It upheld thesales of the national domain made between 1789 and 1814; it withstood everyattempt to invalidate decisions given by administrative authorities during theperiod of the Revolution or under the Empire. The King, owing, it may beassumed, to the judicial independence displayed by the Conseil d'Etat,took steps which were intended to transfer the decision of administrativedisputes from the Council or its committees, acting as Courts, to Councillors,acting as part of the executive. Ordinances of 1814 and of 1817 empowered theKing to withdraw any administrative dispute which was connected with principlesof public interest (toutes les affaires du contentieux de I'administrationqui se lieraient a des vues d'interet general) from the jurisdiction of theConseil d'Etat and bring it before the Council of Ministers or, as itwas called, the Conseil d'en haut, and the general effect of this powerand of other arrangements, which we need not follow out into detail, was thatquestions of droit adminis-tratif, in the decision of which thegovernment were interested, were ultimately decided, not even by aquasi-judicial body, but by the King and his Ministers, acting avowedly underthe bias of political considerations.68 In 1828 France insisted uponand obtained from Charles X. changes in procedure which diminished thearbitrary power of the Council.69 But no one can wonder thatFrenchmen feared the increase of arbitrary power, or that French liberalsdemanded, after the
68 See Laferriere, i. pp. 226- 234, and Cormenin, Du Conseil d'Etatenvisage comme conseil et comme juridiction (1818).
69 Ordinance of ist June 1828, Laferriere, i. p. 232.
Revolution of 1830, the abolition of administrative law and ofadministrative Courts. They felt towards the jurisdiction of the Counseild'Etat the dread entertained by Englishmen of the sixteenth and seventeenthcenturies with regard to the jurisdiction of the Privy Council, whetherexercised by the Privy Council itself, by the Star Chamber, or even by theCourt of Chancery. In each country there existed an appreciable danger lest therule of the prerogative should supersede the supremacy of the law.
The comparison is in many ways instructive; it impresses upon us hownearly it came to pass that something very like administrative law at one timegrew up in England. It ought, too, to make us perceive that such law, if it beadministered in a judicial spirit, has in itself some advantages. It shows usalso the inherent danger of its not becoming in strictness law at all, butremaining, from its close connection with the executive, a form of arbitrarypower above or even opposed to the regular law of the land. It is certain thatin the sixteenth and seventeenth centuries the jurisdiction of the PrivyCouncil and even of the Star Chamber, odious as its name has remained, didconfer some benefits on the public. It should always be remembered that thepatriots who resisted the tyranny of the Stuarts were fanatics for the commonlaw, and could they have seen their way to do so would have abolished the Courtof Chancery no less than the Star Chamber. The Chancellor, after all, was aservant of the Crown holding his office at the pleasure of the King, andcertainly capable, under the plea that he was promoting justice or equity, ofdestroying the certainty no less than the formalism of the common law. Theparallel therefore between the position of the English puritans, or whigs, who,during the seventeenth century, opposed the arbitrary authority of the Council,and the position of the French liberals who, under the Restoration (1815-30),resisted the arbitrary authority of the Conseil d'Etat and the extensionof droit 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 regardsthe matter we are considering, markedly different. Parliament destroyed, anddestroyed for ever, the arbitrary authority of the Star Chamber and of theCouncil, and did not suffer any system of ad-
ministrative Courts or of administrative law to be revived or developedin England. The French liberals, on the expulsion of the Bourbons, neitherdestroyed the tribunaux administmtifs nor made a dean sweep of droitadministmtif.
The difference is remarkable, yet any student who looks beyond names atthings will find that even here an obvious difference conceals a curiouselement of fundamental resemblance. The Star Chamber was abolished; thearbitrary jurisdiction of the Council disappeared, but the judicial authorityof the Chancellor was touched neither by the Long Parliament nor by any of theParliaments which met yearly after the Revolution of 1688. The reasons for thisdifference are not hard to discover. The law administered by the LordChancellor, or, in other words, Equity, had in it originally an arbitrary ordiscretionary element, but it in fact conferred real benefits upon the nationand was felt to be in many respects superior to the common law administered bythe common-law Judges. Even before 1660 acute observers might note that Equitywas growing into a system of fixed law. Equity, which originally meant thediscretionary, not to say arbitrary interference of the Chancellor, for theavowed and often real purpose of securing substantial justice between theparties in a given case, might, no doubt, have been so developed as to shelterand extend the despotic prerogative of the Crown. But this was not the courseof development which Equity actually followed; at any rate from the time ofLord Nottingham (1673) it was obvious that Equity was developing into ajudicial system for the application of principles which, though different fromthose of the common law, were not less fixed. The danger of Equity turning intothe servant of despotism had passed away, and English statesmen, many of themlawyers, were little likely to destroy a body of law which, if in one sense ananomaly, was productive of beneficial reforms. The treatment of droitadministratif in the nineteenth century by Frenchmen bears a markedresemblance to the treatment of Equity in the seventeenth century byEnglishmen. Droit administratif has been the subject of much attack.More than one publicist of high reputation has advocated its abolition, or haswished to transfer to the ordinary or civil Courts (tribunaux judiciaries)the authority exercised by the administrative tri-
4th Point. Rapid growth of case-law.
bunals, but the assaults upon droit administratif have beenrepulsed, and the division between the spheres of the judicial and the spheresof the administrative tribunals has been maintained. Nor, again, is there muchdifficulty in seeing why this has happened. Droit administratif with allits peculiarities, and administrative tribunals with all their defects, havebeen suffered to exist because the system as a whole is felt by Frenchmen to bebeneficial. Its severest critics concede that it has some great practicalmerits, and is suited to the spirit of French institutions. Meanwhile droitadministratif has developed under the influence rather of lawyers than ofpoliticians; it has during the last half-century and more to a great extentdivested itself of its arbitrary character, and is passing into a system ofmore or less fixed law administered by real tribunals; administrative tribunalsindeed still lack some of the qualities, such as complete independence of theGovernment, which Englishmen and many Frenchmen also think ought to belong toall Courts, but these tribunals are certainly very far indeed from being meredepartments of the executive government. To any person versed in the judicialhistory of England, 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 "law" in its very strictest sense) as Equityhas for more than two centuries become an acknowledged branch of the law ofEngland.
The annals of droit administratif during the nineteenth centuryelucidate again a point in the earlier history of English law which excitessome perplexity in the mind of a student, namely, the rapidity with which themere 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 maywell be surpised at the rapidity with which the law of the King's Court becamethe general or common law of the land. This legal revolution seems to have beenthe natural result of the vigorous exertion of judicial functions by a Court ofgreat authority. Nor can we feel certain that the end attained was deliberatelyaimed at. It may, in the main, have been the almost undesigned effect of twocauses: the first is the disposition always exhibited by capable
judges to refer the decision of particular cases to general principles,and to be guided by precedent; the second is the tendency of inferior tribunalsto follow the lead given by any Court of great power and high dignity. Here, inshort, we have one of the thousand illustrations of the principle developed inM. Tarde's Lois de limitation, that the innate imitativeness of mankindexplains the spread, first, throughout one country, and, lastly, throughout thecivilised world, of any institution or habit on which success or any othercirc*mstance has conferred prestige. It may still, however, be urged that thecreation under judicial influence of a system of law is an achievement whichrequires for its performance a considerable length of time, and that theinfluence of the King's Court in England in moulding the whole law of thecountry worked with incredible rapidity. It is certainly true that from theNorman Conquest to the accession of Edward I. (1066-1272) is a period of notmuch over two centuries, and that by 1272 the foundations of English law werefirmly laid; whilst if we date the organisation of our judicial system from theaccession of Henry II. (1154), we might say that a great legal revolution wascarried through in not much more than a century. It is at this point that thehistory of droit administratif helps the student of comparative law. Oneneed not, however, be greatly astonished at rapidity in the development oflegal principles and of legal procedure at a period when the moral influence orthe imaginative impressiveness of powerful tribunals was much greater thanduring the later stages of human progress. In any case it is certain andthe fact is a most instructive one that under the conditions of moderncivilisation 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 acentury. The expression "grown up" is here deliberately used; the developmentof droit administratif between 1800 and 1908 resembles a naturalprocess. It is as true of this branch of French law as of the Englishconstitution that it "has not been made but has grown."
An intelligent student soon finds that droit administratifcontains rules as to the status, the privileges, and the duties ofgovernment officials. He therefore thinks he can identify it with the laws,regula-
tions, or customs which in England determine the position of theservants of the Crown, or (leaving the army out of consideration) of the CivilService. Such "official law" exists, though only to a limited extent, inEngland no less than in France, and it is of course possible to identify andcompare this official law of the one country with the official law of theother. But further investigation shows that official law thus understood,though it may form part of, is a very different thing from droitadministratif. The law, by whatever name we term it, which regulates theprivileges or disabilities of civil servants is the law of a class, just asmilitary law is the law of a class, namely, the army. But droitadministratif is not the law of a class, but a very different thing a body of law which, under given circ*mstances, may affect the rights ofany French citizen, as for example, where an action is brought by Aagainst X in the ordinary Courts (tribunaux judicial res), and therights of the parties are found to depend on an administrative act (acteadministratif), which must be interpreted by an administrative tribunal(tribunal administratif). In truth, droit administratif is notthe law of the Civil Service, but is that part of French public law whichaffects every Frenchman in relation to the acts of the public administration asthe representative of the State. The relation indeed of droit administratifto the ordinary law of France may be best compared not with the relation ofthe law governing a particular class (e.g. military law) to the generallaw of England, but with the relation of Equity to the common law of England.The point of likeness, slight though in other respects it be, is that droitadministratif in France and Equity in England each constitute a body of lawwhich differs from the ordinary law of the land, and under certaincirc*mstances modifies the ordinary civil rights of every citizen.
When our student finds that droit administratif cannot beidentified with the law of the Civil Service, he naturally enough imagines thatit may be treated as the sum of all the laws which confer special powers andimpose special duties upon the administration, or, in other words, whichregulate the functions of the Government. Such laws, though they must exist inevery country, have till recently been few in England, simply because inEngland the sphere of the State's activity has, till within the last fifty orsixty years, been extremely
limited. But even in England laws imposing special functions upongovernment officials have always existed, and the number thereof has of latevastly increased; to take one example among a score, the Factory legislation,which has grown up mainly during the latter half of the nineteenth century,has, with regard to the inspection and regulation of manufactories andworkshops, given to the Government and its officials wide rights, and imposedupon them wide duties. If, then, droit administmtif meant nothing morethan the sum of all the laws which determine the functions of civil servants,droit administratif might be identified in its general character withthe 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,70 and by the vaguenesswith which English writers occasionally use the term "administrative law." Buthere, again, the attempted identification breaks down. Droit administratif,as it exists in France, is not the sum of the powers possessed or of thefunctions discharged by the administration; it is rather the sum of theprinciples which govern the relation between French citizens, as individuals,and the administration as the representative of the State. Here we touch uponthe fundamental difference between English and French ideas. In England thepowers of the Crown and its servants may from time to time be increased as theymay also be diminished. But these powers, whatever they are, must be exercisedin accordance with the ordinary common law principles which govern the relationof one Englishman to another. A factory inspector, for example, is possessed ofpeculiar powers conferred upon him by Act of Parliament; but if in virtue ofthe orders of his superior officials he exceeds the authority given him by law,he becomes at once responsible for the wrong done, and cannot plead in hisdefence strict obedience of official orders, and, further, for the tort he hascommitted he becomes amenable to the ordinary Courts. In France, on the otherhand, whilst the powers placed in the hands of the administration might bediminished, it is always assumed that the relation of individual citizens tothe State is regulated by principles
70 See Aucoc, Droit Administratif, i. s. 6; Hauriou, Precis deDroit Administratif, 3rded., p. 242, and 6th ed., pp. 391, 392; Laferriere,i. pp. 1-8.
2nd Point. Droit administratif not in reality introduced into lawof England.
different from those which govern the relation of one French citizen toanother. Droit administratif, in short, rests upon ideas absolutelyforeign to English law: the one, as I have already explained,71 isthat the relation of individuals to the State is governed by principlesessentially different from those rules of private law which govern the rightsof private persons towards their neighbours; the other is that questions as tothe application of these principles do not lie within the jurisdiction of theordinary Courts. This essential difference renders the identification ofdroit administratif with any branch of English law an impossibility.Hence inquiries which rightly occupy French jurists, such, for example, as whatis the proper definition of the contentieux administratif; what is theprecise difference between actes de gestion and actes de puissancepubliaue, and generally, what are the boundaries between the jurisdictionof the ordinary Courts (tribunaux judiciaries) and the jurisdiction ofthe administrative Courts (tribunaux adminis-tratifs) have under Englishlaw no meaning.
Has droit administratif been of recent years introduced in anysense into the law of England?
This is an inquiry which has been raised by writers of eminence,72and which has caused some perplexity. We may give thereto a decided andnegative reply.
The powers of the English Government have, during the last sixty yearsor so, been largely increased; the State has undertaken many new functions,such, for example, as the regulation of labour under the Factory Acts, and thesupervision of public education under the
71 Seep. 219,ante.
72 See Laferriere, i. pp. 97-106. To cite such enactments as the PublicAuthorities Protection Act 1893, which by the way does little more thangeneralise provisions, to be found in a lot of Acts extending from 1601 to1900, as an example of the existence of administrative law in England, seems tome little else than playing with words. The Act assumes that every person maylegally do the act which by law he is ordered to do. It also gives a person whoacts in pursuance of his legal duty, e.g. under an Act of Parliament,special privileges as to the time within which an action must be broughtagainst him for any wrong committed by him in the course of carrying out hisduty, but it does not to the least extent provide that an order from a superiorofficial 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 beobtained except against the actual wrong-doer for damage inflicted by theconduct of a servant of the Crown. These instances are practically unimportant.See Appendix, Note XII., "Proceedings against the Crown."
Education Acts. Nor is the importance of this extension of the activityof the State lessened by the consideration that its powers are in many casesexercised by local bodies, such, for example, as County Councils. But thoughthe powers conferred on persons or bodies who directly or indirectly representthe State have been greatly increased in many directions, there has been nointentional introduction into the law of England of the essential principles ofdroit administratif. Any official who exceeds the authority given him bythe law incurs the common law responsibility for his wrongful act; he isamenable to the authority of the ordinary Courts, and the ordinary Courts havethemselves jurisdiction to determine what is the extent of his legal power, andwhether the orders under which he has acted were legal and valid. Hence theCourts do in effect limit and interfere with the action of the"administration," using that word in its widest sense. The London School Board,for example, has claimed and exercised the right to tax the ratepayers for thesupport of a kind of education superior to the elementary teaching generallyprovided by School Boards; the High Court of Justice has decided that suchright does not exist. A year or two ago some officials, acting under thedistinct orders of the Lords of the Admiralty, occupied some land alleged tobelong to the Crown; the title of the Crown being disputed, a court of law gavejudgment against his officials as wrong-doers. In each of these cases nice anddisputable points of law were raised, but no English lawyer, whatever hisopinion of the judgments given by the Court, has ever doubted that the HighCourt had jurisdiction to determine what were the rights of the School Board orof the Crown. Droit administratif, therefore, has obtained no footholdin England, but, as has been pointed out by some foreign critics, recentlegislation has occasionally, and for particular purposes, given to officialssomething like judicial authority. It is possible in such instances, which arerare, to see a slight approximation to droit administratif, but theinnovations, such as they are, have been suggested merely by considerations ofpractical convenience, and do not betray the least intention on the part ofEnglish statesmen to modify the essential principles of English law. Thereexists in England no true droit administratif.
An English lawyer, however, who has ascertained that no branch ofEnglish law corresponds with the administrative law of foreign countries mustbe on his guard against falling into the error that the droit administratifof modern France is not "law" at all, in the sense in which that term isused in England, but is a mere name for maxims which guide the executive in theexercise if not of arbitrary yet of discretionary power. That this notion iserroneous will, I hope, be now dear to all my readers. But for its existencethere is some excuse and even a certain amount of justification.
The French Government does in fact exercise, especially as regardsforeigners, a wide discretionary authority which is not under the control ofany Court whatever. For an act of State the Executive or its servants cannot bemade amenable to the jurisdiction of any tribunal, whether judicial oradministrative. Writers of high authority have differed73 indeedprofoundly as to the definition of an act of State (actedegouvernement).74 Where on a question of French law Frenchjurists disagree, an English lawyer can form no opinion; he may be allowed,however, to conjecture that at times of disturbance a French Government canexercise discretionary powers without the dread of interference on the part ofthe ordinary Courts, and that administrative tribunals, when they canintervene, are likely to favour that interpretation of the term act of Statewhich supports the authority of the Executive. However this may be, thepossession by the French Executive of large prerogatives is apt, in the mind ofan Englishman, to be confused with the character of the administrative lawenforced by Courts composed, in part at any rate, of officials.
The restrictions, again, placed by French law on the jurisdiction of theordinary Courts (tribunaux judidaires) whereby they are prevented frominterfering with the action of the Executive and its servants, seem to anEnglishman accustomed to a system under which the Courts of law determine thelimits of their own jurisdiction, to be
73 Seep. 226,ante.
74 CompareLaferriere, ii. bk. iv. ch. ii. p. 32, and Hauriou, pp. 282 287, with Jacquelin, pp. 438-447.
much the same thing as the relegating of all matters in which theauthority of the State is concerned to the discretion of the Executive. Thisnotion is erroneous, but it has been fostered by a circ*mstance which may betermed accidental. The nature and the very existence of droitadministratifhas been first revealed to many Englishmen, as certainly tothe present writer, through the writings of Alexis de Tocqueville, whose workshave exerted, in the England of the nineteenth century, an influence equal tothe authority exerted by the works of Montesquieu in the England of theeighteenth century. Now Tocqueville by his own admission knew little or nothingof the actual working of droit administmtif in his own day.7SHe no doubt in his later years increased his knowledge, but to the end of hislife he looked upon droit administratif, not as a practising lawyer butas the historian of the ancien regime, and even as an historian hestudied the subject from a very peculiar point of view, for the aim ofL'Ancien Regime et la Revolution is to establish the doctrine that theinstitutions of modern France are in many respects in spirit the same as theinstitutions of the ancient monarchy; and Tocqueville, moved by the desire tomaintain a theory of history which in his time sounded like a paradox, but,owing greatly to his labours, has now become a generally accepted truth, wasinclined to exaggerate the similarity between the France of the Revolution, theEmpire, or the Republic, and the France of the ancien regime. Nowhere isthis tendency more obvious than in his treatment of droit administratif.He demonstrates that the ideas on which droit administratif is basedhad been accepted by French lawyers and statesmen long before 1789; he notesthe arbitrariness of droit administratif under the monarchy; he not onlyinsists upon but deplores the connection under the ancien regime betweenthe action of the Executive and the administration of justice, and he certainlysuggests that the droit administratif of the nineteenth century was allbut as closely connected with the exercise of arbitrary power as was thedroit administratif of the seventeenth or the eighteenth century.
75 Tocqueville, vii. CEuvres Completes, p. 66.
III. Merits and demerits.
Rule of law its merits.
He did not recognise the change in the character of droitadministratif which was quietly taking place in his own day. He could notby any possibility anticipate the reforms which have occurred during the lapseof well-nigh half a century since his death. What wonder that English lawyerswho first gained their knowlege of French institutions from Tocqueville shouldfail to take full account of that judiciali-sation (juridictionnalisation)of administrative law which is one of the most surprising and noteworthyphenomena in the legal history of France.
It is not uninstructive to compare the merits and defects, on the onehand, of our English rule of law, and, on the other, of French droitadministratif.
Our rigid rule of law has immense and undeniable merits. Individualfreedom is thereby more thoroughly protected in England against oppression bythe government than in any other European country; the Habeas CorpusActs76 protect the liberty no less of foreigners than of Britishsubjects; martial law77 itself is reduced within the narrowestlimits, and subjected to the supervision of the Courts; an extension ofjudicial power which sets at nought the dogma of the separation of powers,happily combined with judicial independence, has begotten reverence for thebench of judges. They, rather than the government, represent the august dignityof the State, or, in accordance with the terminology of English law, of theCrown. Trial by jury is open to much criticism; a distinguished French thinkermay be right in holding that the habit of submitting difficult problems of factto the decision of twelve men of not more than average education andintelligence will in the near future be considered an absurdity as patent asordeal by battle. Its success in England is wholly due to, and is the mostextraordinary sign of, popular confidence in the judicial bench. A judge is thecolleague and the readily accepted guide of the jurors. The House of Commonsshows the feeling of the electors, and has handed over to the High
76 See pp. 130-131, ante.
77 See p. 180, ante.
Court of Justice the trial of election petitions. When rare occasionsarise, as at Sheffield in 1866, which demand inquiries of an exceptionalcharacter which can hardly be effected by the regular procedure of the Courts,it is to selected members of the bench that the nation turns for aid. In thebitter disputes which occur in the conflicts between capital and labour,employers and workmen alike will often submit their differences to thearbitration of men who have been judges of the High Court. Reverence, in short,for the supremacy of the law is seen in its very best aspect when we recogniseit as being in England at once the cause and the effect of reverence for ourjudges.
The blessings, however, conferred upon the nation by the rule of law arebalanced by undeniable, though less obvious, evils. Courts cannot withoutconsiderable danger be turned into instruments of government. It is not the endfor which they are created; it is a purpose for which they are ill suited atany period or in any country where history has not produced veneration for thelaw and for the law Courts.78 Respect for law, moreover, easilydegenerates into legalism which from its very rigidity may work considerableinjury 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 theservant of any other employer, or as placed under obligations or entitled toimmunities different from those imposed upon or granted to an ordinary citizen,has certainly saved England from the development of the arbitrary prerogativesof the Crown, but it has also in more ways than one been injurious to thepublic service.
The law, for instance, has assuredly been slow to recognise the factthat violations of duty by public officials may have an importance and deservea punishment far greater than the same conduct on the part of an agent of anordinary employer. Some years ago a copyist in a public office betrayed to thenewspapers a diplomatic document of the highest importance. Imagination canhardly picture a more flagrant breach of duty, but there then apparentlyexisted no available
78 In times of revolutionary passion trial by jury cannot secure respectfor justice. The worst iniquities committed by Jeffreys at the Bloody Assizewould have been impossible had he not found willing accomplices in the jurorsand freeholders of the western counties.
means for punishing the culprit. If it could have been proved that hehad taken from the office the paper on which the communication of state waswritten, he might conceivably have been put on trial for larceny.79But a prisoner put on trial for a crime of which he was in fact morallyinnocent, because the gross moral offence of which he was really guilty was nota crime, might have counted on an acquittal. The Official Secrets Act,1889,80 now, it is true, renders the particular offence, which couldnot be punished in 1878, a misdemeanour, but the Act, after the manner ofEnglish legislation, does not establish the general principle that an officialbreach of trust is a crime. It is therefore more than possible thatderelictions of duty on the part of public servants which in some foreigncountries would be severely punished may still in England expose the wrong-doerto no legal punishment.
Nor is it at all wholly a benefit to the public that bona fideobedience to the orders of superiors is not a defence available to asubordinate who, in the discharge of his functions as a government officer, hasinvaded 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 by a jury.
In this point of view few things are more instructive than anexamination of the actions which have been brought against officers of theBoard of Trade for detaining ships about to proceed to sea. Under the MerchantShipping Acts since 1876 the Board have been and are bound to detain any shipwhich from its unsafe and unseaworthy condition cannot proceed to sea withoutserious danger to human life.81 Most persons would suppose that theofficials of the Board, as long as they, bona fide, and without maliceor 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 Official Secrets Act, 1911, i & 2Geo. 5, c. 28, described
as "An Act to re-enact the Official Secrets Act, 1889, with Amendments."See especially sec. 2.
81 Merchant Shipping Act, 1894 (57 & 58 Viet. c. 60), s. 459.
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.82 They have never been accused of either malice ornegligence, but the mere fact that the Board act in an administrative capacityis not a protection to the Board, nor is mere obedience to the orders of theBoard an answer to an action against its servants. Any deviation, moreover,from the exact terms of the Acts the omission of the most unmeaningformality may make every person, high and low, concerned in thedetention of the ship, a wrong-doer. The question, on the answer to which thedecision in each instance at bottom depends, is whether there was reasonablecause for detaining the vessel, and this inquiry is determined by jurymen whosympathise more keenly with the losses of a shipowner, whose ship may have beenunjustly detained, than with the zeal of an inspector anxious to perform hisduty and to prevent loss of life. The result has (it is said) been to renderthe provisions of the Merchant Shipping Acts, with regard to the detention ofunseaworthy ships, nugatory. Juries are often biassed against the Government. Atechnical question is referred for decision, from persons who know somethingabout the subject, and are impartial, to persons who are both ignorant andprejudiced. The government, moreover, which has no concern but the publicinterest, is placed in the false position of a litigant fighting for his ownadvantage. These things ought to be noticed, for they explain, if they do notjustify, the tenacity with which statesmen, as partial as Tocqueville toEnglish ideas of government, have dung to the conviction that administrativequestions ought to be referred to administrative Courts.
The merits of administrative law as represented by modern Frenchdroit administratif, that is, when seen at its very best, escape theattention, and do not receive the due appreciation of Englishconstitutionalists.83 No jurist can fail to admire the skill withwhich the Council of State, the authority and the jurisdiction whereof as anadministrative Court year by year receives extension, has worked out
82 See Thomson v. Fairer, 9 Q. B. D. (C. A.), 372.
83 One, and not the least of them, is that access to the Council ofState as an administrative Court is both easy and inexpensive.
new remedies for various abuses which would appear to be hardly touchedby the ordinary law of the land. The Council, for instance, has created andextended the power of almost any individual to attack, and cause to beannulled, any act done by any administrative authority (using the term in avery wide sense) which is in excess of the legal power given to the person orbody from whom the act emanates. Thus an order issued by a prefect or a bye-lawmade by a corporation which is in excess of the legal power of the prefect orof the corporate body may, on the application of a plaintiff who has anyinterest in the matter whatever, be absolutely set aside or annulled for thebenefit not only of the plaintiff, but of all the world, and this even thoughhe has not himself suffered, from the act complained of, any pecuniary loss ordamage. The ingenious distinction84 again, which has been more andmore carefully elaborated by the Council of State, between damage resultingfrom the personal fault (faute personnelle), e.g. spite, violence, ornegligence of an official, e.g. a prefect or a mayor, in the carryingout of official orders, and the damage resulting, without any fault on the partof the official, from the carrying out of official orders, illegal or wrongfulin themselves (faute de service), has of recent years afforded avaluable remedy to persons who have suffered from the misuse of official power,and has also, from one point of view, extended or secured the responsibility ofofficials a responsibility enforceable in the ordinary Courts forwrongful con-
84 French law draws an important distinction between an injury caused toa private individual by act of the administration or government which is inexcess of its powers (faute de service), though duly carried out, or atany rate, carried out without any gross fault on the part of a subordinatefunctionary, e.g. a policeman acting in pursuance of official orders,and injury caused to a private individual by the negligent or malicious manner(faute personnelle) in which such subordinate functionary carries outofficial orders which may be perfectly lawful. In the first case the policemanincurs no liability at all, and the party aggrieved must proceed in some formor other against the State in the administrative Courts (tribunauxadministratifs). 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. 170, 171; Laferriere, i. p.652), and apparently cannot proceed against the State.
French authorities differ as to what is the precise criterion by whichto distinguish a faute personnelle from a faute de service, andshow a tendency to hold that there is no faute personnelle on the part,e.g. of a policeman, when he has bona fide attempted to carry outhis official duty. See Duguit, L'Etat, pp. 638-640; [Duguit, Traitede Droit Constitutional, i. PP- 553-559-]
duct, which is in strictness attributable to their personal action. Andin no respect does this judge-made law of the Council appear to more advantagethan in cases, mostly I conceive of comparatively recent date, in whichindividuals have obtained compensation for governmental action, which mightpossibly be considered of technical legality, but which involves in reality theillegitimate use of power conferred upon the government or some governmentalbody for one object, but in truth used for some end different from thatcontemplated by the law. One example explains my meaning. The State in 1872had, as it still has, a monopoly of matches. To the government was given by lawthe power of acquiring existing match factories under some form of compulsorypurchase. It occurred to some ingenious minister that the fewer factories therewere left open for sale, the less would be the purchase-money which the Statewould need to pay. A prefect, the direct servant of the government, had powerto dose factories on sanitary grounds. Under the orders of the minister hedosed a factory belonging to A, nominally on sanitary grounds, but inreality to lessen the number of match factories which the State, in themaintenance of its monopoly, would require to purchase. There was no personalfault on the part of the prefect. No action could with success be maintainedagainst him in the judicial Courts,85 nor, we may add, in theadministrative Courts.86 A, however, attacked the act itself beforethe Coundl of State, and got the order of the prefect annulled, and ultimatelyobtained, through the Council of State, damages from the State of over£2000 for the illegal dosing of the factory, and this in addition to thepurchase-money received from the State for taking possession of thefactory.87
No Englishman can wonder that the jurisdiction of the Coundl of State,as the greatest of administrative Courts, grows apace; the extension of itspower removes, as did at one time the growth of Equity in England, realgrievances, and meets the need of the ordinary dtizen. Yet to an Englishmanimbued with an unshakeable faith in
85 Dalloz, 1875, i. 495.
86 Dalloz, 1878, iii. 13.
87 Dalloz, 1880, iii. 41.
the importance of maintaining the supremacy of the ordinary law of theland enforced by the ordinary Law Courts, the droit administratif ofmodern France is open to some grave criticism.
The high and increasing authority of the Coundl of State must detract,he surmises, from the dignity and respect of the judidal Courts. "The morethere is of the more, the less there is of the less" is a Spanish proverb ofprofound wisdom and wide application. There was a time in the history ofEngland when the judidal power of the Chancellor, bound up as it was with theprerogative of the Crown, might have overshadowed the Courts of Law, which haveprotected the hereditary liberties of England and the personal freedom ofEnglishmen. It is difficult not to suppose that the extension of the Council'sjurisdiction, benefidal as may be its direct effects, may depress the authorityof the judidal tribunals. More than one writer, who ought to represent theideas of educated Frenchmen, makes the suggestion that if the members of theCoundl of State lack that absolute security of tenure which is universallyacknowledged to be the best guarantee of judidal independence, yet irremovablejudges, who, though they may defy dismissal, are tormented by the constantlonging for advancement,88 are not more independent of theGovernment at whose hands they expect promotion than are members of the Councilof State who, if legally removable, are by force of custom hardly ever removedfrom their high position.
Trial by jury, we are told, is a joke, and, as far as the interests ofthe public are concerned, a very bad joke.89 Prosecutors andcriminals alike prefer the Correctional Courts, where a jury is unknown, to theCourts of Assize, where a judge presides and a jury gives a verdict. Theprosecutor knows that in the Correctional Court proved guilt will lead tocondemnation. The criminal knows that though in the inferior Court he may losethe chance of acquittal by good-natured or sentimental jurymen, he also avoidsthe possibility of undergoing severe punishment. Two facts are certain. In 1881the judges were deprived of the right of charging the jury. Year by year thenumber of causes
88 See Chardon, pp. 326-328.
89 Ibid.
tried in the Assize Courts decreases. Add to this that the procedure ofthe judicial Courts, whether civil or criminal, is antiquated and cumbrous. Theprocedure in the great administrative Court is modelled on modern ideas, issimple, cheap, and effective. The Court of Cassation still commands respect.The other judicial Courts, one can hardly doubt, have sunk in popularestimation. Their members neither exercise the power nor enjoy the moralauthority of the judges of the High Court.
It is difficult, further, for an Englishman to believe that, at any ratewhere politics are concerned, the administrative Courts can from their verynature give that amount of protection to individual freedom which is secured toevery English citizen, and indeed to every foreigner residing in England.However this may be, it is certain that the distinction between ordinary lawand administrative law (taken together with the doctrine of the separation ofpowers, at any rate as hitherto interpreted by French jurists), implies thegeneral belief that the agents of the government need, when acting in bonafide discharge of their official duties, protection from the control of theordinary law Courts. That this is so is proved by more than one fact. Thedesire to protect servants of the State has dictated the enactment of theCode Penal, Article 114. This desire kept alive for seventy yearsArticle 75 of the Constitution of the Year VIII. It influenced even the men bywhom that Article was repealed, for the repeal itself is expressed in wordswhich imply the intention of providing some special protection for the agentsof the government. It influenced the decisions which more or less nullified theeffect of the law of igth December 1870, which was at first supposed to makethe judicial Courts the sole judges of the liability of civil servants tosuffer punishment or make compensation for acts of dubious legality done in theperformance of their official duties. Oddly enough, the success with whichadministrative Courts have extended the right of private persons to obtaindamages from the State itself for illegal or injurious acts done by itsservants, seems, as an English critic must think, to supply a new form ofprotection for the agents of the government when acting in obedience to orders.There surely can be little inducement to take proceedings against asubordinate, whose guilt consists merely in carry-
ing out a wrongful or illegal order, given him by his official superior,if the person damaged can obtain compensation from the government, or, in otherwords, from the State itself.90 But turn the matter which way youwill, the personal immunities of officials who take part, though without otherfault of their own, in any breach of the law, though consistent even with themodern droit administratif of France, are inconsistent with the ideaswhich underlie the common law of England. This essential opposition has beenadmirably 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 byevery victim of a legal wrong to seek compensation from the immediately visiblewrong-doer. But on this point the laws of different countries obey utterlydifferent tendencies. There are countries [such, for example, as England or theUnited States] where every effort is made to shelter the liability of the Statebehind the personal responsibility of its servant. There are other countrieswhere every effort is made to cover the responsibility of the servant of theState behind the liability of the State itself, to protect him against, and tosave him from, the painful consequences of faults committed in the service ofthe State. The laws of centralised countries, and notably the law of France,are of this type. There you will find what is called the protection ofofficials (garantie des fonctionnaries) .91
90 Consider, too, the extended protection offered to every servant ofthe State by the doctrine, suggested by at least one good authority, that hecannot be held personally responsible for any wrong (faute) committedwhilst he is acting in the spirit of his official duty. "Si, en effet, lefonctionnaire a agi dans I 'esprit de sa fonction, c'est-a-dire en poursuivanteffectivement le but qu'avail I'Etat en etablissant cette fonction, il nepeutetre responsable ni vis-a-vis de I'Etat, ni vis-a-vis des particuliers, alorsmeme qu'il ait commis une faute." Duguit, L'Etat,
p. 638.
91 "Ceprincipeestadmis par toutes les legislations, lapoursuite dufonctionnaireexistepartout, d'autant qu'elle repond a un mouvement instinctifqui est, pour la victims d'un mefait, de s'en prendre a I'autuer immediatementvisible. Mais les legislations obeissent a deux tendances bien opposees: il enest Cjuis'efforcent d'abriter I'Etat derriere le fonctionnaire, il en estd'autres, au contraire, qui s'effor-cent de faire couvrir le fonctionnaire parI'Etat, de le proteger, de le rassurer centre les consequences facheuses de seserreurs. Les legislations des pays centralises et notamment cette de la francssont de ce dernier type; il yace que Von appelle une garantie desfonctionnaires." Hauriou, Precis de Droit Administratif,Troisieme edit., pp. 170, 171.
Chapter Xffl
RELATION BETWEEN
PARLIAMENTARY SOVEREIGNTY
AND THE RULE OF LAW
The 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 to each other, or to be at best onlycounterbalancing forces. But this appearance is delusive; the sovereignty ofParliament, as contrasted with other forms of sovereign power, favours thesupremacy of the law, whilst the predominance of rigid legality throughout ourinstitutions evokes the exercise, and thus increases the authority, ofParliamentary sovereignty.
The sovereignty of Parliament favours the supremacy of the law of theland.
That this should be so arises in the main from two characteristics orpeculiarities which distinguish the English Parliament from other sovereignpowers.
The first of these characteristics is that the commands of Parliament(consisting as it does of the Crown, the House of Lords, and the House ofCommons) can be uttered only through the combined action of its threeconstituent parts, and must, therefore, always take the shape of formal anddeliberate legislation. The will of Parliament1 can be expressedonly through an Act of Parliament.
i 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 coexistenceof two legislative chambers prevents the confusion of resolutions passed byeither House with laws, and thus checks the sub-
This is no mere matter of form; it has most important practical effects.It prevents those inroads upon the law of the land which a despotic monarch,such as Louis XIV., Napoleon I., or Napoleon HI., might effect by ordinances ordecrees, or which the different constituent assemblies of France, and above allthe famous Convention, carried out by sudden resolutions. The principle thatParliament speaks only through an Act of Parliament greatly increases theauthority of the judges. A Bill which has passed into a statute immediatelybecomes subject to judicial interpretation, and the English Bench have alwaysrefused, in principle at least, to interpret an Act of Parliament otherwisethan by reference to the words of the enactment. An English judge will take nonotice of the resolutions of either House, of anything which may have passed indebate (a matter of which officially he has no cognisance), or even of thechanges which a Bill may have undergone between the moment of its firstintroduction to Parliament and of its receiving the Royal assent. All this,which seems natural enough to an English lawyer, would greatly surprise manyforeign legists, and no doubt often does give a certain narrowness to thejudicial construction of statutes. It contributes greatly, however, both (as Ihave already pointed out) to the authority of the judges and to the fixity ofthe law.2
The second of these characteristics is that the English Parliament assuch has never, except at periods of revolution, exercised direct executivepower or appointed the officials of the executive government.
No doubt in modern times the House of Commons has in substance obtainedthe right to designate for appointment the Prime Minister and the other membersof the Cabinet. But this right is, historically speaking, of recentacquisition, and is exercised in a very
stitution of the arbitrary will of an assembly for the supremacy of theordinary law of the land. Whoever wishes to appreciate the force of thisargument should weigh well the history, not only of the French Convention butalso of the English Long Parliament. 2 The principle that the sovereignlegislature can express its commands only in the particular form of an Act ofParliament 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 the King by and with the advice and consent of the Lords andCommons in Parliament assembled."
roundabout manner; its existence does not affect the truth of theassertion that the Houses of Parliament do not directly appoint or dismiss theservants of the State; neither the House of Lords nor the House of Commons, norboth Houses combined, could even now issue a direct order to a militaryofficer, a constable, or a tax-collector; the servants of the State are stillin name what they once were in reality "servants of the Crown"; and,what is worth careful notice, the attitude of Parliament towards governmentofficials was determined originally, and is still regulated, by considerationsand feelings belonging to a time when the "servants of the Crown" weredependent upon the King, that is, upon a power which naturally excited thejealousy and vigilance of Parliament.
Hence several results all indirectly tending to support the supremacy ofthe law. Parliament, though sovereign, unlike a sovereign monarch who is notonly a legislator but a ruler, that is, head of the executive government, hasnever hitherto been able to use the powers of the government as a means ofinterfering with the regular course of law;3 and what is even moreimportant, Parliament has looked with disfavour and jealousy on all exemptionsof officials from the ordinary liabilities of citizens or from the jurisdictionof the ordinary Courts; Parliamentary sovereignty has been fatal to the growthof "administrative law." The action, lastly, of Parliament has tended asnaturally to protect the independence of the judges, as that of othersovereigns to protect the conduct of officials. It is worth notice thatParliamentary care for judicial independence has, in fact, stopped just at thatpoint where on a priori grounds it might be expected to end. The judgesare not in strictness irremovable; they can be removed from office on anaddress of the two Houses; they have been made by Parliament independent ofevery power in the State except the Houses of Parliament.
The idea may suggest itself to a reader that the characteristics orpeculiarities of the English Parliament on which I have just dwelt must now becommon to most of the representative assemblies which exist in continentalEurope. The French National Assembly, for
3 Contrast with this the way in which, even towards the end of theeighteenth century, French Kings interfered with the action of the Courts.
'endency o support ule orlaw iften not ound in oreign epresenta-iveas-emblies.
Rule of law favours Parliamentary sovereignty.
example, bears a considerable external resemblance to our ownParliament. It is influenced, however, by a different spirit; it is the heir,in more ways than one, of the Bourbon Monarchy and the Napoleonic Empire. It isapparently, though on this point a foreigner must speak with hesitation,inclined to interfere in the details of administration. It does not look withspecial favour on the independence or authority of the ordinary judges. Itshows no disapprobation of the system oidroit administratif whichFrenchmen very likely with truth regard as an institution suitedto their country, and it certainly leaves in the hands of the government widerexecutive and even legislative powers than the English Parliament has everconceded either to the Crown or to its servants. What is true of France is trueunder a different form of many other continental states, such, for example, asSwitzerland or Prussia. The sovereignty of Parliament as developed in Englandsupports the supremacy of the law. But this is certainly not true of all thecountries which now enjoy representative or Parliamentary government.
The supremacy of the law necessitates the exercise of Parliamentarysovereignty.
The rigidity of the law constantly hampers (and sometimes with greatinjury to the public) the action of the executive, and from the hard-and-fastrules of strict law, as interpreted by the judges, the government can escapeonly by obtaining from Parliament the discretionary authority which is deniedto the Crown by the law of the land. Note with care the way in which thenecessity for discretionary powers brings about the recourse to exceptionallegislation. Under the complex conditions of modern life no government can intimes of disorder, or of war, keep the peace at home, or perform its dutiestowards foreign powers, without occasional use of arbitrary authority. Duringperiods, for instance, of social disturbance you need not only to punishconspirators, but also to arrest men who are reasonably suspected ofconspiracy; foreign revolutionists are known to be spreading seditionthroughout the land; order can hardly be maintained unless the executive canexpel aliens. When two foreign nations are at war, or when civil contestsdivide a friendly country into two hostile camps, it is impossible for Englandto perform her duties
as a neutral unless the Crown has legal authority to put a summary checkto the attempts of English sympathisers to help one or other of thebelligerents. Foreign nations, again, feel aggrieved if they are prevented frompunishing theft and homicide, if, in short, their whole criminal law isweakened because every scoundrel can ensure impunity for his crimes by anescape to England. But this result must inevitably ensue if the Englishexecutive has no authority to surrender French or German offenders to thegovernment of France or of Germany. The English executive needs therefore theright to exercise discretionary powers, but the Courts must prevent, and willprevent at any rate where personal liberty is concerned, the exercise by thegovernment of any sort of discretionary power. The Crown cannot, except understatute, expel from England any alien4 whatever, even though he werea murderer who, after slaughtering a whole family at Boulogne, had on the veryday crossed red-handed to Dover. The executive therefore must ask for, andalways obtains, aid from Parliament. An Alien Act enables the Ministry in timesof disturbance to expel any foreigner from the country; a Foreign EnlistmentAct makes it possible for the Ministry to check intervention in foreigncontests or the supply of arms to foreign belligerents. Extradition Actsempower the government at the same time to prevent England from becoming a cityof refuge for foreign criminals, and to co-operate with foreign states in thatgeneral repression of crime in which the whole civilised world has an interest.Nor have we yet exhausted the instances in which the rigidity of the lawnecessitates the intervention of Parliament. There are times of tumult orinvasion when for the sake of legality itself the rules of law must be broken.The course which the government must then take is dear. The Ministry must breakthe law and trust for protection to an Act of Indemnity. A statute of this kindis (as already pointed out5) the last and supreme exercise ofParliamentary sovereignty. It legalises illegality; it affords the practicalsolution of the problem which perplexed the statesmanship of the sixteenth andseventeenth centuries, how to combine the mainte-
4 See, however, p. 137, note 22, ante.
5 See pp. 10, H, 142-145, ante.
nance of law and the authority of the Houses of Parliament with the freeexercise of that kind of discretionary power or prerogative which, under someshape or other, must at critical junctures be wielded by the executivegovernment of every civilised country.
This solution may be thought by some critics a merely formal one, or atbest only a substitution of the despotism of Parliament for the prerogative ofthe Crown. But this idea is erroneous. The fact that the most arbitrary powersof the English executive must always be exercised under Act of Parliamentplaces the government, even when armed with the widest authority, under thesupervision, so to speak, of the Courts. Powers, however extraordinary, whichare conferred or sanctioned by statute, are never really unlimited, for theyare confined by the words of the Act itself, and, what is more, by theinterpretation put upon the statute by the judges. Parliament is supremelegislator, but from the moment Parliament has uttered its will as lawgiver,that will becomes subject to the interpretation put upon it by the judges ofthe land, and the judges, who are influenced by the feelings of magistrates noless than by the general spirit of the common law, are disposed to construestatutory exceptions to common law principles in a mode which would not commenditself either to a body of officials, or to the Houses of Parliament, if theHouses were called upon to interpret their own enactments. In foreigncountries, and especially in France, administrative ideas notionsderived from the traditions of a despotic monarchy have restricted theauthority and to a certain extent influenced the ideas of the judges. InEngland judicial notions have modified the action and influenced the ideas ofthe executive government. By every path we come round to the same conclusion,that Parliamentary sovereignty has favoured the rule of law, and that thesupremacy of the law of the land both calls forth the exertion of Parliamentarysovereignty, and leads to its being exercised in a spirit of legality.
PARTIII
THE CONNECTION BETWEEN
THE LAW OF THE CONSTITUTION
AND THE CONVENTIONS OF
THE CONSTITUTION
Chapter XIV
NATURE OF CONVENTIONS OF CONSTITUTION
Questions remaining to be answered.
/
n an earlier part of this work1 stress was laid upon theessential distinction between the "law of the constitution," which, consisting(as it does) of rules enforced or recognised by the Courts, makes up a body of"laws" in the proper sense of that term, and the "conventions of theconstitution," which consisting (as they do) of customs, practices, maxims, orprecepts which are not enforced or recognised by the Courts, make up a body notof laws, but of constitutional or political ethics; and it was further urgedthat the law, not the morality of the constitution, forms the proper subject oflegal study.2 In accordance with this view, the reader's attentionhas been hitherto exclusively directed to the meaning and applications of twoprinciples which pervade the law of the constitution, namely, the Sovereigntyof Parliament3 and the Rule of Law.4
But a lawyer cannot master even the legal side of the Englishconstitution without paying some attention to the nature of thoseconstitutional understandings which necessarily engross the attention ofhistorians 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 theconstitution; and a lawyer who undertakes this task
1 See pp. cxl-cxlvi, ante.
2 See pp. odv-odvi, ante.
3 See Part I.
4 See Part II.
will soon find that in so doing he is only following one stage fartherthe path on which we have already entered, and is on the road to discover thelast and most striking instance of that supremacy of the law which gives to theEnglish polity the whole of its peculiar colour.
My aim therefore throughout the remainder of this book is to define, orascertain, the relation or connection between the legal and the conventionalelements in the constitution, and to point out the way in which a justappreciation of this connection throws light upon several subordinate questionsor 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 understandings of theconstitution? What is the force or (in the language of jurisprudence) the"sanction" by which is enforced obedience to the conventions of theconstitution? These answers will themselves throw light on the subordinatematters to which I have made reference.
The salient characteristics, the outward aspects so to speak, of theunderstandings which make up the constitutional morality of modern England, canhardly be better described than in the words of Mr. Freeman:
We now have a whole system of political morality, a whole code ofprecepts 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 hardlyless sacred than any principle embodied in the Great Charter or in the Petitionof Right. In short, by the side of our written Law, there has grown up anunwritten or conventional Constitution. When an Englishman speaks of theconduct of a public man being constitutional or unconstitutional, he meanssomething wholly different from what he means by conduct being legal orillegal. A famous vote of the House of Commons, passed on the motion of a greatstatesman, once declared that the then Ministers of the Crown did not possessthe confidence of the House of Commons, and that their continuance in officewas therefore at variance with the spirit of the constitution. The truth ofsuch a position, according to the traditional principles on which public menhave acted for some generations, cannot be disputed; but it would be in vain toseek for any trace of such doctrines in any page of our written Law. Theproposer of that motion did not mean to charge the existing Ministry with anyillegal act, with any act which could be made the subject either of aprosecution in a lower court or of impeachment in the High Court of Parliamentit*elf. He did not mean that they, Ministers of the Crown, appointed during thepleasure of the Crown, committed any
Nature of constitutional understandings.
Examples of constitutional understandings.
breach of the Law of which the Law could take cognisance, by retainingpossession of their offices till such time as the Crown should think good todismiss them from those offices. What he meant was that the general course oftheir policy was one which to a majority of the House of Commons did not seemto be wise or beneficial to the nation, and that therefore, according to aconventional code as well understood and as effectual as the written Lawitself, they were bound to resign offices of which the House of Commons nolonger held them to be worthy.5
The one exception which can be taken to this picture of our conventionalconstitution is the contrast drawn in it between the "written law" and the"unwritten constitution"; the true opposition, as already pointed out, isbetween laws properly so called, whether written or unwritten, andunderstandings, or practices, which, though commonly observed, are not laws inany true sense of that word at all. But this inaccuracy is hardly more thanverbal, and we may gladly accept Mr. Freeman's words as a starting-point whenceto inquire into the nature or common quality of the maxims which make up ourbody of constitutional morality.
The following are examples6 of the precepts to which Mr.Freeman refers, and belong to the code by which public life in England is (oris supposed to be) governed. "A Ministry which is outvoted in the House ofCommons is in many cases bound to retire from office." "A Cabinet, whenoutvoted on any vital question, may appeal once to the country by means of adissolution." "If an appeal to the electors goes against the Ministry they arebound to retire from office, and have no right to dissolve Parliament a secondtime." "The Cabinet are responsible to Parliament as a body, for the generalconduct of affairs." "They are further responsible to an extent, not howeververy definitely fixed, for the appointments made by any of their number, or tospeak in more accurate language, made by the Crown under the advice of anymember of the Cabinet." "The party who for the time being command a majority inthe House of Commons, have (in general) a right to have their leaders placed inoffice." "The most influential of these leaders ought (generally speaking) tobe the Premier, or
5 Freeman, Growth of the English Constitution (ist ed.), pp. 109,no.
6 See, for further examples, pp. odii, cxliii, ante.
head of the Cabinet." There are precepts referring to the position andformation of the Cabinet. It is, however, easy to find constitutional maximsdealing with other topics. "Treaties can be made without the necessity for anyAct of Parliament; but the Crown, or in reality the Ministry representing theCrown, ought not to make any treaty which will not command the approbation ofParliament." "The foreign policy of the country, the proclamation of war, andthe making of peace ought to be left in the hands of the Crown, or in truth ofthe Crown's servants. But in foreign as in domestic affairs, the wish of thetwo Houses of Parliament or (when they differ) of the House of Commons ought tobe followed." "The action of any Ministry would be highly unconstitutional ifit should involve the proclamation of war, or the making of peace, in defianceof the wishes of the House." "If there is a difference of opinion between theHouse of Lords and the House of Commons, the House of Lords ought, at somepoint, not definitely fixed, to give way, and should the Peers not yield, andthe House of Commons continue to enjoy the confidence of the country, itbecomes the duty of the Crown, or of its responsible advisers, to create or tothreaten to create enough new Peers to override the opposition of the House ofLords, and thus restore harmony between the two branches of thelegislature."7 'Tarliament ought to be summoned for the despatch ofbusiness at least once in every year." "If a sudden emergency arise, e.g.through the outbreak of an insurrection, or an invasion by a foreign power,the Ministry ought, if they require additional authority, at once to haveParliament convened and obtain any powers which they may need for theprotection of the country. Meanwhile Ministers ought to take every step, evenat the peril 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 forprotection on Parliament passing an Act of Indemnity."
These rules (which I have purposely expressed in a lax and popularmanner)^ and a lot more of the same kind, make up the constitutional | fnofa*gtyjof the day. They are all constantly acted upon, and, since they cannot beenforced by any Court of law, have no claim to be
7 See however Hearn, Government of England (2nd ed.), p. 178.
Constitutional conventions are mainly rules for governing exerciseofprerog-ative.
considered laws. They are multifarious, differing, as it might at firstsight appear, from each other not only in importance but in general characterand scope. They will be found however, on careful examination, to possess onecommon quality or property; they are all, or at any rate most of them, rulesfor determining the mode in which the discretionary powers of the Crown (or ofthe Ministers as servants of the Crown) ought to be exercised; and thischaracteristic will be found on examination to be the trait common not only toall the rules already enumerated, but to by far the greater part (though notquite to the whole) of the conventions of the constitution. This matter,however, requires for its proper understanding some further explanation.
The discretionary powers of the government mean every kind of actionwhich can legally be taken by the Crown, or by its servants, without thenecessity for applying to Parliament for new statutory authority. Thus nostatute 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 orto appoint his successor. The doing of all these things lies legally at anyrate within the discretion of the Crown; they belong therefore to thediscretionary authority of the government. This authority may no doubtoriginate in Parliamentary enactments, and, in a limited number of cases,actually does so originate. Thus the Naturalization Act, 1870, gives to aSecretary of State the right under certain circ*mstances to convert an alieninto a naturalized British subject; and the Extradition Act, 1870, enables aSecretary of State (under conditions provided by the Act) to override theordinary law of the land and hand over a foreigner to his own government fortrial. With the exercise, however, of such discretion as is conferred on theCrown or its servants by Parliamentary enactments we need hardly concernourselves. The mode in which such discretion is to be exercised is, or may be,more or less dearly defined by the Act itself, and is often so closely limitedas in reality to become the subject of legal decision, and thus pass from thedomain of constitutional morality into that of law properly so called. Thediscretionary authority of the Crown originates generally, not in Act ofParliament, but in the "prerogative" a term which has caused more
perplexity to students than any other expression referring to theconstitution. The "prerogative" appears to be both historically and as a matterof actual fact nothing else than the residue of discretionary or arbitraryauthority, which at any given time is legally left in the hands of the Crown.The King was originally in truth what he still is in name, "the sovereign," or,if not strictly the "sovereign" in the sense in which jurists use that word, atany rate by far the most powerful part of the sovereign power. In 1791 theHouse of Commons compelled the government of the day, a good deal against thewill of Ministers, to put on trial Mr. Reeves, the learned author of theHistory of English Law, for the expression of opinions meant to exaltthe prerogative of the Crown at the expense of the authority of the House ofCommons. Among other statements for the publication of which he was indicted,was a lengthy comparison of the Crown to the trunk, and the other parts of theconstitution to the branches and leaves of a great tree. This comparison wasmade with the object of drawing from it the conclusion that the Crown was thesource of all legal power, and that while to destroy the authority of the Crownwas to cut down the noble oak under the cover of which Englishmen sought refugefrom the storms of Jacobinism, the House of Commons and other institutions werebut branches and leaves which might be lopped off without serious damage to thetree.8 The publication of Mr. Reeves's theories during a period ofpopular excitement may have been injudicious. But a jury, one is happy to know,found that it was not seditious; for his views undoubtedly rested on a soundbasis of historical fact.
The power of the Crown was in truth anterior to that of the House ofCommons. From the time of the Norman Conquest down to the Revolution of 1688,the Crown possessed in reality many of the attributes of sovereignty. Theprerogative is the name for the remaining portion of the Crown's originalauthority, and is therefore, as already pointed out, the name for the residueof discretionary power left at any moment in the hands of the Crown, whethersuch power, be in fact exercised by the King himself or by his Ministers. Everyact which
8 See 2.6 St. Tr. 530-534.
the executive government can lawfully do without the authority of theAct of Parliament is done in virtue of this prerogative. If therefore we omitfrom view (as we conveniently may do) powers conferred on the Crown or itsservants by Parliamentary enactments, as for example under an Alien Act, we mayuse the term "prerogative" as equivalent to the discretionary authority of theexecutive, and then lay down that the conventions of the constitution are inthe main precepts for determining the mode and spirit in which the prerogativeis to be exercised, or (what is really the same thing) for fixing the manner inwhich any transaction which can legally be done in virtue of the Royalprerogative (such as the making of war or the declaration of peace) ought to becarried out. This statement holds good, it should be noted, of all thediscretionary powers exercised by the executive, otherwise than under statutoryauthority; it applies to acts really done by the King himself in accordancewith his personal wishes, to transactions (which are of more frequentoccurrence than modern constitutionalists are disposed to admit) in which boththe King and his Ministers take a real part, and also to that large andconstantly increasing number of proceedings which, though carried out in theKing's name, are in truth wholly the acts of the Ministry. The conventions ofthe constitution are in short rules intended to regulate the exercise of thewhole of the remaining discretionary powers of the Crown, whether these powersare exercised by the King himself or by the Ministry. That this is so may beseen by the ease and the technical correctness with which such conventions maybe expressed in the form of regulations in reference to the exercise of theprerogative. Thus, to say that a Cabinet when outvoted on any vital questionare 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 theKing must be exercised in accordance with the wish of the Houses of Parliament;the statement that Ministers ought not to make any treaty which will notcommand the approbation of the Houses of Parliament, means that the prerogativeof the Crown in regard to the making of treaties what the Americans callthe "treaty-making power" ought not to be exercised in opposition to thewill of Parliament. So, again, the rule that Parliament must
meet at least once a year, is in fact the rule that the Crown's legalright or prerogative to call Parliament together at the King's pleasure must beso exercised that Parliament meet once a year.
This analysis of constitutional understandings is open to the one validcriticism, that, though true as far as it goes, it is obviously incomplete; forthere are some few constitutional customs or habits which have no reference tothe exercise of the royal power. Such, for example, is the understanding a very vague one at best that in case of a permanent conflict betweenthe will of the House of Commons and the will of the House of Lords the Peersmust at some point give way to the Lower House. Such, again, is, or at any ratewas, the practice by which the judicial functions of the House of Lords aredischarged solely by the Law Lords, or the understanding under which DivorceActs were treated as judicial and not as legislative proceedings. Habits suchas these are at bottom customs or rules meant to determine the mode in whichone or other or both of the Houses of Parliament shall exercise theirdiscretionary powers, or, to use the historical term, their "privileges." Thevery use of the word "privilege" is almost enough to show us how to embrace allthe conventions of the constitution under one general head. Between"prerogative" and "privilege" there exists a dose analogy: the one is thehistorical name for the discretionary authority of the Crown; the other is thehistorical name for the discretionary authority of each House of Parliament.Understandings then which regulate the exercise of the prerogative determine,or are meant to determine, the way in which one member of the sovereign body,namely the Crown, should exercise its discretionary authority; understandingswhich regulate the exercise of privilege determine, or are meant to determine,the way in which the other members of the sovereign body should each exercisetheir discretionary authority. The result follows, that the conventions of theconstitution, looked at as a whole, are customs, or understandings, as to themode in which the several members of the sovereign legislative body, which, asit will be remembered, is the "King in Parliament,"9 should eachexercise their
9 Seep. 3,ante.
Aim of constitutional understandings.
discretionary authority, whether it be termed the prerogative of theCrown or the privileges of Parliament. Since, however, by far the most numerousand important of our constitutional understandings refer at bottom to theexercise of the prerogative, it will conduce to brevity and clearness if wetreat the conventions of the constitution, as rules or customs determining themode in which the discretionary power of the executive, or in technicallanguage the prerogative, ought (i.e. is expected by the nation) to beemployed.
Having ascertained that the conventions of the constitution are (in themain) rules for determining the exercise of the prerogative, we may carry ouranalysis of their character a step farther. They have all one ultimate object.Their end is to secure that Parliament, or the Cabinet which is indirectlyappointed by Parliament, shall in the long run give effect to the will of thatpower which in modern England is the true political sovereign of the State the majority of the electors or (to use popular though not quiteaccurate language) the nation.
At this point comes into view the full importance of the distinctionalready insisted upon10 between "legal" sovereignty and "political"sovereignty. Parliament is, from a merely legal point of view, the absolutesovereign of the British Empire, since every Act of Parliament is binding onevery Court throughout the British dominions, and no rule, whether of moralityor of law, which contravenes an Act of Parliament binds any Court throughoutthe realm. But if Parliament be in the eye of the law a supreme legislature,the essence of representative government is, that the legislature shouldrepresent or give effect to the will of the political sovereign, i.e. ofthe electoral body, or of the nation. That the conduct of the different partsof the legislature should be determined by rules meant to secure harmonybetween the action of the legislative sovereign and the wishes of the politicalsovereign, must appear probable from general considerations. If the true ruleror political sovereign of England were, as was once the case, the King,legislation might be carried out in accordance with the King's will by one oftwo methods. The Crown might itself legislate, by royal proclamations, ordecrees; or some other body,
10 See pp. 2.6 29, ante.
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 firstplan were adopted, there would be no room or need for constitutionalconventions. If the second plan were adopted, the proceedings of thelegislative body must inevitably be governed by some rules meant to makecertain that the Acts of the legislature should not contravene the will of theCrown. The electorate is in fact the sovereign of England. It is a body whichdoes not, and from its nature hardly can, itself legislate, and which, owingchiefly to historical causes, has left in existence a theoretically supremelegislature. The result of this state of things would naturally be that theconduct of the legislature, which (ex hypothesi) cannot be governed bylaws, should be regulated by understandings of which the object is to securethe conformity of Parliament to the will of the nation. And this is what hasactually occurred. The conventions of the constitution now consist of customswhich (whatever their historical origin) are at the present day maintained forthe sake of ensuring the supremacy of the House of Commons, and ultimately,through the elective House of Commons, of the nation. Our modern code ofconstitutional morality secures, though in a roundabout way, what is calledabroad the "sovereignty of the people."
That this is so becomes apparent if we examine into the effect of one ortwo among the leading articles of this code. The rule that the powers of theCrown must be exercised through Ministers who are members of one or other Houseof Parliament and who "command the confidence of the House of Commons," reallymeans, that the elective portion of the legislature in effect, though by anindirect process, appoints the executive government; and, further, that theCrown, or the Ministry, must ultimately carry out, or at any rate notcontravene, the wishes of the House of Commons. But as the process ofrepresentation is nothing else than a mode by which the will of therepresentative body or House of Commons is made to coincide with the will ofthe nation, it follows that a rule which gives the appointment and control ofthe government mainly to the House of Commons is at bottom a rule which givesthe election and ultimate control of the executive to the nation. The samething holds good of the under-
Rules as to dissolution of Parliament.
standing, or habit, in accordance with which the House of Lords areexpected in every serious political controversy to give way at some point orother to the will of the House of Commons as expressing the deliberate resolveof the nation, or of that further custom which, though of comparatively recentgrowth, forms an essential article of modern constitutional ethics, by which,in case the Peers should finally refuse to acquiesce in the decision of theLower House, the Crown is expected to nullify the resistance of the Lords bythe creation of new Peerages.11 How, it may be said, is the "point"to be fixed at which, in case of a conflict between the two Houses, the Lordsmust give way, or the Crown ought to use its prerogative in the creation of newPeers? The question is worth raising, because the answer throws great lightupon the nature and aim of the articles which make up our conventional code.This reply is, that the point at which the Lords must yield or the Crownintervene is properly determined by anything which conclusively shows that theHouse of Commons represents on the matter in dispute the deliberate decision ofthe nation. The truth of this reply will hardly be questioned, but to admitthat the deliberate decision of the electorate is decisive, is in fact toconcede that the understandings as to the action of the House of Lords and ofthe Crown are, what we have found them to be, rules meant to ensure theultimate supremacy of the true political sovereign, or, in other words, of theelectoral body.12
By far the most striking example of the real sense attaching to a wholemass of constitutional conventions is found in a particular instance, whichappears at first sight to present a marked exception to the general principlesof constitutional morality. A Ministry placed in a minority by a vote of theCommons have, in accordance with received doctrines, a right to demand adissolution of Parliament. On the other hand, there are certainly combinationsof circ*mstances under which the Crown has a right to dismiss a Ministry whocommand a Parliamentary majority, and to dissolve the Parliament by which theMinistry are supported. The prerogative, in short, of dis-
11 Mr. Hearn denies, as it seems to me on inadequate grounds, theexistence of this rule or understanding. See Hearn, Government of England(2nd ed.), p. 178.
12 Compare Bagehot, English Constitution, pp. 25 27.
solution may constitutionally be so employed as to override the will ofthe representative body, or, as it is popularly called, "The People's House ofParliament." This looks at first sight like saying that in certain cases theprerogative can be so used as to set at nought the will of the nation. But inreality it is far otherwise. The discretionary power of the Crown occasionallymay be, and according to constitutional precedents sometimes ought to be, usedto strip an existing House of Commons of its authority. But the reason why theHouse can in accordance with the constitution be deprived of power and ofexistence is that an occasion has arisen on which there is fair reason tosuppose that the opinion of the House is not the opinion of the electors. Adissolution is in its essence an appeal from the legal to the politicalsovereign. A dissolution is allowable, or necessary, whenever the wishes of thelegislature are, or may fairly be presumed to be, different from the wishes ofthe nation.
This is the doctrine established by the celebrated contests of 1784 andof 1834. In each instance the King dismissed a Ministry which commanded theconfidence of the House of Commons. In each case there was an appeal to thecountry by means of a dissolution. In 1784 the appeal resulted in a decisiveverdict in favour of Pitt and his colleagues, who had been brought into officeby the King against the will of the House of Commons. In 1834 the appeal led toa verdict equally decisive against Peel and Wellington, who also had beencalled to office by the Crown against the wishes of the House. The essentialpoint to notice is that these contests each in effect admit the principle thatit is the verdict of the political sovereign which ultimately determines theright or (what in politics is much the same thing) the power of a Cabinet toretain office, namely, the nation.
Much discussion, oratorical and literary, has been expended on thequestion whether the dissolution of 1784 or the dissolution of 1834 wasconstitutional.13 To a certain extent the dispute is verbal, anddepends upon the meaning of the word "constitutional." If we mean by it"legal," no human being can dispute that George the Third and his soncould without any breach of law dissolve Parliament. If we
13 See Appendix, Note VII., The Meaning of an Unconstitutional Law.
mean "usual," no one can deny that each monarch took a very unusual stepin dismissing a Ministry which commanded a majority in the House of Commons. Ifby "constitutional" we mean "in conformity with the fundamental principles ofthe constitution," we must without hesitation pronounce the conduct of Georgethe Third constitutional, i.e. in conformity with the principles of theconstitution as they are now understood. He believed that the nation did notapprove of the policy pursued by the House of Commons. He was right in thisbelief. No modern constitutionalist will dispute that the authority of theHouse of Commons is derived from its representing the will of the nation, andthat the chief object of a dissolution is to ascertain that the will ofParliament coincides with the will of the nation. George the Third then madeuse of the prerogative of dissolution for the very purpose for which it exists.His conduct, therefore, on the modern theory of the constitution, was, as faras the dissolution went, in the strictest sense constitutional. But it isdoubtful whether in 1784 the King's conduct was not in reality an innovation,though a salutary one, on the then prevailing doctrine. Any one who studies thequestions connected with the name of John Wilkes, or the disputes betweenEngland and the American colonies, will see that George the Third and the greatmajority of George the Third's statesmen maintained up to 1784 a view ofParliamentary sovereignty which made Parliament in the strictest sense thesovereign power. To this theory Fox clung, both in his youth as a Tory and inhis later life as a Whig. The greatness of Chatham and of his son lay in theirperceiving that behind the Crown, behind the Revolution Families, behindParliament itself, lay what Chatham calls the "great public," and what weshould call the nation, and that on the will of the nation depended theauthority of Parliament. In 1784 George the Third was led by the exigencies ofthe moment to adopt the attitude of Chatham and Pitt. He appealed (oddlyenough) from the sovereignty of Parliament, of which he had always been theardent champion, to that sovereignty of the people which he never ceased tohold in abhorrence. Whether this appeal be termed constitutional orrevolutionary is now of little moment; it affirmed decisively the fundamentalprinciple of our existing constitution that not Parliament but the nation is,
politically speaking, the supreme power in the State. On this veryground the so-called "penal" dissolution was consistently enough denounced byBurke, who at all periods of his career was opposed to democratic innovation,and far less consistently by Fox, who blended in his political creed doctrinesof absolute Parliamentary sovereignty with the essentially inconsistent dogmaof the sovereignty of the people.
Of William the Fourth's action it is hard to speak with decision. Thedissolution of 1834 was, from a constitutional point of view, a mistake; it wasjustified (if at all) by the King's belief that the House of Commons did notrepresent the will of the nation. The belief itself turned out erroneous, butthe large minority obtained by Peel, and the rapid decline in the influence ofthe Whigs, proved that, though the King had formed a wrong estimate of publicsentiment, he was not without reasonable ground for believing that Parliamenthad ceased to represent the opinion of the nation. Now if it beconstitutionally right for the Crown to appeal from Parliament to the electorswhen the House of Commons has in reality ceased to represent its constituents,there is great difficulty in maintaining that a dissolution is unconstitutionalsimply because the electors do, when appealed to, support the opinions of theirrepresentatives. Admit that the electors are the political sovereign of theState, and the result appears naturally to follow, that an appeal to them bymeans of a dissolution is constitutional, whenever there is valid andreasonable ground for supposing that their Parliamentary representatives haveceased to represent their wishes. The constitutionality therefore of thedissolution in 1834 turns at bottom upon the still disputable question of fact,whether the King and his advisers had reasonable ground for supposing that thereformed House of Commons had lost the confidence of the nation. Whatever maybe the answer given by historians to this inquiry, the precedents of 1784 and1834 are decisive; they determine the principle on which the prerogative ofdissolution ought to be exercised, and show that in modern times the rules asto the dissolution of Parliament are, like other conventions of theconstitution, intended to secure the ultimate supremacy of the electorate asthe
Relation of righl of dissolution to Parliamentary sovereignty.
true political sovereign of the State; that, in short, the validity ofconstitutional maxims is subordinate and subservient to the fundamentalprinciple of popular sovereignty.
The necessity for dissolutions stands in dose connection with theexistence of Parliamentary sovereignty. Where, as in the United States, nolegislative assembly is a sovereign power, the right of dissolution may bedispensed with; the constitution provides security that no change of vitalimportance can be effected without an appeal to the people; and the change inthe character of a legislative body by the re-election of the whole or of partthereof at stated periods makes it certain that in the long run the sentimentof the legislature will harmonise with the feeling of the public. WhereParliament is supreme, some further security for such harmony is necessary, andthis security is given by the right of dissolution, which enables the Crown orthe Ministry to appeal from the legislature to the nation. The security indeedis not absolutely complete. Crown, Cabinet, and Parliament may conceivablyfavour constitutional innovations which do not approve themselves to theelectors. The Septennial Act could hardly have been passed in England, the Actof Union with Ireland would not, it is often asserted, have been passed by theIrish Parliament, if, in either instance, a legal revolution had beennecessarily 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 modern politicallife, the understandings which exist with us as to the right of dissolutionafford nearly, if not quite, as much security for sympathy between the actionof the legislature and the will of the people, as do the limitations placed onlegislative power by the constitutions of American States. In this instance, asin others, the principles explicitly stated in the various constitutions of theStates, and in the Federal Constitution itself, are impliedly involved in theworking of English political institutions. The right of dissolution is theright of appeal to the people, and thus underlies all those constitutionalconventions which, in one way or another, are intended to produce harmonybetween the legal and the political sovereign power.
Chapter XV
THE SANCTION BY WHICH THE
CONVENTIONS OF THE CONSTITUTION
ARE ENFORCED
T 1 That is the sanction by which obedience to the conventions of
I/ \/ the constitution is at bottom enforced?
r V This is by far the most perplexing of the speculative questionssuggested by a study of constitutional law. Let us bear in mind the dictum ofPaley, that it is often far harder to make men see the existence of adifficulty, than to make them, when once the difficulty is perceived,understand its explanation, and in the first place try to make dear toourselves what is the precise nature of a puzzle of which most students dimlyrecognise the existence.
Constitutional understandings are admittedly not laws; they are not(that is to say) rules which will be enforced by the Courts. If a Premier wereto retain office after a vote of censure passed by the House of Commons, if hewere (as did Lord Palmerston under like circ*mstances) to dissolve, or strictlyspeaking to get the Crown to dissolve, Parliament, but, unlike Lord Palmerston,were to be again censured by the newly elected House of Commons, and then,after all this had taken place, were still to remain at the head of thegovernment, no one could deny that such a Prime Minister had actedunconstitutionally. Yet no Court of law would take notice of his conduct.Suppose, again, that on the passing by both Houses of an important bill, theKing should refuse his assent to the measure, or (in popular language) put his"veto" on it. Here there would be a
Partial answer, that constitutional understandings often disobeyed.
gross violation of usage, but the matter could not by any proceedingknown to English law be brought before the judges. Take another instance.Suppose that Parliament were for more than a year not summoned for the despatchof business. This would be a course of proceeding of the most unconstitutionalcharacter. Yet there is no Court in the land before which one could go with thecomplaint that Parliament had not been assembled.a Still theconventional rules of the constitution, though not laws, are, as it isconstantly asserted, nearly if not quite as binding as laws. They are, orappear to be, respected quite as much as most statutory enactments, and morethan many. The puzzle is to see what is the force which habitually compelsobedience to rules which have not behind them the coercive power of the Courts.
The difficulty of the problem before us cannot indeed be got rid of, butmay be shifted and a good deal lessened, by observing that the invariablenessof the obedience to constitutional understandings is itself more or lessfictitious. The special articles of the conventional code are in fact oftendisobeyed. A Minister sometimes refuses to retire when, as his opponentsallege, he ought constitutionally to resign office; not many years have passedsince the Opposition of the day argued, if not convincingly yet with a gooddeal of plausibility, that the Ministry had violated a rule embodied in theBill of Rights; in 1784 the House of Commons maintained, not only by argumentbut by repeated votes, that Pitt had deliberately defied more than oneconstitutional precept, and the Whigs of 1834 brought a like charge againstWellington and Peel. Nor is it doubtful that any one who searches through thepages of Hansard will find other instances in which constitutional maxims oflong standing and high repute have been set at nought. The uncertain characterof the deference paid to the conventions of the constitution is concealed underthe current phraseology, which treats the successful violation of aconstitutional rule as a proof that the maxim was not in reality part of theconstitution. If a habit or precept which can be set at nought is thereby shown
i See 4 Edward III. c. 14; 16 Car. II. c. i; and i Will. & Mary,Sess. 2, c. 2. Compare these with the repealed 16 Car. I. c. i, which wouldhave made the assembling of Parliament a matter of law.
not to be a portion of constitutional morality, it naturally followsthat no true constitutional rule is ever disobeyed.
Yet, though the obedience supposed to be rendered to the separateunderstandings or maxims of public life is to a certain extent fictitious, theassertion that they have nearly the force of law is not without meaning. Somefew of the conventions of the constitution are rigorously obeyed. Parliament,for example, is summoned year by year with as much regularity as though itsannual meeting were provided for by a law of nature; and (what is of moreconsequence) though particular understandings are of uncertain obligation,neither the Crown nor any servant of the Crown ever refuses obedience to thegrand principle which, as we have seen, underlies all the conventional preceptsof the constitution, namely, that government must be carried on in accordancewith the will of the House of Commons, and ultimately with the will of thenation as expressed through that House. This principle is not a law; it is notto be found in the statute-book, nor is it a maxim of the common law; it willnot be enforced by any ordinary judicial body. Why then has the principleitself, as also have certain conventions or understandings which are closelyconnected with it, the force of law? This, when the matter is reduced to itssimplest form, is the puzzle with which we have to deal. It sorely needs asolution. Many writers, however, of authority, chiefly because they do notapproach the constitution from its legal side, hardly recognise the full forceof the difficulty which requires to be disposed of. They either pass it by, orelse apparently acquiesce in one of two answers, each of which contains anelement of truth, but neither of which fully removes the perplexities of anyinquirer who is determined not to be put off with mere words.
A reply more often suggested than formulated in so many words, is thatobedience to the conventions of the constitution is ultimately enforced by thefear of impeachment.
If this view were tenable, these conventions, it should be remarked,would not be "understandings" at all, but "laws" in the truest sense of thatterm, and their sole peculiarity would lie in their being laws the breach ofwhich could be punished only by one extraordinary tribunal, namely, the HighCourt of Parliament.
Power of
public
opinion.
But though it may well be conceded and the fact is one of greatimportance that the habit of obedience to the constitution wasoriginally generated and confirmed by impeachments, yet there are insuperabledifficulties to entertaining the belief that the dread of the Tower and theblock exerts any appreciable influence over the conduct of modern statesmen. Noimpeachment for violations of the constitution (since for the present purposewe may leave out of account such proceedings as those taken against LordMacdesfield, Warren Hastings, and Lord Melville) has occurred for more than acentury and a half. The process, which is supposed to ensure the retirementfrom office of a modern Prime Minister, when placed in a hopeless minority, is,and has long been, obsolete. The arm by which attacks on freedom were oncerepelled has grown rusty by disuse; it is laid aside among the antiquities ofthe constitution, nor will it ever, we may anticipate, be drawn again from itsscabbard. For, in truth, impeachment, as a means for enforcing the observanceof constitutional morality, always laboured under one grave defect. Thepossibility of its use suggested, if it did not stimulate, one most importantviolation of political usage; a Minister who dreaded impeachment would, sinceParliament was the only Court before which he could be impeached, naturallyadvise the Crown not to convene Parliament. There is something like acontradiction in terms in saying that a Minister is compelled to advise themeeting of Parliament by the dread of impeachment if Parliament shouldassemble. If the fear of Parliamentary punishment were the only difficulty inthe way of violating the constitution, we may be sure that a bold party leaderwould, at the present day, as has been done in former centuries, sometimessuggest that Parliament should not meet.
A second and current answer to the question under consideration is, thatobedience to the conventional precepts of the constitution is ensured by theforce of public opinion]
Now that this assertion-is in one sense true, stands past dispute. Thenation expects that Parliament shall be convened annually; the nation expectsthat a Minister who cannot retain the confidence of the House of Commons, shallgive up his place, and no Premier even dreams of disappointing theseexpectations. The assertion, therefore,
that public opinion gives validity to the received precepts for theconduct of public life is true. Its defect is that, if taken without furtherexplanation, it amounts to little else than a re-statement of the very problemwhich it is meant to solve. For the question to be answered is, at bottom, Whyis it that public opinion is, apparently at least, a sufficient sanction tocompel obedience to the conventions of the constitution? and it is no answer tothis inquiry to say that these conventions are enforced by public opinion. Letit also be noted that many rules of conduct which are fully supported by theopinion of the public are violated every day of the year. Public opinionenjoins the performance of promises and condemns the commission of crimes, butthe settled conviction of the nation that promises ought to be kept does nothinder merchants from going into the Gazette, nor does the universalexecration of the villain who sheds man's blood prevent the commission ofmurders. That public opinion does to a certain extent check extravagance andcriminality is of course true, but the operation of opinion is in this caseassisted by the law, or in the last resort by the physical power at thedisposal of the state. The limited effect of public opinion when aided by thepolice hardly explains the immense effect of opinion in enforcing rules whichmay be violated without any risk of the offender being brought before theCourts. To contend that the understandings of the constitution derive theircoercive power solely from the approval of the public, is very like maintainingthe kindred doctrine that the conventions of international law are kept alivesolely by moral force. Every one, except a few dreamers, perceives that therespect paid to international morality is due in great measure, not to moralforce, but to the physical force in the shape of armies and navies, by whichthe commands of general opinion are in many cases supported; and it isdifficult not to suspect that, in England at least, the conventions of theconstitution are supported and enforced by something beyond or in addition tothe public approval.
What then is this "something"? My answer is, that it is nothing elsethan the force of the law. The dread of impeachment may have established, andpublic opinion certainly adds influence to, the prevailing dogmas of politicalethics. But the sanction which constrains
Explanation.
Yearly meeting of Parliament.
the boldest political adventurer to obey the fundamental principles ofthe constitution and the conventions in which these principles are expressed,is in fact that the breach of these principles and of these conventions willalmost immediately bring the offender into conflict with the Courts and the lawof the land. i
This is the true answer to the inquiry which I have raised, but it is ananswer 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 on whichthat statement is based, can be most easily made apparent by considering whatwould be the legal results which would inevitably ensue from the violation ofsome indisputable constitutional maxim.
No rule is better established than that Parliament must assemble atleast once a year. This maxim, as before pointed out, is certainly not derivedfrom the common law, and is not based upon any statutory enactment. Now supposethat Parliament were prorogued once and again for more than a year, so that fortwo years no Parliament sat at Westminster. Here we have a distinct breach of aconstitutional practice or understanding, but we have no violation of law.What, however, would be the consequences which would ensue? They would be,speaking generally, that any Ministry who at the present day sanctioned ortolerated this violation of the constitution, and every person connected withthe government, would immediately come into conflict with the law of the land.
A moment's reflection shows that this would be so. The Army (Annual) Actwould in the first place expire. Hence the Army Act, on which the discipline ofthe army depends, would cease to be in force.2 But thereupon allmeans of controlling the army without a breach of law would cease to exist.Either the army must be discharged, in which case the means of maintaining lawand order would come to an end, or the army must be kept up and discipline mustbe maintained without legal authority for its maintenance. If
2 In popular, though inaccurate language, "the Mutiny Act would expire."See note 26, p. 198, ante.
this alternative were adopted, every person, from the Commander-in-chiefdownwards, who took part in the control of the army, and indeed every soldierwho carried out the commands of his superiors, would find that not a day passedwithout his committing or sanctioning acts which would render him liable tostand as a criminal in the dock. Then, again, though most of the taxes wouldstill come into the Exchequer, large portions of the revenue would cease to belegally due and could not be legally collected, whilst every official, whoacted as collector, would expose himself to actions or prosecutions. The part,moreover, of the revenue which came in, could not be legally applied to thepurposes of the government. If the Ministry laid hold of the revenue they wouldfind it difficult to avoid breaches of definite laws which would compel them toappear before the Courts. Suppose however that the Cabinet were willing to defythe law. Their criminal daring would not suffice for its purpose; they couldnot get hold of the revenue without the connivance or aid of a large number ofpersons, some of them indeed officials, but some of them, such as theComptroller General, the Governors of the Bank of England, and the like,unconnected with the administration. None of these officials, it should benoted, could receive from the government or the Crown any protection againstlegal liability; and any person, e.g. the Commander-in-chief, or thecolonel of a regiment, who employed force to carry out the policy of thegovernment would be exposed to resistance supported by the Courts. For the law(it should always be borne in mind) operates in two different ways. It inflictspenalties and punishment upon law-breakers, and (what is of equal consequence)it enables law-respecting citizens to refuse obedience to illegal commands. Itlegalises passive resistance. The efficacy of such legal opposition isimmensely increased by the non-existence in England of anything resembling thedroit administratif of France,3 or of that wide discretionaryauthority which is possessed by every continental government. The result is,that an administration which attempted to dispense with the annual meeting ofParliament could not ensure the obedience even of its own officials, and,unless prepared distinctly to
3 See chap, xii., ante.
Resignation of Ministry which has lost confidence of the House ofCommons.
violate the undoubted law of the land, would find itself not onlyopposed but helpless.
The rule, therefore, that Parliament must meet once a year, though instrictness a constitutional convention which is not a law and will not beenforced by the Courts, turns out nevertheless to be an understanding whichcannot be neglected without involving hundreds of persons, many of whom are byno means specially amenable to government influence, in distinct acts ofillegality cognisable by the tribunals of the country. This conventiontherefore of the constitution is in reality based upon, and secured by, the lawof 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 clue which guides us to the principle on whichreally rests such coercive force as is possessed by the conventions of theconstitution.
To see that this is so let us consider for a moment the effect ofdisobedience by the government to one of the most purely conventional among themaxims of constitutional morality, the rule, that is to say, that aMinistry ought to retire on a vote that they no longer possess the confidenceof the House of Commons. Suppose that a Ministry, after the passing of such avote, were to act at the present day as Pitt acted in 1783, and hold office inthe face of the censure passed by the House. There would dearly be a primafade breach of constitutional ethics. What must ensue is dear. If theMinistry wished to keep within the constitution they would announce theirintention of appealing to the constituencies, and the House would probablyassist in hurrying on a dissolution. All breach of law would be avoided, butthe reason of this would be that the conduct of the Cabinet would not be abreach of constitutional morality; for the true rule of the constitutionadmittedly is, not that a Ministry cannot keep office when censured by theHouse of Commons, but that under such circ*mstances a Ministry ought not toremain in office unless they can by an appeal to the country obtain theelection of a House which will support the government. Suppose then that, underthe circ*mstances I have imagined, the Ministry either would not recommend adissolution of Parliament, or, having dissolved Parliament and being
again censured by the newly elected House of Commons, would not resignoffice. It would, under this state of things, be as clear as day that theunderstandings of the constitution had been violated. It is however equallyclear that the House would have in their own hands the means of ultimatelyforcing the Ministry either to respect the constitution or to violate the law.Sooner or later the moment would come for passing the Army (Annual) Act or theAppropriation Act, and the House by refusing to pass either of these enactmentswould involve the Ministry in all the inextricable embarrassments which (as Ihave already pointed out) immediately follow upon the omission to conveneParliament for more than a year. The breach, therefore, of a purelyconventional rule, of a maxim utterly unknown and indeed opposed to the theoryof English law, ultimately entails upon those who break it direct conflict withthe undoubted law of the land. We have then a right to assert that the forcewhich in the last resort compels obedience to constitutional morality isnothing else than the power of the law itself. The conventions of theconstitution are not laws, but, in so far as they really possess binding force,derive their sanction from the fact that whoever breaks them must finally breakthe law and incur the penalties of a law-breaker.
It is worth while to consider one or two objections which may be urgedwith more or less plausibility against the doctrine that the obligatory forceof constitutional morality is derived from the law itself.
The government, it is sometimes suggested, may by the use of actualforce carry through a coup d'etat and defy the law of the land.
This suggestion is true, but is quite irrelevant. No constitution can beabsolutely safe from revolution or from a coup d'etat; but to show thatthe laws may be defied by violence does not touch or invalidate the statementthat the understandings of the constitution are based upon the law. They havecertainly no more force than the law itself. A Minister who, like the FrenchPresident in 1851, could override the law could of course overthrow theconstitution. The theory propounded aims only at proving that whenconstitutional understandings have nearly the force of law they derive theirpower from the fact that they cannot be broken without a breach of law. No oneis con-
Parliament has never refused to pass Mutiny Act.
cerned to show, what indeed never can be shown, that the law can neverbe defied, or the constitution never be overthrown.
It should further be observed that the admitted sovereignty ofParliament tends to prevent violent attacks on the constitution. Revolutionistsor conspirators generally believe themselves to be supported by the majority ofthe nation, and, when they succeed, this belief is in general well founded. Butin modern England, a party, however violent, who count on the sympathy of thepeople, can accomplish by obtaining a Parliamentary majority all that could begained by the success of a revolution. When a spirit of reaction or ofinnovation prevails throughout the country, a reactionary or revolutionarypolicy is enforced by Parliament without any party needing to make use ofviolence. The oppressive legislation of the Restoration in the seventeenthcentury, and the anti-revolutionary legislation of the Tories from the outbreakof the Revolution till the end of George the Third's reign, saved theconstitution from attack. A change of spirit averted a change of form; theflexibility of the constitution proved its strength.
If the maintenance of political morality, it may with some plausibilitybe asked, really depends on the right of Parliament to refuse to pass laws suchas the Army (Annual) Act, which are necessary for the maintenance of order, andindeed for the very existence of society, how does it happen that no EnglishParliament has ever employed this extreme method of enforcing obedience to theconstitution?
The true answer to the objection thus raised appears to be that theobservance of the main and the most essential of all constitutional rules, therule, that is to say, requiring the annual meeting of Parliament, is ensured,without any necessity for Parliamentary action, by the temporary character ofthe Mutiny Act, and that the power of Parliament to compel obedience to itswishes by refusing to pass the Act is so complete that the mere existence ofthe power has made its use unnecessary. In matter of fact, no Ministry hassince the Revolution of 1689 ever defied the House of Commons, unless theCabinet could confide in the support of the country, or, in other words, couldcount on the election of a House which would support the policy of thegovernment. To this we must add, that in the rare instances in
which a Minister has defied the House, the refusal to pass the MutinyAct has been threatened or contemplated. Pitt's victory over the Coalition isconstantly cited as a proof that Parliament cannot refuse to grant supplies orto pass an Act necessary for the discipline of the army. Yet any one whostudies with care the great "Case of the Coalition" will see that it does notsupport the dogma for which it is quoted. Fox and his friends did threaten anddid intend to press to the very utmost all the legal powers of the House ofCommons. They failed to carry out their intention solely because they at lastperceived that the majority of the House did not represent the will of thecountry. What the "leading case" shows is, that the Cabinet, when supported bythe Crown, and therefore possessing the power of dissolution, can defy the willof a House of Commons if the House is not supported by the electors. Here wecome round to the fundamental dogma of modern constitutionalism; the legalsovereignty of Parliament is subordinate to the political sovereignty of thenation. This the conclusion in reality established by the events of 1784. Pittoverrode the customs, because he adhered to the principles, of theconstitution. He broke through the received constitutional understandingswithout damage to his power or reputation; he might in all probability have incase of necessity broken the law itself with impunity. For had the Coalitionpressed their legal rights to an extreme length, the new Parliament of 1784would in all likelihood have passed an Act of Indemnity for illegalitiesnecessitated, or excused, by the attempt of an unpopular faction to drive frompower 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 the country wouldnot enforce the morality of the constitution by placing before any Minister whodefied its precepts the alternative of resignation or revolution.4
4 It is further not the case that the idea of refusing supplies isunknown to modern statesmen. In 1868 such refusal was threatened in order toforce an early dissolution of Parliament; in 1886 the dissolution took placebefore the supplies were fully granted, and the supplies granted were grantedfor only a limited period.
Subordinate inquiries.
Why has impeachment gone out of
Why are constitutional understandings variable?
A dear perception of the true relation between the conventions of theconstitution and the law of the land supplies an answer to more than onesubordinate question which has perplexed students and commentators.
How is it that the ancient methods of enforcing Parliamentary authority,such as impeachment, the formal refusal of supplies, and the like, have falleninto disuse?
The answer is, that they are disused because ultimate obedience to theunderlying principle of all modern constitutionalism, which is nothing elsethan the principle of obedience to the will of the nation as expressed throughParliament, is so closely bound up with the law of the land that it can hardlybe violated without a breach of the ordinary law. Hence the extraordinaryremedies, which were once necessary for enforcing the deliberate will of thenation, having become unnecessary, have fallen into desuetude. If they are notaltogether abolished, the cause lies partly in the conservatism of the Englishpeople, and partly in the valid consideration that crimes may still beoccasionally committed for which the ordinary law of the land hardly affordsdue punishment, and which therefore may well be dealt with by the High Court ofParliament.
Why is it that the understandings of the constitution have about them asingular element of vagueness and variability?
Why is it, to take definite instances of this uncertainty andchange-ableness, that no one can define with absolute precision thecirc*mstances under which a Prime Minister ought to retire from office? Why isit that no one can fix the exact point at which resistance of the House ofLords to the will of the House of Commons becomes unconstitutional? and howdoes it happen that the Peers could at one time arrest legislation in a waywhich now would be generally held to involve a distinct breach ofconstitutional morality? What is the reason why no one can describe withprecision the limits to the influence on the conduct of public affairs whichmay rightly be exerted by the reigning monarch? and how does it happen thatGeorge the Third and even George the Fourth each made his personal will orcaprice tell on the policy of the nation in a very different way and degree
Withdrawal >f con-idence b' iouse Commons.
:eby sof
from that in which Queen Victoria ever attempted to exercise personalinfluence over matters of State?
The answer in general terms to these and the like inquiries is, that theone essential principle of the constitution is obedience by all persons to thedeliberately expressed will of the House of Commons in the first instance, andultimately to the will of the nation as expressed through Parliament. Theconventional code of political morality is, as already pointed out, merely abody of maxims meant to secure respect for this principle. Of these maxims someindeed such, for example, as the rule that Parliament must be convokedat least once a year are so closely connected with the respect due toParliamentary or national authority, that they will never be neglected by anyone who is not prepared to play the part of a revolutionist; such rules havereceived the undoubted stamp of national approval, and their observance issecured by the fact that whoever breaks or aids in breaking them will almostimmediately find himself involved in a breach of law. Other constitutionalmaxims stand in a very different position. Their maintenance up to a certainpoint tends to secure the supremacy of Parliament, but they are themselvesvague, and no one can say to what extent the will of Parliament or the nationrequires their rigid observance; they therefore obtain only a varying andindefinite amount of obedience.
Thus the rule that a Ministry who have lost the confidence of the Houseof Commons should retire from office is plain enough, and any permanent neglectof the spirit of this rule would be absolutely inconsistent with Parliamentarygovernment, and would finally involve the Minister who broke the rule in actsof undoubted illegality. But when you come to inquire what are the signs bywhich you are to know that the House has withdrawn its confidence from aMinistry, whether, for example, the defeat of an important Ministerialmeasure or the smallness of a Ministerial majority is a certain proof that aMinistry ought to retire, you ask a question which admits of no absolutereply.5 All that can be said is, that a
5 See Hearn, Government of England, chap, ix., for an attempt todetermine the circ*mstances under which a Ministry ought or ought not to keepoffice. See debate in House of Commons of 24th July 1905, for consideration of,and reference to, precedents with regard
When House of Lords should
gve way to Dmmons.
Cabinet ought not to continue in power (subject, of course, to the oneexception 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 a vote of want ofconfidence. There are, however, a hundred signs of Parliamentary disapprovalwhich, according to circ*mstances, either may or may not be a sufficient noticethat a Minister ought to give up office. The essential thing is that theMinistry should obey the House as representing the nation. But the questionwhether the House of Commons has or has not indirectly intimated its will thata Cabinet should give up office is not a matter as to which any definiteprinciple can be laid down. The difficulty which now exists, in settling thepoint at which a Premier and his colleagues are bound to hold that they havelost the confidence of the House, is exactly analogous to the difficulty whichoften perplexed statesmen of the last century, of determining the point atwhich a Minister was bound to hold he had lost the then essential confidence ofthe King. The ridiculous efforts of the Duke of Newcastle to remain at the headof the Treasury, in spite of the broadest hints from Lord Bute that the timehad come for resignation, are exactly analogous to the undignified persistencywith which later Cabinets have occasionally dung to office in the face ofintimations that the House desired a change of government. As long as a masterdoes not directly dismiss a servant, the question whether the employer'sconduct betrays a wish that the servant should give notice must be an inquirygiving rise to doubt and discussion. And if there be sometimes a difficulty indetermining what is the will of Parliament, it must often of necessity be stillmore difficult to determine what is the will of the nation, or, in other words,of the majority of the electors.
The general rule that the House of Lords must in matters of legislationultimately give way to the House of Commons is one of the best-establishedmaxims of modern constitutional ethics. But if any inquirer asks how the pointat which the Peers are to give way is to be
to the duty of a Ministry to retire from office when they have lost theconfidence of the House of Commons. Parl. Deb. 4th ser. vol. 150,col. 50. 6 See pp. 287-291, ante.
determined, no answer which even approximates to the truth can be given,except the very vague reply that the Upper House must give way whenever it isdearly proved that the will of the House of Commons represents the deliberatewill of the nation. The nature of the proof differs under differentcirc*mstances.
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, canonly with difficulty be explained, namely, the relation occupied by modernCabinets towards the House of Lords. It is certain that for more than half acentury Ministries have constantly existed which did not command the confidenceof the Upper House, and that such Ministries have, without meeting muchopposition on the part of the Peers, in the main carried out a policy of whichthe Peers did not approve. It is also certain that while the Peers have beenforced to pass many bills which they disliked, they have often exercised largethough very varying control over the course of legislation. Between 1834 and1840 the Upper House, under the guidance of Lord Lyndhurst, repeatedly and withsuccess opposed Ministerial measures which had passed the House of Commons. Formany 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, constantlyconcealed under the misleading rhetoric of party warfare, that on the mattersin question the electors were not prepared to support the Cabinet in taking thesteps necessary to compel the submission of the House of Lords. On any matterupon which the electors are firmly resolved, a Premier, who is in effect therepresentative of the House of Commons, has the means of coercion, namely, bythe creation of Peers. In a country indeed like England, things are rarelycarried to this extreme length. The knowledge that a power can be exercisedconstantly prevents its being actually put in force. This is so even in privatelife; most men pay their debts without being driven into Court, but it wereabsurd to suppose that the possible compulsion of the Courts and the sheriffhas not a good deal to do with regularity in the payment of debts. Theacquiescence of the Peers in measures which the Peers do not approve arises atbottom from the fact that the
nation, under the present constitution, possesses the power ofenforcing, through very cumbersome machinery, the submission of the Peers tothe conventional rule that the wishes of the House of Lords must finally giveway to the decisions of the House of Commons. But the rule itself is vague, andthe degree of obedience which it obtains is varying, because the will of thenation is often not clearly expressed, and further, in this as in othermatters, is itself liable to variation. If the smoothness with which theconstitutional arrangements of modern England work should, as it often does,conceal from us the force by which the machinery of the constitution is keptworking, we may with advantage consult the experience of English colonies. Nobetter example can be given of the methods by which a Representative Chamberattempts in the last resort to compel the obedience of an Upper House than isafforded by the varying phases of the conflict which raged in Victoria during1878 and 1879 between the two Houses of the Legislature. There the Lower Houseattempted to enforce upon the Council the passing of measures which the UpperHouse did not approve, by, in effect, inserting the substance of a rejectedbill in the Appropriation Bill. The Council in turn threw out the AppropriationBill. The Ministry thereupon dismissed officials, magistrates, county courtjudges, and others, whom they had no longer the means to pay, and attempted toobtain payments out of the Treasury on the strength of resolutions passedsolely by the Lower House. At this point, however, the Ministry came intoconflict with an Act of Parliament, that is, with the law of the land. Thecontest continued under different forms until a change in public opinionfinally 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 withthe expressed will of the electors; each party during its course put in forceconstitutional powers hardly ever in practice exerted in England; as theCouncil was elective, the Ministry did not possess any means of producingharmony between the two Houses by increasing the number of the Upper House. Itis certain that if the Governor could have nominated members of the Council,the Upper House would have yielded to the will
of the Lower, in the same way in which the Peers always in the lastresort bow to the will of the House of Commons.
How is it, again, that all the understandings which are supposed toregulate the personal relation of the Crown to the actual work of governmentare marked by the utmost vagueness and uncertainty?
The matter is, to a certain extent at any rate, explained by the sametrain of thought as that which we have followed out in regard to the relationbetween the House of Lords and the Ministry. The revelations of politicalmemoirs and the observation of modern public life make quite dear two points,both of which are curiously concealed under the mass of antiquated formulaswhich hide from view the real working of our institutions. The first is, thatwhile every act of State is done in the name of the Crown, the real executivegovernment of England is the Cabinet. The second is, that though the Crown hasno real concern in a vast number of the transactions which take place under theRoyal name, no one of the King's predecessors, nor, it may be presumed, theKing himself, has ever acted upon or affected to act upon the maxim originatedby Thiers, that "the King reigns but does not govern." George the Third took aleading part in the work of administration; his two sons, each in differentdegrees and in different ways, made their personal will and predilections tellon the government of the country. No one really supposes that there is not asphere, though a vaguely defined sphere, in which the personal will of the Kinghas under the constitution very considerable influence. The strangeness of thisstate of things is, or rather would be to any one who had not been accustomedfrom his youth to the mystery and formalism of English constitutionalism, thatthe rules or customs which regulate the personal action of the Crown areutterly vague and undefined. The reason of this will, however, be obvious toany one who has followed these chapters. The personal influence of the Crownexists, not because acts of State are done formally in the Crown's name, butbecause neither the legal sovereign power, namely Parliament, nor the politicalsovereign, namely the nation, wishes that the reigning monarch should bewithout personal weight in the government of the country. The customs orunderstandings which regulate or control the exercise of the King's personalinfluence
The effect of surviving prerogatives of Crown.
are vague and indefinite, both because statesmen feel that the matter isone hardly to be dealt with by precise rules, and because no human being knowshow far and to what extent the nation wishes that the voice of the reigningmonarch should command attention. All that can be asserted with certainty is,that on this matter the practice of the Crown and the wishes of the nation havefrom time to time varied. George the Third made no use of the so-called vetowhich had been used by William the Third; but he more than once insisted uponhis will being obeyed in matters of the highest importance. None of hissuccessors have after the manner of George the Third made their personal willdecisive as to general measures of policy. In small things as much as in greatone can discern a tendency to transfer to the Cabinet powers once actuallyexercised by the King. The scene between Jeanie Deans and Queen Caroline is atrue picture of a scene which might have taken place under George the Second;George the Third's firmness secured the execution of Dr. Dodd. At the presentday the right of pardon belongs in fact to the Home Secretary. A modern JeanieDeans would be referred to the Home Office; the question whether a popularpreacher should pay the penalty of his crimes would now, with no greatadvantage to the country, be answered, not by the King, but by the Cabinet.
What, again, is the real effect produced by the survival of prerogativepowers?
Here we must distinguish two different things, namely, the way in whichthe existence of the prerogative affects the personal influence of the King,and the way in which it affects the power of the executive government.
The fact that all important acts of State are done in the name of theKing and in most cases with the cognisance of the King, and that many of theseacts, such, for example, as the appointment of judges or the creation ofbishops, or the conduct of negotiations with foreign powers and the like, areexempt from the direct control or supervision of Parliament, gives the reigningmonarch an opportunity for exercising great influence on the conduct ofaffairs; and Bagehot has marked out, with his usual subtlety, the mode in whichthe mere necessity under which Ministers are placed of consulting with and
giving information to the King secures a wide sphere for the exercise oflegitimate influence by a constitutional ruler.
But though it were a great error to underrate the extent to which theformal authority of the Crown confers real power upon the King, the far moreimportant matter is to notice the way in which the survival of the prerogativeaffects the position of the Cabinet. It leaves in the hands of the Premier andhis colleagues, large powers which can be exercised, and constantly areexercised, free from Parliamentary control. This is especially the case in allforeign affairs. Parliament may censure a Ministry for misconduct in regard tothe foreign policy of the country. But a treaty made by the Crown, or in factby the Cabinet, is valid without the authority or sanction of Parliament; andit is even open to question whether the treaty-making power of the executivemight not in some cases override the law of the land.7 However thismay be, it is not Parliament, but the Ministry, who direct the diplomacy of thenation, and virtually decide all questions of peace or war. The founders of theAmerican Union showed their full appreciation of the latitude left to theexecutive government under the English constitution by one of the mostremarkable of their innovations upon it. They lodged the treaty-making power inthe hands, not of the President, but of the President and the Senate; andfurther gave to the Senate a right of veto on Presidential appointments tooffice. These arrangements supply a valuable illustration of the way in whichrestrictions on the prerogative become restrictions on the discretionaryauthority of the executive. Were the House of Lords to have conferred upon itby statute the rights of the Senate, the change in our institutions would bedescribed with technical correctness as the limitation of the prerogative ofthe Crown as regards the making of treaties and of official appointments. Butthe true effect
7 See the Parlement Beige, 4 P. D. 129; 5 P. D. (C. A.) 197."Whether the power [of the Crown to compel its subjects to obey the provisionsof a treaty] does exist in the case of treaties of peace, and whether if so itexists equally in the case of treaties akin to a treaty of peace, or whether inboth or either of these cases interference with private rights can beauthorised otherwise than by the legislature, are grave questions upon whichtheir Lordships do not find it necessary to express an opinion." Walker v. Baird [1892], A. C. 491, 497, judgment of P. C.
of the constitutional innovation would be to place a legal check on thediscretionary powers of the Cabinet.
The survival of the prerogative, conferring as it does widediscretionary authority upon the Cabinet, involves a consequence whichconstantly escapes attention. It immensely increases the authority of the Houseof Commons, and ultimately of the constituencies by which that House isreturned. Ministers must in the exercise of all discretionary powers inevitablyobey the predominant authority in the State. When the King was the chief memberof the sovereign body, Ministers were in fact no less than in name the King'sservants. At periods of our history when the Peers were the most influentialbody in the country, the conduct of the Ministry represented with more or lessfidelity the wishes of the Peerage. Now that the House of Commons has become byfar the most important part of the sovereign body, the Ministry in all mattersof discretion carry out, or tend to carry out, the will of the House. Whenhowever the Cabinet cannot act except by means of legislation, otherconsiderations come into play. A law requires the sanction of the House ofLords. No government can increase its statutory authority without obtaining thesanction of the Upper Chamber. Thus an Act of Parliament when passedrepresents, not the absolute wishes of the House of Commons, but these wishesas modified by the influence of the House of Lords. The Peers no doubt will inthe long run conform to the wishes of the electorate. But the Peers may thinkthat the electors will disapprove of, or at any rate be indifferent to, a billwhich meets with the approval of the House of Commons. Hence while every actionof the Cabinet which is done in virtue of the prerogative is in fact though notin name under the direct control of the representative chamber, all powerswhich can be exercised only in virtue of a statute are more or less controlledin their creation by the will of the House of Lords; they are furthercontrolled in their exercise by the interference of the Courts. One example,taken from the history of recent years, illustrates the practical effect ofthis difference.8 In 1872 the Ministry of the
8 On this subject there are remarks worth noting in Stephen's LifeofFawcett, pp. 271, 272.
day carried a bill through the House of Commons abolishing the system ofpurchase in the army. The bill was rejected by the Lords: the Cabinet thendiscovered that purchase could be abolished by Royal warrant, i.e. bysomething very like the exercise of the prerogative.9 The system wasthen and there abolished. The change, it will probably be conceded, met withthe approval, not only of the Commons, but of the electors. But it will equallybe conceded that had the alteration required statutory authority the system ofpurchase might have continued in force up to the present day. The existence ofthe prerogative enabled the Ministry in this particular instance to giveimmediate effect to the wishes of the electors, and this is the result which,under the circ*mstances of modern politics, the survival of the prerogativewill in every instance produce. The prerogatives of the Crown have become theprivileges of the people, and any one who wants to see how widely theseprivileges may conceivably be stretched as the House of Commons becomes moreand more the direct representative of the true sovereign, should weigh well thewords in which Bagehot describes the powers which can still legally beexercised by the Crown without consulting Parliament; and should remember thatthese powers can now be exercised by a Cabinet who are really servants, not ofthe Crown, but of a representative chamber which in its turn obeys the behestsof the electors.
I said in this book that it would very much surprise people if they wereonly told how many things the Queen could do without consulting Parliament, andit certainly has so proved, for when the Queen abolished purchase in the armyby an act of prerogative (after the Lords had rejected the bill for doing so),there was a great and general astonishment.
But this is nothing to what the Queen can by law do without consultingParliament. Not to mention other things, she could disband the army (by law shecannot engage more than a certain number of men, but she is not obliged toengage any men); she could dismiss all the officers, from the Generalcommanding-in-chief downwards; she could dismiss all the sailors too; she couldsell off all our ships-of-war and all our naval stores; she could make a peaceby the sacrifice of Cornwall, and begin a war for the conquest of
9 Purchase was not abolished by the prerogative in the ordinary legalsense of the term. A statute prohibited the sale of offices except in so far asmight be authorised in the case of the army by Royal warrant. When thereforethe warrant authorising the sale was cancelled the statute took effect.
Brittany. She could make every citizen in the United Kingdom, male orfemale, a peer; she could make every parish in the United Kingdom a"university"; she could dismiss most of the civil servants; she could pardonall offenders. In a word, the Queen could by prerogative upset all the actionof civil government within the government, could disgrace the nation by a badwar or peace, and could, by disbanding our forces, whether land or sea, leaveus defenceless against foreign nations.10
If government by Parliament is ever transformed into government by theHouse of Commons, the transformation will, it may be conjectured, be effectedby use of the prerogatives of the Crown.
Let 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 "sort of maze";it is seen to consist of two different parts; the one part is made up ofunderstandings, customs, or conventions which, not being enforced by theCourts, are in no true sense of the word laws; the other part is made up ofrules which are enforced by the Courts, and which, whether embodied in statutesor not, are laws in the strictest sense of the term, and make up the true lawof the constitution.
This law of the constitution is, we have further found, in spite of allappearances to the contrary, the true foundation on which the English polityrests, and it gives in truth even to the conventional element of constitutionallaw such force as it really possesses.n
The law of the constitution, again, is in all its branches the result oftwo guiding principles, which have been gradually worked out by the more orless conscious 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 a body whichhas come more and more to represent the nation.12 This
10 Bagehot, English Constitution, Introd. pp. xxxv. and xxxvi.
11 See pp. 292-302, ante.
12 A few words may be in place as to the method by which this transferwas accomplished. The leaders of the English people in their contests withRoyal power never attempted, except in periods of revolutionary violence, todestroy or dissipate the authority of the Crown as head of the State. Theirpolicy, continued through centuries, was to leave the
curious process, by which the personal authority of the King has beenturned into the sovereignty of the King in Parliament, has had two effects: ithas put an end to the arbitrary powers of the monarch; it has preserved intactand undiminished the supreme authority of the State.
The second of these principles is what I have called the "rule of law,"or the supremacy throughout all our institutions of the ordinary law of theland. This rule of law, which means at bottom the right of the Courts to punishany illegal act by whomsoever committed, is of the very essence of Englishinstitutions. If the sovereignty of Parliament gives the form, the supremacy ofthe law of the land determines the substance of our constitution. The Englishconstitution in short, which appears when looked at from one point of view tobe a mere collection of practices or customs, turns out, when examined in itslegal aspect, to be more truly than any other polity in the world, except theConstitution of the United States,13 based on the law of the land.
When we see what are the principles which truly underlie the Englishpolity, we also perceive how rarely they have been followed
power of the King untouched, but to bind down the action of the Crown torecognised modes of procedure which, if observed, would secure first thesupremacy of the law, and ultimately the sovereignty of the nation. The Kingwas acknowledged to be supreme judge, but it was early established that hecould act judicially only in and through his Courts; the King was recognised asthe only legislator, but he could enact no valid law except as King inParliament; the King held in his hands all the prerogatives of the executivegovernment, but, as was after long struggles determined, he could legallyexercise these prereogatives only through Ministers who were members of hisCouncil, and incurred responsibility for his acts. Thus the personal will ofthe King was gradually identified with and transformed into the lawful andlegally expressed will of the Crown. This transformation was based upon theconstant use of fictions. It bears on its face that it was the invention oflawyers. 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 useagainst the fully-developed despotism of the French monarchy, fictionsrecalling the arts by which, at a far earlier period, Englishconstitutionalists had nominally checked the encroachments, while reallydiminishing the sphere, of the royal prerogative. Legal statesmanship bearseverywhere the same character. See Rocquain, L'Esprit Revolutionnaire avantla 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 bereckoned among the builders if not the founders of the American polity. See fora collection of his judgments on constitutional questions, The Writings ofJohn Marshall, late Chief-Justice of the United States, on the FederalConstitution.
by foreign statesmen who more or less intended to copy the constitutionof England. The sovereignty of Parliament is an idea fundamentally inconsistentwith the notions which govern the inflexible or rigid constitutions existing inby far the most important of the countries which have adopted any scheme ofrepresentative government. The "rule of law" is a conception which in theUnited States indeed has received a development beyond that which it hasreached in England; but it is an idea not so much unknown to as deliberatelyrejected by the constitution-makers of France, and of other continentalcountries which have followed French guidance. For the supremacy of the law ofthe land means in the last resort the right of the judges to control theexecutive government, whilst the separation des pouvoirs means, asconstrued by Frenchmen, the right of the government to control the judges. Theauthority of the Courts of Law as understood in England can therefore hardlycoexist with the system of droit administratif as it prevails in France.We may perhaps even go so far as to say that English legalism is hardlyconsistent with the existence of an official body which bears any trueresemblance to what foreigners call "the administration." To say this is not toassert that foreign forms of government are necessarily inferior to the Englishconstitution, or unsuited for a civilised and free people. All that necessarilyresults from the analysis of our institutions, and a comparison of them withthe institutions of foreign countries, is, that the English constitution isstill marked, far more deeply than is generally supposed, by peculiar features,and that these peculiar characteristics may be summed up in the combination ofParliamentary Sovereignty with the Rule of Law.
APPENDIX
Note I
RIGIDITY OF FRENCH CONSTITUTIONS
Twelve constitutions1 have been framed by Frenchconstitution-makers since the meeting of the States General in 1789. A surveyof the provisions (if any) contained in these constitutions for the revisionthereof leads to some interesting results.
First, with but two exceptions, every French constitution hasbeen marked by the characteristic of "rigidity." Frenchmen of all politicalschools have therefore agreed in the assumption, that the political foundationsof the State must be placed beyond the reach of the ordinary legislature, andought to be changed, if at all, only with considerable difficulty, andgenerally after such delay as may give the nation time for maturely reflectingover any proposed innovation.
In this respect the Monarchical Constitution of 1791 is noteworthy. ThatConstitution formed a legislature consisting of one Assembly,
i Viz. (i) The Monarchical Constitution of 1792; (2) the RepublicanConstitution of 1793; (3) the Republican Constitution of 1795 (Directory), 5Fruct. An. III.; (4) the Consular Constitution of the Year VIII. (1799); (5)the Imperial Constitution, 1804; (6) the Constitution proclaimed by the Senateand Provisional Government, 1814; (7) the Constitutional Charter, 1814(Restoration); (8) the Additional Act (Acte Additionnei), 1815,remodelling the Imperial Constitution; (9) the Constitutional Charter of 1830(Louis Philippe);(io) the Republic of 1848; (11) the Second ImperialConstitution, 1852; (12) the present Republic, 1870-75. See generally Helie,Les Constitutions de la France; and Duguit et Monnier, LesConstitutions de la France (Deuxieme ed.).
It is possible either to lengthen or to shorten the list of FrenchConstitutions according to the view which the person forming the list takes ofthe extent of the change in the arrangements of a state necessary to form a newconstitution.
but did not give this Assembly or Parliament any authority to revise theConstitution. The only body endowed with such authority was an Assembly ofRevision (Assemblee de Revision), and the utmost pains were taken tohamper the convening and to limit the action of the Assembly of Revision. Theprovisions enacted with this object were in substance as follows: Anordinary Legislative Assembly was elected for two years. No change in theConstitution could take place until three successive Legislative Assembliesshould have expressed their wish for a change in some article of theConstitution. On a resolution in favour of such reform having been carried inthree successive legislatures or Parliaments, the ensuing Legislative Assemblywas to be increased by the addition of 249 members, and this increasedLegislature was to constitute an Assembly of Revision.
This Assembly of Revision was tied down, as far as the end could beachieved by the words of the Constitution, to debate on those matters onlywhich were submitted to the consideration of the Assembly by the resolution ofthe three preceding legislatures. The authority, therefore, of the Assembly wasrestricted to a partial revision of the Constitution. The moment this revisionwas finished the 249 additional members were to withdraw, and the Assembly ofRevision was thereupon to sink back into the position of an ordinarylegislature. If the Constitution of 1791 had continued in existence, no changein its articles could, under any circ*mstances, have been effected in less thansix years. But this drag upon hasty legislation was not, in the eyes of theauthors of the Constitution, a sufficient guarantee against inconsiderateinnovations.2 They specially provided that the two consecutivelegislative bodies which were to meet after the proclamation of theConstitution, should have no authority even to propose the reform of anyarticle contained therein. The intended consequence was that for at least tenyears (1791-1801) the bases of the French government should remain unchangedand unchangeable.3
2 A resolution was proposed, though not carried, that the articles ofthe Constitution should be unchangeable for a period of thirty years. Helie,Les Constitutions de la France, p. 302.
3 See Constitution of 1791, Tit. vii.
The Republicans of 1793 agreed with the Constitutionalists of 1791 inplacing the foundations of the State outside the limits of ordinarylegislation, but adopted in different method of revision. Constitutionalchanges were under the Constitution of 1793 made dependent, not on the actionof the ordinary legislature, but on the will of the people. Upon the demand ofa tenth of the primary assemblies in more than half of the Departments of theRepublic, the legislature was bound to convoke all the primary assemblies, andsubmit to them the question of convening a national convention for the revisionof the Constitution. The vote of these Assemblies thereupon decided for oragainst the meeting of a convention, and therefore whether a revision shouldtake place.
Assuming that they decided in favour of a revision, a convention,elected in the same manner as the ordinary legislature, was to be forthwithconvened, and to occupy itself as regards the Constitution with those subjectsonly which should have caused (ont motive) the convention to beassembled. On the expressed wish, in short, of the majority of the citizens, alegislature was to be convoked with a limited authority to reform certainarticles of the Constitution.4
The Republican and Directorial Constitution again, of 1795, rested, likeits predecessors, on the assumption that it was of primary importance to makeconstitutional changes difficult, and also recognised the danger of againcreating a despotic sovereign assembly like the famous, and hated, Convention.
The devices by which it was sought to guard against both suddeninnovations, and the tyranny of a constituent assembly, can be understood onlyby one who remembers that, under the Directorial Constitution, the legislatureconsisted of two bodies, namely, the Council of Ancients, and the Council ofFive Hundred. A proposal for any change in the Constitution was necessarily toproceed from the Council of Ancients, and to be ratified by the Council of FiveHundred. After such a proposal had been duly made and ratified thrice in nineyears, at periods distant from each other by at least three years, an Assemblyof Revision was to be convoked. This As-
4 Constitution du 5 Fructidor, An. III., articles 336-350, Helie, pp.436, 463, 464.
sembly constituted what the Americans now term a "constitutionalconvention." It was a body elected ad hoc, whose meeting did not in anyway suspend the authority of the ordinary legislature, or of the Executive. Theauthority of the Assembly of Revision was further confined to the revision ofthose articles submitted to its consideration by the legislature. It could inno case sit for more than three months, and had no other duty than to prepare aplan of reform (projet de reforme) for the consideration of the primaryAssemblies of the Republic. When once this duty had been performed, theAssembly of Revision was ipso facto dissolved. The Constitution not onlycarefully provided that the Assembly of Revision should take no part in thegovernment, or in ordinary legislation, but also enacted that until the changesproposed by the Assembly should have been accepted by the people the existingConstitution should remain in force.
The Consular and Imperial Constitutions, all with more or lessdirectness, made changes in the Constitution depend, first, upon a senatusconsultum or resolution of the Senate; and, next, on the ratification ofthe change by a popular vote or plebiscite.5 This may be consideredthe normal Napoleonic system of constitutional reform. It makes all changesdependent on the will of a body, if effect, appointed by the Executive, andmakes them subject to the sanction of a popular vote taken in such a mannerthat the electors can at best only either reject or, as in fact they alwayshave done, affirm the proposals submitted to them by the Executive. Noopportunity is given for debate or for amendments of the proposed innovations.We may assume that even under the form of Parliamentary Imperialism sketchedout in the Additional Act of 23rd April 1815, the revision of the Constitutionwas intended to depend on the will of the Senate and the ratification of thepeople. The Additional Act is, however, in one respect very remarkable. Itabsolutely prohibits any proposal which should have for its object theRestoration of the Bourbons, the re-establishment of feudal rights, of tithes,or of an established Church (culte privilegie et dominant), or whichshould in any way re-
5 See Helie, Les Constitutions de la France, pp. 696-698.
voke the sale of the national domains, or, in other words, Frenchlandowners. This attempt to place certain principles beyond the influence, notonly of ordinary legislation but of constitutional change, recalls to thestudent of English history the Cromwellian Constitution of 1653, and thedetermination of the Protector that certain principles should be regarded as"fundamentals" not to be touched by Parliament, nor, as far as would appear, byany other body in the State.
The Republic of 1848 brought again into prominence the distinctionbetween laws changeable by the legislature in its ordinary legislativecapacity, and articles of the Constitution changeable only with specialdifficulty, and by an assembly specially elected for the purpose of revision.The process of change was elaborate. The ordinary legislative body was electedfor three years. This body could not itself modify any constitutional article.It could however, in its third year, resolve that a total or partial revisionof the Constitution was desirable; such a resolution was invalid unless votedthrice at three sittings, each divided from the other by at least the period ofa month, unless 500 members voted, and unless the resolution were affirmed bythree-fourths of the votes given.
On the resolution in favour of a constitutional change being dulycarried, there was to be elected an assembly of revision. This assembly,elected for three months only, and consisting of a larger number than theordinary legislature, was bound to occupy itself with the revision for which itwas convoked, but might, if necessary, pass ordinary laws. It was thereforeintended to be a constituent body superseding the ordinarylegislature.6
The second Empire revived, in substance, the legislative system of thefirst, and constitutional changes again became dependent upon a resolution ofthe Senate, and ratification by a popular vote.7
The existing Republic is, in many respects, unlike any preceding politycreated by French statesmanship. The articles of the Constitution are to befound, not in one document, but in several constitu-
6 See Constitution, 1848, art. 111.
7 Ibid. 1852, arts. 31, 32; Helie, p. 1170.
tional laws enacted by the National Assembly which met in 1871. Theselaws however cannot be changed by the ordinary legislature the Senateand the Chamber of Deputies acting in its ordinary legislativecharacter. The two Chambers, in order to effect a change in the constitutionalmanner, must, in the first place, each separately resolve that a revision ofthe Constitution is desirable. When each have passed this resolution, the twoChambers meet together, and when thus assembled and voting together as aNational Assembly, or Congress, have power to change any part, as they have infact changed some parts, of the constitutional laws.8
I have omitted to notice the constitutional Charter of 1814, granted byLouis XVIII., and the Charter of 1830, accepted by Louis Philippe. The omissionis intentional. Neither of these documents contains any special enactments forits amendment. An Englishman would infer that the articles of the Charter couldbe abrogated or amended by the process of ordinary legislation. The inferencemay be correct. The constitutionalists of 1814 and 1830 meant to found aconstitutional monarchy of the English type, and therefore may have meant theCrown and the two Houses to be a sovereign Parliament. The inference however,as already pointed out,9 is by no means certain. Louis XVIII. mayhave meant that the articles of a constitution granted as a charter by theCrown, should be modifiable only at the will of the grantor. Louis Philippe maycertainly have wished that the foundations of his system of government shouldbe legally immutable. However this may have been, one thing is dear, namely,that French constitutionalists have, as a rule, held firmly to the view thatthe foundations of the Constitution ought not to be subject to sudden changesat the will of the ordinary legislature.
Secondly, French statesmen have never fully recognised theinconveniences and the perils which may arise from the excessive rigidity of aconstitution. They have hardly perceived that the power of a minority to placea veto for a period of many years on a reform desired by the nation provides anexcuse or a reason for revolution.
8 See Constitutional Law, 1855, art. 8.
9 See pp. 62-63, ante.
The authors of the existing Republic have, in this respect, learntsomething from experience. They have indeed preserved the distinction betweenthe Constitution and ordinary laws, but they have included but a small numberof rules among constitutional articles, and have so facilitated the process ofrevision as to make the existing chambers all but a sovereign Parliament.Whether this is on the whole a gain or not, is a point on which it were mostunwise to pronounce an opinion. All that is here insisted upon is that thepresent generation of Frenchmen have perceived that a constitution may be toorigid for use or for safety.10
Thirdly, an English critic smiles at the labour wasted in Franceon the attempt to make immutable Constitutions which, on the average, havelasted about ten years apiece. The edifice, he reflects, erected by the geniusof the first great National Assembly, could not, had it stood, have beenlegally altered till 1801 that is, till the date when, after threeconstitutions had broken down, Bonaparte was erecting a despotic Empire. TheDirectorial Republic of 1795 could not, if it had lasted, have been modified inthe smallest particular till 1804, at which date the Empire was already in fullvigour.
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 inconstitution-making, there was nothing ridiculous in the idea that thefundamental laws of a country ought to be changed but slowly, or in theanticipation that the institutions of France would not require frequentalteration. The framework of the English Constitution had, if we except theUnion between England and Scotland, stood, as far as foreigners could observe,unaltered for a century, and if the English Parliament was theoretically ableto modify any institution whatever, the Parliaments of George III. were atleast as little likely to change any law which could be consideredconstitutional as a modern Parliament to abolish the Crown. In fact it was nottill nearly forty years after the meeting of the States General (1829) that
10 See as to the circ*mstances which explain the character of theexisting Constitution of France, Lowell, Governments and Parties inContinental Europe, i. pp. 7-14, and note that the present constitution hasalready lasted longer than any constitution which has existed in France since1789.
any serious modification was made in the form of the government ofEngland. No one in France or in England could a century ago foresee thecondition of pacific revolution to which modern Englishmen had become soaccustomed as hardly to feel its strangeness. The newly-founded Constitution ofthe United States showed every sign of stability, and has lasted more than acentury without undergoing any material change of form. It was reasonableenough therefore for the men of 1789 to consider that a well-built constitutionmight stand for a long 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 alwaysbeen blind to the fact that a constitution may be undermined by the passing oflaws which, without nominally changing its provisions, violate its principles.They have therefore failed to provide any adequate means, such as those adoptedby the founders of the United States, for rendering unconstitutionallegislation inoperative. They have in the next place, generally, though notinvariably, underrated the dangers of convoking a constituent assembly, which,as its meeting suspends the authority of the established legislature andExecutive, is likely to become a revolutionary convention.
Fifthly, the Directorial Constitution of 1795 is, from atheoretical point of view, the most interesting among the French experiments inthe art of constitution-making. Its authors knew by experience the risks towhich revolutionary movements are exposed, and showed much ingenuity in theirdevices for minimising the perils involved in revisions of the Constitution. Inentrusting the task of revision to an assembly elected ad hoc, which metfor no other purpose, and which had no authority to interfere with or suspendthe action of the established legislative bodies or of the Executive, theyformed a true constitutional convention in the American sense of thatterm,11 and, if we may judge by transatlantic experience, adopted byfar the wisest method hitherto invented for introducing changes into a writtenand rigid constitution. The establishment, again, of the principle that all
11 See the word "Convention" in the American Encyclopaedia ofAmerican Science; and Bryce, American Commonwealth, i. (3rd ed.),App. on Constitutional Conventions, p. 667.
amendments voted by the Assembly of Revision must be referred to apopular vote, and could not come into force until accepted by the people, wasan 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 ofall democratic politics. It is worth while to direct the reader's attention tothe ingenuity displayed by the constitution-makers of 1795, both because theirresourcefulness stands in marked contrast with the want of inventiveness whichmarks the work of most French constitutionalists, and because the incapacity ofthe Directorial Government, in the work of administration, has divertedattention from the skill displayed by the founders of the Directorate in someparts of their constitutional creation.
Note II
DIVISION OF POWERS IN FEDERAL STATES
A student who wishes to understand the principles which, under a givensystem of federalism, determine the division of authority between the nation orthe central government on the one hand, and the States on the other, shouldexamine the following points: first, whether it is the NationalGovernment 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 byany tribunal or other authority nullified or treated as void; thirdly,to what extent the Federal government can control the legislation of theseparate States; and fourthly, what is the nature of the body (if suchthere be) having authority to amend the Constitution.
It is interesting to compare on these points the provisions of fivedifferent federal systems.
THE UNITED STATES
\. The powers conferred by the Constitution on the United Statesare strictly "definite" or defined; the powers left to the separate States
are "indefinite" or undefined. "The powers not delegated to the UnitedStates by the Constitution, nor prohibited by it to the States, are reserved tothe States respectively, or to the people."12 The consequence isthat the United States (that is, the National Government) can claim no powernot conferred upon the United States either directly or impliedly by theConstitution. Every State in the Union can claim to exercise any powerbelonging to an independent nation which has not been directly or indirectlytaken away from the States by the Constitution.
2. Federal legislation is as much subject to the Constitution as thelegislation of the States. An enactment, whether of Congress or of a Statelegislature, which is opposed to the Constitution, is void, and will be treatedas such by the Courts.
3. The Federal government has no power to annul or disallow Statelegislation. The State Constitutions do not owe their existence to the Federalgovernment, nor do they require its sanction. The Constitution of the UnitedStates, however, guarantees to every State a Republican Government, and theFederal government has, it is submitted, the right to put down, or rather isunder 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 sanctionof three-fourths of the States, and it would appear that constitutionally noState can be deprived of its equal suffrage in the Senate without itsconsent.13
THE SWISS CONFEDERATION
1. 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 lawpassed by the Federal Assembly must, on demand of either 30,000
12 Constitution of United States, Amendment 10.
13 Constitution of United States, art. 5.
14 See Constitution Federale, art. 3.
citizens or of eight Cantons, be referred to a popular vote for approvalor rejection. It would appear that the Federal Court can treat as invalidCantonal laws which violate the Constitution.
3. The Federal authorities have no power of disallowing or annulling aCantonal law. But the Cantonal Constitutions, and amendments thereto, need theguarantee of the Confederacy. This guarantee will not be given to articles in aCantonal Constitution which are repugnant to the Federal Constitution, andamendments to a Cantonal Constitution do not, I am informed, come into forceuntil they receive the Federal Guarantee.
4. The Federal Constitution can be revised only by a combined majorityof the Swiss people, and of the Swiss Cantons. No amendment of the Constitutioncan be constitutionally effected which is not approved of by a majority of theCantons.
THE CANADIAN DOMINION
1. The authority of the Dominion, or Federal, government is indefiniteor undefined; the authority of the States or Provinces is definite or defined,and indeed defined within narrow limits.1S
From a federal point of view this is the fundamental difference betweenthe Constitution of the Dominion on the one hand, and the Constitution of theUnited States or of Switzerland on the other.
The Dominion Parliament can legislate on all matters not exclusivelyassigned to the Provincial legislatures. The Provincial or State Legislaturescan legislate only on certain matters exclusively assigned to them. Congress,on the other hand, or the Swiss Federal Assembly, can legislate only on certaindefinite matters assigned to it by the Constitution; the States or Cantonsretain all powers exercised by legislation or otherwise not specially takenaway from them by the Constitution.
2. The legislation of the Federal, or Dominion, Parliament is as muchsubject to the Constitution (i.e. the British North America Act, 1867)as the legislation of the Provinces. Any Act passed, either by the
15 See British North America Act, 1867, ss. 91, 92.
Dominion Parliament or by a Provincial Legislature, which isinconsistent with the Constitution is void, and will be treated as void by theCourts.
3. The Dominion Government has authority to disallow the Act passed by aProvincial legislature. This disallowance may be exercised even in respect ofProvincial Acts which are constitutional, i.e. within the powersassigned to the Provincial legislatures under the Constitution.16
4. The Constitution of the Dominion depends on an Imperial statute; itcan, therefore, except as provided by the statute itself, be changed only by anAct of the Imperial Parliament. The Parliament of the Dominion cannot, as such,change any part of the Canadian Constitution. It may however, to a limitedextent, by its action when combined with that of a Provincial legislature,modify the Constitution for the purpose of producing uniformity of laws in theProvinces of the Dominion.17
But a Provincial legislature can under the British North America Act,1867, s- 92' sub-s. i, amend the Constitution of theProvince. The law, however, amending the Provincial Constitution is, in commonwith other Provincial legislation, subject to disallowance by the Dominiongovernment.
THE COMMONWEALTH OF AUSTRALIA
1. The authority of the Federal government is definite; the authority ofeach of the States, vested in the Parliament thereof, isindefinite.18
2. Federal legislation (i.e. the legislation of the CommonwealthParliament) is as much subject to the constitution as the legislation of theState Parliaments. An enactment whether of the Commonwealth Parliament or of aState legislature which is opposed to the Constitu-
16 See British North America Act, 1867, s. 90; and Bourinot,Parliamentary Practice and Procedure, pp. 76-81.
17 British North America Act, 1867, s. 94.
18 Commonwealth Constitution Act, ss. 51, 52, 106, 107.
tion of the Commonwealth, is void and will be treated as such by theCourts.
3. The Federal or Commonwealth government has no power to annul ordisallow either directly or indirectly the legislation of a State Parliament.
4. Amendments of the Commonwealth Constitution may be effected by a billpassed by the Commonwealth Parliament, or under some circ*mstances by one onlyof the Houses of the Commonwealth Parliament, and approved of by a majority ofthe voting electors of the Commonwealth, and also by a majority of the Statesthereof.19
Note however that (i) many provisions of the Constitution may under theConstitution be changed by an ordinary Act of the CommonwealthParliament.20
(ii) The Commonwealth Constitution being an Act of the ImperialParliament may be altered or abolished by an Act of the Imperial Parliament.
THE GERMAN EMPIRE
1. The authority under the Constitution of the Imperial (Federal) poweris apparently finite or defined, whilst the authority of the States making upthe Federation is indefinite or undefined.
This statement, however, must be understood subject to two limitations:first, the powers assigned to the Imperial government are very large;secondly, the Imperial legislature can change theConstitution.21
2. Imperial legislation at any rate, if carried through in a properform, cannot apparently be "unconstitutional,"22 but it would appear
19 Constitution, s. 128.
20 See e.g. Constitution, ss. 7, 10.
21 See Reichsverfassung, arts. 2. and 78.
22 See on the moot question whether the Reichsgericht and the Courtsgenerally can treat a statute passed by the Diet (Reichstag) asunconstitutional, Lowell, Governments and Parties in Continental Europe,i. pp. 282-284.
that State legislation is void, if it conflicts with the Constitution,or with Imperial legislation.23
3. Whether the Imperial government has any power of annulling a Statelaw on the ground of unconstitutionality is not very dear, but as far as aforeigner can judge, no such power exists under the Imperial Constitution. Theinternal constitutional conflicts which may arise within any State may, undercertain circ*mstances, be ultimately determined by Imperialauthority.24
4. The Constitution may be changed by the Imperial (Federal) legislaturein the way of ordinary legislation. But no law amending the Constitution can becarried, if opposed by fourteen votes in the Federal Council (Bundesrath). Thisgives in effect a "veto" on constitutional changes to Prussia and to severalcombinations of other States.
Certain rights, moreover, are reserved to several States which cannot bechanged under the Constitution, except with the assent of the State possessingthe right.25
23 Reichsverfassung, art. 2; and Labaud, Staatsrecht des DeutschenReiches, s. 10.
24 Reichsverfassung, art. 76.
25 The South African Union. The constitution of the SouthAfrican Union, it has been well said, "is frankly not in any real sensefederal." The Act under which it is framed "does not restrict in anysubstantial manner the Parliament's power to alter the provisions of theConstitution. It is especially laid down in s. 152 that Parliament may by lawrepeal or alter any of the provisions of the Act, provided that no provisionthereof for the operation of which a definite period of time is fixed shall berepealed or altered before the expiration of such period, and also providedthat 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 ofthe Assembly has reached 150, whichever occurs later, or of the provisions ofs. 35 relative to the qualifications of electors to the House of Assembly, orof s. 137 as to the use of languages, shall be valid, unless the Billcontaining the alterations is passed at a joint sitting of the Houses, and atit* third reading by not less than two-thirds of the total number of members ofboth Houses. The section is well worded, as it obviates the possible evasion ofits spirit by the alteration of the section itself." Keith, South AfricanUnion, Reprinted from the Journal of the Society of ComparativeLegislation, pp. 50, 51. See also Brand, The Union of South Africa,especially chap. xi.
Note III
DISTINCTION BETWEEN
A PARLIAMENTARY EXECUTIVE AND A
NON-PARLIAMENTARY EXECUTIVE
Representative government, of one kind or another, exists at this momentin most European countries, as well as in all countries which come within theinfluence of European ideas; there are few civilised states in whichlegislative power is not exercised by a wholly, or partially, elective body ofa more or less popular or representative character. Representative government,however, does not mean everywhere one and the same thing. It exhibits or tendsto 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 the legislature,or, it maybe, the elective portion thereof, appoints and dismisses theexecutive which under these circ*mstances is, in general, chosen from among themembers of the legislative body. Such an executive may appropriately be termeda "parliamentary executive." Under the other form of representative governmentthe executive, whether it be an Emperor and his Ministers, or a President andhis Cabinet, is not appointed by the legislature. Such an executive mayappropriately be termed a "non-parliamentary executive." As to this distinctionbetween the two forms of representative government, which, though noticed ofrecent times by authors of eminence, has hardly been given sufficientprominence in treatises on the theory or the practice of the Englishconstitution, two or three points are worth attention.
First, the distinction affords a new principle for theclassification of constitutions, and brings into light new points both ofaffinity and difference. Thus if the character of polities be tested by thenature of their executives, the constitutions of England, of Belgium, of Italy,and of the existing French Republic, all, it will be found, belongsubstantially to one and the same class; for under each of these constitutionsthere exists a parliamentary executive. The constitutions,
on the other hand, of the United States and of the German Empire, asalso the constitution of France in the time of the Second Republic, all belongto another and different class, since under each of these constitutions thereis to be found a non-parliamentary executive. This method of grouping differentforms of representative government is certainly not without its advantages. Itis instructive to perceive that the Republican democracy of America and theImperial government of Germany have at least one important feature in common,which distinguishes them no less from the constitutional monarchy of Englandthan from the democratic Republic of France.
Secondly, the practical power of a legislative body, orparliament, greatly depends upon its ability to appoint and dismiss theexecutive; the possession of this power is the source of at least half theauthority which, at the present day, has accrued to the English House ofCommons. The assertion, indeed, would be substantially true that parliamentarygovernment, in the full sense of that term, does not exist, unless, and until,the members of the executive body hold office at the pleasure of parliament,and that, when their tenure of office does depend on the pleasure ofparliament, parliamentary government has reached its full development and beentransformed into government by parliament. But, though this is so, it isequally true that the distinction between a constitution with a parliamentaryexecutive and a constitution with a non-parliamentary executive does not squarewith the distinction insisted upon in the body of this work, between aconstitution in which there exists a sovereign parliament and a constitution inwhich there exists a non-sovereign parliament. The English Parliament, it istrue, is a sovereign body, and the real English executive the Cabinet is in fact, though not in name, a parliamentary executive. But thecombination of parliamentary sovereignty with a parliamentary executive is notessential but accidental. The English Parliament has been a sovereign power forcenturies, but down at any rate to the Revolution of 1689 the government ofEngland was in the hands of a non-parliamentary executive. So again it is atleast maintainable that in Germany the Federal Council (Bundesrath) and theFederal Diet (Reichstag) constitute together a
sovereign legislature.26 But no one with recent events beforehis eyes can assert that the German Empire is governed by a parliamentaryexecutive. In this matter, as in many others, instruction may be gained from astudy of the history of parliamentary government in Ireland. In modern timesboth the critics and the admirers of the constitution popularly identified withthe name of Grattan, which existed from 1782 to 1800, feel that there issomething strange and perplexing in the position of the Irish Parliament. Thepeculiarity of the case, which it is far easier for us to perceive than it wasfor Grattan and his contemporaries, lies mainly in the fact that, while theIrish Parliament was from 1782 an admittedly sovereign legislature, and whilstit was probably intended by all parties that the Irish Houses of Parliamentshould, in their legislation for Ireland, be as little checked by the royalveto as were the English Houses of Parliament, yet the Irish executive was asregards the Irish Parliament in no sense a parliamentary executive, for it wasin reality appointed and dismissed by the English Ministry. It would be idle tosuppose that mere 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 theparliamentary independence of Ireland. But a critic of constitutions may,without absurdity, assert that in 1782 the combination of a sovereignparliament with a non-parliamentary executive made it all but certain thatGrattan's constitution must either be greatly modified or come to an end. Forour present purpose, however, all that need be noted is that this combination,which to modern critics seems a strange one, did in fact exist during the wholeperiod of Irish parliamentary independence. And as the existence of a sovereignparliament does not necessitate the existence of a parliamentary executive, soa parliamentary executive constantly coexists with a non-sovereign parliament.This is exemplified by the constitution of Belgium as of every English colonyendowed with representative institutions and responsible government.
26 See the Imperial Constitution, Arts 2 and 78.
The difference again between a parliamentary and a non-parliamentaryexecutive, though it covers, does not correspond with a distinction, stronglyinsisted on by Bagehot, between Cabinet Government and PresidentialGovernment.27 Cabinet Government, as that term is used by him and bymost writers, is one form, and by far the most usual form, of a parliamentaryexecutive, and the Presidential Government of America which Bagehot had in hismind, is one form, though certainly not the only form, of a non-parliamentaryexecutive. But it would be easy to imagine a parliamentary executive which wasnot a Cabinet, and something of the sort, it may be suggested, actually existedin France during the period when Monsieur Thiers and Marshal MacMahon were eachsuccessively elected chief of the executive power by the French NationalAssembly, 28 and there certainly may exist a non-parliamentaryexecutive which cannot be identified with Presidential government. Such forexample is at the present moment the executive of the German Empire. TheEmperor is its real head; he is not a President; neither he, nor the Ministershe appoints, are appointed or dismissible by the body which we may designate asthe Federal Parliament.
Thirdly, the English constitution as we now know it presentshere, as elsewhere, more than one paradox. The Cabinet is, in reality and infact, a parliamentary executive, for it is in truth chosen, though by a veryindirect process, and may be dismissed by the House of Commons, and its membersare invariably selected from among the members of one or other House ofParliament. But, in appearance and in name, the Cabinet is now what itoriginally was, a non-parliamentary executive; every Minister is the servant ofthe Crown, and is in form appointed and dismissible, not by the House ofCommons, not by the Houses of Parliament, but by the King.
It is a matter of curious speculation, whether the English Cabinet maynot at this moment be undergoing a gradual and, as yet, scarcely noticed changeof character, under which it may be transformed from a parliamentary into anon-parliamentary executive. The possibility of
27 See Bagehot, English Constitution (ed. 1878), pp. 16 andfollowing.
28 See Helie, Les Constitutions de la France, pp. 1360, 1397.
such a change is suggested by the increasing authority of theelectorate. Even as it is, a general election may be in effect, though not inname, a popular election of a particular statesman to the Premiership. It is atany rate conceivable that the time may come when, though all the forms of theEnglish constitution remain unchanged, an English Prime Minister will be astruly elected to office by a popular vote as is an American President. Itshould never be forgotten that the American President is theoretically electedby electors who never exercise any personal choice whatever, and is in factchosen by citizens who have according to the letter of the constitution no moreright to elect a President than an English elector has to elect a PrimeMinister.
Fourthly, each kind of executive possesses certain obvious meritsand certain obvious defects.
A parliamentary executive, which for the sake of simplicity we mayidentify with a Cabinet, can hardly come into conflict with the legislature,or, at any rate, with that part of it by which the Cabinet is appointed andkept in power. Cabinet government has saved England from those conflictsbetween the executive and the legislative power which in the United States haveimpeded the proper conduct of public affairs, and in France, as in some othercountries, have given rise to violence and revolution. A parliamentary Cabinetmust from the necessity of the case be intensely sensitive and amenable to thefluctuations of parliamentary opinion, and be anxious, in matters ofadministration no less than in matters of legislation, to meet the wishes, andeven the fancies, of the body to which the Ministry owes its existence. The"flexibility," if not exactly of the constitution yet of our whole Englishsystem of government, depends, in practice, quite as much upon the nature ofthe Cabinet as upon the legal sovereignty of the English Parliament. ButCabinet government is inevitably marked by a defect which is nothing more thanthe wrong side, so to speak, of its merits. A parliamentary executive must bythe law of its nature follow, or tend to follow, the lead of Parliament. Henceunder a system of Cabinet government the administration of affairs is apt, inall its details, to reflect not only the permanent will, but also the temporarywishes, or transient passions and fancies, of a parliamentary majority, or ofthe electors from whose good will the majority
derives its authority. A parliamentary executive, in short, is likely tobecome the creature of the parliament by which it is created, and to share,though in a modified form, the weaknesses which are inherent in the rule of anelective assembly.
The merits and defects of a non-parliamentary executive are the exactopposite of the merits and defects of a parliamentary executive. Each form ofadministration is strong where the other is weak, and weak where the other isstrong. The strong point of a non-parliamentary executive is its comparativeindependence. Wherever representative government exists, the head of theadministation, be he an Emperor or a President, of course prefers to be on goodterms with and to have the support of the legislative body. But the GermanEmperor need not pay anything like absolute deference to the wishes of theDiet; an American President can, if he chooses, run counter to the opinion ofCongress. Either Emperor or President, if he be a man of strong will anddecided opinions, can in many respects give effect as head of the executive tohis own views of sound policy, even though he may, for the moment, offend notonly the legislature but also the electors. Nor can it be denied that the headof a non-parliamentary executive may, in virtue of his independence,occasionally confer great benefits on the nation. Many Germans would now admitthat the King of Prussia and Prince Bismarck did, just because the Prussianexecutive was in fact, whatever the theory of the constitution, anon-parliamentary executive, pursue a policy which, though steadily opposed bythe Prussian House of Representatives, laid the foundation of German power.There was at least one occasion, and probably more existed, on which PresidentLincoln rendered an untold service to the United States by acting, in defianceof the sentiment of the moment, on his own conviction as to the course requiredby sound policy. But an executive which does not depend for its existence onparliamentary support, dearly may, and sometimes will, come into conflict withparliament. The short history of the second French Republic is, from theelection of Louis Napoleon to the Presidency down to the Coup d'Etat ofthe 2nd of December, little else than the story of the contest between theFrench executive and the French legislature. This struggle, it may be said,arose from the
peculiar position of Louis Napoleon as being at once the President ofthe Republic and the representative of the Napoleonic dynasty. But the contestbetween Andrew Johnson and Congress, to give no other examples, proves that aconflict between a non-parliamentary executive and the legislature may arisewhere there is no question of claim to a throne, and among a people far moregiven to respect the law of the land than are the French.
Fifthly, the founders of constitutions have more than onceattempted to create a governing body which should combine the characteristics,and exhibit, as it was hoped, the merits without the defects both of aparliamentary and of a non-parliamentary executive. The means used for theattainment of this end have almost of necessity been the formation under oneshape or another of an administration which, while created, should not bedismissible, by the legislature. These attempts to construct asemi-parliamentary executive repay careful study, but have not been crowned, ingeneral, with success.
The Directory which from 1795 to 1799 formed the government of theFrench Republic was, under a very complicated system of choice, elected by thetwo councils which constituted the legislature or parliament of the Republic.The Directors could not be dismissed by the Councils. Every year one Directorat least was to retire from office. "The foresight," it has been well said,
of [the Directorial] Constitution was infinite: it prevented popularviolence, the encroachments of power, and provided for all the perils which thedifferent crises of the Revolution had displayed. If any Constitution couldhave become firmly established at that period [1795], it was the directorialconstitution.29
It lasted for four years. Within two years the majority of the Directoryand the Councils were at open war. Victory was determined in favour of theDirectors by a coup d'etat, followed by the transportation of theiropponents in the legislature.
It may be said, and with truth, that the Directorial Constitution neverhad a fair trial, and that at a time when the forces of reaction
29 Mignet, French Revolution (English Translation) p. 303.
and of revolution were contending for supremacy with alternating successand failure, nothing but the authority of a successful general could have givenorder, and no power whatever could have given constitutional liberty, toFrance. In 1875 France was again engaged in the construction of a RepublicanConstitution. The endeavour was again made to create an executive power whichshould neither be hostile to, nor yet absolutely dependent upon, thelegislature. The outcome of these efforts was the system of Presidentialgovernment, which nominally still exists in France. The President of theRepublic is elected by the National Assembly, that is, by the Chamber ofDeputies and the Senate (or, as we should say in England, by the two Houses ofParliament) sitting together. He holds office for a fixed period of sevenyears, and is re-eligible; he possesses, nominally at least, considerablepowers; he appoints the Ministry or Cabinet, in whose deliberations he,sometimes at least, takes part, and, with the concurrence of the Senate, candissolve the Chamber of Deputies. The Third French Republic, as we all know,has now lasted for thirty-eight years, and the present PresidentialConstitution 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; butthe interesting endeavour to form a semi-parliamentary executive may already bepronounced a failure. Of the threatened conflict between Marshal MacMahon andthe Assembly, dosed by his resignation, we need say nothing; it may in fairnessbe considered the last effort of reactionists to prevent the foundation of aRepublican Commonwealth. The breakdown of the particular experiment with whichwe are concerned is due to the events which have taken place after MacMahon'sretirement from office. The government of France has gradually become astrictly parliamentary executive. Neither President Grevy nor President Carnotattempted to be the real head of the administration. President Faure andPresident Loubet followed in their steps. Each of these Presidents filled, ortried to fill, the part, not of a President, in the American sense of the word,but of a constitutional King. Nor is this all. As long as the President'stenure of office was in practice independent of the will of the Assembly, theexpectation was reasonable that, whenever a statesman of vigour and reputa-
tion was called to the Presidency, the office might acquire a newcharacter, and the President become, as were in a sense both Thiers andMacMahon, the real head of the Republic. But the circ*mstances of PresidentGrevy's fall, as also of President Casimir Perier's retirement from office,show that the President, like his ministers, holds his office in the lastresort by the favour of the Assembly. It may be, and no doubt is, a moredifficult matter for the National Assembly to dismiss a President than tochange a Ministry. Still the President is in reality dismissible by thelegislature. Meanwhile the real executive is the Ministry, and a French Cabinetis, to judge from all appearances, more completely subject than is an EnglishCabinet to the control of an elective chamber. The plain truth is that thesemi-parliamentary executive which the founders of the Republic meant toconstitute has turned out a parliamentary executive of a very extreme type.
The statesmen who in 1848 built up the fabric of the Swiss Confederationhave, it would seem, succeeded in an achievement which has twice at leastbaffled the ingenuity of French statesmanship. The Federal Council30of Switzerland is a Cabinet or Ministry elected, but not dismissible, by eachFederal Assembly. For the purpose of the election the National Council and theCouncil of States sit together. The national Council continues in existence forthree years. The Swiss Ministry being elected for three years by each FederalAssembly holds office from the time of its election until the first meeting ofthe next Federal Assembly. The working of this system is noteworthy. The SwissGovernment is elective, but as it is chosen by each Assembly Switzerland thusescapes the turmoil of a presidential election, and each new Assembly beginsits existence in harmony with the executive. The Council, it is true, cannot bedismissed by the legislature, and the legislature cannot be dissolved by theCouncil. But conflicts between the Government and the Assembly are unknown.Switzerland is the most democratic country in Europe, and democracies aresupposed, not without reason, to be fickle; yet the Swiss executive powerpossesses a permanence and stability which
30 As to the character of the Swiss Federal Council, see Lowell,Governments and Parties in Continental Europe, ii. pp. 191-208.
does not characterise any parliamentary Cabinet. An English Ministry, tojudge by modern experience, cannot often retain power for more than theduration of one parliament; the Cabinets of Louis Philippe lasted on an averagefor about three years; under the Republic the lifetime of a Frenchadministration is measured by months. The members of the Swiss Ministry, if wemay use the term, are elected only for three years; they are howeverre-eligible, and reelection is not the exception but the rule. The men who makeup the administration are rarely changed. You may, it is said, find among themstatesmen who have sat in the Council for fifteen or sixteen yearsconsecutively. This permanent tenure of office does not, it would seem, dependupon the possession by particular leaders of extraordinary personal popularity,or of immense political influence; it arises from the fact that under the Swisssystem there is no more reason why the Assembly should not re-elect a trustedadministrator, than why in England a joint-stock company should not from timeto time reappoint a chairman in whom they have confidence. The Swiss Council,indeed, is as far as a stranger dare form an opinion on a matter ofwhich none but Swiss citizens are competent judges not a Ministry or aCabinet in the English sense of the term. It may be described as a Board ofDirectors appointed to manage the concerns of the Confederation in accordancewith the articles of the Constitution and in general deference to the wishes ofthe Federal Assembly. The business of politics is managed by men of businesswho transact national affairs, but are not statesmen who, like a Cabinet, areat once the servants and the leaders of a parliamentary majority. This system,one is told by observers who know Switzerland, may well come to an end. Thereformers, or innovators, who desire a change in the mode of appointing theCouncil, wish to place the election thereof in the hands of the citizens. Sucha revolution, should it ever be carried out, would, be it noted, create not aparliamentary but a non-parliamentary executive.31
yi See Adams, Swiss Confederation, ch. iv.
Note IV
THE RIGHT OF SELF-DEFENCE
How far has an individual a right to defend his person, liberty, orproperty, 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 theprinciples which, under English law, govern the right ofself-defence?32
The answer to this inquiry is confessedly obscure and indefinite, anddoes not admit of being given with dogmatic certainty; nor need thisuncertainty excite surprise, for the rule which fixes the limit to the right ofself-help must, from the nature of things, be a compromise between thenecessity, on the one hand, of allowing every citizen to maintain his rightsagainst wrongdoers, and the necessity, on the other hand, of suppressingprivate warfare. Discourage self-help, and loyal subjects become the slaves ofruffians. Over-stimulate self-assertion, and for the arbitrament of the Courtsyou substitute the decision of the sword or the revolver.
Let it further be remarked that the right of natural self-defence, evenwhen it is recognised by the law, "does not imply a right of attacking, forinstead of attacking one another for injuries past or impending, men need onlyhave recourse to the proper tribunals of justice."33
A notion is current,34 for which some justification may befound in the loose dicta of lawyers, or the vague language of legal text-books,that a man may lawfully use any amount of force which is necessary,
32 Report of Criminal Code Commission, 1879, pp. 43-46 [C. 2345], NotesA and B; Stephen, Criminal Digest (6th ed.), art. 221; i East, P. C.271-294; Foster, Discourse II. ss. 2, 3, pp. 270, 271.
33 Stephen, Commentaries (8th ed.), iv. pp. 53, 54.
34 This doctrine is attributed by the Commissioners, who in 1879reported on the Criminal Code Bill, to Lord St. Leonards. As a matter ofcriticism it is however open to doubt whether Lord St. Leonards held preciselythe dogma ascribed to him. See Criminal Code Bill Commission, Report [C. 2345],p. 44, Note B.
and not more than necessary, for the protection of his legal rights.This notion, however popular, is erroneous. If pushed to its fair consequences,it would at times justify the shooting of trespassers, and would make it legalfor a schoolboy, say of nine years old, to stab a hulking bully of eighteen whoattempted to pull the child's ears. Some seventy years ago or more a worthyCaptain Moir carried this doctrine out in practice to its extreme logicalresults. His grounds were infested by trespassers. He gave notice that heshould fire at any wrongdoer who persisted in the offence. He executed histhreat, and, after fair warning, shot a trespasser in the arm. The wounded ladwas carefully nursed at the captain's expense. He unexpectedly died of thewound. The captain was put on his trial for murder; he was convicted by thejury, sentenced by the judge, and, on the following Monday, hanged by thehangman. He was, it would seem, a well-meaning man, imbued with too rigid anidea of authority. He perished from ignorance of law. His fate is a warning totheorists who incline to the legal heresy that every right may lawfully bedefended by the force necessary for its assertion.
The maintainable theories as to the legitimate use of force necessaryfor the protection or assertion of a man's rights, or in other words thepossible answers to our inquiry, are, it will be found, two, and two only.
FIRST THEORY
In defence of a man's liberty, person, or property, he may lawfully useany amount of force which is both "necessary" i.e. not more thanenough to attain its object and "reasonable" or "proportionate" i.e. which does not inflict upon the wrongdoer mischief out ofproportion to the injury or mischief which the force used is intended toprevent; and no man may use in defending his rights an amount of force which iseither unnecessary or unreasonable.
This doctrine of the "legitimacy of necessary and reasonable force" isadopted by the Criminal Code Bill Commissioners. It had better be given intheir own words:
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 propertyagainst 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 violent means;and that the mischief done by, or which might reasonably be anticipated fromthe force used is not disproportioned to the injury or mischief which it isintended to prevent. This last principle will explain and justify many of oursuggestions. It does not seem to have been universally admitted; and we havetherefore thought it advisable to give our reasons for thinking that it notonly ought to be recognised as the law in future, but that it is the law atpresent.35
The use of the word "necessary" is, it should be noted, somewhatpeculiar, since it includes 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 anamount of force as is needful for their protection and as does not inflict, orrun the risk of inflicting, damage out of all proportion to the injury to beaverted, or (if we look at the same thing from the other side) to the value ofthe right to be protected. This doctrine is eminently rational. It comes to usrecommended by the high authority of four most distinguished judges. Itcertainly represents the principle towards which the law of England tends toapproximate. But there is at least some ground for the suggestion that a secondand simpler view more accurately represents the result of our authorities.
SECOND THEORY
A man, in repelling an unlawful attack upon his person or liberty, isjustified in using against his assailant so much force, even amounting to theinfliction of death, as is necessary for repelling the attack i.e.as is needed for self-defence; but the infliction upon a wrongdoer ofgrievous bodily harm, or death, is justified, speaking
35 C. C. B. Commission, Report, p. 11.
generally, only by the necessities of self-defence i.e.the defence of life, 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 is limitedby, the right of every loyal subject to use the means necessary for avertingserious danger to life or limb, and serious interference with his personalliberty.
The doctrine of the "legitimacy of necessary and reasonable force" andthe doctrine of the "legitimacy of force necessary for self-defence" conduct inthe main, and in most instances, to the same practical results.
On either theory A, when assaulted by X, and placed in peril of hislife, may, if he cannot otherwise repel or avoid the assault, strike X dead. Onthe one view, the force used by A is both necessary and reasonable; on theother view, the force used by A is employed strictly in self-defence. Accordingto either doctrine A is not justified in shooting at X because X iswilfully trespassing on A's land. For the damage inflicted by Aupon X namely, the risk to X of losing his life isunreasonable, that is, out of all proportion to the injury done to A bythe trespass, and A in firing at a trespasser is dearly using force,not for the purpose of self-defence, but for the purpose of defending hisproperty. Both theories, again, are consistent with the elaborate and admittedrules which limit a person's right to wound or slay another even in defence oflife or limb.37 The gist of these rules is
36 See Stephen, Commentaries (i4th ed.), i. p. 79; iii. p. 267;iv. pp. 42-46. "In the case of justifiable self-defence the injured party mayrepel force with force in defence of his person, habitation, or property,against one who manifestly intendeth and endeavoureth with violence or surpriseto commit a known felony upon either. In these cases he is not obliged toretreat, 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 isjustifiable.
"Where a known felony is attempted upon the person, be it to rob ormurder, here the party assaulted may repel force with force, and even hisservant then attendant on him, or any other person present, may interpose forpreventing mischief; and if death ensueth, the party so interposing will bejustified. In this case nature and social duty co-operate." Foster,DiscourseII. chap. iii. pp. 273, 274.
37 See Stephen, Criminal Digest (6th ed.), art. 221, but compareCommentaries (8th ed.), iv. pp. 54-56; and i Hale, P. C. 479. Theauthorities are not precisely in agreement as to the
that no man must slay or severly injure another until he has doneeverything he possibly can to avoid the use of extreme force. A isstruck by a ruffian, X; A has a revolver in his pocket. He must not thenand there fire upon X, but, to avoid crime, must first retreat as far as hecan. X pursues; A is driven up against a wall. Then, and not till then,A, if he has no other means of repelling attack, may justifiably fire atX. Grant that, as has been suggested, the minute provisos as to thecirc*mstances under which a man assaulted by a ruffian may turn upon hisassailant, 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. Itis, that a person attacked, even by a wrongdoer, may not in self-defence useforce which is not "necessary," and that violence is not necessary when theperson attacked can avoid the need for it by retreat; or, in other words, bythe temporary surrender of his legal right to stand in a particular place e.g. in a particular part of a public square, where he has alawful right to stand.38 Both theories, in short, have reference tothe use of "necessary" force, and neither countenances the use of any forcewhich is more than is necessary for its purpose. A is assaulted by X, hecan on neither theory justify the slaying or wounding of X, if A can providefor his own safety simply by locking a door on X. Both theories equally wellexplain how it is that as the intensity of an unlawful assault increases, sothe amount of force legitimately to be used in self-defence increases also, andhow defence of the lawful possession of property, and especially of a man'shouse, may easily turn into the lawful defence of a man's person. "Ajustification of a battery in
right of A to wound X before he has retreated as far as he can.But the general principle seems pretty clear. The rule as to the necessity forretreat by the person attacked must be always taken in combination with theacknowledged 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 be looked upon by thelaw as nearly equivalent to the defence of his person. "If a thief assaults atrue man, either abroad or in his house, to rob or kill him, the true man isnot bound to give back, but may kill the assailant, and it is not felony." i Hale, P. C. 481. See as to defence of house, i East, P. C. 287.
38 Stephen, Commentaries (i4th ed.), iv. pp. 42-46; compare iHale, P. C. 481, 482, Stephen, Criminal Digest, art. 222; Foster,Discourse II. cap. iii. It should be noted that the rule enjoining thata man shall retreat from an assailant before he uses force, applies, it wouldappear, only to the use of such force as may inflict grievous bodily harm ordeath.
defence of possession, though it arose in defence of possession, yet inthe end it is the defence of the person."39 This sentence containsthe gist of the whole matter, but must be read in the light of the cautioninsisted upon by Blackstone, that the right of self-protection cannot be usedas a justification for attack.40
Whether the two doctrines may not under conceivable circum-stances leadto different results, is an inquiry of great interest, but in the cases whichgenerally come before the Courts, of no great importance. What usually requiresdetermination is how far a man may lawfully use all the force necessary torepel an assault, and for this purpose it matters little whether the test oflegitimate force be its "reasonableness" or its "self-defensive character." If,however, it be necessary to choose between the two theories, the safest coursefor an English lawyer is to assume that the use of force which inflicts or mayinflict grievous bodily harm or death of what, in short, may be called"extreme" force is justifiable only for the purpose of strictself-defence.
This view of the right of self-defence, it may be objected, restrictstoo 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 islegally justified in using, and indeed is often bound to use, force, which mayunder some circ*mstances amount to the infliction of death.
Hence a loyal citizen may lawfully interfere to put an end to a breachof the peace, which takes place in his presence, and use such force as isreasonably necessary for the purpose.41 Hence, too, any privateperson who is present when any felony is committed, is bound by law to arrestthe felon, on pain of fine and imprisonment if he negligently permit him toescape.42
39 Rolle's Ab. Trespass, g. 8.
40 Blacks. Comm. iv. pp. 183, 184.
41 See Timothy v. Simpson, i C. M. & R. 757.
42 Stephen, Commentaries (i4th ed.), iv. p. 309; Hawkins, P. C.bookii. cap. 12.
Where a felony is committed and the felon flyeth from justice, or adangerous wound is given, it is the duty of every man to use his bestendeavours for preventing an escape. And if in the pursuit the party flying iskilled, where he cannot otherwise be overtaken, this will be deemedjustifiable homicide. For the pursuit was not barely warrantable; it is whatthe law requireth, and will 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 homicide as is committed for the prevention of any forcible andatrocious crime, is justifiable ... by the law of England ... as it standsat the present day. If any person attempts the robbery or murder of another, orattempts to break open a house in the night-time, and shall be killed insuch attempt, either by the party assaulted, or the owner of the house, or theservant attendant upon either, or by any other person, and interposing toprevent mischief, the slayer shall be acquitted and discharged. This reachesnot to any crime unaccompanied with force as, for example, the pickingof pockets; nor to the breaking open of a house in the day-time, unlesssuch entry carries with it an attempt of robbery, arson, murder, or thelike.44
Acts therefore which would not be justifiable in protection of aperson's own property, may often be justified as the necessary means, either ofstopping the commission of a crime, or of arresting a felon. Burglars robe'shouse, they are escaping over his garden wall, carrying off A's jewelswith them. A is in no peril of his life, but he pursues the gang, callsupon them to surrender, and having no other means of preventing theirescape, knocks down one of them, X, who dies of the blow; A, itwould seem, if Foster's authority may be trusted, not only is innocent ofguilt, but has also discharged a public duty.45
43 Foster, Discourse II. of Homicide, pp. 271, 272, and comparepp. 273, 274.
"The intentional infliction of death is not a crime when it is done byany person ... in order to arrest a traitor, felon, or pirate, or keep inlawful custody a traitor, felon, or pirate, who has escaped, or is about toescape from such custody, although such traitor, felon, or pirate, offers noviolence to any person." Stephen, Digest (6th ed.), art. 222.
44 Stephen, Commentaries (8th ed.), iv. pp. 49, 50, and compare14th ed. p. 40.
45 A story told of the eminent man and very learned judge, Mr. JusticeWilles, and related by an ear-witness, is to the following effect: Mr.Justice Willes was asked: "If I look into my drawing-room, and see a burglarpacking up the clock, and he cannot see me, what ought I to do?" Willesreplied, as nearly as may be: "My advice to you, which I give as a
Let it be added that where A may lawfully inflict grievous bodilyharm upon X e.g. in arresting him X acts unlawfully inresisting A, and is responsible for the injury caused to A by X'sresistance.46
Every man, in the second place, acts lawfully as long as he merelyexercises his legal rights, and he may use such moderate force as in effect isemployed simply in the exercise of such rights.
A is walking along a public path on his way home, X tries to stophim; A pushes X aside, X has a fall and is hurt. A has done nowrong; he has stood merely on the defensive and repelled an attempt tointerfere with his right to go along a public way. X thereupon draws a swordand attacks A again. It is dear that if A can in no other wayprotect himself e.g. by running away from X, or by knocking Xdown he may use any amount of force necessary for his self-defence. Hemay stun X, or fire at X.
Here, however, comes into view the question of real difficulty. How faris A bound to give up the exercise of his rights, in this particularinstance the right to walk along a particular path, rather than risk themaiming or the killing of X?
Suppose, for example, that A knows perfectly well that X claims,though without any legal ground, a right to dose the particular footpath, andalso knows that, if A turns down another road which will also bring him home,though at the cost of a slightly longer walk, he will avoid all danger of anassault by X, or of being driven, in so-called self-defence, to inflictgrievous bodily harm upon X.
Of course the case for A's right to use any force necessary forhis purpose may be put in this way. A has a right to push X aside. AsX's violence grows greater, A has a right to repel it. He may thus turna scuffle over a right of way into a struggle for the defence of A's life, andso justify the infliction even of death upon X. But this manner of
man, as a lawyer, and as an English judge, is as follows: In thesupposed circ*mstance this is what you have a right to do, and I am by no meanssure that it is not your duty to do it. Take a double-barrelled gun, carefullyload both barrels, and then, without attracting the burglar's attention, aimsteadily at his heart and shoot him dead." See Saturday Review, Nov. 11,1893, p. 534. 46 Foster, DiscourseII. p. 272.
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 anassailant. But if he can avoid X's violence by going a few yards out of hisway, he cannot justify his conduct under either of these prindples. The firingatX is not "reasonable," for the damage inflicted by A upon X inwounding him is out of all proportion to the mischief to A which it isintended to prevent namely, his being forced to go a few yards out ofhis way on his road home. The firing at X, again, is not done in strictself-defence, for A could have avoided all danger by turning intoanother path. A uses force, not for the defence of his life, but for thevindication of his right to walk along a particular pathway. That this is thetrue view of A's position is pretty dearly shown by the old rules enjoining aperson assaulted to retreat as far as he can before he grievously wounds hisassailant.
Reg. v. Hewlett, a case tried as late as 1858, containsjudidal doctrine pointing in the same direction. A was struck by X, Athereupon drew a knife and stabbed X. The judge laid down that "unless theprisoner [A] apprehended robbery or some similar offence, or danger tolife, or serious bodily danger (not simply being knocked down), he would not bejustified in using the knife in self-defence."47 The essence of thisdictum is, that the force used by A was not justifiable, because, thoughit did ward off danger to A namely, the peril of being knockeddown it was not necessary for the defence of A's life or limb, orproperty. The case is a particularly strong one, because X was not a personasserting 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 toprevent A from entering the Park at the Marble Arch. Let it further be supposedthat the Commissioner has taken an erroneous view of his authority, and thattherefore the attempt to hinder A from going into Hyde Park at the particularentrance does not
47 Foster & Finlason, 91, per Crowder J.
admit of legal justification. X, under these circ*mstances, is thereforelegally in the wrong, and A may, it would seem,48 push by X.But is there any reason for saying that if A cannot simply push X asidehe can lawfully use the force necessary e.g. by stabbing X to effect an 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 legaltribunals, "for the King and his Courts are thevindices injuriarum, andwill give to the party wronged all the satisfaction he deserves";49no one is allowed to vindicate the strength of his disputed rights by the forceof his arm. Legal controversies are not to be settled by blows. A bishop who inthe last century attempted, by means of riot and assault, to make good hisclaim to remove a deputy registrar, was admonished from the Bench thathis view of the law was erroneous, and was saved from the condemnation of thejury only by the rhetoric and the fallacies of Erskine.50
From whatever point therefore the matter be approached, we come round tothe same conclusion. The only undoubted justification for the use of extremeforce in the assertion of a man's rights is, subject to the exceptions orlimitations already mentioned, to be found in, as it is limited by, thenecessities of strict self-defence.
NoteV
QUESTIONS CONNECTED WITH THE RIGHT OF PUBLICMEETING
Four important questions connected with the right of public meetingrequire consideration.
These inquiries are: first, whether there exist any general rightof meeting in public places? secondly, what is the meaning of theterm
48 It is of course assumed in this imaginary case that Acts ofParliament are not in force empowering the Commissioner of Police to regulatethe use of the right to enter into the Park. It is not my intention to discussthe effect of the Metropolitan Police Acts, or to intimate any opinion as tothe powers of the Commissioner of Police.
49 Stephen, Commentaries (i4th ed.), iv. p. 44.
50 The Bishop ofBangor's Case, 26 St. Tr. 463.
"an unlawful assembly"? thirdly, what are the rights of the Crownor its servants in dealing with an unlawful assembly? and fourthly, whatare the rights possessed by the members of a lawful assembly when the meetingis 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 butoften 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.51
The right of assembling is nothing more than the result of the viewtaken by our Courts of individual liberty of person and individual liberty ofspeech.
Interference therefore with a lawful meeting is not an invasion of apublic right, but an attack upon the individual rights of A or B,and must generally resolve itself into a number of assaults upon definitepersons, members of the meeting. A wrongdoer who disperses a crowd is notindicted or sued for breaking up a meeting, but is liable (if at all) to aprosecution or an action for assaulting A, a definite member of thecrowd.52 Hence further the answer to the question how far personspresent at a lawful meeting may resist any attempt to disperse the assembly,depends at bottom on a determination of the methods prescribed by law to agiven citizen A, for punishing or repelling an assault.
The second of these preliminary observations is that the most serious ofthe obscurities which beset the law of public meetings arise from thedifficulty of determining how far a citizen is legally justified in using forcefor the protection of his person, liberty, or property, or, if we may use theword "self-defence" in its widest sense, from uncertainty as to the trueprinciples which govern the right of self-defence.53
The dose connection of these introductory remarks with the questions tobe considered will become apparent as we proceed.
51 See chap, vii., ante.
52 SeeRedford v. Birley, i St. Tr. (n. s.) 1017.
53 See Note IV., ante.
DOES THERE EXIST ANY GENERAL RIGHT OF MEETING 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 theworld. It is also true that in England meetings held in the open air are notsubject, as they are in other countries for instance, Belgium tospecial restrictions. A crowd gathered together in a public place, whether theyassemble for amusem*nt or discussion, to see an acrobat perform his somersaultsor to hear a statesman explain his tergiversations, stand in the same positionas a meeting held for the same purpose in a hall or a drawing-room. An assemblyconvened, in short, for a lawful object, assembled in a place which the meetinghas a right to occupy, and acting in a peaceable manner which inspires nosensible person with fear, is a lawful assembly, whether it be held in ExeterHall, in the Grounds of Hatfield or Blenheim, or in the London parks. With sucha meeting no man has a right to interfere, and for attending it no man incurslegal penalites.
But the law which does not prohibit open-air meetings does not, speakinggenerally, provide that there shall be spaces where the public can meet in theopen air, either for political discussion or for amusem*nt. There may of coursebe, and indeed there are, special localities which by statute, by custom orotherwise, are so dedicated to the use of the public as to be available for thepurpose of public meetings. But speaking in general terms, the Courts do notrecognise certain spaces as set aside for that end. In this respect, again, acrowd of a thousand people stand in the same position as an individual person.If A wants to deliver a lecture, to make a speech, or to exhibit a show,he must obtain some room or field which he can legally use for his purpose. Hemust not invade the rights of private property i.e. commit atrespass. He must not interfere with the convenience of the public i.e. create a nuisance.
The notion that there is such a thing as a right of meeting in publicplaces arises from more than one confusion or erroneous assumption. The rightof public meeting that is, the right of all men to come
together in a place where they may lawfully assemble for any lawfulpurpose, and especially for political discussion is confounded with thetotally different and falsely alleged right of every man to use for the purposeof holding a meeting any place which in any sense is open to the public. Thetwo rights, did they both exist, are essentially different, and in manycountries are regulated by totally different rules. It is assumed again thatsquares, streets, or roads, which every man may lawfully use, are necessarilyavailable for the holding of a meeting. The assumption is false. A crowdblocking up a highway will probably be a nuisance in the legal, no less than inthe popular, sense of the term, for they interfere with the ordinary citizen'sright to use 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 goingalong them,54 and the legal mode of use negatives the claim ofpoliticians to use a highway as a forum, just as it excludes the claim ofactors to turn it into an open-air theatre. The crowd who collect, and thepersons who cause a crowd, for whatever purpose, to collect in a street, createa nuisance.55 The claim on the part of persons so minded to assemblein any numbers and for so long a time as they please, to remain assembled "tothe detriment of others having equal rights, is in its nature irreconcilablewith the right of free passage, and there is, so far as we have been able toascertain, no authority whatever in favour of it."56 The generalpublic cannot make out a right to hold meetings even on a common.57The ground of popular delusions as to the right of public meeting in openplaces is at bottom the prevalent notion that the law favours meetings held forthe sake of political discussion or agitation, combined with the tacitassumption that when the law allows a right it provides the means for itsexercise. No ideas can be more unfounded. English law no more favours orprovides for the holding of political meetings than for the giving of publicconcerts. A man has a right to hear an orator
54 Dauaston v. Payne, 2Hy. Bl. 527.
55 Rex v. Carlile, 6 C. & P. 628, 636; the TramwaysCase, The Times, 7* September 1888.
56 Ex parte Lewis, 21Q. B. D. 191, 197; per Curiam.
57 Bailey v. Williamson, L. R. 8Q. B. 118; De Morganv. Metropolitan Board of Works, 5Q. B. D. 155.
as he has a right to hear a band, or to eat a bun. But each right mustbe exercised subject to the laws against trespass, against the creation ofnuisances, against theft.
The want of a so-called forum may, it will be said, prevent ten thousandworthy citizens from making a lawful demonstration of their political wishes.The remark is true, but, from a lawyer's point of view, irrelevant. Every manhas a right to see a Punch show, but if Punch is exhibiting in a theatre formoney, no man can see him who cannot provide the necessary shilling. Every manhas a right to hear a band, but if there be no place where a band can performwithout causing a nuisance, then thousands of excellent citizens must forgotheir right to hear music. Every man has a right to worship God after his ownfashion, but if all the landowners of a parish refuse ground for the buildingof a Wesleyan chapel, parishioners must forgo attendance at a Methodist placeof worship.
WHAT IS THE MEANING OF THE TERM "AN UNLAWFUL ASSEMBLY"?
The expression "unlawful assembly" does not signify any meeting of whichthe purpose is unlawful. If, for example, five cheats meet in one room toconcoct a fraud, to indite a libel, or to forge a bank-note, or to work out ascheme of perjury, they assemble for an unlawful purpose, but they can hardlybe said to constitute an "unlawful assembly." These words are, in English law,a term of art. This term has a more or less limited and definite signification,and has from time to time been defined by different authorities58with varying degrees of precision. The definitions vary, for the most part,rather in words than in substance. Such differences as exist have, however, atwofold importance. They show, in the first place, that the circ*mstances whichmay render a meeting an unlawful assembly have not been
58 See Hawkins, P. C. book i. cap. 65, ss. 9, 11; Blackstone, iv. p.146; Stephen, Commentaries (i4th ed.), iv. p. 174; Stephen, CriminalDigest, art. 75; Criminal Code Bill Commission, Draft Code, sec. 84, p. 80;Rex v. Pinney, 5 C. & P. 254; Rex v. Hunt, i St. Tr.(n. s.) 171; Redford v. Birley, ibid. 1071; Rex v. Morris,ibid, 521; Reg. v. Vincent, 3 St. Tr. (n. s.) 1037, 1082;Beatty v. Gillbanks, 9 Q. B. D. 308; Reg. v. M'Naughton(Irish), 14 Cox, C. C. 576; O'Kelly v. Harvey (Irish), 15Cox, C. C. 435.
absolutely determined, and that some important questions with regard tothe necessary characteristics of such an assembly are open to discussion. Theyshow, in the second place, that the rules defining the right of public meetingare the result of judicial legislation, and that the law which has been createdmay be further developed by the judges, and hence that any lawyer bent ondetermining the character of a given meeting must consider carefully thetendency, 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, dearenough. It is a meeting of persons who either intend to commit or do commit, orwho lead others to entertain a reasonable fear that the meeting will commit, abreach of the peace. This actual or threatened breach of the peace is, so tospeak, the essential characteristic or "property" connoted by the term"unlawful assembly." A careful examination, however, of received descriptionsor definitions and of the authoritative statements contained in Sir JamesStephen's Digest and in the Draft Code drawn by the Criminal CodeCommissioners, enables an inquirer to frame a more or less accurate definitionof an "unlawful assembly."
It may (it is submitted) be defined as any meeting of three or morepersons who
1. 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 a breach 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 the realm, as bylaw established, into contempt, and generally to carry out, or prepare forcarrying out, a public conspiracy.59
59 O'Kelly v. Harvey (Irish), 15 Cox, C. C. 435. The portion ofthis definition contained in brackets must perhaps be considered as, inEngland, of doubtful authority (see, however, Reg. v. ErnestJones, 6 St. Tr. (n. s.) 783, 816, 817, summing up of Wilde, C. }., andReg. v.
The following points require notice:
1. A meeting is an unlawful assembly which either disturbs the peace, orinspires reasonable persons in its neighbourhood with a fear that it will causea breach of the peace.
Hence the state of public feeling under which a meeting is convened, theclass and the number of the persons who come together, the mode in which theymeet (whether, for instance, they do or do not carry arms), the place of theirmeeting (whether, for instance, they assemble on an open common or in the midstof a populous city), and various other circ*mstances, must all be taken intoaccount in determining whether a given meeting is an unlawful assembly ornot.
2. A meeting need not be the less an unlawful assembly because it meetsfor a legal object.
A crowd collected to petition for the release of a prisoner or to see anacrobatic performance, though meeting for a lawful object, may easily be, orturn into, an unlawful assembly. The lawfulness of the aim with which a hundredthousand people assemble may affect the reasonableness of fearing that a breachof the peace will ensue. But the lawfulness of their object does not of itselfmake 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 ordoes not contemplate the use of unlawful force, or does or does not inspireothers 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 thepurpose of spreading sedition, of exciting class against class, or of bringingthe constitution of the country into contempt, is ipso facto an unlawfulassembly,60 and that a meeting to promote an unlawful
Fussell, ibid. 723, 764, summing up of Wilde, C. J.), but would,it is conceived, certainly hold good if the circ*mstances of the time were suchthat the seditious proceedings at the meeting would be likely to endanger thepublic peace.
60 SeeRedford v. Birley, i St. Tr. (n. s.) 1071; Rex v.Hunt, ibid. 171; Rex v. Morris, ibid. 521; Reg. v.M'Naughton (Irish), 14 Cox. C. C. 572; O'Kelly v. Harvey(Irish), 15 Cox, C. C. 435; Reg. v. Bums, id Cox, C. C. 355;Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783; Reg. v. Fussell,ibid. 723.
conspiracy of a public character, even though it does not directlymenace 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 point suggested hascome fairly before the English Courts. The true rule (possibly) may be, that ameeting assembled for the promotion of a purpose which is not only criminal,but also if carried out will promote a breach of the peace, is itself anunlawful assembly.
5. Two questions certainly remain open for decision.
Is a meeting an unlawful assembly because, though the meeting itself ispeaceable enough, it excites reasonable dread of future disturbance to thepeace of the realm; as where political leaders address a meeting in terms whichit is reasonably supposed may, after the meeting has broken up, exciteinsurrection?
The answer to this inquiry is doubtful.61
Need again the breach of the peace, or fear thereof, which gives ameeting the character of illegality, be a breach caused by the members of themeeting?
To this inquiry an answer has already been given in the body of thistreatise.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, is perfectlylawful, does not become an unlawful assembly from the mere fact that possiblyor probably it may cause wrongdoers who dislike the meeting to break thepeace,63 but, on the other hand, a
61 See Rex v. Hunt, i St. Tr. (n. s.) 171; Rex v.Dewhurst, ibid. 530, 599. "Upon the subject of terror, there may be casesin which, from the general appearance of the meeting, there could be no fear ofimmediate mischief produced before that assembly should disperse; and I amrather disposed to think that the probability or likelihood of immediate terrorbefore the meeting should disperse is necessary in order to fix the charge uponthat second count to which I have drawn your attention. But if the evidencesatisfies you there was a present fear produced of future rising, which futurerising would be a terror and alarm to the neighbourhood, 1 should then desirethat you would present that as your finding in the shape of what I should thentake it to be, a special verdict": per Bailey, J. See also Reg. v.Ernest Jones, 6 St. Tr. (n. s.) 783; Reg. v. Fussell, ibid.723.
62 See chap, vii., ante.
63 Beatty v. Citibanks, 9 Q. B. D. 308; Reg. v.Justices of Londonderry, 28 L. R. Ir. 440, pp. 461, 462, judgment ofHolmes, J.
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 the meeting, may therebybecome an unlawful assembly,64 and a meeting which, though in everyway perfectly lawful, if it in fact causes a breach of the peace on the part ofwrongdoers who dislike the meeting may, if the peace can be restored by noother means, be required by the magistrates or other persons in authorityto break up, and on the members of the meeting refusing to disperse, becomes anunlawful assembly.65
WHAT ARE THE RIGHTS OF THE CROWN OR ITS SERVANTS IN DEALING WITH ANUNLAWFUL ASSEMBLY?
\. Every person who takes part in an unlawful assembly is guiltyof a misdemeanour, and the Crown may therefore prosecute every such person forhis offence.
Whether a given man A, who is present at a particular meeting, doesthereby incur the guilt of "taking part" in an unlawful assembly, is in eachcase a question of fact.
A, though present, may not be a member of the meeting; he may be thereaccidentally; he may know nothing of its character; the crowd may originallyhave assembled for a lawful purpose; the circ*mstances, e.g. theproduction of arms, or the outbreak of a riot, which render the meetingunlawful, may have taken place after it began, and in these transactions A mayhave taken no part. Hence the importance of an official notice, e.g. bya Secretary of State, or by a magistrate, that a meeting is convened for acriminal object. A citizen after reading the notice or proclamation, goes tothe meeting at his peril. If it turns out in fact an unlawful assembly, hecannot plead ignorance of its character as a defence against the charge oftaking part in the meeting.66
64 Wise v. Dunning [1902], i K. B. 167.
65 On this point see especially Humphries v. Connor, 17Ir. C. L. R. i.
66 Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n. s.)543.
2. Magistrates, policemen, and all loyal citizens not only are entitled,but indeed are bound to disperse an unlawful assembly, and, if necessary, to doso by the use of force; and it is a gross error to suppose that they are boundto wait until a riot has occurred, or until the Riot Act has beenread.67 The prevalence of this delusion was the cause, during theGordon Riots, of London being for days in the hands of the mob. The mode ofdispersing a crowd when unlawfully assembled, and the extent of force which itis reasonable to use, differ according to the circ*mstances of each case.
3. If any assembly becomes a riot i.e. has begun to act ina tumultuous manner to the disturbance of the peace a magistrate onbeing informed that twelve or more persons are unlawfully, riotously, andtumultuously assembled together to the disturbance of the public peace, isbound 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 donot disperse within an hour thereafter, are guilty of felony; and, secondly,that the magistrate and those acting with him may, after such hour, arrest therioters and disperse the meeting by the employment of any amount of forcenecessary for the purpose, and are protected from liability for hurt inflictedor death caused in dispersing the meeting. The magistrates are, in short,empowered by the Riot Act to read the proclamation before referred to, andthereupon, after waiting for an hour, to order troops and constables to fireupon the rioters, or charge them sword in hand.69 It is particularlyto be noticed that the powers given to magistrates for dealing with riots underthe Riot Act in no way lessen the common law right of a magistrate, and indeedof every citizen, to put an end to a breach of the peace, and hence to dispersean unlawful assembly.70
67 Reg. v. Neale, 9 C. & P. 431; Burdet v.Abbot, 4 Taunt. 401, 449. See pp. 285, 286, ante.
68 iGeo. I. stat. 2, cap. 5, s. 2.
69 See Stephen, Hist. Crim. Law, i. 203; Criminal Code BillCommission, Draft Code, ss.! 99-
70 Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n. s.)543.
WHAT 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 to meet,say an open piece of land placed at their disposal by the owner, and for alawful purpose, namely, to hear a sermon. Certain persons who think the meetingeither objectionable or illegal attempt to break it up, or do break it up, byforce. What, under these circ*mstances, are the rights of the Salvationists whohave come to listen to a preacher? This in a concrete form is the problem forconsideration.71
An attempt, whether successful or not, to disperse a lawful assemblyinvolves assaults of more or less violence upon the persons A, B, and Cwho have met together. The wrong thus done by the assailants is, as alreadypointed out, a wrong done, not to the meeting a body which has legallyno 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,the member of a meeting, when unlawfully assaulted? And this inquiry, inits turn, embraces two different questions, which, for clearness sake, ought tobe carefully kept apart from each other.
First, what are the remedies of A for the wrong done tohim by the assault?
The answer is easy. A has the right to take civil, or (subject toone reservation) criminal proceedings against any person, be he an officer, asoldier, a commissioner of police, a magistrate, a policeman, or a privateruffian, who is responsible for the assault upon A. If, moreover, Abe killed, the person or persons by whom his death has been caused may beindicted, according to circ*mstances, for manslaughter or murder.
71 For the sake of convenience, I have taken a meeting of the SalvationArmy as a typical instance of a lawful public meeting. It should, however, beconstantly remembered that the rights of the Salvationists are neither more norless than those of any other crowd lawfully collected together e.g.to hear a band of music.
This statement as to A's rights or (what is, however, the samething from another point of view) as to the liabilities of A's assailants, ismade subject to one reservation. There exists considerable doubt as to thedegree and kind of liability of soldiers (or possibly of policemen) who, underthe orders of a superior, do some act (e.g. arrest A or fire atA) which is not on the face of it unlawful, but which turns out to be unlawfulbecause of some circ*mstance of which the subordinate was not in a position tojudge, as, for example, because the meeting was not technically an unlawfulassembly, or because the officer giving the order had in some way exceeded hisauthority.
I hope [says Willes, J. ] I may never have to determine that difficultquestion, how far the orders of a superior officer are a justification. Were Icompelled to determine that question, I should probably hold that the ordersare an absolute justification in time of actual war at all events, asregards enemies or foreigners and, I should think, even with regard toEnglish-born subjects of the Crown, unless the orders were such as could notlegally be given. I believe that the better opinion is, that an officer orsoldier, acting under the orders of his superior not being necessarilyor manifestly illegal would be justified by his orders.72
A critic were rash who questioned the suggestion of a jurist whose dictaare 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 to determine on the spur of the moment legalsubtleties which, after a lengthy consultation, might still perplex experiencedlawyers, and the private ordered by his commanding officer to take part in thesuppression of a riot runs the risk, if he disobeys, of being shot by order ofa court-martial, and, if he obeys, of being hanged under the sentence of ajudge. Let it further be carefully noted that the doctrine of Mr. JusticeWilles, which is approved of by the Criminal Code Commissioners,73applies, it would seem, to criminal liability only.
72 Keighly v. Bell, 4 F. & F. 763, 790, per Willes, J.See also Note VI. p. 512, post, Duty of Soldiers called upon to dispersean Unlawful Assembly.
73 See C. C. B. Commission, Draft Code, ss. 49-53.
The soldier or policeman who, without full legal justification, assaultsor arrests A incurs (it is submitted), even though acting under orders,full civil liability.
Secondly, how far is A entitled to maintain by forceagainst all assailants his right to take part in a lawful public meeting, or,in other words, his right to stand in a place where he lawfully may stand e.g. ground opened to A by the owner, for a purpose whichis in itself lawful e.g. the hearing of an address from a captainof the Salvation Army?
In order to obtain a correct answer to this inquiry we should bear inmind the principles which regulate the right of self-defence,74 andshould further consider what may be the different circ*mstances under which anattempt may be made without legal warrant to disperse a meeting of theSalvation Army. The attack upon the meeting, or in other words upon A,may be made either by mere wrongdoers, or by persons who believe, howevermistakenly, that they are acting in exercise of a legal right or in dischargeof a legal duty. Let each of these cases be examined separately.
Let us suppose, in the first place, that the Salvationists, and Aamong them, are attacked by the so-called Skeleton Army or other roughs,and let it further be supposed that the object of the assault is simply tobreak up the meeting, and that therefore, if A and others disperse, theyare 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 the right toremain where they are. A and his companions may further give individualmembers of the Skeleton Army in charge for a breach of the peace. It may,however, happen that the roughs are in large numbers, and press upon theSalvationists so that they cannot keep their ground without the use of firearmsor other weapons. The use of such force is in one sense necessary, for theSalvationists cannot hold their meeting without employing it. Is the use ofsuch force legal? The strongest way of putting the case in favour of A and hisfriends is that, in firing upon their opponents, they are using force to
74 See Note IV. p. 341, ante.
put down a breach of the peace. On the whole, however, there can, it issubmitted, be no doubt that the use of firearms or other deadly weapons, tomaintain their right of meeting, is under the circ*mstances not legallyjustifiable. The principle on which extreme acts of self-defence against alawless assailant cannot be justified until the person assaulted has retreatedas far as he can, is applicable to A, B, C, etc., just as it would be toA singly. Each of the Salvationists is defending, under the supposedcirc*mstances, not his life, but his right to stand on a given plot of ground.
Next, suppose that the attempt to disperse the Salvationists is made,not by the Skeleton Army, but by the police, who act under the order ofmagistrates who hold bond fide, though mistakenly,75 that anotice from the Home Secretary forbidding the Army to meet, makes its meetingan unlawful assembly.
Under these circ*mstances, the police are dearly in the wrong. Apoliceman who assaults A, B, or C, does an act not admitting of legaljustification. Nor is it easy to maintain that the mere fact of the policeacting as servants of the Crown in supposed discharge of their duty makes it ofitself incumbent upon A to leave the meeting.
The position, however, of the police differs in two important respectsfrom 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, forA knows for certain that, if he leaves the meeting, he will not befurther molested, or that if he allows himself to be peaceably arrested, he hasnothing to dread but temporary imprisonment and appearance before a magistratewho will deal with his rights in accordance with law. Policeman X, further,asserts bona fide a supposed legal right to make A withdraw froma place where X believes A has no right to stand; there is a disputebetween A and X as to a matter of law. This being the state of affairs, it isat any rate fairly arguable that A, B, and C have a right to standsimply on the defensive,76 and
75 SeeBeattyv. Citibanks, gQ. B. D. 308.
76 The legality, however, of even this amount of resistance to thepolice is doubtful. "Any man who advises a public assembly when the police comethere to disperse them, to stand their ground shoulder by shoulder, if thatmeans to resist the police, although it might not mean to resist by strikingthem; yet if it meant to resist the police and not to disperse, that
remain where they are as long as they can do so without inflictinggrievous bodily harm upon X and other policemen. Suppose, however, as is likelyto be the fact, that, under the pressure of a large body of constables, tineSalvationists cannot maintain their meeting without making use of arms e.g., using bludgeons, swords, pistols, or the like. They have dearly noright to make use of this kind of force. A and his friends are not inperil of their lives, and to kill a policeman in order to secure A theright of standing in a particular place is to inflict a mischief out of allproportion to the importance of the mischief to A which he wishes toavert.77 A, therefore, if he stabs or stuns X, can on notheory plead the right of self-defence. A and X further are, as alreadypointed out, at variance on a question of legal rights. This is a matter to bedetermined not by arms, but by an action at law.
Let it further be noted that the supposed case is the most unfavourablefor the police which can be imagined. They may well, though engaged inhindering what turns out to be a lawful meeting, stand in a much bettersituation than that of assailants. The police may, under orders, have fullyoccupied and filled up the ground which the Salvationists intend to use. Whenthe Salvationists begin arriving, they find there is no place where they canmeet. Nothing but the use of force, and indeed of extreme force, can drive thepolice away. This force the Salvation Army cannot use; if they did, they wouldbe using violence not on any show of self-defence, but to obtain possession ofa particular piece of land. Their only proper course is the vindication oftheir rights by proceedings in Court.
was illegal advice. If the police had interfered with them, they werenot at liberty to resist in any such circ*mstances; they ought to havedispersed by law, and have sought their remedy against any unjust interferenceafterwards. . . . This is a body of police acting under the responsibility ofthe law, acting under the orders of those who would be responsible for theorders which they gave, charged with the public peace, and who would haveauthority to disperse when they received those orders, leaving those who shouldgive them a deep responsibility if they should improperly interfere with theexercise of any such public duties. . . . Gentlemen, the peaceable citizens arenot in the performance of their duty if they stand shoulder to shoulder, andwhen the police come and order the assembly to disperse, they do not disperse,but insist on remaining, they are not in the peaceable execution of any rightor duty, but the contrary, and from that moment they become an illegalassembly." 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; 3St. Tr. (n. s.) 543.
Of the older cases, which deal with the question how far it isjustifiable to resist by violence an arrest made by an officer of justicewithout due authority, it is difficult to make much use for the elucidation ofthe question under consideration,78 for in these cases the matterdiscussed seems often to have been not whether A's resistance wasjustifiable, but whether it amounted to murder or only to manslaughter. Thereare, however, one or two more or less recent decisions which have a realbearing on the right of the members of a public meeting to resist by forceattempts to disperse it. And these cases are, on the whole, when properlyunderstood, not inconsistent with the inferences already drawn from generalprinciples. The doctrine laid down in Reg. v.Hewlett,79 that A ought not to inflict grievous bodilyharm even upon X a wrongdoer unless in the strictest self-defence, is of thehighest importance. Rex v. Fursey,80 a decision of 1833, hasdirect reference to the right of meeting. At a public meeting held that year inLondon, A carried an American flag which was snatched from him by X, apoliceman, whereupon A stabbed X. He was subsequently indicted under 9Geo. I. c. 31, s. 12, and it appears to have been laid down by the judge thatthough, if the meeting was a legal one, X had no right to snatch away A's flag,still that even on the supposition that the meeting was a lawful assembly, A,if X had died of his wound, would have been guilty either of manslaughter, orvery possibly of murder. Quite in keeping with Rex v. Fursey is therecent case of Reg. v. Harrison.81 Some of theexpressions attributed, in a very compressed newspaper report, to the learnedjudge who tried the case, may be open to criticism, but the principle involvedin the defendant's conviction, namely, that a ruffian cannot assert his allegedright to walk down a particular street by stunning or braining a policeman, ora good citizen who is helping the policeman, is good law no less than goodsense.82
78 See, e.g., Dixon's Case, i East, P. C. 313; Borthwick'sCase, ibid.; Wither's Case, i East, P. C. 233, 309; Tooley's Case, 2Lord Raymond, 1296.
79 iF. &F. 91.
80 3 St. Tr. (n. s.) 543, and compare Criminal Code Commission Report,pp. 43, 44.
81 The Times, igth December 1887.
82 "Well, if any heads are broken before [after?] men are ordered [bythe police] to disperse
Nor does the claim to assert legal rights by recourse to pistols orbludgeons receive countenance from two decisions occasionally adduced in itssupport.
The one is Beatty v. Gillbanks.83 This case merelyshows that a lawful meeting is not rendered an unlawful assembly simply becauseruffians try to break it up, and, in short, that the breach of the peace whichrenders a meeting unlawful must, in general,84 be a breach caused bythe members of the meeting, and not by wrongdoers who wish to prevent its beingheld.85
The second is M'Clenaghan v. Waters.86 The casemay certainly be so explained as to lay down the doctrine that the police whenengaged under orders in dispersing a lawful meeting are not engaged in the"execution of their duty," and that therefore the members of the meeting maypersist in holding it in spite of the opposition of the police. Whether thisdoctrine 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 touse a moderate amount of force, against a person who attempts to hinder theexercise of the right. Bui M'Clenaghan v. Waters certainly doesnot decide that the member of a lawful assembly may exercise whatever amount offorce is necessary to prevent its being dispersed, and falls far short ofjustifying the proceedings of a Salvationist who brains a policeman rather thansurrender the so-called right of public meeting. It is, however, doubtfulwhether M'Clenaghan v. Waters really supports even the doctrinethat moderate resistance to the police is justifiable in order to prevent thedispersing of a lawful assembly. The case
and refuse to disperse, those who break their heads will find their ownheads in a very bad situation if they are brought into a court of law to answerfor it. No jury would hesitate to convict, and no court would hesitate topunish." Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783, 811,812, summing up of Wilde. C. J. 8390.6.0.308.
84 Seep. 356,ante.
85 As already pointed out, the principle maintained in Beatty v.Gillbanks is itself open to some criticism.
86 The Times, i8th July 1882.
purports to follow Beatty v. Gillbanks, and therefore theCourt cannot be taken as intentionally going beyond the principle laid down inthat case. The question for the opinion of the Court, moreover, inM'Clanaghan v. Waters was, "whether upon the facts stated thepolice at the time of their being assaulted by the appellants (Salvationists)were legally justified in interfering to prevent the procession from takingplace"; or, in other words, whether the meeting of the Salvationists was alawful assembly? To this question, in the face of Beatty v.Gillbanks, but one reply was possible. This answer the Court gave: theydetermined "that in taking part in a procession the appellants were doing onlyan act strictly lawful, and the fact that that act was believed likely to causeothers to commit such as were unlawful, was no justification for interferingwith them." Whether the Court determined anything more is at least open todoubt, and if they did determine, as alleged, that the amount of the resistanceoffered to the police was lawful, this determination is, to say the least, notinconsistent with the stern punishment of acts like that committed by theprisoner Harrison.
No one, however, can dispute that the line between the forcible exerciseof a right in the face of opposition, and an unjustifiable assault on those whooppose its exercise, is a fine one, and that many nice problems concerning thedegree of resistance which the members of a lawful meeting may offer to personswho wish to break it up are at present unsolved. The next patriot or ruffianwho kills or maims a policeman rather than compromise the right of publicmeeting will try what, from a speculative point of view, may be considered avaluable legal experiment which promises results most interesting to jurists.The experiment will, however, almost certainly be tried at the cost, accordingto the vigour of his proceedings, of either his freedom or hislife.87
87 The whole summing up of Wilde, C. J., in Reg. v. Ernestines, 6St. Tr. (n. s.) 783, 807-816, merits particular attention. His language isextremely strong and if it be taken as a perfectly correct exposition of thelaw, negatives the right to resist by force policemen who with the bona fideintention to discharge their duty, disperse an assembly which mayultimately turn out not to have been an unlawful assembly.
Note VI
DUTY OF SOLDIERS CALLED UPON TO DISPERSE AN UNLAWFULASSEMBLY
On /th September 1893 Captain Barker and a small number of soldiers wereplaced in the Ackton Colliery, in order to defend it from the attack of a mob.A body of rioters armed with sticks and cudgels entered the colliery yard, andwith threats demanded the withdrawal of the soldiers. The mob graduallyincreased, and broke the windows of the building in which the troops werestationed 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 lastsurrounded by a mob of 2000 persons. The crowd was called upon to disperse, andthe Riot Act read. More stones were hurled at the troops, and it was necessaryto protect the colliery. At last, before an hour from the reading of the RiotAct, and on the crowd refusing to disperse, Captin Barker gave orders to fire.The mob dispersed, but one or two bystanders were killed who were not taking anactive part in 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 statement of thelaw as to the duty of soldiers when called upon to disperse a mob:
We pass next to the consideration of the all-important question whetherthe conduct of the troops in firing on the crowd was justifiable; and itbecomes essential, for the sake of clearness, to state succinctly what the lawis which bears upon the subject. By the law of this country every one is boundto aid in the suppression of riotous assemblages. The degree of force, however,which may lawfully be used in their suppression depends on the nature of eachriot, for the force used must always be moderated and proportioned to thecirc*mstances of the case and to the end to be attained.
The taking of life can only be justified by the necessity for protectingpersons or property against various forms of violent crime, or by the necessityof dispersing a riotous crowd which is dangerous unless dispersed, or in thecase of persons whose conduct has become felonious through disobedience to theprovisions of the Riot Act, and who resist the attempt to disperse or apprehendthem. The riotous crowd at the Ackton Hall Colliery was one
whose danger consisted in its manifest design violently to set fire anddo serious damage to the colliery property, and in pursuit of that object toassault those upon the colliery premises. It was a crowd accordingly whichthreatened serious outrage, amounting to felony, to property and persons, andit became the duty of all peaceable subjects to assist in preventing this. Thenecessary prevention of such outrage on person and property justifies theguardians of the peace in the employment against a riotous crowd of even deadlyweapons.
Officers and soldiers are under no special privileges and subject to nospecial responsibilities as regards this principle of the law. A soldier forthe purpose of establishing civil order is only a citizen armed in a particularmanner. He cannot because he is a soldier excuse himself if without necessityhe takes human life. The duty of magistrates and peace officers to summon or toabstain from summoning the assistance of the military depends in like manner onthe necessities of the case. A soldier can only act by using his arms. Theweapons he carries are deadly. They cannot be employed at all without danger tolife and limb, and in these days of improved rifles and perfected ammunition,without some risk of injuring distant and possibly innocent bystanders. To callfor assistance against rioters from those who can only interpose under suchgrave conditions ought, of course, to be the last expedient of the civilauthorities. But when the call for help is made, and a necessity for assistancefrom the military has arisen, to refuse such assistance is in law amisdemeanour.
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 allcare 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 the troops. Thepresence of a magistrate on such occasions, although not a legal obligation, isa matter of the highest importance. The military come, it may be, from adistance. They know nothing, probably, of the locality, or of the specialcirc*mstances. They find themselves introduced suddenly on a field of action,and they need the counsel of the local justice, who is presumably familiar withthe details of the case. But, although the magistrate's presence is of thehighest value and moment, his absence does not alter the duty of the soldier,nor ought it to paralyse his conduct, but only to render him doubly careful asto the proper steps to be taken. No officer is justified by English law instanding by and allowing felonious outrage to be committed merely because of amagistrate's absence.
The question whether, on any occasion, the moment has come for firingupon 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,be necessary to stop or prevent such serious and violent crime as we havealluded to; and it must be conducted without recklessness or negligence.
When the need is clear, the soldier's duty is to fire with allreasonable caution, so as to produce no further injury than what is absolutelywanted for the purpose of protecting person and property. An order from themagistrate 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 notjustify the firing if the magistrate is wrong. Its absence does not excuse theofficer 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 hourafter 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 onthe provisions of the Riot Act itself, the further consideration of which mayindeed be here dismissed from the case. But the fact that an hour had notexpired since its reading did not incapacitate the troops from acting whenoutrage had to be prevented. All their common law duty as citizens and soldiersremained in full force. The justification of Captain Barker and his men muststand or fall entirely by the common law. Was what they did necessary, and nomore than was necessary, to put a stop to or prevent felonious crime? In doingit, did they exercise all ordinary skill and caution, so as to do no more harmthan 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 guiltyringleader who under such conditions is shot dead, dies by justifiablehomicide. An innocent person killed under such conditions, where no negligencehas occurred, dies by an accidental death. The legal reason is not that theinnocent person has to thank himself for what has happened, for it isconceivable (though not often likely) that he may have been unconscious of anydanger and innocent of all imprudence. The reason is that the soldier who firedhas done nothing except what was his strict legal duty.
In measuring with the aid of subsequent evidence the exact necessitiesof the case as they existed at the time at Ackton Hall Colliery, we have formeda clear view that the troops were in a position of great embarrassment. Thewithdrawal of half their original force to Nostell Colliery had reduced them toso small a number as to render it difficult for them to defend the collierypremises effectively at nighttime. The crowd for some hours had beenfamiliarised with their presence, and had grown defiant. All efforts atconciliation had failed. Darkness had meanwhile supervened, and it wasdifficult for Captain Barker to estimate the exact number of his assailants, orto what extent he was being surrounded and outflanked. Six or seven appeals hadbeen made by the magistrate to the crowd. The Riot Act had been read withoutresult. A charge had been made without avail. Much valuable col-
liery property was already blazing, and the troops were with difficultykeeping at bay a mob armed with sticks and bludgeons, which was refusing todisperse, 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 dose as possible to the Green Lane entrance. Otherwise, therioters would, under cover of the darkness, have been able to enter in force.To withdraw from their position was, as we have already intimated, to abandonthe colliery offices in the rear to arson and violence. To hold the positionwas not possible, except at the risk of the men being seriously hurt and theirforce crippled. Assaulted by missiles on all sides, we think that, in theevents which had happened, Captain Barker and his troops had no alternativeleft but to fire, and it seems to us that Mr. Hartley was bound to require themto 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 whichthe troops and the colliery stood. But no sympathy felt by us for the injuredbystanders, no sense which we entertain of regret that, owing to the smallnessof the military force at Featherstone and the prolonged absence of amagistrate, 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 wasnecessary. We feel it right to express our sense of the steadiness anddiscipline of the soldiers in the circ*mstances. We can find no ground for anysuggestion 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 thelawless and the peaceable, and it is to be observed that even the first shotsfired produced little or no effect upon the crowd in inducing them to withdraw.If our conclusions on these points be, as we believe them to be, correct, itfollows that the action of the troops was justified in law.88
NoteVH
THE MEANING OF AN "UNCONSTITUTIONAL" LAW
The expression "unconstitutional" has, as applied to a law, at leastthree different meanings varying according to the nature of the constitutionwith reference to which it is used:
88 Report of the committee appointed to inquire into the circ*mstancesconnected with the disturbances at Featherstone on the 7th of September 1893[C. 7234].
1. The expression, as applied to an English Act of Parliament, meanssimply that the Act in question, as, for instance, the Irish Church Act, 1869,is, in the opinion of the speaker, opposed to the spirit of the Englishconstitution; it cannot mean that the Act is either a 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 tenureof office, is opposed to the articles of the constitution. The expression doesnot necessarily mean that the law in question is void, for it is by no meanscertain that any French Court will refuse to enforce a law because it isunconstitutional. The word would probably, though not of necessity, be, whenemployed by a Frenchman, a term of censure.
3. The expression, as applied to an Act of Congress, means simply thatthe Act is one beyond the power of Congress, and is therefore void. The worddoes not in this case necessarily import any censure whatever. An Americanmight, without any inconsistency, say that an Act of Congress was a good law,that is, a law calculated in his opinion to benefit the country, but thatunfortunately it was "unconstitutional," that is to say, ultra vires andvoid.
NoteVTfl
SWISS FEDERALISM89
The Swiss Federal Constitution may appear to a superficial observer tobe a copy in miniature of the Constitution of the United States; and there isno doubt that the Swiss statesmen of 1848 did in one or two points, and notablyin the formation of the Council of States or Senate, intentionally followAmerican precedents. But for all this, Swiss Federalism is the naturaloutgrowth of Swiss history, and bears a peculiar character of its own that wellrepays careful study.
Three ideas underlie the institutions of modern Switzerland.
89 See Lowell, Governments and Parties in Continental Europe,ii., Switzerland, pp. 180 336; Orelli, Das Staatsrecht derSchweizerischen Eidgenossenschaft; Marquardsen'sHandbuch desOef-fentlichen Rechts, iv. i. 2.
The first is the uncontested and direct sovereignty of the nation.
In Switzerland the will of the people, when expressed in the modeprovided by the Constitution, is admittedly supreme. This supremacy is notdisputed by any political party or by any section of the community. No onedreams of changing the democratic basis of the national institutions. Theredoes not exist in Switzerland any faction which, like the reactionists inFrance, meditates the overthrow of the Republic. There does not exist anysection of the community which, like the Bohemians in Austria, or like theFrench in Alsace, is, or may be supposed to be, disloyal to the centralgovernment. But in Switzerland not only the supremacy but the direct authorityof the nation is, practically as well as theoretically, acknowledged. The oldidea of the opposition between the government and the people has vanished. Allparts of the government, including in that term not only the Executive but alsothe Legislative bodies, are the recognised agents of the nation, and the peopleintervene directly in all important acts of legislation. In Switzerland, inshort, the nation is sovereign in the sense in which a powerful king or queenwas sovereign in the time when monarchy was a predominant power in Europeancountries, and we shall best understand the attitude of the Swiss nationtowards its representatives, whether in the Executive or in Parliament, byconsidering that the Swiss people occupies a position not unlike that held, forexample, by Elizabeth of England. However great the Queen's authority, she wasnot a tyrant, but she really in the last resort governed the country, and herministers were her servants and carried out her policy. The Queen did notdirectly legislate, but by her veto and by other means she controlled allimportant legislation. Such is, speaking roughly, the position of the Swisspeople. The Federal Executive and the Federal Parliament pursue the lines ofpolicy approved by the people. Under the name of the Referendum there isexercised a popular veto on laws passed by the Legislature, and of recentyears, under the name of the Initiative, an attempt has been made at more orless direct legislation by the people. Whatever be the merits of Swissinstitutions, the idea which governs them is obvious. The nation is monarch,the Executive and the members of the Legislature are the people's agents orministers.
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, whogive effect to the will of the nation.
The last and most original Swiss conception is one which it is not easyfor foreigners bred up under other constitutional systems to grasp. It is thatthe existence of political parties does not necessitate the adoption of partygovernment.
These are the principles or conceptions embodied in Swiss institutions;they are closely inter-connected, they pervade and to a great extent explainthe operation of the different parts of the Swiss Constitution. Many of itsfeatures are of course common to all the federal governments, but its specialcharacteristics are due to the predominance of the three ideas to which thereader's attention has been directed. That this is so will be seen if weexamine the different parts of the Swiss Constitution.
THE FEDERAL COUNCIL
This body, which we should in England call the Ministry, consists ofseven persons elected at their first meeting by the two Chambers which make upthe Swiss Federal Assembly or Congress, and for this purpose sit together. TheCouncillors hold office for three years, and being elected after the firstmeeting of the Assembly, which itself is elected for three years, keep theirplaces till the next Federal Assembly meets, when a new election takes place.The Councillors need not be, but in fact are, elected from among the members ofthe Federal Assembly, and though they lose their seats on election, yet, asthey can take part in the debates of each House, may for practical purposes beconsidered members of the Assembly or Parliament. The powers confided to theCouncil are wide. The Council is the Executive of the Confederacy and possessesthe authority naturally belonging to the national government. It dischargesalso, strange as this may appear to Englishmen or Americans, many judicialfunctions. To the Council are in many cases referred questions of"administrative law," and also certain classes of what Englishmen or Americansconsider strictly legal questions. Thus the Council in effect determined someyears
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 regulatetheir meetings. The Council again gives the required sanction to theConstitutions or to alterations in the Constitutions of the Cantons, anddetermines whether clauses in such Constitutions are, or are not, inconsistentwith the articles of the Federal Constitution. The Council is in fact thecentre of the whole Swiss Federal system; it is called upon to keep up goodrelations between the Cantons and the Federal or National government, andgenerally to provide for the preservation of order, and ultimately for themaintenance of the law throughout the whole country. All foreign affairs fallunder the Coundl's supervision, and the conduct of foreign relations must,under the circ*mstances of Switzerland, always form a most important anddifficult part of the duties of the government.
Though the Councillors are elected they are not dismissible by theAssembly, and in so far the Council may be considered an independent body; butfrom another point of view the Council has no independence. It is expected tocarry out, and does carry out, the policy of the Assembly, and ultimately thepolicy of the nation, just as a good man of business is expected to carry outthe orders of his employer. Many matters which are practically determined bythe Council might constitutionally be decided by the Assembly itself, which,however, as a rule leaves the transaction of affairs in the hands of theCouncil. But the Council makes reports to the Assembly, and were the Assemblyto express a distinct resolution on any subject, effect would be givento it. Nor is it expected that either the Council or individual Councillorsshould go out of office because proposals or laws presented by them to theAssembly are rejected, or because a law passed, with the approval of theCouncil, by the Chambers, is vetoed on being referred to the people. TheCouncil, further, though as the members thereof, being elected by the FederalAssembly, must in general agree with the sentiments of that body, does notrepresent a Parliamentary majority as does an English or a French Ministry. TheCouncillors, though elected for a term of three years, are re-eligible, and asa rule are re-elected. The consequence is that a man may hold
office for sixteen years or more, and that the character of the Councilchanges but slowly; and there have, it is said, been cases in which themajority of the Parliament belonged to one party and the majority of theCouncil to another, and this want of harmony in general political views betweenthe Parliament and the Government did not lead to inconvenience. In truth theCouncil is not a Cabinet but a Board for the management of business, of whichBoard the so-called President of the Confederation, who is annually electedfrom among the members of the Council, is merely the chairman. It may fairly becompared 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 theshareholders, did they choose to do so, could always control its action orreverse its policy. In another sense, as we all know, a Board is almost freefrom control. As long as things are well, or even tolerably, managed, theshareholders have neither the wish nor practically the power to interfere. Theyknow that the directors possess knowledge and experience which the shareholderslack, and that to interfere with the Board's management would imperil thewelfare of the association. So it is with the Federal Council. Its dependenceis the source of its strength. It does not come into conflict with theAssembly; it therefore is a permanent body, which carries on, and carries onwith marked success, the administration of public affairs. It is a body of menof 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 ofExecutive differing both from the Cabinet government of England or France, andfrom the Presidential government of America. The Council does not, like anEnglish Cabinet, represent, at any rate directly and immediately, a predominantpolitical party. It is not liable to be at any moment dismissed from office.Its members keep their seats for a period longer than the time during whicheither an English Ministry or an American President can hope to retain office.But the Council, though differing greatly from a Cabinet, is a Parliamentary orsemi-Parliamentary Executive.90 It has not, like an
90 See Note III. p. 331, ante.
American President, an independent authority of its own which, beingderived from popular election, may transcend, and even be opposed to, theauthority of the Legislature. The constitutional history of Switzerland since1848 has exhibited none of those conflicts between the Executive and thelegislative body which have occurred more than once in the United States. Theposition of the Council may, if we seek for an historical parallel, be comparedwith that of the Council of State under the Cromwellian Instrument ofGovernment, and indeed occupies very nearly the position which the Council ofState would have held had the Instrument of Government been, in accordance withthe wishes of the Parliamentary Opposition, so modified as to allow of thefrequent re-election by Parliament of the members of the Council.91If we desire a modern parallel we may perhaps find it in the English CivilService. The members of the Council are, like the permanent heads of theEnglish Government offices, officials who have a permanent tenure of office,who are in strictness the servants of the State, and who are expected to carryout, and do carry out, measures which they may not have framed, and thepolicies of which they may not approve. This comparison is the moreinstructive, because in the absence of the elaborate Civil Service the membersof the Council do in effect discharge rather the duties of permanent civilservants 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 itconsists sit together. As already pointed out, when thus combined they electthe Federal Council or Ministry. The Assembly, moreover, is, unlike anyrepresentative assembly to which the English people are accustomed, on certainadministrative matters a final Court of Appeal from the Council. The mainfunction, however, of the Assembly is to receive reports from the Council andto legislate. It sits but for a short period each year, and confines itselfpretty closely to the transaction of business. Laws passed by it may,
91 See the "Constitutional Bill of the First Parliament of theProtectorate," cap, 39; Gardiner, Constitutional Documents of the PuritanRevolution, pp. 366, 367.
when referred to the people, be vetoed. Its members are prettyconstantly 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 toit.
The National Council, like the American House of Representatives,directly represents the citizens. It varies in numbers with the growth of thepopulation, and each Canton is represented in proportion to its population.
In one important respect the Federal Assembly differs from the AmericanCongress. In the United States the Senate has hitherto been the moreinfluential of the two Houses. In Switzerland the Council of States wasexpected by the founders of the Constitution to wield the sort of authoritywhich belongs to the American Senate. This expectation has been disappointed.The Council of States has played quite a secondary part in the working of theConstitution, and possesses much less power than the National Council. Thereasons given for this are various. The members of the Council are paid by theCantons which they represent. The time for which they hold office is regulatedby each Canton, and has generally been short. The Council has no specialfunctions such as has the American Senate, and the general result has been thatleading statesmen have sought for seats not in the Council of State, but in theNational Council. One cause of the failure on the part of the Council of Statesto fulfil the expectations of its creators seems to have escaped Swissattention. The position and functions of the Federal Council or Ministry, itspermanence and its relation to the Federal Parliament, make it impossible forthe chamber which represents the Cantons to fill the place which is occupied inAmerica by the House which represents the States. The inferior position of theSwiss Council of States deserves notice. It is one of the parts of theConstitution which was suggested by the experience of a foreign country, andfor this very reason has, it may be suspected, not fitted in with the nativeinstitutions of Switzerland.
THE FEDERAL TRIBUNAL92
This Court was constituted by statesmen who knew the weight andauthority which belongs to the Supreme Court of the United States; but theFederal Tribunal was from the beginning, and is still, a very different bodyfrom, and a much less powerful body than, the American Supreme Court. It iscomposed of fourteen judges, and as many substitutes elected for six years bythe Federal Assembly, which also designates the President and theVice-President of the Court for two years at a time. It possesses .criminaljurisdiction in cases of high treason, and in regard to what we may term highcrimes and misdemeanours, though its powers as a criminal Court are rarely putinto operation. It has jurisdiction as regards suits between the Confederationand the Cantons, and between the Cantons themselves, and generally in all suitsin which the Confederation or a Canton is a party. It also determines allmatters of public law, and has by degrees, in consequence of federallegislation, been made virtually a general Court of Appeal from the Cantonaltribunals in all cases arising under federal laws where the amount in disputeexceeds 3000 francs. Add to this that the Court entertains complaints of theviolation of the constitutional rights of citizens, and this whether the rightalleged to be violated is guaranteed by a Federal or by a Cantonalconstitution. The primary object for which the Court was constituted was thegiving decisions, or rather the making of judicial declarations where points ofpublic law are in dispute; and its civil jurisdiction has, under the stress ofcirc*mstances, been increased beyond the limits within which the founders ofthe Swiss Constitution intended it to be restrained. But the Federal Tribunal,though possessed of a wide and somewhat indefinite jurisdiction, wields nothinglike the power possessed by the Supreme Court of the United States. It has nojurisdiction whatever in controversies with reference to "administrative law";these are reserved for the Federal Council, and ultimately for the FederalAssembly,93 and the term "administrative controversies" has beengiven a very extensive signification, so that the Court has
92 Lowell, ii. p. 214; Orelli, pp. 38-44.
93 See Swiss Constitution, Art. 85, s. 12, and Art. 113.
been excluded "from the consideration of a long list of subjects, suchas the right to carry on a trade, commercial treaties, consumption taxes, gamelaws, certificates of professional capacity, factory acts, bank-notes, weightsand measures, primary public schools, sanitary police, and the validity ofcantonal elections,"94 which would prima fade seem to fallwithin its competence. The Tribunal, moreover, though it can treat cantonallaws as unconstitutional, and therefore invalid, is bound by the Constitutionto treat all federal legislation as valid.95
The judges of the Federal Tribunal are appointed by the FederalAssembly, and for short terms. The Tribunal stands alone, instead of being atthe head of a national judicial system. It has further no officials of its ownfor the enforcement of its judgments. They are executed primarily by thecantonal authorities, and ultimately, if the cantonal authorities fail in theirduty, by the Federal Council.96 The control, moreover, exerted bythe Federal Tribunal over the acts of Federal officials is incomplete. Anycitizen may sue an official, but, as already pointed out, administrativecontroversies are excluded from the Court's jurisdiction, and in case there isa conflict of jurisdiction between the Federal Council and the FederalTribunal, it is decided not by the Court but by the Federal Assembly, which onewould expect to support the authority of the Council. The Federal Tribunal, atany rate, cannot as regards such disputes fix the limits of its owncompetence.97 Under these circ*mstances it is not surprising thatthe Tribunal exercises less authority than the Supreme Court of the UnitedStates. What may excite some surprise is that, from the very nature offederalism the jurisdiction of the Federal Tribunal has, in spite of alldisadvantages under which the Court suffers, year by year increased. Thus until1893 questions relating to religious liberty, and the rights of differentsects, were reserved for the decision of the Federal Assembly. Since that datethey have been transferred to the
94 Lowell, p. 218.
95 See Swiss Constitution, Art. 113; Brinton Coxe, Judicial Power andUnconstitutional Legislation, p. 86.
96 See Adams, Swiss Confederation, pp. 74, 75.
97 See Lowell, p. 220.
jurisdiction of the Federal Tribunal. This very transfer, and the wholerelation of the Tribunal, the Council, and the Assembly respectively, toquestions which would in England or the United States be necessarily decided bya law court, serve to remind the reader of the imperfect recognition inSwitzerland of the "rule of law," as it is understood in England, and of theseparation of powers as that doctrine is understood in many continentalcountries.98
THE REFERENDUM99
If in the constitution of the Federal Tribunal and of the Council ofStates we can trace the influence of American examples, the referendum, as itexists in Switzerland, is an institution of native growth, which has receivedthere 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 underthe Swiss Federal Constitution, we may describe it as an arrangement by whichno alteration or amendment in the Constitution, and no federal law which anylarge number of Swiss citizens think of importance, comes finally into forceuntil it has been submitted to the vote of the citizens, and has beensanctioned by a majority of the citizens who actually vote. It may be addedthat a change in the Constitution thus referred to the people for sanctioncannot come into force unless it is approved of both by a majority of thecitizens who vote, and by a majority of the Cantons. It must further be notedthat the referendum in different forms exists in all but one of the SwissCantons, and may therefore now be considered an essential feature of Swissconstitutionalism. The referendum is therefore in effect a nation's veto. Itgives to the citizens of Switzerland exactly that power of arrestinglegislation which is still in theory and was in the time, for example, ofElizabeth 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. 218, 219.
99 See Lowell, ii. chap, xii.; Adams, Swiss Confederation, chap.vi. The referendum, though not under that name, exists for many purposes in thedifferent States of the American Union. There is no trace of it, or of anyinstitution corresponding to it, in the Constitution of the United States.Compare Oberholtzer, Referendum in America.
popular language, the Crown, in case the monarch dissented, might besaid to veto the bill. A more accurate way of describing the Crown's action isto say that the King threw out or rejected the bill just as did the House ofLords or the House of Commons when either body refused to pass a bill. This isin substance the position occupied by the citizens of Switzerland when a lawpassed by the Federal Assembly is submitted to them for their approbation orrejection. If they give their assent it becomes the law of the land; if theyrefuse their assent it is vetoed, or, speaking more accurately, the proposedlaw 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 theCantonal Constitutions, and in the Federal Constitution to a certain extent,supplemented by what is called the Initiative that is, a device by whicha certain number of citizens can propose a law and require a popular vote uponit in spite of the refusal of the legislature to adopt their views.10° The Initiative has, under the Federal Constitution at anyrate, received as yet but little trial. Whether it can be under anycirc*mstances a successful mode of legislation may be doubted. All that needhere be noted is that while the introduction of the Initiative is neither intheory nor in fact a necessary consequence of the maintenance of thereferendum, both institutions are examples of the way in which in Switzerlandthe citizens take a direct part in legislation.
The referendum, taken in combination with the other provisions of theConstitution, and with the general character of Swiss federalism, tends, it isconceived, to produce two effects.
It alters, in the first place, the position both of the Legislature andof the Executive. The Assembly and the Federal Council become obviously theagents of the Swiss people. This state of things, while it decreases the power,may also increase the freedom of Swiss statesmen. A member of the Council, orthe 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 andthen rejected. The Council and the Assembly bow without any discredit to thepopular
100 Lowell, p. 280.
decision. There is no reason why the members either of the Council or ofthe Legislature should resign their seats; it has frequently happened that theelectors, whilst disapproving of certain laws submitted for their acceptance bythe Federal Assembly, have re-elected the very men whose legislation they haverefused to accept. Individual politicians, on the other hand, who advocateparticular measures just because the failure to pass these measures into lawdoes not involve resignation or expulsion from office, can openly express theirpolitical views even if these views differ from the opinions of the people. Thereferendum, in the second place, discourages the growth of party government.The electors do not feel it necessary that the Council, or even the Assembly,should strictly represent one party. Where the citizens themselves can vetolegislation which they disapprove, it matters comparatively little that some oftheir representatives should entertain political opinions which do not at themoment commend themselves to the majority of the electorate. The habit,moreover, acquired of taking part in legislation must probably accustom Swisscitizens to consider any proposed law more or less on its merits. They are atany rate less prone than are the voters of most countries to support a partyprogramme which possibly does not as to every one of its provisions command theassent of any one voter. It may, of course, on the other hand, be maintainedthat it is the incomplete development of party government in Switzerland whichfavours the adoption of the referendum. However this may be, there can belittle doubt that the existence of the most peculiar of Swiss institutions hasa dose connection with the condition of Swiss parties.
Swiss Federalism has been, as we have already pointed out, considerablyinfluenced by American Federalism, and it is almost impossible for anintelligent student not to compare the most successful federal and democraticgovernment of the New World with the most successful federal and democraticgovernment of Europe, for the history and the institutions of America and ofSwitzerland exhibit just that kind of likeness and unlikeness which excitescomparison.
The United States and Switzerland are both by nature federations;neither country could, it is pretty dear, prosper under any but a federalconstitution; both countries are, at the present day at any rate,
by nature democracies. In each country the States or Cantons haveexisted before the federation. In each country state patriotism was originallya far stronger sentiment than the feeling of national unity. In America and inSwitzerland national unity has been the growth of necessity. It is alsoprobable that the sentiment of national unity, now that it has been onceevoked, will in the long run triumph over the feeling of State rights or Statesovereignty. In a very rough manner, moreover, there is a certain likenessbetween what may be called the federal history of both countries. In Americaand in Switzerland there existed for a long time causes which prevented andthreatened finally to arrest the progress towards national unity. Slaveryplayed in the United States a part which resembled at any rate the part playedin Swiss history by religious divisions. In America and in Switzerland a lessprogressive, but united and warlike, minority of States held for a long time incheck the influence of the richer, the more civilised, and the less unitedStates. Constant disputes as to the area of slavery bore at any rate an analogyto the disputes about the common territories which at one time divided theCatholic and Protestant Cantons. Secession was anticipated by the Sonderbund,and the triumph of Grant was not more complete than the triumph of Dufour. Noris it at all certain that the military genius of the American was greater thanthe military genius of the Swiss general. The War of Secession and the War ofthe Sonderbund had this further quality in common. They each absolutelyconcluded the controversies out of which they had arisen; they each so endedthat victors and vanquished alike soon became the loyal citizens of the sameRepublic. Each country, lastly, may attribute its prosperity, with plausibilityat least, to its institutions, and these institutions bear in their generalfeatures a marked similarity.
The unlikeness, however, between American and Swiss Federalism is atleast as remarkable as the likeness. America is the largest as Switzerland isthe smallest of Confederations; more than one American State exceeds in sizeand population the whole of the Swiss Confederacy. The American Union is fromevery point of view a modern state; the heroic age of Switzerland, as far asmilitary glory is concerned, had dosed before a single European had set foot in
America, and the independence of Switzerland was acknowledged by Europemore than a century before the United States began their political existence.American institutions are the direct outgrowth of English ideas, and in themain of the English ideas which prevailed in England during the democraticmovement of the seventeenth century; American society was never under theinfluence of feudalism. The democracy of Switzerland is imbued in many respectswith continental ideas of government, and till the time of the great FrenchRevolution, Swiss society was filled with inequalities originating in feudalideas. The United States is made up of States which have always been used torepresentative institutions; the Cantons of Switzerland have been mainlyaccustomed to non-representative, aristocratic or democratic government. Underthese circ*mstances, it is naturally to be expected that even institutionswhich possess a certain formal similarity should display an essentiallydifferent character in countries which differ so widely as the United Statesand Switzerland.
These differences may be thus roughly summed up: American Federalism isstrong where Swiss Federalism is weak; where American Federalism is weak, SwissFederalism is strong.
The Senate and the Judiciary of the United States have rightly excitedmore admiration than any other part of the American Constitution. They haveeach been, to a certain extent, imitated by the founders of the existing SwissRepublic. But in neither instance has the imitation been a complete success.The Council of States has not the authority of the Senate; the FederalTribunal, though its power appears to be on the increase, cannot standcomparison with the Supreme Court. The judicial arrangements of Switzerlandwould appear, at any rate to a foreign critic, to be the least satisfactory ofSwiss institutions, and the exercise by the Federal Council and the FederalAssembly of judicial powers is not in unison with the best modern ideas as tothe due administration of justice.
The features in American institutions which receive very qualifiedapproval, if not actual censure even from favourable critics, are the mode inwhich the President is appointed, the relation of the Executive Government tothe Houses of Congress, the disastrous de-
velopment of party organisation, and the waste or corruption which arethe consequence of the predominance of party managers or wirepullers.
The Federal Council, on the other hand, forms as good an Executive as ispossessed by any country in the world. It would appear to a foreign observer(though on such a matter foreign critics are singularly liable to delusion) tocombine in a rare degree the advantages of a Parliamentary and of anon-Parliamentary government. It acts in uniform harmony with the electedrepresentatives of the people, but though appointed by the legislature, itenjoys a permanent tenure of office unknown to Parliamentary Cabinets or toelected Presidents. Though parties, again, exist, and party spirit occasionallyruns high in Switzerland, party government is not found there to be anecessity. The evils, at any rate, attributed to government by party are eithergreatly diminished or entirely averted. The Caucus and the "Machine" are allbut unknown. The country is freed from the unwholesome excitement of aPresidential election, or even of a general election, which, as in England,determines which party shall have possession of the government. There is nonotion of spoils, and no one apparently even hints at corruption.
Note IX
AUSTRALIAN FEDERALISM W1
The aim of Australian statesmen has been to combine in the Constitutionof the Commonwealth ideas borrowed from the federal and republicanconstitutionalism of the United States, or, to a certain extent, ofSwitzerland, with ideas derived from the Unitarian102 andmonarchical constitutionalism of England. They have also created for theCommonwealth itself, and retained for each of the several States thereof, therelation which has for years existed between England and the self-governingcolonies of Australia.
101 The Commonwealth of Australia Constitution Act, 63 & 64 Viet. c.12. Quick and Garran, The Annotated Constitution of the AustralianCommonwealth. Moore, The Commonwealth of Australia. Bryce, i.Studies in History and Jurisprudence, Essay VIII.
102 See pp. 73 74, ante.
Hence the Commonwealth exhibits four main characteristics: first,a Federal form of Government; secondly, a Parliamentary Executive;thirdly, an effective Method for amending the Constitution; fourthly,the maintenance of the Relation which exists between the United Kingdom anda self-governing colony.
FEDERAL GOVERNMENT
The Commonwealth is in the strictest sense a federal government. It owesits birth to the desire for national unity which pervades the whole ofAustralia, combined103 with the determination on the part of theseveral colonies to retain as States of the Commonwealth as large a measure ofindependence as may be found compatible with the recognition of Australiannationality. The creation of a true federal government has been achieved mainlyby following, without however copying in any servile spirit, the fundamentalprinciples of American federalism. As in the United States so in the AustralianCommonwealth the Constitution is (subject of course to the sovereign power ofthe Imperial Parliament) the supreme law of the land;104 theConstitution itself in the Australian Commonwealth, as in the United States,fixes and limits the spheres of the federal or national government and of theStates respectively, and moreover defines these spheres in accordance with theprinciple that, while the powers of the national or federal government,including in the term government both the Executive and the Parliament of theCommonwealth, 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 the severalStates, or, more accurately, in the Parliament of each State.105 Inthis point Australian statesmen have followed the example, not of Canada, butof the United States and of Switzerland. The methods again for keeping thegovernment of the Commonwealth on the one side, and the States on the other,within their proper spheres have
103 See pp. 75-76, ante.
104 Constitution ss. 51, 108.
105 Ibid. ss. 106, 107.
been suggested in the main by American experience. The Parliament of theCommonwealth is so constituted as to guarantee within reasonable limits themaintenance of State rights. For whilst the House of Representatives representsnumbers, the Senate represents the States of the Commonwealth, and each of theOriginal States is entitled, irrespective of its size and population, to anequal number of senators.106 The Constitution, further, is so framedas 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 morepermanent, and therefore a more experienced, body than the House ofRepresentatives, which can under no circ*mstances exist for more than threeyears, and may very well be dissolved before that period has elapsed; then toothe senators will, as the Constitution now stands, represent the whole of theState for which they sit.107 The States, again, retain a largeamount of legislative independence. Neither the Executive nor the Parliament ofthe Commonwealth can either directly or indirectly veto the legislation,e.g., of the Victorian Parliament. Lastly, the law Courts, andespecially the Federal Supreme Court, are, as in the United States, theguardians of the Constitution, for the Courts are called upon, in any casewhich comes before them for decision, to pass judgment, should the point beraised, upon the constitutionality, or, in other words, upon the validity underthe Constitution of any Act passed either by the Parliament of thatCommonwealth or by the Parliament of, e.g., Victoria. That this duty islaid upon the Courts is not indeed expressly stated in the Constitution of theCommonwealth, any more than in the Constitution of the United States; but noEnglish lawyer can doubt that the Courts, and ultimately the Federal SupremeCourt, are intended to be the interpreters, and in this sense the protectors ofthe Constitution. They are, be it noted, in no way
106 Ibid. s. 7. Such experience however as can be supplied by theevents of eight years shows, it is said, that the Senate is absolutely hostileto the maintenance of State rights, and far more so than the House ofRepresentatives.
107 Ibid. s. 7.
bound, as is the Swiss Federal tribunal, to assume the constitutionalityof laws passed by the federal legislature.
The founders, then, of the Commonwealth have, guided in the main by theexample of the United States, created a true federal government; but they have,we shall find, as far as is compatible with the existence of federalism,imported into the Constitution ideas borrowed, or rather inherited, fromEngland. This is specially visible in
THE PARLIAMENTARY EXECUTIVE
The Executive of the Commonwealth is a parliamentary Cabinet, such ashas long existed in England, and as exists in all the self-governing Britishcolonies. The authors indeed of the Australian Constitution have, true toEnglish precedent, never made use of the word cabinet; they have not even in somany words enacted that the executive shall be a body of ministers responsibleto the federal Parliament; but no one who has the least acquaintance with thehistory of the English constitution, or of the working of the constitutionswhich have been conferred upon the self-governing colonies of Australia, candoubt 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 parliamentarymajority, and will therefore, speaking broadly, consist in general of theleaders of the most powerful parliamentary party of the day. This cabinetpossesses the most peculiar among the attributes of an English ministry,namely, the power, in many cases at any rate, to dissolve Parliament, and thusappeal from the body by whom the ministry was created to the people, or inother words to the electors, of the Commonwealth. We should here also observethat the powers of the Australian executive exceed in one respect the authorityof an English ministry; an English cabinet may often dissolve the House ofCommons, but can never dissolve the House of Lords. But an Australian cabinetcan under certain circ*mstances cause, indirectly at any rate, the dissolutionof the Senate. In studying indeed the Constitution of the Commonwealth greatattention should be paid to this
existence of the right or power to dissolve Parliament; it is notpossessed by the President of the United States or by the Executive Council ofthe Swiss Confederation, and it is granted under the constitution of theexisting 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 sureof the assent of the Senate he has the power to dissolve the Chamber ofDeputies, will exert his authority at the request of theministry.108 The point to be specially noted is that the Federalistsof Australia have almost as a matter of course placed the executive power inthe hands of a parliamentary cabinet; they have neither adopted the Americanplan of an elected President, whereby the administration of affairs is placedin the hands of a non-parliamentary executive, or the Swiss scheme of creatinga semi-parliamentary executive, which, while elected by the federal Parliament,cannot be dismissed by it. It is true that it might have been found difficultto adjust the relations between a non-parliamentary or a semi-parliamentaryexecutive and the English cabinet or the Imperial Parliament. But thedifficulty is not one which need necessarily be insuperable. The true reason,it may be conjectured, why Australia has decisively adhered to the system ofcabinet government is that a Parliamentary cabinet is the only form ofexecutive to which the statesmen either of Australia or of England areaccustomed. In one point, indeed, the executive of Australia may appear to bearan 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 Australianminister can hold office, i.e. in effect be a member of the cabinet formore than three months, unless he becomes a Senator, or a member of the Houseof Representatives.109 But here Australian statesmanship hasfollowed the conventions rather than the law of the English constitution, forin practice an English cabinet always consists of men who are members or willbecome members either of the House of Lords or of the House of
108 Esmein, Droit Constitutionnel, pp. 555-563.
109 Constitution, s. 64.
Commons. Indeed it is worth remark that in several instances where theAustralian Constitution deviates from that of England, the deviation is causedby the desire to follow the spirit of modern English constitutionalism. Thusthe elaborate and ingenious plan for avoiding in case of disagreement betweenthe two Houses a parliamentary deadlock110 is simply an attempt toensure by law that deference for the voice of the electorate which in Englandconstitutional conventions enforce in the long run upon both Houses of theImperial Parliament.
AMENDMENT OF THE CONSTITUTION
A federal constitution must of necessity be a "rigid" constitution; butthe constitutions of each of the Australian self-governing colonies, e.g.of Victoria, have been in substance "flexible" constitutions of which thecolonial 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, nodesire to forego the advantages of a flexible constitution or to adopt afederal polity which should lend itself as little to amendment as does theConstitution of the United States, or should, like the Constitution of theCanadian Dominion, be amendable only by the action of the Imperial Parliament.Hence Australian Federalists were forced to solve the problem of giving to theConstitution of the Commonwealth as much rigidity as is required by the natureof a federal government, and at the same time such flexibility as should secureto the people of Australia the free exercise of legislative authority, even asregards articles of the Constitution.
Their solution of this problem is ingenious.
The Constitution of the Commonwealth is, looked at as a whole, a rigidconstitution, since it cannot be fundamentally altered by the ordinary methodof parliamentary legislation.
But this rigidity of the constitution is tempered in three differentways.
First, the Parliament of the Commonwealth is endowed with verywide legislative authority; thus it can legislate on many topics which
no Constitution, s. 57.
lie beyond the competence of the Congress of the United States, and onsome topics which lie beyond the competence of the Parliament of the CanadianDominion;111 and it is here worth notice that the extension of thepowers of the Commonwealth Parliament is facilitated by the fact that on manytopics the federal legislature and the State Parliaments have concurrentlegislative authority, though of course where a law of the Commonwealthconflicts with, the law of a State, the federal law, if within the competenceof the Commonwealth Parliament, prevails.112
Secondly, a large number of the articles of the constitutionremain in force only "until Parliament otherwise provides"; they can thereforebe changed like any other law by an Act of Parliament passed in the ordinarymanner; in other words, the constitution is as to many of its provisionsflexible.113
Thirdly, the constitution provides the means for its ownalteration114 and embodies the principle, though not the name, ofthe Swiss institution known as the referendum. The process of constitutionalamendment is broadly and normally as follows: A law changing the constitutionmust be passed by an absolute majority of each House of Parliament; it mustthen be submitted to the electors of the Commonwealth for their approval; if ina majority of the States a majority of the electors voting approve the law andalso a majority of all the electors voting approve the law, it must besubmitted to the Governor-General for the King's assent, and on receiving thedue assent becomes, like any other bill, an Act of Parliament. The principle ofthe whole proceeding is that the constitution can be changed by a vote of thefederal Parliament, ratified by the approval both of the majority of the Statesand of the majority of the Commonwealth electorate.
It should, however, be noted that under certain circ*mstances a law forchanging the constitution which has been passed by an ab-
111 Compare Commonwealth Constitution, ss. 51, 52, with Constitution ofU. S., art. i, ss. i and 8, and British North America Act, 1867(30 & 31 Viet. c. 3), ss. 91, 92.
112 See Constitution, s. 109.
113 Ibid. s. 51, sub. s. xxxvi. compared e.g. with ss. 3,29, 31, etc.
114 Ibid. s. 128.
solute majority of one House of Parliament only, and either is rejectedby the other House or not passed by an absolute majority thereof, must besubmitted to the electors for their approval, and if approved in the manneralready stated, becomes, on the assent of the Crown being duly given, an Act ofParliament.
Add to this that there are a few changes, e.g. an alterationdiminishing the proportionate representation in any State in either House ofParliament, which cannot be carried through unless the majority of the electorsvoting in that State approve of the change.11S
What may be the working of new institutions no one will ventureconfidently to predict; but a critic of constitutions may entertain the hopethat Australian statesmanship has accomplished the feat of framing a politywhich shall have the merits both of a rigid and of a flexible constitution,which cannot hastily be changed, but yet admits of easy amendment, wheneveralteration or reform is demanded by the deliberate voice of the nation.
MAINTENANCE OF THE RELATION WITH THE UNITED KINGDOM
The founders of the Commonwealth have admittedly been influenced at onceby a growing sense of Australian nationality, and by enduring, or evenincreasing loyalty to the mother-country. The one sentiment has been satisfiedby the union of the Australian colonies under a federal government whichsecures to the people of Australia as complete power of self-government as iscompatible with the position of a colony that desires to form part of theBritish Empire. The other sentiment has been satisfied by placing theCommonwealth itself as regards the mother-country in the position of aself-governing colony, and also by leaving the relation between each State ofthe Commonwealth and the United Kingdom as little disturbed as is compatiblewith the creation of the Australian Commonwealth. Each point is worth notice.
The Commonwealth of Australia itself is, as regards the Crown and theImperial Parliament, nothing but a large self-governing colony.
115 Constitution, s. 28.
Thus the Governor-General is appointed by the Crown, i.e. by theEnglish ministry, and fills substantially the same position as, before theformation of the Commonwealth, was occupied by the Governor, e.g., ofVictoria. A bill passed by the Parliament of the Commonwealth, whether it be anordinary law or a law which, because it affects the constitution, has beensubmitted to the electors for their approval, requires in order that it maybecome an Act the assent of the Crown,116 and the Crown can negativeor veto bills passed by the Parliament of the Commonwealth just as it could,and still can, veto bills passed by the Parliament, e.g., of Victoria.The Imperial Parliament, again, has the admitted right, though it is a rightwhich, except at the wish of the Australian people, would most rarely beexercised, to legislate for Australia, or even to modify the constitution ofthe Australian Commonwealth. An appeal further lies on most subjects from thedecisions of the federal Supreme Court to the English Privy Council, and eventhe limitations placed on such appeals when certain questions as to theCommonwealth constitution are raised are themselves subject to somequalifications.m The broad result therefore is that as regards theCommonwealth the connection with the United Kingdom is retained, and thesovereignty of the Imperial Parliament is untouched.
The position of any State of the Commonwealth in regard to the UnitedKingdom remains pretty much what it was when the State, e.g. Victoria,was still merely a self-governing colony. The Governor of Victoria is now, asthen, appointed by the Crown, i.e. by the English ministry. A billpassed by the Victorian Parliament still, in order that it may become an Act,requires the assent of the Crown. The Government of the Commonwealth possessesno power of putting a veto on bills passed by the Victorian Parliament. Theright of appeal from a Court of Victoria to the English Privy Council stands,in most matters at any rate, substantially where it did before the passing ofthe Australian Commonwealth Act, except indeed that there is an alternativeright of appeal to the High Court of Australia, for "the
116 Constitution, ss. i, 58, 59, and 128.
117 See Constitution, ss. 71, 73, 74.
Constitution grants a new right of appeal from the State Courts to theHigh Court, but does not take away the existing right of appeal from the StateCourts to the Privy Council, which therefore remains unimpaired."118
The peculiarities of Australian federalism receive illustration from acomparison between the constitution of the Canadian Dominion119 andthe constitution of the Australian Commonwealth.
The Dominion is from one point of view more, and from another point ofview less, directly subject to the control of the Imperial Parliament than isthe Commonwealth. The Dominion is more completely subject than theCommonwealth, because the greater part of the Canadianconstitution120 can be amended only by an Act of the ImperialParliament, whilst the Australian constitution can be amended by the people ofthe Commonwealth; this distinction, it is well to add, sounds more importantthan it is in reality, since we may feel morally certain that the ImperialParliament would introduce any amendment into the constitution of the Dominionwhich was deliberately desired by the majority at once of the people and of the
118 Quick and Garran, Annotated Constitution, p. 738. Thus anappeal lies from the Supreme Court of each of the States to the Privy Councilfrom any decision of their Courts; as of right in circ*mstances defined in theseveral instruments constituting the Courts; by special leave from the PrivyCouncil in all cases without exception. This rule applies to the exercise ofany jurisdiction, whether State or federal, vested in the State Courts, but theState Courts have not full federal jurisdiction. From their power are exceptedall cases involving the relation inter se of the States, and the Statesand the Commonwealth.
Appeals lie also from the State Courts to the High Court of Australia inmatters both of State and federal jurisdiction on terms defined in theJudicature Act, 1903, of the Commonwealth Parliament. The appellant has ofcourse the choice of appeal. There is nothing to prevent an appeal from suchCourts to decide whether any particular case falls under sec. 74 of theconstitution or not. Nor is there any mode of preventing contradictorydecisions on matters other than questions arising as to the limits inter seof the constitutional powers of the Commonwealth and those of any State orStates, or to the limits inter se of the constitutional powers of anytwo or more States which cannot reach the Privy Council. The High Court furtheris not bound to accept the rulings of the Privy Council as superior to its ownexcept in those cases where an actual appeal is successfully brought not fromthe Superior Court of a State, but from the High Court to the Privy Council.
119 See Munro, Constitution of Canada.
120 But certain important though limited powers are under theconstitution itself, i.e. the British North America Act, 1867, given tothe Dominion Parliament and to the Provincial legislatures, enabling them fromtime to time to amend their constitutions (Munro, Constitution of Canada,p. 229). See e.g. B. N. A. Act, 1867, ss. 35, 41, 45, 78, 83, 84.
provinces of the Dominion. The Dominion of Canada, on the other hand, isless subject to the Imperial Parliament than is the Commonwealth, because theProvinces of the Dominion are in a sense less directly connected with theImperial Government and Parliament than are the States of the Commonwealth.
Here however we come across the most important distinction betweenCanadian federalism and Australian federalism, namely, the difference of therelation of the federal power to the States, or, as in the case of Canada theyare called, the Provinces, of the federation. The Dominion possesses all theresiduary powers which are not under the Constitution conferred exclusivelyupon the Provinces; the Commonwealth possesses only those powers which areconferred upon it by the Constitution, whilst all the residuary powers notconferred upon the Commonwealth belong to the States.
The government of the Dominion, again, can exercise very considerablecontrol over the legislation of the Provincial legislatures and over theadministration of the Provinces; the government of the Dominion can in allcases put a veto upon laws passed by the Provincial Parliaments; the governmentof the Dominion appoints the judges of the State Courts; the government of theDominion, lastly, can appoint and dismiss the Lieu tenant-Governor of anyProvince, who therefore is neither an Imperial official nor a Provincialofficial, but a Dominion official.
NoteX
MARITAL LAW IN ENGLAND DURING TIME OF WAR ORINSURRECTION121
The question for our consideration is, on what principle, and withinwhat limits, does armed resistance to the authority of the Crown, either on thepart of an invading army, or on the part of
121 See Law Quarterly Review, xviii., Holdsworfh, Martial LawHistorically Considered, pp. 117-132; Richards, Martial Law, ibid.pp. 133-142; Pollock, What is Martial Law? ibid. pp. 152-158; Dodd,TI-ieCaseofMarais, ibid, pp. 143-151. The Case of Ship Money,381. Tr. 826; Wall's Case, 28 St. Tr. 51; Ex parte D. F. Marais[1902], A. C. 109; Forsyth, Cases and Opinions, ch. vi. p. 188;Clode, Military Forces of the Crown, ii. ch. xviii.
rebels or rioters, afford a legal justification for acts done in Englandby the Crown, its servants, or loyal citizens, which, but for the existence ofwar or insurrection, would be breaches of law?
In considering this question two preliminary observations must be bornein 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 MilitaryLaw, i.e. the rules contained in the Army Act and the Articles of Warfor 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 governthe action of an English General and his soldiers when carrying on war in aforeign country, or in their treatment of foreign invaders of England; it hasno reference to transactions taking place out of England, or to the law of anyother country than England. It does not refer, e.g., to the law ofScotland 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 Englishlaw that a British subject must be presumed to possess at all times in Englandhis ordinary common-law rights, and especially his right to personal freedom,unless it can be conclusively shown, as it often may, that he is under givencirc*mstances deprived of them, either by Act of Parliament or by somewell-established principle of law. This presumption in favour of legality is anessential part of that rule of law122 which is the leading featureof English institutions. Hence, if any one contends that the existence of a warin England deprives Englishmen of any of their common-law rights, e.g.by establishing a state of martial law, or by exempting military officersfrom the jurisdiction of the civil Courts, the burden of proof falls distinctlyupon the person putting forward this contention.
Ex parte Milligan (Am.), 4 Wall. 2, and Thayer, Cases onConstitutional Law, ii. p. 2376. This, and the other American cases onmartial law, though not authorities in an English Court, contain an expostionof the common law in regard to martial law which deserves the most carefulattention.
See also Note IV., Right of Self-Defence; Note V., Right of PublicMeeting; Note VI., Soldiers and Unlawful Meeting, ante. 122 See chap,iv., ante.
Our topic may be considered under three heads; first, the nature ofmartial law; secondly, the inferences which may be drawn from the nature ofmartial law; thirdly, certain doctrines with regard to martial law which areinconsistent with the view propounded in this note.
NATURE OF MARTIAL LAW
"Martial law," in the sense in which the expression is here used, meansthe power, right, or duty of the Crown and its servants, or, in other words, ofthe Government, to maintain public order, or, in technical language, the King'speace, at whatever cost of blood or property may be in strictness necessary forthat purpose. Hence martial law comes into existence in times of invasion orinsurrection when, where, and in so far as the King's peace cannot bemaintained by ordinary means, and owes its existence to urgent and paramountnecessity.123 This power to maintain the peace by the exertion ofany amount of force strictly necessary for the purpose is sometimes describedas the prerogative of the Crown, but it may more correctly be considered, notonly as a power necessarily possessed by the Crown, but also as the power,right, or duty possessed by, or incumbent upon, every loyal citizen ofpreserving or restoring the King's peace in the case, whether of invasion or ofrebellion or generally of armed opposition to the law, by the use of any amountof force whatever necessary to preserve or restore the peace. This power orright arises from the very nature of things. No man, whatever his opinions asto the limits of the prerogative, can question the duty of loyal subjects toaid, subject to the command of the Crown, in resistance, by all necessarymeans, to an invading army.124 Nor can it be denied that acts,otherwise tortious, are lawful when necessary for the resistance ofinvaders.125
123 See Kent, Comm. i. p. 341, and opinion of Sir John Campbelland Sir R. M. Rolfe, Forsyth, Opinions on Constitutional Law, pp. 198,199.
124 See especially the Case of Ship Money, 3 St. Tr. 860, 905,974, 975, 1011-1013, 1:[34' 49, 1162, and 1214.
125 See i Dyer, 3$).
When enemies come against the realm to the sea coast, it is lawful tocome upon 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 of therealm, as appears 8 Ed. IV. 23. And in such case or such extremity they may digfor gravel for the making of bulwarks: for this is for the public, and everyone hath benefit by it. ... And in this case the rule is true, Princeps etrespublica exjusta causa possunt rem meam auferre.126
So to the same effect counsel for the defence in the Case of ShipMoney.
My Lords, in these times of war I shall admit not only His Majesty, butlikewise every man that hath power in his hands, may take the goods of anywithin the realm, pull down their houses, or burn their corn, to cut offvictuals from the enemy, and do all other things that conduce to the safety ofthe kingdom, without respect had to any man's property.127
And though these authorities refer, as is worth noticing, tointerferences with rights of property and not to interferences with personalfreedom, between which there exist considerable differences, it will not (it issubmitted) be disputed that, in case of invasion, a general and his soldiersacting under the authority of the Crown may lawfully do acts which wouldotherwise be an interference with the personal liberty, or even, underconceivable circ*mstances, which may cause the death of British subjects, ifthese acts are a necessary part of military operations. The point to be bornein mind is that the power to exercise martial law, which is not ill-describedby an expression known to the American Courts, viz. the "war power," as itoriginates 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. Rolfethat "martial law is merely a cessation from necessity of all
126 12 Rep. 12.
127 Case of Ship Money, 3 St. Tr. 826, 906. Compare especiallythe language of Holborne in the same case at p. 975, and language of Buller,J., in British Cast Plate Manufacturers v. Meredith, 4!. R. at p.797.
128 See especially opinion of Henley and Yorke, Forsyth, pp. 188, 189;opinion of Hargrave, ibid. pp. 189, 190; opinion of Sir John Campbelland Sir R. M. Rolfe, ibid. pp. 198, 199.
municipal law, and what necessity requires it justifies";129and this description of the circ*mstances which justify martial law alsoimplies the limits within which it is justifiable; these have been stated withtruth, if not with the precise accuracy of legal argument, by Sir JamesMackintosh.
The only principle on which the law of England tolerates what is calledMartial Law is necessity; its introduction can be justified only by necessity;its continuance requires precisely the same justification of necessity; and ifit survives the necessity on which alone it rests for a single minute, itbecomes instantly a mere exercise of lawless violence. When foreign invasion orCivil War renders it impossible for Courts of Law to sit, or to enforce theexecution of their judgments, it becomes necessary to find some rude substitutefor them, and to employ for that purpose the Military, which is the onlyremaining 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. 13°
The existence of martial law thus understood, taken in combination withthe rules of the common law as to the duty of loyal subjects, gives very wideauthority in England to all persons, and of course above all to a generalengaged in repelling an invasion. He holds the armed forces completely underhis control; they are governed by military law;131 so too are allcitizens who, though not in strictness soldiers, are persons subject tomilitary law; and in this connection it must be remembered that the King andhis servants have a right to call for the help of every loyal subject inresisting an invasion,132 whence it follows that the number ofpersons subject to military law may be greatly, indeed almost indefinitely,increased. A general again is dearly entitled to use or occupy any land whichhe 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 anyother property which is required for the conduct of the war. It is
129 Forsyth, p. 201.
130 Cited Qode,Mi7< tory Forces oftheCrown, ii.p. 486.
131 See chaps, viii. and ix., ante.
132 See Case of Ship Money, 3 St. Tr. 826, 975.
again his right, and indeed his duty, when the necessity arises, toinflict instant punishment upon, and even, if need be, put to death, personsaiding and abetting the enemy or refusing such aid to the English army as canfairly be required of them. It is indeed difficult to picture to one's self anylegitimate 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 toobe noted that what is true of a general holds good of every loyal subjectaccording 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 whois helping to resist an invader. Real obvious necessity in this case not onlycompels but justifies conduct which would otherwise be wrongful or criminal. Tothis add the consideration, which has been strongly insisted upon by severalable writers, that the conditions of modern warfare, such as the existence ofthe telegraph, whereby acts done, e.g., in London may affect militaryoperations, e.g., in Northumberland, greatly extend the area ofnecessity, and may, conceivably at least, make it legally allowable, when waror armed insurrection exists in the north of England, to interfere summarilyand without waiting for legal process with the freedom of persons residing inLondon or Bristol. However this may be, it is dear that the existence of thenecessity which justifies the use of so-called martial law must depend on thecirc*mstances 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 of Englishcitizens during a period of war or insurrection, does however place a very reallimit of the lawful exerdse of force by the Crown or by its servants. Thepresence of a foreign army or the outbreak of an insurrection in the north ofEngland, may conceivably so affect the state of the whole country as to justifymeasures of extra-legal force in every part of England, but neither war norinsurrection in one part of the country prima fade suspends the actionof the law in other parts thereof. The fact that the Pretender's army hadadvanced with unbroken success to Derby did not deprive the citizens of Londonof the ordinary rights of British subjects. No one has ever suggested that itwould have justified the summary execution at Tyburn of an Eng-
lishman there found guilty of treason by a court-martial. It is not easyto believe that, without a breach of the law of England, an Englishmanimprisoned in London on a charge of high treason could have been taken to apart of the country where in 1745 war was raging, in order that he might therebe tried and executed under the authority of a court-martial.133 Nordoes the consideration that the summary execution of rebels, whose crimes couldbe punished by the ordinary course of law, may check the spread of treason,show that their execution is necessary or legal. We need not, moreover, confineour observation to cases of punishment. It is easy to imagine circ*mstancesunder which the arrest and imprisonment on suspicion of persons who are notguilty, or cannot be proved guilty of crime, may be salutary and expedient, butsuch arrest or imprisonment cannot be legally justified unless it be a matterof necessity.134 If it be urged, that the respect due in England tothe ordinary law of the land places restrictions which may be inconvenient oreven noxious on the exercise of the authority of the Crown and its servants,the truth of the observation may be admitted. The reply to it is twofold:first, that the maintenance of the legal rights of citizens is itself a matterof the highest expediency; secondly, that whenever at a period of nationaldanger a breach of law is demanded, if not by absolute necessity, yet byconsiderations of political expediency, the lawbreaker, whether he be ageneral, or any other servant of the Crown, who acts bona fide andsolely with a view to the public interest, may confidently count on theprotection of an Act of Indemnity.
Nor is it irrelevant at this point to note the striking analogy betweenthe right of an individual to exercise force, even to the extent of causingdeath, in self-defence, and the right of a general or other loyal citizen toexercise any force whatever necessary for the defence of the realm. In eithercase the right arises from necessity. An indi-
133 If the language in the Charge of Blackburn, J., Reg. v.Eyre, p. 84, be cited in support of the possible legality of such atransaction, it must be remembered that Blackburn's hypothetical apology forGovernor Eyre was based on certain statutes passed by the legislature ofJamaica, and that the whole tendency of the Charge of co*ckburn, C. J., inReg. 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.
vidual may use any amount of force necessary to avert death or grievousbodily harm at the hands of a wrongdoer,135 but, if he kills aruffian, he must to justify his conduct show the necessity for the forceemployed in self-protection. So a general, who under martial law imprisons orkills British subjects in England, must, if he is to escape punishment, justifyhis conduct by proving its necessity. The analogy between the two cases is notabsolutely complete, but it is suggestive and full of instruction.
Observe, further, that the principle which determines the limits ofmartial law is the principle which also determines the rights and duties ofmagistrates, of constables, and of loyal citizens generally when called upon todisperse or prevent unlawful assemblies or to suppress a riot. No doubt thedegree and the area of the authority exercised by a general when resisting aninvading army is far greater than the degree and the area of the authorityexercised by a mayor, a magistrate, or a constable when called upon to restorethe peace of a town disturbed by riot, but the authority though differing indegree has the same object and has the same source. It is exercised for themaintenance of the King's peace; it is justified by necessity. So true is this,that, when you need to fix the limits of martial law, you are compelled tostudy the case otRex v. Pinney,136 which refers not tothe power and authority of a general in command of soldiers, but to the duty ofthe 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 commonfeatures. The legal right, e.g. of a general or of a mayor, to overridethe ordinary law of the land is, in the first place, always correlative to hislegal duty to do so. Such legal right or duty, in the second place, alwayslasts so long, and so long only, as the circ*mstances exist which necessitatethe use of force. Martial law exists only during time of war; the right of amayor 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 actuallytaken place.
135 See App., Note IV., The Right of Self-Defence, p. 341, ante.
136 3 St. Tr. (n. s.) 11, with which compare Blackburn's Charge in R.v. Eyre, pp. 58, 59.
The justification and the source of the exercise in England ofextraordinary 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 law137 follow four conclusions:
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 existsat 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 theCourts in the same way as any other such question.139
According, indeed, to a number of old and respectable authorities, astate of war cannot exist, or, in other words, a state of peace always doesexist when and where the ordinary Courts are open. But this rule cannot, itwould seem, be laid down as anything like an absolute principle of law, for thefact that for some purposes some tribunals have been permitted to pursue theirordinary course in a district in which martial law has been proclaimed, is notconclusive proof that war is not there raging. 14° Yet the oldmaxim, though not to be accepted as a rigid rule, suggests, it is submitted, asound principle. At a time and place where the ordinary civil Courts are open,and fully and freely exercise their ordinary jurisdiction, there exists,presumably, a state of peace, and where there is peace there cannot be martiallaw.
If, in foreign invasion or civil war, the Courts are actually closed,and it is impossible to administer criminal justice according to law, then, onthe theatre of active military operations, where war really prevails, there isa necessity to furnish a substitute for the civil authority, thus overthrown,to preserve the safety of the army and society; and as no power is left but the
137 co*ckburn's Charge, Reg. v. Nelson, p. 85.
138 Compare Ex parte D. F. Marais [1902], A. C. 109; Ex parteMilligan, 4 Wall. 2 (Am.).
139 Whether the Courts may not take judicial notice of the existence ofa state of war?
140 Ex parte D. F. Marais [1902], A. C. 109.
military, it is allowed to govern by martial rule until the laws canhave their free course. As necessity creates the rule, so it limits itsduration; for, if this government is continued after the Courts are reinstated,it is a gross usurpation of power. Martial rule can never exist where theCourts are open, and in the proper and unobstructed exercise of theirjurisdiction. It is also confined to the locality of actual war.141
Secondly, the existence of martial law does not in any way dependupon the proclamation of martial law.
The proclamation of martial law does not, unless under some statutoryprovision, add to the power or right inherent in the Government to use forcefor the repression of disorder, or for resistance to invasion. It does notconfer upon the Government any power which the Government would not havepossessed without it. The object and the effect of the proclamation can only beto give notice, to the inhabitants of the place with regard to which martiallaw is proclaimed, of the course which the Government is obliged to adopt forthe purpose of defending the country, or of restoringtranquillity.142
Thirdly, the Courts have, at any rate in time of peace, jurisdictionin respect of acts which have been done by military authorities and othersduring 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, whetherthere was a state of war at a given time and place, is a question offact."144
The truth of this statement of the law is almost self-evident. Asues X in the High Court for assault and for false imprisonment; Xjustifies the alleged assault on the ground that X was at the time of the actcomplained of the colonel of a regiment, and that the alleged assault was thearrest and imprisonment of A by X under the orders, say, of theCommander-in-chief, during a time of war and after the proclamation of martiallaw. The defence may or may not be good, but it is
141 Ex parte Milligan, 4 Wall. 2; Thayer, Cases onConstitutional Law, partiv. p. 2390.
142 See opinion of Campbell and Rolfe, Forsyth, p. 198.
143 See co*ckburn's Charge, Reg. v. Nelson; Blackburn'sCharge, Reg. v. Eyre; Ex parte Milligan, 4 Wall, 2; and compareWall's Case, 28 St. Tr. 51. Wright v. Fitzgerald, 27 St.Tr. 759.
144 Sir F. Pollock, What is Martial Law? L. Q. R. xviii. pp. 156,157.
certain that the Courts have, at any rate after the restoration ofpeace, 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 Awas arrested, though it is quite possible that the existence of a state ofwar may be a fact of which the Courts take judicial notice. Expressions,indeed, have been used in a recent case145 which, if taken alone,might seem to assert that the ordinary Courts have no jurisdiction in respectof acts which have been done by military authorities in time of war. But thevery width of the language used by the Privy Council in Ex parte D. F.Marais warns us that it must be limited to the circ*mstances of theparticular case. It does not necessarily assert more, and as regardstransactions taking place in England, cannot be taken to mean more than thatthe Courts will not, as indeed they in strictness cannot, interfere with actualmilitary operations, or, whilst war is actually raging, entertain proceedingsagainst military men and others for acts done under so-called martial law. Thejudgment of the Privy Council, in short, whatever the application of itsprinciples to England, asserts nothing as to the jurisdiction of the Courtswhen peace is restored in respect of acts done during time of war, and eminentlawyers have held that even in time of war the exercise of jurisdiction by theordinary Courts is rather rendered impossible than superseded.
The question, how far martial law, when in force, supersedes theordinary tribunals, can never . . . arise. Martial law is stated by Lord Haleto be in truth no law, but something rather indulged than allowed as a law, andit can only be tolerated because, by reason of open rebellion, the enforcing ofany other law has become impossible. It cannot be said in strictness tosupersede the ordinary tribunals, inasmuch as it only exists by reasonof those tribunals having been already practically superseded.146
Fourthly, the protection of military men and others against actionsor persecutions in respect of unlawful acts done during a time of war, bonafide, and in the service of the country, is an Act ofIndemnity.147
145 Exparte D. F. Marais [1902,] A. C. 109, 114, 115, judgment ofPrivy Council.
146 Joint opinion of Sir J. Campbell and Sir R. M. Rolfe, cited Forsyth,p. 199.
147 See pp. 10, 142, ante.
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 individualsto whom the statute applies from liability for having broken the law. Statutesof this description have been invariably, or almost invariably, passed afterthe determination of a period of civil war or disturbance, e.g. afterthe Rebellions of 1715 and of 1745,148 and their very object hasbeen to protect officials and others who, in the interest of the country, havein a time of danger pursued an illegal course of conduct, e.g. haveimprisoned citizens whom they had no legal authority to imprison. For ourpresent purpose it is absolutely essential to appreciate the true character ofan Act of Indemnity. Such a statute has no application to conduct which,however severe, is strictly lawful. A magistrate who, under propercirc*mstances, causes an unlawful assembly to be dispersed by force, or anofficer who, under proper circ*mstances, orders his troops to fire on a mob andthereby, in dispersing the mob, wounds or kills some of the crowd, neither ofthem require to be indemnified. They are sufficiently protected by thecommon-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 a constable, on the other hand, who, whether intime of war or in time of peace, does without distinct legal justification, anyact which injures the property or interferes with the liberty of an Englishman,incurs the penalties to which every man is liable who commits a breach of thelaw. The law-breaker's motives may be in the highest degree patriotic, hisconduct may be politically sagacious, and may confer great benefit on thepublic, but all this will not, in the absence of legal justification, save himfrom liability to an action, or, it may be, to a prosecution; he needs for hisprotection an Act of Indemnity. On this point note the words of a judge of thehighest reputation, who was by no means inclined to minimise the authority ofthe 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 is
148 See Qode, Military Forces of the Crown, ii. pp. 164, 165;iGeo. I. St. 2, c. 39, and igGeo. II. c. 20.
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 himby law, so that it could never under any state of circ*mstances have been hisduty to do it, he is responsible according to the quality of that act; and evenif the doing of that illegal act was the salvation of the country, that, thoughit might be a good ground for the Legislature afterwards passing an Act ofIndemnity, would be no bar in law to a criminal prosecution; that is, if he hasdone something clearly beyond his power. But if the act which he has done isone which, in a proper state of circ*mstances, the officer was authorised todo, so that in an extreme case, on the principle laid down in R. v. Pinney,he might be criminally punished for failure of duty for not doing it, thenthe case becomes very different.149
This passage from Blackburn's charge suggests further the proper answerto an objection which is sometimes raised against the view of martial lawmaintained 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 realityarise. The apparent or alleged unreasonableness of the law is created by theambiguity of the word duty, and by confusing a man's "legal duty" with his"moral duty." Now, for the non-performance of a man's legal duty, he may, ofcourse, be punished, but for the performance of a legal duty he needs no Act ofIndemnity. For the performance, on the other hand, of any moral duty, which isnot a legal duty, a man may undoubtedly, if he thereby infringes upon therights of his fellow-citizens, expose himself to punishment of one kind oranother, and may therefore need an Act of Indemnity to protect him from theconsequences of having done what is legally wrong, though, under the peculiarcirc*mstances of the case, morally right. But then, for the non-performance ofa merely moral duty, he will not incur the risk of punishment. If the Mayor ofBristol omits, by the use of the necessary force, to put down a riot, thisomission undoubtedly exposes him to punishment, since he neglects to per-
149 Blackburn's Charge, Reg. v. Eyre, p. 58.
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 topunishment, and needs no Act of Indemnity for his protection. If, on the otherhand, at a period of threatened invasion or rebellion, a magistrate, withoutany legal authority, arrests and imprisons on suspicion a number of personswhom he holds to be disloyal, he may be performing a moral duty, and, if hisview of the state of things turns out right, may have rendered a great serviceto the country; but he assuredly needs an Act of Indemnity to protect him fromactions for false imprisonment. But, and this is the point to note, if ourmagistrate be a man of more prudence than energy, and omits to arrest men whomex hypothesi he has no legal right to arrest, his conduct may incur theblame of patriots, but cannot bring him before the Courts. A man, in short, maybe punished for having omitted to do an act which it is his legal duty toperform, but needs no Act of Indemnity for having done his legal duty. A man,on the other hand, who does a legal wrong, whilst performing a moral which isnot a legal duty does require an Act of Indemnity for his protection, but thena man will never incur punishment for the simple omission to perform a merelymoral duty.
OTHER DOCTRINES WITH REGARD TO
MARTIAL LAW
In opposition to the view of martial law upheld in this treatise, whichmay conveniently be termed the "doctrine of immediate necessity," three otherdoctrines are, or have been maintained. Of these the first bases the use ofmartial law on the royal prerogative; the second on the immunity of soldiersfrom liability to proceedings in the civil Courts as contrasted with themilitary Courts for any act bond fide done in the carrying out ofmilitary operations; and the third (which extends very widely the meaning ofthe term necessity) on political necessity or expediency.
The Doctrine of the Prerogative
It is sometimes alleged, or implied, that the Crown may, by virtue ofthe prerogative, in time of war proclaim martial law, and suspend
or override the ordinary law of the land, and this view is supposed toderive support from the consideration that the Petition of Right does notcondemn martial law in time of war.
The fatal objection to this doctrine, in so far as it means anythingmore than the admitted right of the Crown and its servants to use any amount offorce necessary for the maintenance of the peace or for repelling invasion, isthat it utterly lacks legal authority, whilst to the inference suggested fromthe language of the Petition of Right no better reply can be given than thatsupplied by the words of Blackburn, namely, "It would be an exceedingly wrongpresumption to say that the Petition of Right, by not condemning martial law intime of war, sanctioned it," though, as he cautiously adds, "it did not interms condemn it."150
The Doctrine of Immunity151
This doctrine, it is conceived, may be thus stated. An officer incommand of an army must of necessity, in carrying out military operationsagainst an invader, override ordinary rights whether of property or of personalliberty. Decisive authorities may be produced152 in support of theproposition that he may lawfully violate rights of property, e.g. can,without incurring any legal liability, do acts which amount to trespass. Butall legal rights stand on the same level; and if an officer can lawfully occupyan Englishman's land, or destroy his property, he can also lawfully, whilstbona fide carrying on war against a public enemy, imprison Englishmen,inflict punishment upon them, or even deprive them of life, and, in short,interfere with any of the rights of Englishmen in so far as is required for thecarrying out of military operations. The soundness of this view is, it isurged, confirmed by the admitted inability of a civil Court to judge of the duedischarge of military duties, and by the consideration that no
150 Blackburn's Charge, R. v. Eyre, p. 73, with whichshould be read pp. 69-73, which suggest the reasons why the authors of thePetition 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. ErieRichards' Martial Law, L. Q. R. xviii. p. 133.
152 See pp. 399, 400, ante.
Court would, or in fact could, during a period of warfare interfere witha general's mode of conducting the war, or with any act done by him or bysoldiers acting under his orders, whence, as it is alleged, it follows thatacts bona fide done in the course of military operations fall outsidethe jurisdiction of the ordinary Courts, not only during war time, but alsoafter the restoration of peace.153 To put this doctrine ofimmunity in what appears to me to be its most plausible form, the outbreak ofwar is to be regarded as a suspension of the ordinary law of the land, asregards, at any rate, officers in command of troops and engaged in resistinginvaders. On this view a general would occupy, during the conduct of war, aposition analogous to that of a judge when engaged in the discharge of hisjudicial functions, and no action or other proceeding in the Courts of CommonLaw would lie against an officer for acts bona fide done as a part of amilitary operation, just as no action lies against a judge for acts done indischarge 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 theland or other property of Englishmen, are merely applications of the principlethat a loyal citizen may do any act necessary for the maintenance of the King'speace, and especially for the defeat of an invading army. But for the broadinferences based on this fact and similar facts there appears to exist nosufficient ground.
In support of the doctrine of immunity there can be produced no directauthority, whilst it appears to be absolutely inconsistent, not only with thecharge of co*ckburn, C.J., in Rex v. Nelson, but also with the principlesor assumptions which are laid down or made in the charge of Blackburn,}., inRex v. Eyre. The doctrine, further, is really inconsistent with theconstant passing of Acts of Indemnity with a view to covering deeds done in thecourse of civil war or of rebellion. Nor is it easy to follow the line ofreasoning by which it is assumed that if the Courts have no power to interferewith the acts of a general or his soldiers whilst war is raging, the Courtshave no jurisdiction to
153 See L. Q. R. xviii. p. 140.
entertain during peace proceedings in respect of acts done by a generaland his soldiers during a time of war. Here, at any rate, we apparently comeinto contradiction with some of the best known facts of legal history. TheCourts, not only of England, but also of the United States, have neverentertained the least doubt of their jurisdiction to inquire into the characterof any act done during war time which was prima fade a breach of law.
The Doctrine of Political Necessity or Expediency154
The existence of war or invasion justifies it is maintained byeminent lawyers, whose opinion is entitled to the highest respect theuse 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 loyalcitizen, is legally justified in doing any act, even though prima fade atort or a crime, as to which he can prove to the satisfaction of a jury that hedid it for the public service in good faith, and for reasonable and probablecause. This doctrine, which for the sake of convenience I term the doctrine ofpolitical expediency, manifestly justifies from a legal point of view many actsnot dictated by immediate necessity. The scope thereof may be best understoodfrom an example which I give in the words of its ablest and very learnedadvocate, Sir Frederick Pollock:
An enemy's army has landed in force in the north, and is marching onYork. The peace is kept in London and Bristol, and the Courts are not closed.It is known that evil-disposed persons have agreed to land at several ports forthe purpose of joining the enemy, and giving him valuable aid and information.Bristol is one of the suspected ports. What shall the Lord Mayor of Bristol do?I submit that it is his plain moral duty as a good citizen (putting aside for amoment 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 therailway traffic, and forbid undesirable passengers to proceed northward, and toexercise a strict censorship and inquisitorial power over letters andtelegrams. All these things are in themselves trespasses (except, probably,forbidding an alien to land); some of them may perhaps be justifiable under thestatutory powers of the Postmaster-General, but summary restraint by way ofprevention must be justified by a common law power
154 See Pollock, What is Martial Law? L.Q.R. xviii. p.162.
arising from necessity, if at all. Observe that I say nothing for thepresent about trial or punishment. The popular (and sometimes official) notionthat martial law necessarily means trial by court-martial has caused muchconfusion. Summary punishment may or may not be necessary. In that respect theMayor'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 willsurely find himself in as much trouble as his predecessor [Mr. Pinney] in thetime of the Bristol riots. And I do not think he will improve his defence bypleading that the peace was still kept in Bristol, and the Courts were open,and therefore he thought he had no power to do anything beyond the ordinaryprocess of law. Nor yet will he mend matters if he says that he was waiting foran Order in Council which was never issued, or never came to his knowledge. Atbest it will be a topic of slight mitigation.155
The objections to a view which at bottom differs essentially from what Ihave termed "the doctrine of immediate necessity" are these: The theory underconsideration rests on little legal authority, except the case otRex v.Pinney;156 but that case, when its circ*mstances are examined,does not justify the inferences apparently grounded upon it. The charge againstMr. Pinney was in substance that, being the magistrate specially responsiblefor the maintenance of order in the town of Bristol, he neglected to take theproper steps to prevent the outbreak of a riot, and after the King's peace hadbeen openly violated by rioters, the prison broken open, and the Bishop'sPalace and other houses burned down, he did not take adequate steps to arrestoffenders or to restore order. It is impossible to imagine a case under whichthere could exist a more urgent and stringent necessity for the use of force inthe restoration of order. If the charges brought by the Crown could have beenmade out, Mr. Pinney would have been guilty of as patent a neglect of duty ascould have been committed by any public official placed in a position of highauthority. That he acted feebly can hardly be doubted; yet, in spite of this,he was, with the apparent 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 whichwere prima fade tortious, but were done by a magistrate on
155 Pollock, What is Martial Law? L. Q. R. xviii. pp. 155, 156.
156 3 St. Tr. (n. s.) 11.
reasonable grounds of public expediency, though lying quite outside thescope of his ordinary authority. How, in short, the case of Mr. Pinney, whichat most establishes only that a magistrate who fails to make due efforts tomaintain the peace is guilty of a crime, can be supposed to justify the actionof the imaginary Mayor of Bristol, who because an invasion is taking placefeels it to be his right or his duty to override, in a town where peaceprevails, all the ordinary rules of the common law, many lawyers will find itdifficult to explain. Still harder will they find it to point out why a mayor,under the circ*mstances so graphically described by Sir Frederick Pollock,should fear that his failure to show despotic energy should expose him to thelegal charges brought against Mr. Pinney. But if Pinney's case does not go farenough to sustain the doctrine of political expediency, I know of no other casewhich can be produced in its support.
This doctrine, however, is open to the further objection, of which itsable advocate recognises the force, that it is inconsistent with the existenceof 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 a measureof prudence and grace. Its office is not to justify unlawful acts ex postfacto, but to quiet doubts, to provide compensation for innocent persons inrespect of damage inevitably caused by justifiable acts which would not havesupported a legal claim.157
The attempt to meet this objection is ingenious, but the endeavour restson a very inadequate description of an Act of Indemnity. Such a statute may nodoubt be in part a measure of prudence and grace, but it is usually far morethan this. The Indemnity Acts, whatever their formal language, which for acentury or so protected Nonconformists from penalties incurred year by yearthrough the deliberate breach of the Test and Corporation Acts, the Acts ofIndemnity passed after the Rebellions of 1715 and of 1745, the Act of Indemnitypassed by the Irish Parliament after the Rebellion of 1798 which was not wide
157 Pollock, What is Martial Law? L. Q. R. xviii. p. 157.
enough to protect Mr. T. Judkin Fitzgerald158 from actionsfor acts of cruelty done by him in the suppression of the Rebellion, thefurther Act finally passed which apparently was wide enough to place him beyondthe reach of punishment, and the Act of the legislature of Jamaica which wassuccessfully pleaded by the defendant in Phillips v. Eyre, were,it is submitted, all of them enactments intended to protect men from theconsequences of a breach of the law. An Act of Indemnity in short is, as isinsisted upon throughout this treatise, the legalisation of illegality, and isconstantly intended to protect from legal penalties men who, though they haveacted in the supposed, or even real discharge of a political duty, have brokenthe law of the land. This is a point on which it is necessary to insiststrongly, for the determination of the question at issue between the supportersof the "doctrine of immediate necessity" and the advocates of the "doctrine ofpolitical necessity," turns upon the answer to the inquiry, What is the truenature of an Act of Indemnity? If such an Act is essentially the legalisationof illegality, the doctrine of political necessity or expediency falls, it issubmitted, to the ground.
Two circ*mstances give an apparent but merely apparent impres-sivenessto the doctrine of political expediency. The first is the paradox involved inthe contention that action on behalf of the State which is morally right may belegally wrong, and., therefore, be the proper object of an Act of Indemnity.This paradox however is, as already pointed out, apparent only, and after allamounts merely to the assertion that a man's ordinary duty is to keep withinthe limits of the law, and that, if he is at any moment compelled, on groundsof public interest, to transgress these limits, he must obtain the condonationof the sovereign power, i.e. the King in Parliament. The second is thecurrent idea that, at a great crisis, you cannot have too much energy. But thisnotion is a popular delusion. The fussy activity of a hundred mayors playingthe part of public-spirited despots would increase tenfold the miseries and thedangers imposed upon the country by an invasion.
158 Wright v. Fitzgerald, 27 St. Tr. 759; Lecky, History ofEngland in Eighteenth Century, viii. pp. 22-27.
Note XI
CONSTITUTION OF THE TRIBUNAL DBSCONFLITSls9
The Conflict Court consists of the following persons:
I. A President, the Minister of Justice (Garde des sceaux).16° He rarely attends, though he may attend, preside, andvote.
II. Eight elected judges, namely:
a. Three judges of the Court of Cassation (Conseillers a laCour de Cassation) elected for three years by their colleagues, i.e.by the judges of the Court of Cassation.
b. Three members of the Council of State (Conseillers d'etaten service ordinaire)161 elected for three years by theircolleagues (i.e. by the Conseillers d'etat en service ordinaire).
c. Two other persons elected by the foregoing six judges of theConflict Court, enumerated under heads a and b.
These two other persons ought in strictness to be elected neither fromthe judges of the Court of Cassation nor from the members of the Council ofState, but they are in general elected one from the Court of Cassation, theother from the Council of State.
These eight persons, who are re-eligible and usually re-elected, or, ifwe include the Minister of Justice, these nine persons, constitute the judgesof the Conflict Court.
Then there are two substitutes (suppleants) elected by the judgescoming under the heads a and b who act only when one of thejudges of the Conflict Court cannot act.
There are further two so-called Commissioners of the Government(Commissaires du Gouvemement)162 appointed for a year by thePresi-
159 See Berthelemy, Traite Elementaire de Droit Administratif (5*ed.), pp. 880, 881; Chardon, UAdministration de la France, p. 411.
160 A Vice-President, who generally presides, is elected by and from theeight elected judges of the Conflict Court.
161 Conseillers d'etat en service ordinaire are permanent membersof the Council of State. They are contrasted with Conseillers en serviceextraordinaire, who are temporary members of the Council, for the dischargeof some special duty. See Berthelemy, p. 126.
162 The name may be misleading. These commissioners are, it is said,absolutely free from
dent of the Republic; the one for a year from the Masters of Requests(Maitres des requetes), who belong to the Council of State, the otherfrom the class of public prosecutors, belonging to the Court of Cassation(avocats generaux a la Cour de Cassation).
NoteXII
PROCEEDINGS AGAINST THE CROWN
Technically it is impossible under English law to bring an actionagainst the Crown, and this impossibility is often said to be based on theprinciple that the Crown can do no wrong. Hence well-informed foreign critics,and perhaps some Englishmen also, often think that there is in reality noremedy against the Crown, or in other words, against the Government, forinjuries done to individuals by either,
1. The breach of a contract made with the Crown, or with aGovernment department, or
2. A wrong committed by the Crown, or rather by its servants. This ideais however in substance erroneous.
AS TO BREACH OF CONTRACT
For the breach of a contract made with a Government department on behalfof the Crown a Petition of Right will in general lie, which though in form apetition, and requiring the sanction of the Attorney-General (which is neverrefused), is in reality an action.
Many Government departments, further, such for instance as theCommissioners of Works, who have the general charge of public buildings, arecorporate bodies, and can be sued as such.
Contracts made with Government departments or their representatives aremade on the express or implied terms of payment out of monies to be provided byParliament, but the risk of Parliament not providing the money is not one whichany contractor takes into consideration.
pressure by the Government. They are representatives of the law, theyare not strictly judges, the opinions which they express often disagree withthe opinion of the representative of the Government, viz. the prefect, who hasraised the conflict, i.e. has brought before the Court the questionwhether a judicial court has exceeded its jurisdiction by dealing with aquestion of administrative law.
AS 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 in thecourse of his service is an action against the person who has actually done ortaken part in doing the wrongful act which has caused damage. But, speakinggenerally, no injustice results from this, for the Crown, i.e. theGovernment, usually pays damages awarded against a servant of the State for awrong done in the course of his service. Actions, for instance, have beenconstantly brought against officers of the Royal Navy for damage done bycollisions with other ships caused by the negligence of such officers. Thedamage recovered against the officer is almost invariably paid by theAdmiralty.
It would be an amendment of the law to enact that a Petition of Rightshould lie against the Crown for torts committed by the servants of the Crownin the course of their service. But the technical immunity of the Crown inrespect of such torts is not a subject of public complaint, and in practiceworks little, if any, injustice.
It should be further remembered that much business which in foreigncountries is carried on by persons who are servants of the State is in Englandtransacted by corporate bodies, e.g. railway companies, municipalcorporations, and the like, which are legally fully responsible for thecontracts made on their behalf or wrongs committed by their officials orservants in the course of their service.163
Note XIII
PARLIAMENT ACT, 1911
[t & 2 Geo. 5.01.13.]
An Act to make provision with respect to the powers of the House ofLords in relation to those of the House of Commons, and to limit the durationof Parliament.
[i8th August, 1911.]
163 See Lowell, The Government of England, ii. pp. 490 494.
Whereas it is expedient that provision should be made for regulating therelations between the two Houses of Parliament:
And whereas it is intended to substitute for the House of Lords as it atpresent exists a Second Chamber constituted on a popular instead of hereditarybasis, but such substitution cannot be immediately brought into operation:
And whereas provision will require hereafter to be made by Parliament ina measure effecting such substitution for limiting and defining the powers ofthe new Second Chamber, but it is expedient to make such provision as in thisAct appears for restricting the existing powers of the House of Lords:
Be it therefore enacted by the King's most Excellent Majesty, by andwith the advice and consent of the Lords Spiritual and Temporal, and Commons,in this present Parliament assembled, and by the authority of the same, asfollows:
i. (i) If a Money Bill, having been passed by the House ofCommons, and sent up to the House of Lords at least one month before the end ofthe session, is not passed by the House of Lords without amendment within onemonth after it is so sent up to that House, the Bill shall, unless the House ofCommons direct to the contrary, be presented to His Majesty and become an Actof Parliament on the Royal Assent being signified, notwithstanding that theHouse of Lords have not consented to the Bill.
(2) A Money Bill means a Public Bill which in the opinion of the Speakerof the House of Commons contains only provisions dealing with all or any of thefollowing subjects, namely, the imposition, repeal, remission, alteration, orregulation of taxation; the imposition for the payment of debt or otherfinancial purposes of charges on the Consolidated Fund, or on money provided byParliament, or the variation or repeal of any such charges; supply; theappropriation, receipt, custody, issue or audit of accounts of public money;the raising or guarantee of any loan or the repayment thereof; or subordinatematters incidental to those subjects or any of them. In this subsection theexpressions "taxation," "public money," and "loan" respectively do not includeany taxation, money, or loan raised by local authorities or bodies for localpurposes.
(3) There shall be endorsed on every Money Bill when it is sent up tothe House of Lords and when it is presented to His Majesty for assent thecertificate of the Speaker of the House of Commons signed by him that it is aMoney Bill. Before giving his certificate, the Speaker shall consult, ifpracticable, two members to be appointed from the Chairmen's Panel at thebeginning of each Session by the Committee of Selection.
2. (i) If any Public Bill (other than a Money Bill or a Billcontaining any provision to extend the maximum duration of Parliament beyondfive years) is passed by the House of Commons in three successive sessions(whether of the same Parliament or not), and, having sent up to the House ofLords at least one month before the end of the session, is rejected by theHouse of Lords in each of those sessions, that Bill shall, on its rejection forthe third time by the House of Lords, unless the House of Commons direct to thecontrary, be presented to His Majesty and become an Act of Parliament on theRoyal Assent being signified thereto, notwithstanding that the House of Lordshave not consented to the Bill: Provided that this provision shall not takeeffect unless two years have elapsed between the date of the second reading inthe first of those sessions of the Bill in the House of Commons and the date onwhich it passes the House of Commons in the third of those sessions.
(2) When a Bill is presented to His Majesty for assent in pursuance ofthe provisions of this section, there shall be endorsed on the Bill thecertificate of the Speaker of the House of Commons signed by him that theprovisions of this section have been duly complied with.
(3) A Bill shall be deemed to be rejected by the House of Lords if it isnot passed by the House of Lords either without amendment or with suchamendments 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 upto the House of Lords in the preceding session if, when it is sent up to theHouse of Lords, it is identical with the former Bill or contains only suchalterations as are certified by the Speaker of the House of Commons to benecessary owing to the time which has elapsed since the date of the formerBill, or to represent any amendments which have been made by the House of Lordsin the former
Bill in the preceding session, and any amendments which are certified bythe Speaker to have been made by the House of Lords in the third session andagreed to by the House of Commons shall be inserted in the Bill as presentedfor Royal Assent in pursuance of this section:
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 the amendments in the Bill,and any such suggested amendments shall be considered by the House of Lords,and, if agreed to by that House, shall be treated as amendments made by theHouse of Lords and agreed to by the House of Commons; but the exercise of thispower by the House of Commons shall not affect the operation of this section inthe event of the Bill being rejected by the House of Lords.
3. Any certificate of the Speaker of the House of Commons given underthis Act shall be conclusive for all purposes, and shall not be questioned inany court of law.
4. (i) In every Bill presented to His Majesty under the precedingprovisions of this Act, the words of enactment shall be as follows, that is tosay:
"Be it enacted by the King's most Excellent Majesty, by and with theadvice and consent of the Commons in this present Parliament assembled, inaccordance with the provisions of the Parliament Act, 1911, and by authority ofthe same, as follows."
(2) Any alteration of a Bill necessary to give effect to this sectionshall 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 rights andprivileges of the House of Commons.
7. Five years shall be substituted for seven years as the time fixed forthe maximum duration of Parliament under the Septennial Act, 1715.
8. This Act may be cited as the Parliament Act, 1911.
